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On Wednesday (April 3), Uganda's Constitutional Court gave its seal of approval on the anti-homosexuality law, declaring that the Anti-Homosexuality Act of 2023 complies with the Constitution of Uganda except in only four aspects.

Accordingly, the court dismissed a bid by several activists and lawyers who had sought to overturn the law that was passed by Parliament and assented to by President Yoweri Museveni on May 26, 2023.

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The unanimous decision was made by a panel of five judges led by the Deputy Chief Justice, Richard Buteera (pictured).

The other justices on the panel are Geoffrey Kiryabwire, Muzamiru Kibeedi, Christopher Gashirabake, and Monica Mugenyi.

The petitioners included human rights advocate Nicholas Opiyo, Makerere University Law professors Sylvia Tamale and Dr. Busingye Kabumba, Solome Nakaweesi Kimbugwe, veteran journalist Andrew Mwenda, lawyer Robert Rutaro, and several civil society organizations.

The petition was against the Attorney General, who is the chief legal advisor to Government, and Born-again pastor Martin Ssempa of Makerere Full Gospel Church.

Submissions

In their submissions, the petitioners had asked the court — the second highest court in Uganda — to throw out the anti-homosexual law, arguing that it infringes on the rights and freedoms, including speech and association, of gay people.

They claimed that it is unlawful for the government to criminalize consensual same sex among adults.

The petitioners also argued that the process of enacting the Ant-Homosexuality Act, 2023 without meaningful and adequate public participation was inconsistent with and in contravention of Articles 1,2,8A,20,36,38,79 and objective II (1) of the National Objectives and Directive Principles of the State Policy of the constitution.

They contended that the conduct of the Speaker of Parliament, Anita Among, during the second and third readings of the Anti-Homosexuality Bill, 2023 on March 21 and May 2 last year, amounted to bias and was inconsistent with and in contravention of Article 89(1) and (2) of the constitution.

The petitioners further stated that Sections 1, 2, 3 and 6 of the Anti-Homosexuality Act, 2023, in criminalizing consensual same-sex sexual activity among adults in private, are inconsistent with and in contravention of the right to equality and non-discrimination guaranteed under Articles 20 and 21 (1) and (2) of the constitution.

“Section 4 of the Anti-Homosexuality Act,c2023, in providing for criminal liability of every child below 18 years, is inconsistent with and in contravention of the rights of the child guaranteed under Articles 20, 34, 45, 8A and 287,” read part of the petition.

The petitioners further asserted that Section 9 and 11(1) and (2)(d) of the anti-homosexuality law, by making it an offence for any person to allow and or lease or sub-lease premises to be used for purposes of homosexuality or “activities that encourage homosexuality", is consistent with and in contravention of the principle of legality guaranteed under Articles 20,28(12) and 44(c) of the constitution.

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Response

In rebuttal, the Attorney General, represented by Director of Civil Litigation Martin Mwambustya, asked the court to maintain the anti-homosexuality law, stating that same-sex is a crime.

The Attorney General and Pr Martin Ssempa contended that due to ethical and moral reasons, the law prohibiting same sex marriages and its severe  punishments consented to by President Yoweri Museveni in May, last year, should be saved.

The law imposes capital punishment for some behaviour, including having gay sex when HIV positive, and stipulates a 20-year sentence for “promoting” homosexuality.

 SUMMARY OF COURT'S DECISION 

Here is the summary of the court's decision and its basis:

The Constitutional Court of Uganda has nullified Sections 3(2)(c), 9, 11(2)(d) and 14 of the Anti-Homosexuality Act, 2023 for contravening the Constitution of Uganda, 1995. 

This was in the unanimous judgment delivered today, the 3rd ofApril 2024, by the panel of five justices of the Constitutional Court led by the Deputy Chief Justice in Consolidated Constitutional Petition Nos. 14, 15, 16 & 85 of 2023 Hon. Fox Oywelowo Odoi, Prof. Sylvia Tamale, Advocate Rutaro Robert, Bishop James Lubega Banda & 18 others Vs Attorney General & 3 Others. 

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.

Background

In 2023, the Parliament of Uganda passed the Anti-Homosexuality Act following the public outcry, social and broadcast media discussions and homosexualityvictims’ ‘painful and gruelling stories’ of children and families that were ‘dying insilence’ from the psychological trauma of forced recruitment of children into homosexual acts. 

The Act criminalised homosexuality, its recognition, promotion,financing and normalization.

As soon as the President of Uganda assented to the Anti-Homosexuality law on the 26th of May 2023, four Constitutional Petitions were filed in the ConstitutionalCourt by a total of 22 private citizens and human rights activists challenging virtually all the seventeen sections of the Anti-Homosexuality Act for their allegedcontravention of human rights and freedoms that are guaranteed under the Uganda Constitution, and international human rights instruments to which Uganda is a party.

The Petitions were opposed by the Attorney General of Uganda, Pastor Martin Sempa, Eng. Stephen Langa and the Family Life Network Limited.

Court also did benefit from an amicus brief filed by the Secretariat of the Joint United NationsProgramme on HIV & AIDS (UNAIDS).

In its Judgment, the Constitutional Court upheld the constitutionality of the Anti-Homosexuality Act save the four provisions already mentioned above.

Basis for the court decision

In coming to its decision, the Constitutional Court considered the following:

1. The legislations and judicial decisions from sister jurisdictions that have decriminalised consensual homosexuality between adults in private space.

2. The absence of consensus at the global level regarding non-discrimination based sexual orientation, gender identity, gender expression and sexcharacteristics (SOGIESC). This is reflected in the fact that to date non-discrimination on the basis of the SOGIESC variables has not explicitly found its way into international human rights treaties. 

Instead, it has been ‘vetoed’ by a bloc of resistant (UN) member states that has prevented the adoption of a binding declaration or similar instrument to strengthen protections for LGBTI human rights.

3. The conflict in international human rights law between upholding a universal understanding of human rights and respecting the diversity and freedom of human cultures, with no one culture entirely diminishing the dignities of the other.

4. The conflict between individuals’ right to self-determination, self-perception and bodily autonomy, on the one hand; and the communal or societal right to social, political and cultural self-determination, calling for a delicate balance between individual autonomy and communal interests.

5. The recent developments in the human rights jurisprudence including the decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 U.S. 215 (2022), where the Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to individual autonomy.

6. The uniqueness of Uganda’s Constitution which obliges the courts of law to take into account the country’s socio-cultural norms, values and aspirations when resolving any disputes before them.

7. The Anti-Homosexuality Act being, in general, a reflection of the socio-cultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizen.