The Constitutional Court today delivered its decision on petitions No. 14, 15, 16 & 85 of 2023, upholding the constitutionality of the Anti-Homosexuality Act with only four aspects deemed non-compliant with the Uganda constitution.
Led by Deputy Chief Justice Hon. Justice Buteera, the Justices ruled that the Act does not infringe on the right to practice business and profession.
Following President Museveni’s assertion to the Anti-Homosexuality law on May 26, 2023, four constitutional petitions were filed challenging various sections of the Act by 22 private citizens and human rights activists. These petitions alleged violations of human rights and freedoms guaranteed under the Uganda constitution and International Human Rights instruments.
Nullified sections included those criminalizing the letting of premises for homosexual purposes, failure to report homosexuality to the police, and engaging in acts resulting in terminal illness for others.
Opposition to the petitions came from the Attorney General of Uganda, Pastor Martin Sempa, Eng. Stephen Langa, and the Family Life Network Limited. The court also considered an amicus brief filed by the secretariat of the Joint United Nations Program on HIV/AIDS (UNAIDS).
In his remarks after the ruling, Pastor Sempa highlighted the Act’s potential economic benefits, believing it will safeguard Uganda’s economy from potential strains caused by HIV/AIDS.
“If only ten percent of Ugandan’s get HIV/AIDS as a result of homosexuality, we are going to be bankrupted, the judgment today was protecting not only our culture but also protecting the country from sliding into economic bankruptcy by spending malaria money on Sodomy gels, we can’t spend money of women giving birth in sex changes,” he asserted.
In response, seasoned journalist Andrew Mwenda, one of the petitioners, stated their intention to appeal to the Supreme Court to protect the rights of homosexuals, expressing confidence in the judiciary’s ability to uphold those rights.
“we are going to the Supreme Court, and I have full confidence that the judges there will stand above our cultural prejudices and protect the rights of homosexuals as to leave their lives as they wish,” Mwenda asserted.
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 sex characteristics (SOGIESC). This is reflected in the fact that to date nondiscrimination 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 sociocultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizens.