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Uganda’s Constitutional Court Declines to Nullify Anti LGBTQ+ Law But Strikes Down Certain Sections

By Culton Scovia Nakamya

The Constitutional Court has delivered its ruling in a consolidated petition challenging the Anti-Homosexuality Act 2023, upholding the law while acknowledging that certain sections grossly violate people’s rights and are inconsistent with the constitution.

The law, which received significant support from members of parliament and was assented to by President Yoweri Kaguta Museveni in May 2023, imposes a death penalty for aggravated homosexuality and mandates life imprisonment upon conviction for same-sex acts.

A panel of five Justices, led by Deputy Chief Justice Richard Buteera, along with Justices Geofrey Kiryabwire, Monica Mugenyi, Kibeedi Muzamiru, and Christopher Gashirabake, presided over the case.

The Court has justified upholding the Act on the grounds that it was enacted in the best interests of the public and serves gross national importance, including the protection of cultural values and norms, safeguarding families, and preventing the promotion and recruitment of children into such acts.

Fourteen (14) procedural and substantive issues were set for determination by the court. The petitioners argued that the law, in its entirety, should be repealed because it contravenes several Articles of Uganda’s constitution and infringes on the rights and freedoms of others.

The petitioners include human rights activist Nicholas Opio, Makerere University Professors Busingye Kabumba and Sylvia Tamale, West Budama MP Fox Odoi, veteran journalist Andrew Mwenda, among others.

In a unanimous decision, the Court ruled that the majority of the grounds argued by the petitioners were not substantive enough. The five justices agreed that the state is obligated to promote and preserve cultural values and exercise judicial powers. Additionally, a permanent injunction to stay its execution was denied. “We decline to nullify the anti-homosexuality act in its entirety, neither will we grant again at its enforcement”. Said Justice Richard Buteera, the deputy chief justice.

However, the justices acknowledged that some rights were violated within the law. Sections 3(2)(c), 9, 11(2)(d), and 14 have been nullified and struck down for contravening the 1995 Constitution of Uganda. These sections infringed on people’s privacy, denied shelter, violated the right to health and religion, and criminalized individuals who failed to report suspected homosexuality.

The Petitioners can appeal to the Supreme Court

The petitioners have expressed dissatisfaction, arguing that the five justices didn’t adequately consider the various constitutional violations outlined in their petitions.

Nicholas Opio, the lead petitioner, stated they are examining the court’s decision to determine the way forward.

“To base a decision on public sentiments, purported cultural values, and unfounded/unsubstantiated allegations of recruitment into homosexuality is strange, to say the least. You come to court expecting it to rise above public bigotry and sentiments. To that extent, it is a letdown, but we will see what next steps can be taken,” Nicholas Opio posted on his social media handle.

Since its enactment in May 2023, the law has faced international criticism, resulting in several sanctions. The United States imposed visa restrictions on legislators involved in supporting and enacting the law, including Speaker of Parliament Anitta Annet Among, Asuman Basaalirwa, the bill’s mover, among others.

The world bank has since terminated new lending to Uganda.

In December 2023, the US Department of Treasury sanctioned Commissioner General of Prisons Johnson Byabashaija on allegations of torture against prisoners.

In January 2024, Uganda was formally eliminated from the list of the African Growth and Opportunity Act (AGOA) and declared ineligible to export commodities to the US duty-free market.

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