The Constitutional Court on Wednesday April sealed the anti-homosexuality law as it declared that the Anti Homosexuality Act of 2023 complies with the Constitution of Uganda. The five judges led by the Deputy Chief Justice Richard Buteera only nullified four aspects.
The nullified Sections include; 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 on Wednesday April 3, 2024, by the panel of five justices of the Constitutional Court led by the Deputy Chief Justice Richard Buteera in Consolidated Constitutional Petition Nos. 14, 15, 16 & 85 of 2023 Hon. Fox Oywelowo Odoi & 21 others Vs Attorney General & 3 Others.
The other justices on the panel include; Geoffrey Kiryabwire, Muzamiru Kibeedi, Christopher Gashirabake and Monica Mugenyi.
The nullified Sections had criminalized 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 person contracting a terminal illness.
Background
In 2023, the Parliament of Uganda passed the Anti-Homosexuality Act 2023 following the public outcry, social and broadcast media discussions and homosexuality victims’ ‘painful and grueling stories’ of children and families that were ‘dying in silence’ from the psychological trauma of forced recruitment of children into homosexual acts.
The Act criminalized 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 Constitutional Court by a total of 22 private citizens and human rights activists challenging virtually all the seventeen sections of the Anti-Homosexuality Act for their alleged contravention 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 Nations Programme 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 decriminalized consensual homosexuality between adults in private space.
- The absence of consensus at the global level regarding non-discrimination based sexual orientation, gender identity, gender expression and sex characteristics (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.
- 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.
- 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.
- 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.
- 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.
- 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 citizens.
Public reactions in regards to the judgement
The Constitutional Court’s judgement on the Anti-homosexuality act is regarded to be a win-win judgment which is intended to please all parties. Unfortunately, this only pleases one party – the government, which will most likely get its World Bank and Global Fund money as the LGBT community continues to be muzzled.
The Court has nullified provisions that directly impede health service provision including reporting obligations, and where the victim acquires a terminal illness. This clears the way for health funding but does not actually clear the way for proper service provision.
The judgment is therefore only intended to please donors in the health sector so that they can continue to provide the funds that are much needed while sacrificing LGBTI persons in the process.
Property owners have also been let off the hook and are now free to use their houses and hotels as they deem fit with nullification of section 9 and 11(2)(d). Capitalism has to continue – albeit at the cost of LGBTI being free to be themselves.
Advocacy, activism, LGBTI organizing have all been confirmed to be illegal. In other words, you may get health services and religious counseling if you are gay, but don’t say in public that you are gay! Don’t say that being gay is not a lifestyle choice. Don’t oppose any laws!
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