By Patrick Turinawe
On August 1, 2014 the Constitutional Court nullified the Anti-homosexuality Act.
The decision has been received with jubilations among the LGBT community, pro-gay activists and many who viewed the law as unconstitutional or unnecessary.
In the same measure, it stirred anger, disillusionment, protests, mistrust of the Courts’ independence and has been shunned by many religious leaders, anti-gay activists, among other sympathisers.
At the centre of this all, is the Constitutional Court comprised of Justices Kavuma, Kasule, Boosa, Mwangutsya and Rubby Aweri Opio who nullified the Act on grounds of procedure irregularities.
The crux of the decision being that Parliament did not have sufficient quorum to pass the Bill into Law.
In order for any Bill to be enacted as Law, Parliament must have two thirds of its members.
In this case, the Court found that on the day Parliament passed the Law, the Speaker did not ascertain whether there was sufficient quorum despite the matter being brought to question.
Well as the petitioners and their sympathisers celebrate and ululate, on the other hand, the Court has been ridiculed and orchestrated as compromised.
At the fore front of this severe assertion have been the clerics and other social leaders. Grave and erroneous comments that: the Judges were corrupted by the gay community, that the judges are pleasing the donor community is not only myopic but also unfortunate.
Some individuals have gone on to call some judges gay or even insinuate that their children are gay. That is ridiculous and aimed at intimidating and blackmailing the judicial officers.
In his press statement in response to the nullification of the law, the Archbishop of Church of Uganda stated that the “court ruling was a big surprise and great disappointment to the Church of Uganda”.
Pastor Sempa a lurid anti-gay activist is quoted to have even purported that “staunch Christian/Muslim judges” such as Remmy Kasule, Faith Mwondah and Geoffrey Kiryabwire had been deliberately left out of the panel, thus influencing the outcome. These unfortunate remarks merely serve as speculative presumptions to taint the image of the jurists.
It is a matter of fact and law that Parliament passed the law without quorum. That was strange to the legitimate procedures of enacting a law.
The court did not deal with the merits of the petition as to whether the provisions of the Anti-homosexuality Act were in contravention of the Constitution.
It dealt with the procedural matter of quorum because that alone had the potential of disposing off the entire petition thereby avoiding wastage of time.
Many have also argued that several laws have also been passed without quorum and why in particular has this law been nullified?
Courts do not initiate court action. Just like in this case, any interested party can petition court that such laws be nullified. Still, it would be imperative to justify that there was no quorum in any case.
On different occasions, the Church and other social leaders have been at the forefront of demanding for the rule of law in Uganda and Judicious administration of Justice.
Ironically, since the decision is not in their favour, they claim that the court was compromised when it laboured to uphold the rule of law.
The rule of law should not be seen in such a way that it favours our interests as we may desire. The role of the court is not to appease parties or follow populist opinions.
It must do its work judiciously and in accordance with the law. Its reasoning is based on the Law, not social prejudices, speculation or conspiracies.
Therefore, the misrepresentations made by clerics among other social leaders should be treated with caution lest they affect the image of the Court and the confidence of the people of Uganda in it.
As Tiffany Madison noted that “when the Rule of Law disappears, we are ruled by the whims of men.” To accept the speculation and misrepresentations orated by social leaders about the nullification of the Anti-Homosexuality Act, would be to denounce the Rule of Law upheld by our Courts.
The author is a lawyer lecturing Law at Kampala International University