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Court upholds decision not to register LGBT group

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Some of the gay activists at court of appeal in Kampala

Kampala, Uganda | THE INDEPENDENT | The Court of Appeal has dismissed an appeal in which Sexual Minorities Uganda (SMUG) had sought to be registered as a company limited by guarantee.

In 2012, Sexual Minorities Uganda applied to the Uganda Registration Services Bureau seeking to be registered as a company limited by guarantee so as to fully enjoy the benefits and obligations of a registered organization as stipulated in the Ugandan law.

The Uganda Registration Service Bureau, which is the office of the government in charge of name reservation and registration of companies, denied the SMUG reservation of name on grounds that same sexual relations are criminalized under section 145 of the Penal Code act.

URSB argued that its decision to reject the reservation of the activist’s name was an administrative decision by a public authority with sufficient remedies provided for under judicial review and therefore the company was to promote LGBTI which are criminal practices and beliefs contrary to the values of Ugandans.

The trial Judge Basaza dismissed their claims and held that URSB was justified in its decision which was taken in public interest within the ambit of Article 43 of the Constitution. SMUG Uganda through Frank Mugisha, Dennis Wamala , Joanita Mary Ssenfuka filed an appeal at the Court of Appeal.

They argued that the refusal by URBS to reserve its name and by extension the registration of the organization was a violation of its rights including; the right to freedom of association, expression, right to equal protection of the law, right to participate in peaceful activities to influence the policies or government through civic organization among others. It said all those rights are expressly protected in the constitution of the Republic of Uganda and accrue to everyone regardless of their status.

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SMUG said the learned trial Judge erred in law and fact when she misinterpreted the Constitution and the law holding that the association for unlawful purposes and practices by LGBTI persons is prohibited. The Court of Appeal delivered its decision d on Tuesday.

The Appeal was considered by a Panel of Justices comprised of Deputy Chief Justice Richard Buteera, Catherine Bamugemereire, and Christopher Gashirabake.

They dismissed the appeal on the grounds that the values of Uganda’s population enshrined in the National Objectives and Directive Principles of State Policy which are part of the Constitution should be respected.

The Justices agreed with the Uganda Registration Services Bureau saying that after reading the objectives in their Memorandum of Understanding, it is not in doubt that Sexual Minorities Uganda is associated with the promotion and protection of the rights of LGBTI, which according to the laws cited are forbidden acts in Uganda.

“It is indeed true that the National Objectives and Directive Principles of State Policy which are part of the Constitution espouse the view that pronounced values of the population should be respected “, said the Justices.

According to the evidence before the Court, the objectives of Sexual Minorities Uganda included promoting the protection, well-being, and dignity of LGBTI persons and combating discrimination in policy, law, and practice, research and documentation of violations of fundamental human rights of LGBTI people in Uganda, providing health care services for the LGBTI people in Uganda and to provide support and promote development initiatives for LGBTI persons in Uganda.

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The Justices noted that while they considered the evidence by the appellants. They however said the evidence in the form of legal documents though quite persuasive, was not relevant regarding the issues at hand.

“This appeal was not about the abrogation or any particular behavior in our society. I have already found that the appeal was about the reservation of a name.

The learned trial Judge did not err when she found that the respondent/URSB was justified in its decision, which was taken in the public interest. Based on the above discourse, I find that the respondent was well within its mandate to disallow the name proposed by the Appellants (activists) under section 36 (2) of the Companies Act, ”

The Court has ordered that each party will bear its costs since this was a public interest litigation where the parties believe they were fighting for a just cause not for their benefit.

The activists who gathered in big numbers at the Court refused to talk to Journalists shortly after the decision, saying they wanted to read and interpret the court decision first.

The latest judgment is a blow to the activist group that hoped that the Judges in Uganda would follow the precedent set by their counterparts in Kenya who in February 2023 ruled that the National Gay and Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organization (NGO).

In Kenya, the judges held that, ‘(…) it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.’

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The ruling also comes as pro-gay activists in Uganda are awaiting a Constitutional Court decision in consolidated Petitions seeking to nullify the Anti-Homosexuality Act of 2023.

The controversial law strongly criminalizes the promotion of LGBTI in Uganda’ and puts tough penalties for engaging in the criminal vice.

The head of the panel in the petition against the Anti-Homosexuality Act 2023 is Deputy Chief Justice Richard Buteera. The ruling in the matter will be delivered on notice.

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