A panel of five Constitutional Court Justices sitting in Kampala has concluded the hearing of four consolidated petitions challenging the Anti Homosexuality Law and promised to deliver its verdict on notice. The panel comprised Deputy Chief Justice Richard Buteera, Geoffrey Kiryabwire, Muzamiru Mutangula Kibeedi, Monica Mugenyi, and Christopher Gashirabake.
The petitioners comprising Makerere University Law professors, lawyers, human rights activists, and several civil society organizations represented by their respective lawyers appeared before the Justices in a fully packed courtroom on Monday. The Attorney General, who is the chief legal advisor to the Government, Makerere Community Church Born Again Pastor Martin Ssempa, and Family Life Network are the respondents in the case while UNAIDS is a friend of the court (Amicus Curiae).
After their appearance, the Attorney General’s representative, Martin Mwambutsya, the Director for Civil Litigation, told journalists that the parties agreed to file written submissions as guided by the court. He added that the petitioners have requested that they file a rejoinder by the close of Wednesday since the Attorney General filed his submissions Monday morning.
Speaking on behalf of all petitioners’ lawyers, Owor Onyango confirmed Mwambutsya’s assertion, saying that they agreed to proceed by written submissions and seek to make a rejoinder by close of business Wednesday to allow the court to deliver its judgment. Accordingly, Deputy Chief Justice Buteera granted the petitioners time up to December 20th, 2023 to file the rejoinder.
Nicholas Opiyo, one of the lead lawyers in the case said the court has been seized with their pleadings and they want them to address the question in the room; whether the Ugandan constitution protects every single member of the society irrespective of their sexual orientation or gender identity. Opiyo expects that the Court will not rely on procedural argument but instead address the substantive human rights question and determine it once and for all.
The main four consolidated petitions stem from various groups, including West Budama MP Fox Odoi and seven others, Makerere University Professor Sylvia Tamale Dr Busingye Kabumba and seven others, Lawyer Robert Rutaro and three others, and Bishop James Lubega Banda.
These petitioners are pushing for the removal of the law criminalizing consensual sex among same-sex adults. The petitioners argue that the Anti-Homosexuality Law, aside from imposing severe penalties such as death and heavy fines, infringes upon constitutional articles relating to personal freedoms, human rights, and dignity while hindering the fight against HIV/AIDS.
Some of the issues listed by the parties for determination include among others whether the Anti-Homosexuality Act alters the decision and or judgments of the court in contravention of Article 92 of the Constitution and whether the Private Members Bill that introduced the Anti-Homosexuality Act 2023 imposes a charge on the consolidated fund or any other public fund in contravention of Article 93(a) (ii) of the Constitution;
Whether the Anti Homosexuality Act 2023 was enacted without meaningful and adequate public participation in contravention of National Objectives and Directives of State Policy and the constitution, whether the conduct of the Speaker of Parliament during the process of enacting the Anti Homosexuality Act 2023 was inconsistent with the constitution among other issues.
Among other grounds for the petition is that the complainants contend that the Anti-Homosexuality Act 2023 alters a 2014 Constitutional Court decision that nullified a similar law and is therefore inconsistent with Article 92 of the Constitution. The petitioners also note that the Anti-Homosexuality Act, of 2023 was passed within a record period of six days instead of the 45 days provided for by the rules of Parliament.
They say that the public was also not adequately consulted before the law was passed. However, in his defense, the Attorney General now joined by Pastor Ssempa wants the petitions dismissed with costs for being incompetent and for lack of merit. According to the Attorney General, while relying on the affidavit of Bugiri Municipality MP, Asuman Basalirwa, the mover of the Bill, the petitions were not only brought in bad faith but were filed with intentions to destroy and overthrow the Constitutional social order by seeking court orders for the protection of an unconstitutional and illegal act of homosexuality.
Outside Court, were dozens of people with slogans rejecting homosexuality led by Pastor Ssempa. Ssempa said his concern is that the American government has threatened to impose travel restrictions on Ugandan legislators and funding to Uganda through the African Growth and Opportunity Act, which he said is tantamount to bullying.
He said it is incredible for a big nation like America to resort to bullying to thwart, intimidate, and influence people to change their culture, saying that this will not be accepted. Ssempa has since designed stickers with inscriptions, saying Ugandans have rejected homosexuality, which he wants them to buy and support the fight against homosexuality.
Dr. Hamlet Mbabazi Kabushenga, the former Member of Parliament for Kinkizi County also showed up at the court to rally support for those who want the law upheld. Mbabazi showed journalists a very obscene picture showing what he described as emasculation and ridiculous things that some people in the West are going through after allowing homosexuality.
He explained that he decided to show the media this image for the sake of parents in Uganda who claim Homosexuality is a human right. He bitterly explained that he built 80 education institutions but LGBTQ members entered and started putting flags on the door and started confusing the young people that the sex they were born with is not what they are supposed to be.
Mbabazi said the Anti-Homosexuality Law is foundational and Uganda shouldn’t bow down because of financial pressure. He says LGBTQ organizations want to enter into private companies and take them over and the law is protecting cultural integrity and protecting people against sexual tourism. He has appealed to Ugandans to defy and deny and parent young children to resist homosexuality.
The United States Government has threatened aid cuts and travel sanctions against Ugandan government officials, condemning the enactment of this law as a tragic violation of human rights. Similar reactions occurred in the past, with Western governments suspending aid, imposing visa restrictions, and curtailing cooperation after the law’s nullification in 2014 due to insufficient quorum. Several Western countries, including the European Union, have criticized the law, labeling it discriminatory, degrading, and inhuman, contrary to international laws Uganda has ratified.