Kampala, Uganda | By Michael Wandati | Uganda’s Constitutional Court on Wednesday 3, April, 2024 made a significant decision regarding the controversial Anti-Homosexuality Act 2023 in the country. Rather than annulling or suspending the law, which includes severe penalties such as the death penalty for specific same-sex acts, the court opted to uphold its existence.
However, the court did acknowledge that certain provisions within the law were inconsistent with fundamental human rights.
This legislation, which was passed in May 2023, stands as one of the toughest anti-gay laws globally. Its harsh stipulations have sparked widespread condemnation from human rights activists and prompted sanctions from Western nations.
The decision rendered by Uganda’s Constitutional Court unfolds across a comprehensive 200-page unanimous judgment delivered by the five justices, led by Deputy Chief Justice Richard Buteera.
Addressing 13 out of the 14 framed issues for determination, they responded negatively to all except those concerning the impact of the law on the right to privacy, adequate living conditions, and the right to health for LGBTQ individuals.
“We decline to nullify the Anti-Homosexuality Act 2023 in its entirety, neither will we grant a permanent injunction against its enforcement,” said lead judge Richard Buteera, reading the judgment on behalf of his four colleagues.
The petitioners, an array of figures including West Budama MP Fox Odoi, human rights advocate Nicholas Opiyo, Makerere University law professors Sylvia Tamale and Dr. Kabumba Businye, veteran journalist Andrew Mwenda, and USAID, contended that certain sections of the anti-homosexuality law infringed upon human dignity, freedoms of association and expression, and the right to engage in lawful trade and business.
However, in their ruling today, the justices underscored the court’s duty to exercise its responsibilities while considering cultural and societal norms. They emphasized the non-endorsement of any language, literature, or practice contrary to societal aspirations. The court dismissed the petitioners’ evidence indicating parliamentary procedure violations at committee and speaker levels.
Additionally, the justices rejected the petitioners’ assertions that the law encroached upon rights to discrimination, equality, freedom of association and expression, and the right to engage in lawful professions, businesses, or trades, arguing that homosexuality does not constitute such activities.
Moreover, the court highlighted the perceived risks associated with anal sex, citing physical harm and the disease burden, particularly concerning the prevalence of HIV among males engaging in same-sex activities.
The court nullified sections 3(2)(c), 9, 11(2)(d), and 14 of the Anti-Homosexuality Act 2023, which criminalized various aspects of homosexuality, such as letting premises for homosexual purposes, failure to report acts of homosexuality to the police, and engagement in acts of homosexuality resulting in the contraction of terminal illnesses. These sections were deemed to violate the rights to privacy, adequate living conditions, and health for LGBTQ individuals.
Represented by their legal team led by Nicholas Opiyo, the petitioners expressed satisfaction with this relief and announced their intention to escalate the matter to the Supreme Court.
Also Read: Cut aid if you so wish, Among tells donors over Anti-homosexuality Bill
In a press statement issued shortly after the court proceedings, the judiciary’s public relations officer, Justice James. J. M Ereemye, elucidated that the court’s decision was influenced by various factors, including legislative and judicial precedents from other jurisdictions, lack of global consensus on non-discrimination based on sexual orientation and gender identity, and Uganda’s unique socio-cultural context.
Upon the enactment of the law in May 2023, the repercussions were swift and impactful. The World Bank suspended new lending to Uganda, while the United States (US) imposed visa and travel restrictions against Ugandan officials in response to the Anti-Homosexuality Act.
Under the provisions of the Act, penalties of up to life imprisonment are imposed for consensual same-sex relations. Moreover, it includes clauses that categorize “aggravated homosexuality” as an offense punishable by death.
The decision rendered by Uganda’s Constitutional Court is indicative of a broader trend of escalating anti-gay measures across Africa. In February, Ghana implemented stringent anti-gay legislation, further exacerbating the crackdown on the rights of LGBTQ individuals.
Constitutional Court pronounces itself on the Anti- Homosexuality Act 2023 of Uganda
