Debate is still raging over the Constitutional Court’s ruling upholding the Anti Homosexuality Act (AHA) 2023. The Court consisted of a panel of five justices, led by the Deputy Chief Justice Richard Buteera. The other justices were Geofrey Kiryabwire, Monica Mugenyi, Kibeedi Muzamiru and Christopher Gashirabake. The judges ruled against four consolidated petitions that called the AHA unconstitutional and asked court to nullify it. Petitioners argued that the law violated the right to equality and dignity. The government said the law was made to protect traditional family values and children.
Court declared that AHA complies with the Constitution of Uganda except in only four aspects. “We decline to nullify the Anti-Homosexuality Act 2023 in its entirety, neither do we grant a permanent injunction against its enforcement,” Buteera said on behalf of the panel.
Judges of the constitutional Court Of Uganda
Court agreed with most of the seventeen provisions of the law that the petitioners sought to overturn. This means the strict penalties of death and life imprisonment for aggravated homosexuality and 20-year jail terms for acts related to homosexuality remain in the law. The other offences deemed to facilitate and promote acts of homosexuality result in imprisonment of up to 7 or 10 years upon conviction.
“We, however, declare that Section 3 (2)C, 9, 11 (2)d and 14 of the Anti-Homosexuality Act 2023 violate the right health, privacy and freedom to religion, which rights are respectively recognised in the universal declaration. This petition substantially fails with the following orders: Sections 3 (2)C, 9, 11 (2) d and 14 of the Anti-Homosexuality Act are hereby struck down. Each party bears its own costs. It’s so ordered,” he added.
Sandra .N | Ugandan Activist Photo/courtesy East African Visual Artists
The nullified sections had criminalised the letting of premises for use for homosexual purposes, the failure by anyone to report acts of homosexuality to the Police for appropriate action and the engagement in acts of homosexuality by anyone which results into the other persons contracting a terminal illness.
Court handled consolidated Constitutional Petition Nos. 14, 15, 16 & 85 of 2023 Fox Oywelowo Odoi (West Budama North MP), Prof. Sylvia Tamale, Advocate Rutaro Robert, Bishop James Lubega Banda & 18 others Vs Attorney General & 3 Others
The Constitutional Court said its decision was rooted in other legislations and judicial decisions from sister jurisdictions that have decriminalised consensual homosexuality between adults in private space. According to the court, observance of homosexuality as a human right conflicted with the Ugandan culture generally; in this case, court cited the Constitution which requires them to take into account the socio-cultural norms, values and aspirations. Court noted that the Anti-Homosexuality Act was a reflection of the socio- cultural realities of the Ugandan society, considering that it was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizens.
Disagreement from European Union, petitioners
The European Union in Uganda issued a statement hours later taking exception to the ruling.
“The European Union in Uganda has taken note of the decision by the Constitutional Court of Uganda to uphold the Anti Homosexuality Act 2023, despite declaring some provisions as unconstitutional. The EU restates its position that the AHA is contrary to international human rights law. The EU also regrets the retention of the death penalty to which the EU is opposed in all circumstances,” EU said.
Petitioner Andrew Mwenda seated next to Martin Sempa
They, however, expressed their will to continue fighting for rights of all Ugandans. “The European Union will continue to engage with the Ugandan authorities and civil society to ensure that all Ugandan citizens, regardless of their sexual orientation and gender identity, are protected and treated equally, with dignity and respect”.
When President Yoweri Museveni signed the law in May last year, it attracted sanctions from the World Bank and the US, who deemed it a violation of human rights for the LGBTI community.
The petitioners lead counsel, Nicholas Opiyo, dissented from the unanimous ruling. “We disagree with the findings but look forward to receiving their detailed reasoning and consulting on our next steps,” he posted on X.
Petitioner Dr Busingye Kabumba remarked on his X social media handle: “Not everything in the Constitution is constitutional. Not everything the Constitutional Court decides is correct. The Constitutional Court reached the wrong answer today, based on manifestly problematic (and even dangerous) reasoning”.
Law makers applaud judiciary for not interfering with Parliament work
Deputy Speaker of Parliament Thomas Tayebwa, while chairing the plenary session, appreciated the work of their partner arm of government. “The Court found no fault in the process, procedure, though there are some sections of the law which they nullified; but as leadership of Parliament, we are happy with the outcomes of the process. We thank the judiciary for not interfering with the work of Parliament and allowing us to execute our mandate as given to us by the people of Uganda,” Tayebwa said.
The Deputy Speaker, who did not allow debate on the matter until the attorney general had “internalised” the ruling to “see if the nullified sections can be reinstated or whether he is satisfied as our lead lawyer” was content.
In the mean time, the unsatisfied petitioners have signalled that it is only a matter of time before they storm the supreme court of the land for redress.
