TABLE OF CONTENTS

TABLE OF CONTENTS ...... 2 PREFACE ...... 6 LIST OF ABBREVIATIONS AND ACRONYMS ...... 7 CHAPTER ONE ...... 8 OBJECTIVES OF THE RESOURCE BOOK ...... 8 1.1 Introduction to TRIUMPH ...... 8 1.2 Resource Book ...... 8 CHAPTER TWO ...... 10 PARALEGAL PROFESSION ...... 10 2.1 Who is a Paralegal? ...... 10 2.2 Duties of a Paralegal ...... 10 2.2.1 Duty to Organisation ...... 10 2.2.2 Duty to Legal Profession ...... 11 2.2.3 Duty to Society...... 12 2.3 Challenges Faced by Paralegals in Executing Their Duties ...... 12 CHAPTER THREE ...... 14 HUMAN RIGHTS ...... 14 3.0 INTRODUCTION...... 14 3.1. Definition and Understanding of Human Rights ...... 14 3.2 Principles of Human Rights ...... 14 3.3 Classification of Human Rights ...... 15 3.3.1 First Generation Rights ...... 15 3.3.2 Second Generation Rights ...... 16 3.3.3 Third Generation Rights ...... 16 3.4 Obligations Spelled Out by Human Rights ...... 16 3.5 Limitation of Human Rights ...... 17 3.6 Human Rights Systems ...... 17 3.6.1 International System ...... 17 3.6.2 Regional System ...... 18 3.6.2.1 The Americas ...... 18 3.6.2.2 Africa ...... 18

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3.6.3 Sub- Regional ...... 18 3.6.4 National/ Municipal System ...... 19 Conclusion ...... 19 CHAPTER FOUR ...... 20 ’S LEGAL SYSTEM ...... 20 4.1 Written Law ...... 21 4.1.1 1995 Constitution ...... 21 4.1.2 Principal / Primary Legislation ...... 22 4.1.3 Subsidiary/Secondary Legislation ...... 23 4.2 Common law and the doctrines of equity ...... 24 4.3 Established and current custom or usage ...... 24 4.4 Principals of justice, equity and good conscience ...... 25 CHAPTER FIVE ...... 27 HUMAN RIGHTS ENFORCEMENT MECHANISMS IN UGANDA ...... 27 5.1 Judicial Mechanisms ...... 27 5.1.1 Hierarchy of Courts ...... 28 5.1.1.1 Supreme Court ...... 28 5.1.1.2 Court of Appeal / Constitutional Court ...... 28 5.1.1.3 High Court ...... 28 5.1.1.4 Industrial Court and other Tribunals ...... 29 5.1.1.5 Magistrates Courts...... 29 5.1.1.6 Local Council Courts ...... 29 5.2 Criminal & Civil Justice System ...... 30 5.2.1 Criminal Justice System (Criminal Jurisdiction) ...... 30 5.2.2 Civil Jurisdiction ...... 33 5.3 Non- Judicial Mechanisms ...... 34 5.3.1 Uganda Human Rights Commission ...... 34 LGBTI RIGHTS ...... 35 6.1 What are LGBT Rights ...... 35 6.2. National Perspective on LGBTI Rights ...... 35 6.3 Some International Perspectives on LGBT Rights ...... 43 6.4 Factors fuelling the plight of LGBT Rights in Uganda ...... 45

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6.5 Where Do Paralegals Come In / Role of Paralegals in Fighting For Equal Rights for the LGBT Community ...... 46 6.6. Challenges in Enforcing LGBT Rights ...... 48 6.7 Over Coming Challenges ...... 50

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This Paralegal Resource Book has been produced with the financial support of FIDH (The International Federation for Human Rights). Its content is the sole responsibility of; The Robust Initiative For Promoting Human Rights (TRIUMPH UGANDA), and shall in no way be interpreted as reflecting the views of FIDH.

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PREFACE

In the context of Covid-19 pandemic, resultant social distancing restrictions by the government of Uganda and the continuous arrest of LGBT persons Uganda, We have developed this manual as an online tool to provide basic training to public-spirited paralegals that are involved in advocating for human rights of Ugandans and more specifically in the Lesbian Gay Bisexual and Transgender (LGBT) community within their respective districts.

The manual begins with a brief background of The Robust Initiative for Promoting Human Rights (TRIUMPH UGANDA) which is the developer of the Resource Book. This is to interest potential paralegals with the mission, vision and objectives of the organisation. It then provides for the purpose of the resource book but most of all reveals learning objectives that must be clearly understood by the audience before engaging in the paralegal work.

It then lays out what paralegals are, their duties and how they contribute to this fight. It goes on to provide day one understanding of human rights and systems of human rights in the global regional and national perspective. It highlights the mechanisms of enforcing these rights both judicial and non-judicial mechanisms providing the fora in which these rights can be enforced.

It then progresses to Resource Book on the laws in Uganda picking out the provisions that are relevant to LGBT rights. The manual thereafter delves deep into the main subject that is Lesbian Gay Bisexual and Transgender rights and how these rights are trampled upon in Uganda. A brief insight is given of other international jurisdictions and how they have progressed.

The manual then Resource Books on and the place of paralegals in fighting for the realisation of these rights in the community and how they come in and subsequently concludes with the challenges faced and how to overcome the same.

The manual is a Resource Book to paralegals in the fight for human rights using basic approaches and simplified methods of delivery..

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LIST OF ABBREVIATIONS AND ACRONYMS

AHA Anti-Homosexuality Act, 2014

AIDS Acquired Immune Deficiency Syndrome

CSO Civil Society Organisation

FARUG Freedom and Roam Uganda

HIV Human Immuno-Deficiency Virus

HRAPF Human Rights Awareness and Promotion Forum

LGBT Lesbian, Gay, Bisexual, Transgender

SHRH Sexual Health and Reproductive Health

SMUG

TRIUMPH UGANDA The Robust Initiative for Promoting Human Rights

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CHAPTER ONE

OBJECTIVES OF THE RESOURCE BOOK

1.1 Introduction to TRIUMPH UGANDA

TRIUMPH UGANDA (The Robust Initiative for Promoting Human Rights) was established in 2014. It is a Non-profit Organisation meant to fill the gap in Human Rights Knowledge, avert Human Rights violations due to sexual orientation (who you are attracted to), (how you define yourself, irrespective of your biological sex) and gender expression (how you express your gender through your looks, clothing, hair, and make-up). It strives to reduce prevalence of HIV/AIDS and promote knowledge on Sexual Health and Reproductive Health among the marginalised and at most risk persons who include the LGBT and sexual workers.

It is engaged in Human Rights Observation Advocacy including Human Rights Training for pro-LGBT persons and sex workers, behavioural interventions such as counselling, championing Sexual Health and Reproductive Health Rights as well as networking and Capacity Building.

This Resource-book is meant to enlighten paralegals on the human rights violations faced by LGBT community and how best to handle them.

1.2 Resource Book

The resource-book is meant- firstly to test the ability of the paralegals to understand the dynamics of the Lesbian Gay Bisexual and Transgender (LGBT) community; and secondly to refine this knowledge and ability in order to actualise the rights of LGBT people.

The specific objectives are to –

(a) Improve awareness of paralegals regarding their duties in the fight for LGBT Rights (b) Improve knowledge on Human Rights and systems of Human Rights enforcement open to paralegals to use as avenues of enforcing LGBT Rights (c) Orient paralegals on the criminal law procedures and the criminal justice system in Uganda. 8

(d) Develop a clear and shared understanding of the plight of the LGBT community in Uganda and the various Human Rights violations they encounter. (e) Elevate the skills of paralegals to identify human rights violations against LGBT (f) Update paralegals on ways to achieve rights of the LGBT despite the challenges at hand.

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CHAPTER TWO

PARALEGAL PROFESSION

This chapter provides for a background to the paralegal profession highlighting the duties and challenges faced. It is prudent to test the participants and ascertain how best they understand their duty to their work institutions, the legal profession and society at large.

2.1 Who is a Paralegal?

A paralegal is, “a person qualified through education, training or work experience to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively, performed by a lawyer.”1 A paralegal is a person trained in subsidiary legal matters but not fully qualified as a lawyer.2

2.2 Duties of a Paralegal

A paralegal has many duties to various persons. He/she has a duty to the organisation they work for, the legal profession and finally to the society.

A lot of duties to paralegals depend on what they do, where, when, how and who they work for. Paralegals basically perform all types of legal support service except representing people in court.3

2.2.1 Duty to Organisation

Well aware that all the trainees are from various organisations, there is need to address their obligations to the said organisations.

Duties to the organisations include-

(a) Office administration and general organisation Maintaining schedules, filing papers, file organisation among others.

1 National Federation of Paralegal Associations (USA), “Paralegal Definition,” available at https://Paralegals.org/m/pages.cfm?pageid=3315 (accessed 19 April, 2020) 2 ParalegalEDU.org, “Paralegals and Legal Assistants,” available at https://paralegaldeu.org (accessed 19 April, 2020). 3 Ibid. 10

(b) Communication and coordination This involves liaison activities and organisation of meetings, interviews and so forth. (c) Maintain confidentiality Matters of LGBT rights are sensitive and paralegals have a duty to ensure there is confidentiality in all their operations. (d) High level of professionalism in executing duties.

2.2.2 Duty to Legal Profession

Paralegals are handmaidens to the operations of the legal profession. The profession includes the judiciary, the attorneys general, the office of the Director of Public Prosecutions, and lawyers. They are expected to know the material tenets of law and some will be discussed in this manual even if not exhaustively.

Paralegals mainly assist in the following ways-

(a) Undertaking legal research Include identifying laws, judicial precedents and legal articles. Must be good at using the internet and accessing other sources of the law. (b) Legal drafting – documents Must profess excellent writing skill and analytical ability. Drafting correspondences, complaints, legal briefs, and legal opinions among others. (c) Court practice  Court attendance  Filing of documents  Service of documents  Obtaining hearing dates (d) Case management Including document management and storage, exhibit management among others. (e) Client interviews

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2.2.3 Duty to Society

The paralegals should understand that beyond the legal profession, they have a duty to society. They must act as the link between the legal personnel and society, which relies on the services of the legal profession.

Some of the duties include –

(a) Simplification of provisions of the law (b) Identifying human rights abuses (c) Client interviews (d) Sensitisation

2.3 Challenges Faced by Paralegals in Executing Their Duties

In the performance of their duties, paralegals always face a multitude of challenges and these ought to be addressed.

The challenges include-

(a) Financial constraints They usually get paid meagre salary compared to the work they undertake. (b) Limited audience Paralegals are restricted in terms of audience before Court. In other institutions they suffer despise even before they engage with the audience. (c) Limited upward mobility Unless one works up to become a lawyer, paralegals never move up the scale to attain better pay or responsibilities.4 (d) Un-accommodative supervisors Supervisors fail to adequately delegate work, train the paralegals, respect them and often fail to accommodate their ideas and counsel. (e) Work pressure

4 Neil Kokemuller, “What Problems Might You Face as a Paralegal,” Chron, available at https://work.chron.com/problems-might-face-paraleal-31064/ (accessed 19 April, 2020). 12

Paralegals are subjected to a lot of pressure at work including unrealistic deadlines, expectation to know all the law, enormous workloads among others. (f) Arrested whilst undertaking their duties Paralegals end up facing the arm of the law when undertaking their duties and end up in jail. (g) Limited appreciation For the work they do, paralegals are always underappreciated. (h) Lack of appropriate technology Many of the paralegals lack access to necessary technology to smoothen their work. They lack smart phones, laptops and are often not subscribed to libraries, databases or platforms that can help in legal research. (i) Lack of an institution to coordinate all paralegals. This exposes them to a lot of exploitation, lack of identity and solidarity.

Conclusion

All in all paralegals have an important position to play and they should be made use of in this profession that has many lawyers scampering for money and not fighting for the rights of the people.

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CHAPTER THREE

HUMAN RIGHTS

3.0 INTRODUCTION

In this chapter, we discuss human rights and fundamental schools of thought as well as principles. There is need to understand the context in which the LGBT Rights come into being before delving deep into the dynamics.

3.1. Definition and Understanding of Human Rights

Human rights are rights inherent in all human beings regardless of race, sex, nationality, ethnicity, language, religion or any other status.5 They are basic rights and freedoms that belong to every person in the world.

3.2 Principles of Human Rights

As a matter of principle, human rights are -

(i) Inherent- they accrue by virtue of one being born and not granted by the state (ii) Inalienable – They cannot be taken away from an individual (limited) except in specific circumstance as will be shown below.

5 United Nations, “Human Rights,” available at www.un.org/en/sections/issues- depth/human-rights/. (Accessed 22nd April, 2020). 14

(iii) Indivisible & Interrelated – They are of equal status and not positioned in hierarchical order with some more important than others. (civil and political rights against social, economic cultural rights); (iv) Interdependent and Interrelated – One right contributes to the realisation of the other. Violating one leads to violation of another.

Subject to Participation and Inclusion – All people have a right to take part and in processes that affect their rights. Have access to information and make decisions.

There are 2 schools of thought regarding human rights that is –

(a) Universalism Under this, human rights are viewed as universal and apply in the same manner world over. Concern of human rights should not confined to a particular society, continent or culture.6 No particular region is left to determine what is appropriate to be a human right. (b) Cultural relativism Under this school, human rights differ from society to society and in each society, they are moulded by the peculiar struggle they have gone through and what is culturally acceptable.7 Culture is deemed to be the sole source of validity of a right.

3.3 Classification of Human Rights

Human rights can be classified into various ways. One way is through generations

3.3.1 First Generation Rights

These include the Civil and Political Rights. They are represented under the International Covenant on Civil and Political Rights of 1966. They include the right to life, freedom from discrimination, freedom from torture cruel inhuman degrading treatment, freedom of assembly and association, freedom of expression among others.

6 Robert Kisanga, Fundamental Human Rights and Freedoms in Africa: The Work of the African Commission on Human and People’s Rights in Chris Maina & Ibrahim Juma, Fundamental Rights and Freedoms in Tanzania, (Dar es Salaam: Mkuki na Nyota Publishers Ltd, 2011) P. 25. 7 Issa Shivji Human Rights and Development: A fragmented Discourse in Chris Maina & Ibrahim Juma, Fundamental Rights and Freedoms in Tanzania, (Dar es Salaam: Mkuki na Nyota Publishers Ltd, 2011) P. 9. 15

3.3.2 Second Generation Rights

These are the Social- Economic Cultural Rights. They are represented in the International Covenant on Socio- Economic Cultural Rights of 1966. These include the right to the highest standard of physical and mental health, the right to education, right to housing and economic rights like the right to work and labour rights.

3.3.3 Third Generation Rights

These are famously known as group/collective rights. They are enjoyed as a group and not an individual. They include the right to culture, and right to a clean and healthy environment.

NOTE: Various scholars do not appreciate this classification in the human rights discussions based on the principle of indivisibility and interdependence.

3.4 Obligations Spelled Out by Human Rights

Human rights provide individuals with rights but they, as well, spell out duties/obligations to States and other individuals or persons.

States have the duty to respect, protect and fulfil the rights of its citizens. Failure of States to carry out their obligations is termed as vertical abuse of human rights.

The people on the other hand have a duty to respect the rights of others and it has been established that more often than not, fellow human beings violate rights of others even more than the state does. When people violate their obligations, it is termed as horizontal human rights violation.

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3.5 Limitation of Human Rights

Human rights are not absolute. They are contentious and in given circumstances can be limited. The limitation on rights cannot be a general limitation. It is subject to a test established by legislation and case law.8

(a) Must be prescribed by law (b) Should seek to achieve a legitimate objective; (c) Should not be more than is reasonably necessary to achieve the objective; (d) Should be demonstrably justifiable in a free and democratic society.

In the case of , Dennis Wamala and Ssenfuka Joanita Vs. Uganda Registration Services Bureau HCMC No. 96 of 2016) Court justified limitation of the right to association among the LGBT community on grounds that; it was prescribed in law (S. 145 of the Penal Code Act Cap 120), was in public interest (to protect values, norms and aspirations of Ugandans) and that it was justifiable in a free and democratic society (URSB has mandate to refuse incorporation of any entity on justifiable grounds).

3.6 Human Rights Systems

Human rights are established in three systems. These are- International system, Regional System and National System.

3.6.1 International System

This involves Human Rights at a Global scale. Here, they are provided majorly under international instruments such as the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, Convention on the Rights of the Child 1989, International Convention on Elimination of All Forms of Discrimination 1979, among many others.

8 See the Siracusa Principles on the Limitation & Declaration of Provisions in the ICCPR, 1984. The case of Refah Partisi & Others V Turkey (ECHR, 2003). Ingabire Victoria Vs Rwanda App No. 3 of 2014 in the African Court of Human and People’s Rights. 17

These instruments setup Committees that act as enforcement mechanisms and they require States Parties to report on how far they have undertaken their obligations to fulfil and protect these rights.

3.6.2 Regional System

This is specific to a given region. Regions under Human Rights Law Speak to continents. Here we have systems such as the Americas, Africa, Europe and Asia –

3.6.2.1 The Americas

They have their main instrument, which is the American Convention of Human Rights of 1969. Under it, they established the Inter- American Commission on Human Rights as well as the Inter-American Court on Human Rights as enforcement mechanisms.

3.6.2.2 Africa

Africa is united under the main human rights instrument referred to as the African Charter of Human and People’s Rights 1981. Under it, they established the African Commission on Human and People’s Rights and signed an optional Protocol to set up the African Court on Human and people’s Rights.

3.6.3 Sub- Regional

This falls under the regional instruments and we shall take for instance the East African Region that has the . The Treaty for the Establishment of the East African Community 1999, Article 7 and 8 provide for Human Rights as one of the guiding principles of the Community. They establish the East African Court of Justice which is an avenue to enforce human rights.

In the case of Human Rights Awareness & Promotion Forum (HRAPF) Versus The Attorney General of Uganda (Ref No. 6 of 2014), the applicant filed a case in the East African Court of Justice on grounds that the Anti- Homosexuality Act, 2014 violates the EAC Treaty articles on good governance rule of law, social justice and human rights as

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envisaged in the African Charter on Human and People’s Rights. It was dismissed as moot since the said Act had already been repealed by the time of Court’s decision.

3.6.4 National/ Municipal System

This looks to the national laws and how they provide for Human Rights. It entails aspects of national constitutions, laws and policies and how they ensure protection, respect and fulfilment of obligations toward human rights.

Individual countries have various enforcement mechanisms, which include judicial and non –judicial enforcement mechanisms.

In Uganda, the judicial system includes Courts of law and the same is discussed subsequently. The non-judicial system include Human Rights Commission which derives its mandate from the 1995 Constitution.

Conclusion

There are various avenues outside the national scope that can be used to enforce human rights of LGBT people. Paralegals are encouraged to think outside the box and use the institutions set up by such instruments well knowing the criteria for admissibility and jurisdiction.

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CHAPTER FOUR

HUMAN RIGHTS IN UGANDA’S LEGAL SYSTEM

This chapter looks to the sources of human rights law as applied in Uganda. The discussion, however, is limited to the law that concerns the LGBT theme that is discussed in this manual.

Under the Judicature Act Cap 13 Section 14(2), the sources of law in Uganda are –

(a) Written law (b) the common law and the doctrines of equity; (c) established and current custom or usage; and (d) Principles of justice, equity and good conscience.

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4.1 Written Law

Written law is applied in a form of hierarchy as represented in the figure below.

1995 Constitution

Principal Legislation / Acts of Parliament

Subsidiary Legialstion

Rules, Orders, Ordinance Bye- Law Notices

4.1.1 1995 Constitution

In Uganda, the supreme law of the land is the 1995 Constitution as per Art. 2. Under this we have Chapter 4 which is of major interest as it harbours the Bill of Rights. It has various relevant Articles including-

(a) Art. 20 on the inherent nature of fundamental rights (b) Art. 21 that provides for equality among all persons and outlaws discrimination based on sex. (c) Art. 23 Right to Liberty of a person. (d) Art. 24 on respect for human dignity and protection from inhuman degrading treatment (e) Art. 27 providing for the right to privacy of a person, home or other property. (f) Art. 29 which protects freedom of expression, assembly and association. (g) Art. 31 provides for rights of a family and specifically, Art. 31(2a) restricts marriage between persons of the same sex. (h) Art. 43 that provides for limitation on fundamental and other human rights

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(i) Art. 44 that speaks to non- derogable rights (j) Art. 50 that provides for redress where human rights have been violated. More notably is Art. 50(2) that grants a cause of action to any person against a human rights violations occasioned on another person.

These provisions provide the basis upon which Court action is undertaken to fight for the rights of the LGBT community.

4.1.2 Principal / Primary Legislation

This refers to the Acts of Parliament made under Art. 79(1) of the 1995 constitution. They undergo a procedure established under the Acts of Parliament Act 2000 and they become law upon assent by the president. Such laws include-

(a) Human Rights Enforcement Act, 2019

One cannot discuss Human Rights without talking about this new Act. Parliament enacted the Act to ensure that any person or organisation who claims that a right or freedom guaranteed under the constitution has been infringed or threatened may apply for redress to a competent Court. This was to actualise Art. 50(2). The law is enacted under power given to Parliament under Art. 50(4).

It allows for public interest litigation, enforcement of Human rights in lower Courts such as the Magistrates’ Courts, waiver of requirement for statutory notice and various remedies or orders that Court can make in Human Rights case.

(b) Penal Code Cap 140

It is notoriously know for Section 145 which provides for un-natural offences. Under Section 145 (a) and (c), it is criminal for a person to have carnal knowledge of any person against the order of nature; or permit a male person to have carnal knowledge of him or her against the order of nature. The punishment is as grave as imprisonment for life.

(c) Anti Homo Sexuality Act, 2014 (Nullified)

Though this Act was nullified, it was a major violation of the rights of LGBT community or advocates of the said rights. Under S. 2 it established the offence of homosexuality as

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performance of as sexual act on the person of the same sex. It established Aggravated homosexuality under S.3.

More interesting is Part III on offences related to homosexuality including aiding and abetting homosexuality, same sex marriages (S. 12), promotion of homosexuality (S. 13) among others.

NOTE: All principal legislation must conform to the provisions of the Constitution and any provisions which violate the constitution are null and void to that extent. This is the premise upon which human rights advocates filed the above case.

4.1.3 Subsidiary/Secondary Legislation

Under Art. 79(2) of the Constitution, Parliament has the power to confer on any other body the power to make law. Such law is defined as subsidiary legislation. Parliament may grant such power to a ministry, lower local government or other institutions in a bid to allow for decentralisation.

(a) Ordinance This is a piece of legislation that is made at the district level. It is passed by the District Council headed by the speaker

(b) Bye-laws Any other subsidiary legislation passed by a lower local government below the district level is referred to as a bye-law. This involves laws or regulation passed at County or Sub- county level.

(c) Rules, Orders and Notices These are usually made by Ministries or Departments and they act as Resource Booklines in carrying out specified mandates.

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OTHER SOURCES OF LAW

4.2 Common law and the doctrines of equity

This is premised on the principle that Court decisions are a source of law. Courts interpret the law and therefore their decisions are deemed to be law.

This also ushers in the principle of staredecisis or the doctrine of precedent which provides that,

“A decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy.”9

In the case of Attorney General V Salvatori Abuki (SCCA No. 1 of 1998) Court established the right to livelihood where if one is banished from their home village, they lose the ability to work and fend for themselves or the family thereby affecting the right to livelihood. This right became a vivid right though not provided for in any Legislation in Uganda.

Members of the LGBT community are many times affected when they are excommunicated and denied the right to work only because of their sexual orientation or gender identity.

4.3 Established and current custom or usage

Customs are law in Uganda. This is one of the major reasoning behind refusal of LGBT in our land under the misguided notion that our culture does not entertain such forms of sexual orientation. A lot of literature, however, shows the contrary especially in parts of Buganda. The case of Bruno Kiwuuwa V Ivan Sserunkuuma & Juliet Namazzi (HCCS No. 52 of 2006) based on customs of the Ndiga (sheep) clan to prevent a marriage of people from the same clan. Also see the case of Frank Mugisha, Dennis Wamala and Ssenfuka Joanita Vs Uganda Registration Services Bureau HCMC No. 96 of 2016) cited above on values

9 Blackstone’s Law Dictionary 10th Edition. 24

and norms as basis of Justice Basazza Wasswa to refuse registration if SMUG as it would promoted LGBT rights.

4.4 Principals of justice, equity and good conscience

Many at times, Court has applied equity and good conscience in deciding cases. This is followed up by doctrines of equity such as- equity aids the vigilant, he who comes to equity must come with clean hands among others. In fields such as contract law, issues of specific performance are all tied to equity.

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Conclusion

All these sources of law can be used to champion the fight for LGBT rights but in the same spirit they can be used to challenge the rights. As a paralegal, you are expected to fall on the side that fights to include the LGBT community to allow for everyone to enjoy their rights and freedoms as a human being.

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CHAPTER FIVE

HUMAN RIGHTS ENFORCEMENT MECHANISMS IN UGANDA

5.1 Judicial Mechanisms

Uganda’s judicial system involves Courts of Law that dispense justice. They consist of the Supreme Court as the top most, Court of Appeal/ Constitutional Court, the High Court and the Magistrates Court. There are other courts such Industrial Court, Tribunals, and Local Council Courts.

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5.1.1 Hierarchy of Courts

5.1.1.1 Supreme Court

The Supreme Court is established by Article 130 of the Constitution and is the top most Court in the land. It only hears matters of appeal except where it is provided by law such as in the case of presidential election petitions. It is headed by the Chief Justice and presided over by 5 judges except when hearing an appeal where the full bench of 7 must be present.

5.1.1.2 Court of Appeal / Constitutional Court

It is established under Article 134 and is the second Court of record. It has an appellate jurisdiction over cases arising from the High Court. As the Supreme Court, it is not a Court of first instance except under Article 137 where it sits as the Constitutional Court determining cases involving constitutional interpretation.

It consists of the Deputy Chief Justice (head), and such number of Justices of Appeal not being less than seven as Parliament may by law prescribe.

5.1.1.3 High Court

The High Court of Uganda is established by Article 138 of the Constitution and has unlimited original jurisdiction i.e. it can try any case of any value or crime of any magnitude in Uganda.10 Appeals from all Magistrates Courts go to the High Court.

The High Court is headed by the Honourable Principal Judge and is responsible for the administration of the court and has general supervisory powers over Magistrate's Courts.

The High Court has decentralised divisions and they are 8 at the moment that is- the Civil Division, the Commercial Division, the Family Division, the Criminal Division, the Land Division, the Execution and Bailiffs Division, the International Crimes Division and the Anti-Corruption Division.

10 Justice Henry Adonyo, “The Judiciary of Uganda Structure and Functions of the Judiciary,” A Paper Presented At the Induction of New Magistrates Grade One, Ridar Hotel -Seeta, 24 September 2012, P. 6-8. 28

The High Court is also decentralised into circuits at Fort Portal, Arua, Masindi, Gulu, Jinja, Masaka, Mbale, Mbarara, Soroti, Lira, Nakawa, Masindi and Kabale.

Taking the case of Frank Mugisha, Dennis Wamala and Ssenfuka Joanita vs. Uganda Registration Services Bureau HCMC No. 96 of 2016), it started from High Court then was appealed to the Court of Appeal. This was ruled in the negative on all occasions and may be appealed to the Supreme Court.11

5.1.1.4 Industrial Court and other Tribunals

These come in at this stage though they are not under mainstream judicial system. They are established as arms of the judiciary on special matters. Under this, we have the Industrial Court, Tax Appeals Tribunals, proposed Environmental Tribunal among others.

They are Courts of first instance and hear matters specific to given subject matter. Appeals from there lie to the High Court.

5.1.1.5 Magistrates Courts

These come after the High Court and have pecuniary, geographical as well as subject matter jurisdiction of given aspects and not all. They are established according to magisterial areas. Appeals from here lie to High Court. The Magistrates Courts have three divisions- Chief Magistrates, Grade I and Grade II Magistrates Courts.

5.1.1.6 Local Council Courts

These operate in a manner that is less official and more people friendly. They strictly do not require legal representation of candidates and this is where paralegals can come in to save the day.

The Judiciary also supervises the Local Council courts as well as tribunals.

11 Racheal Agaba, “Court Okays URSB Blocking Of Gay Group,” PML Daily, , 23 August, 2019. Available at https://www.pmldaily.com/news/2019/08/court-approves-ursb-rebuff-to- register-gay-activist-group.html accessed on 25th April, 2020. 29

5.2 Criminal & Civil Justice System

The Courts listed above have both Criminal and Civil Jurisdiction except for the specialised Courts and Local Council Courts.

5.2.1 Criminal Justice System (Criminal Jurisdiction)

Criminal law deals with the punishments of people who commit offences or a crime. Most of the matters against LGBT people proceed under criminal law system since they are said to contravene the Penal Code Act Cap 120 as shown above.

In this system, there are certain principles to take note of.

(a) Principle of Legality

This is provided under Article 28(12) of the 1995 Constitution which states that, “Except for contempt of Court, no person shall be convicted of a criminal offence unless the offence is defined and penalty for it described by law.”

The recent crackdown on LGBT people under the guise of Covid-19 Regulations is a violation of this principle and a stretch of the law to parts where it does not extend.12

12 See the 6th March 2020 arrest of 13 LGBTI members in Masaka without any charges preferred against them. Another example is 29th March 2020 arrest of 23 LGBT persons form Children of the Sun Foundation shelter in Kyengera Town Council. 30

(b) Burden of Proof

In criminal matters, the burden of proof for the prosecution (which is the state) is proof beyond reasonable doubt. This is because a conviction adversely affects the life of the accused. They serve a custodial sentence and it leaves a permanent record that stigmatises the individual permanently for instance in the case of looking for a job or making travel arrangements.

The burden of proof for the accused is on the balance of probabilities.

The criminal law procedure is a cycle that begins from prevention and investigation of a crime to prosecution and punishment of the offender. The sequence below illustrates it.13

Plea taking Prosecution's investigations arrest charging (plea Bargain) Case

Aggravating serving Defence Judgement or mitigating sentencing sentence factors

APPEAL

After all the above, one may appeal against a sentence to the higher Court up to the Supreme Court as represented above.

13 The Magistrates Courts Act Cap 16 and the Trial on Indictments Cat Cap 23. 31

Rights of an arrested person

The right to liberty of a person is limited when they are arrested. Article 23 gives the rights of people that are detained and must be followed to allow justice to be met. Art. 23 (3) one must be informed of the reason for arrest, 23(4) provides for a maximum 48 hours within which an individual must be brought before Court. Under Art. 23 (5), they must be allowed access to legal representation and to the next of kin. Paralegals must clearly come in under these articles to secure the rights of arrested LGBT.

Remedies for a person arrested

(a) Habeas Corpus This is a right enshrined under Art. 23(9) and is an order requiring a person under arrest to be brought before a judge or into Court, especially to secure the person’s release unless lawful grounds are shown for their detention.

(b) Bail This is another right provided by the Constitution under Art 23(6). It allows for a suspect to be release from custody until trial is concluded, on payment of an amount of money ordered by Court, and guaranteed by sureties that have to be approved by Court.

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(c) Bond Here, any person arrested by police is released until the police completes its findings, with the guarantee that he or she will turn up whenever required to do so by the police.14 This is essential especially in Uganda where arrests are made prior to investigation. No money is paid on application for police bond. (d) Unconditional release According to S. 15 of the Human Rights Enforcement Act, 2019, one may apply to Court against the unreasonable detention of a person past the time stipulated in law. One is unreasonably detained where – he or she has been detained beyond 48 hours after arrest without being brought before a competent court; if remanded before trial for 180 days (Trial in subordinate Court) or 260 days (High Court); if was irregularly or unlawfully detained; if there are no justifiable reasons for his or her continued detention; if his or her non derogable rights have been infringed upon; or his or her continued detention amounts to a miscarriage of justice.

All in all, interaction with Police is a major aspect in attaining freedom for arrested clients. One must be armed with the law but also the ability to negotiate appropriately for police bond and having access to the clients once in police custody.

5.2.2 Civil Jurisdiction

Under this, a person sues and can bring a suit in his own names against the government or an individual that violates their human rights. Actions are for remedies such as –

(a) Declarations that human rights violations have been committed against the person (b) Declarations as to the unconstitutionality of a law, act or omission (c) Injunctions against further such conduct

14 Section 24(2) (b) of the Police Act Cap 303. 33

(d) Orders against the aggressor such as to stop forced anal examinations (e) Habeas Corpus (f) Compensation in form of damages among others.

In the case of Kasha Jacqueline & 2 Others V Ltd & Another (HCMC No. 163 of 2010) Court declared that publication of names and faces of LGBT people and calling for their deaths is a threat to the right to life and violation of the right to privacy. An injunction against publishing such information was equally issued and damages awarded.

5.3 Non- Judicial Mechanisms

Aside from the Court system, there are non- judicial mechanisms of enforcing LGBT rights in Uganda.

5.3.1 Uganda Human Rights Commission

This was established under Article 51 of the 1995 Constitution and is charged with the mandate of receiving complaints against violation of human rights. Pursuant to this, they have power to investigate any claims of abuse, carry out public sensitisation, hear matters involving such violations and can act with power of a Court of law. It has power to release any detained person, order for compensation and any other legal remedy.

This mechanism does not involve a lot of technicalities and is a great avenue for paralegals to explorer as an option.

Conclusion

The Court system is meant to provide as many avenues for one to enforce their rights. Deciding the forum is informed by many considerations including the remedy sought, compensation, impact on jurisprudence, urgency of the matter accessibility, and jurisdiction among others. As paralegals, it is your duty to know the appropriate forum to go to in order to obtain the desired outcome for your client.

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CHAPTER SIX

LGBTI RIGHTS

This chapter is the major thrust of the Resource-book and paints a realistic picture of the issues faced by LGBT people. It shows the national perspective on the LGBT community as well as the strides taken in other international jurisdictions. It then highlights the causes of such perspectives thereafter giving the duties of paralegals and challenges they are likely to face in this fight. It closes with few recommendations as the manual is meant to derive a lot of input from participants on how best they can tackle challenges faced.

6.1 What are LGBT Rights

LGBT rights embody the human rights that have been mentioned above in Chapters three and four. We shall not repeat them in this writing as they can be referred to above.

The rhetoric at this time is not that the LGBT have a particular set of rights set out as belonging to them say for instance as indigenous peoples’ rights or rights of a particular social group.15 The language is that the LGBT community deserves the rights accorded to a person by virtue of being a human being. LGBT rights and human rights are not distinct.

As human rights activists, we use provisions of the laws particularly the constitution to protect the wellbeing and dignity of the LGBT persons. Therefore all the rights envisaged above (Chapter4.1.1) are violated when the LGBT are subjected to discriminatory, degrading treatment as against other hereto-sexual persons. LGBT community engages in consensual sexual conduct and should be allowed the right to enjoy that. The discussion in Chapter 6.2 below shows the human rights violations that they struggle with.

6.2. National Perspective on LGBTI Rights

Nationally, the LGBT have suffered a lot of human rights abuses and worse still some of these are entrenched in the laws of the land discussed above.

15 As is used under the 1951 UN Convention and Protocol Relating to the Status of Refugees. 35

Abuse of Human Rights is the deliberate maltreatment of groups of human beings including violations of generally- accepted fundamental rights as stated by various international and national human rights instruments.

The forms of human rights abuse that LGBT people face include -

(a) Criminalisation of Same sex sexual practices. Same sex sexual acts are outlawed under Section 145 and 146 of the Penal Code Act as discussed above. Any efforts to advocate for rights of the LGBT are thereby met with a blatant and uncompromising rhetoric of - the practice is illegal according to the law. Same sex marriages are equally prohibited under Article 31 (2a). The case of Jacqueline , Frank Mugisha & 2 Others Vs Attorney General & Fr, Simon Lokoddo (HCMC No. 233 of 2012), showed the rigid attitude with which Courts interpret any activity relating to LGBT rights as a workshop on human rights advocacy and project planning by a civil society organisation working for LGBT was deemed unlawful and therefore cannot accommodated abinitio.

LEFT: Uganda LGBT community in USA demonstrate outside Uganda House against criminalisation of Homosexuality in the Penal Code. RIGHTS: A parade showing how criminalisation does not solve anything.

In 2014, the Anti- Homosexuality Act (nullified) was enacted and established the offence of homosexuality. The Act provided for crimes such as aiding and abetting homosexuality,

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conspiracy to commit homosexuality among others. It criminalised promotion of homosexuality (which is ambiguous) and could hamper human rights advocacy work.16 This law was however, challenged in the case of Oloka Onyango & 9 Others V Attorney General (Constitutional Petition No. 8 of 2014). Though successful, the law was declared null and void due to procedural irregularities in its making and not on merit of whether the law went against the provisions and spirit of the constitution.

What is worrying, however, is that other bills such as the Sexual Offences Bill, 2015, the “Kill the Gays” Bill have been proposed by certain law makers as a move to revive the repealed Anti- Homosexuality Act of 2014.17

(b) Security of persons The state together with legislative arm have failed the LGBT community in terms of personal security. In all too many cases, LGBT people are harassed, hunted down, beaten up in the streets and sometimes killed.18 The media is awash with numerous attacks on the LGBT community for instance the brutal murder of a gay rights activist Brian Wasswa as recent as 4th October, 2019.19 He was a paralegal as a matter of fact. Another one, Fahad Ssemugooma, a transgender was hacked to death in Wakiso District on 1st August, 2019 not to forget the renowned who was killed in 2009. 20Many others are attacked and heavily assaulted for their gender identity and instances of rape occasioned on lesbians to “correct” their sexual orientation are existent in Uganda today.

16 Human Rights Watch, Uganda: “Anti-Homosexuality Act’s Heavy Toll: Discriminatory Law Prompts Arrests, Attacks, Evictions, Fight,” HRW, Kampala, May 14, 2014 available at https://hrw.org/news/2014/05/14/uganda-anti-homosexuality-act’s-heavy-toll/ (accessed 21st April, 2020). 17 Nita Bhalla, “Uganda Plans Bill Imposing Death Penalty for Gay Sex,” Reuters 10th October, 2019. Available at www.mobile.reuters.com/article/amp/idUSKBN1WP1GN/ (accessed 23 April, 2020). 18 Human Rights Watch, Uganda: “Anti-Homosexuality Act’s Heavy Toll: Discriminatory Law Prompts Arrests, Attacks, Evictions, Fight,” HRW, Kampala, May 14, 2014 available at https://hrw.org/news/2014/05/14/uganda-anti-homosexuality-act’s-heavy-toll/ (accessed 21 April, 2020). 19 Human Rights Watch, “Uganda: Brutal Killing of Gay Activist: Amid Attacks, Officials Threaten Death Penalty for LGBT People,” HRW Kampala 15th October, 2019. Available at Available at https://hrw.org/news/2019/10/15/uganda-brutal-killing-gay-activist/ (accessed 20 April, 2020). 20 Ibid. 37

(c) Equality and Freedom from discrimination Under Article 21, all Ugandans are equal before the law and should not be discriminated. Sadly, sexual orientation or gender is not provided as a ground against which one must not be discriminated. Time and again, LGBT people face discrimination in fields of work, health, education and many other fields. People do not want to be seen to associate themselves with the LGBT community because of the stigmatisation that comes with it. For instance, in the case of Hon. Abdu Katuntu Vs The Editor In Chief Of The Redpepper Newspaper& The Pepper Publications Ltd (HCCC No. 301 of 2014), the plaintiff a Member of Parliament, fought hard for Court to rule that associating him with representing interests of the LGBT in Parliament was defamatory and injurious to his reputation among right thinking members of the public.

(d) Cruel, inhuman or degrading treatment of the LGBT The LGBT in Uganda face a lot of humiliation arising from both State operations and public ridicule contrary to Article 24. From name-calling, to bullying and scorning, such treatment extends to hospitals, education institutions, social gatherings, police posts, prisons among many others. In the case of Victor Juliet Mukasa & Yvonne Oyo Vs. Attorney General (HCMC No. 247 of 2006), Court rebuked the degrading actions of refusing the 2nd petitioner access to lavatories to the extent of urinating on herself while in custody as well as undressing her and fondling her breasts to determine her sex. The right to freedom from cruel inhuman degrading treatment accrues to all individuals.

(e) Police harassment Many LGBT individuals face police harassment including arbitrary arrests, strip-searching (to determine the sex), forced anal examinations, extortion, evictions and unclear charges. Various cases in point include the 6th March 2020 arrest of 13 LGBTI members in Masaka without any charges preferred against them. Another example is 29th March 2020 arrest of 23 LGBT persons form Children of the Sun Foundation shelter in Kyengera Town Council of under the guise of enforcing COVID -19 Regulations.21

21 Sexual Minorities Uganda, “Covid-19: End Arbitrary Raids and Arrests on LGBTIQ Shelters,” SMUG Kampala, 9 April, 2020. 38

LGBT persons at Children of the Sun Foundation bundled up by Mayor of Nsangi Town and Security Forces on 29th March, 2020 under the pretext of COVID -19 Regulations. Notice how media fails to adequately report the issue at hand as attacks on LGBT but reports it as “People Sleeping in Large number arrested.”

Children of the Sun Foundation LGBT Members paraded before Media after their wanton arrest.

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(f) Deprivation of personal liberty The liberty of LGBT is greatly inhibited in Uganda contrary to Article 23. Many suffer as they are arrested and arbitrarily detained for more than the mandatory 48 hours and in harsh unfair conditions. The case of Victor Juliet Mukasa & Yvonne Oyo Vs A.G (supra) is testimony to this as the 2nd applicant was detained in harsh conditions without any charge.22

(g) Freedom of association under Article 29(e) This has also been hampered as LGBT community is denied the ability to come together and identify amongst themselves. Firstly organisations with objectives of promoting basic rights of the LGBT are prohibited from incorporating into legal entities as was the case in Frank Mugisha, Dennis Wamala and Ssenfuka Joanita Vs. Uganda Registration Services Bureau HCMC No. 96 of 2016) where Sexual Minorities Uganda was prohibited from registering as a an entity on grounds that it had among its objectives promoting the rights of the LGBTI.

Secondly, any gatherings of LGBT are rudely dispersed or stormed by police to prevent association amongst them such as the Pride parade that had assembled in on 14th September, 2016.23

LEFT: Disgruntled LGBT persons after the Gay Pride Parade is disbanded on unclear grounds on 24th Sept, 2016. RIGHT: People rounded up in gay-friendly Ram Bar on 10th Nov 2019 for smoking contrary

22 SMUG, “And that’s How I Survived Being Killed: Testimonies of Human Rights Abuses from Uganda’s Sexual and Gender Minorities” SMUG, Kampala, 2015. 23 Supra Note 21. Watch video at https://www.youtube.com/watch?v=l4p6aWCnZnw. 40

to the Narcotic Drugs and Psychotropic Substance Act 2019. Many were LGBT persons and more so, other bars were not subjected to similar enforcement.

(h) Freedom of expression and assembly. This is enshrined under Article 29 (a) and (d) of the constitution. On many occasions LGBT community is denied the freedom to express themselves and freely assemble. This is premised on the fact that whatever they are doing is contrary to S. 154 of the Penal Code Act thereby illegal. Case in point is the matter of Jacqueline Kasha Nabagesera, Frank Mugusha & 2 Others Vs. Attorney General & Fr, Simon Lokoddo (HCMC No. 233 of 2012), where Freedom and Roam Uganda (FARUG) was denied the right to hold a workshop regarding human rights advocacy and project planning in the guise that they were promoting homosexual practices.

(i) Right to privacy (Article. 27) A lot of publicity is centred round LGBT on basis of outing and shaming them in public. This violates the right to privacy of LGBT People exposing them to risks from the homophobic society. This was the case where Rolling Stone Magazine published names and pictures of LGBT Community in 2010. This resulted into in a successful suit against invasion of the right to privacy and even threat to life, that is, Kasha Jacqueline & 2 Others V Rolling Stone Ltd & Another (HCMC No. 163 of 2010).

Headlines and an Article (respectively) in Rolling Stone Magazine outing the faces and locations of LGBT persons

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(j) Access to health facilities LGBT people have a hard time accessing health services since homosexuality is illegal.24 Doctors abhor working on them. This breed stigma that forces them not to return to health facilities. They suffer from sexual and reproductive human rights abuses yet they face some of the most disparaging issues such as sexually transmitted diseases like AIDS. They are categorised among the most at risk to contract HIV.

(k) Society excommunication Aside from the state, families and societies excommunicate and disown people that belong to the LGBT community.25 Most of the people are ostracised and are thereby left homeless. Any efforts by organisations to find a home for them is thwarted by neighbours alleging that they are recruiting gay people in the said shelters.26

(l) Intersectionality I conclude this section with the principle of intersectionality. It refers to,

“The complex cumulative way in which effects of multiple forms of discrimination combine, overlap or intersect especially in the experience of marginalized individuals or groups.”27

It is where an individual is doubly or triply discriminated or one faces multiple violations/breaches of human rights. Members of the LGBT community face a myriad of human rights abuses and as shown above, a lot of their rights are violated with each act of

24 Jacob Kushner, “They Paid a Guy to Kill Me: Health Workers Fight in Uganda,” The Guardian, 21st October, 2019. Available at https://www.google.co.ug./amp/s/samp.theguardian.com/global-development/2019/oct/21/ (accessed 20 April, 2020). 25 Jacob Kushner, “They Paid a Guy to Kill Me: Health Workers Fight Homophobia in Uganda,” The Guardian, 21st October, 2019. Available at https://www.google.co.ug./amp/s/samp.theguardian.com/global-development/2019/oct/21/ (accessed 23 April, 2020). 26 HRAPF, Statement on the Arrest of the Children of the Sun Foundation Shelter for the LGBT Youths in Uganda.” 27 Merriam Webster Dictionary. 42

hatred against them. For instance, HIV positive members face double discrimination on their sexuality as well as health status. When their events or meetings are disbanded maliciously, numerous rights are violated that is equality and freedom from discrimination, the right of association freedom to assemble, right to privacy and personal liberty.

6.3 Some International Perspectives on LGBT Rights

The international community is progressing though not at a pace that is envisaged by many. It is a two steps forward and one step back situation. Perspectives from African countries and the United States of America are given below.

Botswana

Botswana has taken better strides in LGBT Rights with the much-celebrated case of Letsweketse Motshidiemang V Attorney General (MAHGB-000591-16). Under this, the Court scrapped the provisions of the Botswana Penal Code (S.164 similar to Uganda’s S.145) that criminalised homosexuality and provided that the constitutional provision against discrimination should be interpreted widely to include sexual orientation.28

Furthermore, the country has outlawed workplace discrimination based on sexual orientation in 2017, and further allowed for transgender women to be recognised as female.29

Kenya

Whereas one may assume that Kenya is moving fast on LGBT rights, it has a long-standing provision in the Penal Code that equally criminalises homosexuality and deems it an unnatural offence.

28 France24, “LGBT Activists in ‘Disbelief after Botswana Strikes Down Laws Criminalising Homosexuality.” France24, 11th June, 2019. Available at https://www.google.com/amp/s/amp.france24.com/en/20190611-botswana-lgbt-disbelief-hig-court-strikes- down-laws-criminalising-homosexuality (accessed 24th April, 2020). 29 ND V Attorney General (2017). 43

A case was filed in Court, Eric Gitari & 7 Others Vs. Attorney General (Petition No 150 & 234 of 2016). Court ruled against the applicants/petitioners staying the draconian provisions limiting the same. This was a step back from the progress made. Strategies to litigate against decriminalisation provisions must be crafted smartly with appropriate research to avoid such disastrous results as this leads the public to rebuke activities of LGBT worse than before.

South Africa

Being the place with the highest LGBT presence in Africa, South Africa is a benchmarking point. Its constitution under Section 9 (3) prohibits discrimination on ground of sexual orientation. It was the first country in the world to enshrine such a ground in its constitution.30 It equally ruled against provisions of the Children Act that prevented same sex couples from adopting children,31 and it recognises gay marriages in a decision of Court- Minister of Home Affairs vs. Fourie.

These rights to a family by LGBT people can be deemed to be the epitome of acceptance of LGBT rights.

However, on the other hand, we can learn that existence of the law on paper does not guarantee a safe space for LGBT. There are multiple reports of violence that is mated out against the LGBT because of society perceptions and also because of misinformation about sexual orientation.32

United States of America

As you are ware, the USA recognised same sex marriages in the landmark decision of Obergefell V Hodges (576 U.S_2015). President Barrack Obama also signed various executive decisions that allowed for LGBT rights. USA has been fronted as the champion

30 Constitutional Court of South Africa, “Gay and Lesbian Rights,” Available at https://www.concourt.org.za/index.php/gay-and-lesbian-rights (accessed on 24th April, 2020). 31 Du Toit & Another Vs Minister of Welfare & Others. 32 Rivona Pillay, “South Africa Still Has Not Won LGBTQ+ Equality. Here Are % Reasons Why,” World Economic Forum, November, 2018. Available at https://www.weforum.org/agenda/2018/11/south-africa-road-to-lgbtq-equality (accessed 24 April, 2020). 44

of LGBT rights and that people enjoy rights and freedoms spoken of including the right to marry.

This is not to say that there are no human rights violations as seen from actions of evangelical preacher Scott Lively that stir up anti-gay hatred in many countries. As a matter of fact, a case was filed in Massachusetts District Court against Scott Lively by Sexual Minorities Uganda.33

NOTE: This serves to show that for each country, realisation of LGBT rights is a journey and Uganda equally has to walk its own to realise the same. It begins with such trainings.

6.4 Factors fuelling the plight of LGBT Rights in Uganda

The Resource-Book looks at what could be the cause of such an attitude towards members of the said community.

(a) Cultural values Many people tie to culture as the leading reason to violate rights of the LGBT. They retort that these are western cultures that have no place in African Society. In many Uganda societies, family is viewed as communal thing that requires man and woman to have sexual relations to continue the family tree. This is threatened by the thriving LGBT community. (b) Misinformation & ignorance This is the most hindering factor to equality. People do not understand the dynamics of sexual orientation and gender identity. People do not make effort to understand these but go on to rebuke the LGBT community in an omnibus manner. Issues of whether one can be attracted to people of the opposite sex need some learning and unlearning. (c) Denial Many people especially parents of LGBT people are in denial of existence of such kinds of sexual orientation, gender identity and expression. This breeds a lot of violence, ostracising and hatred toward the LGBT there by denying them basic rights.

33 Sexual Minorities Uganda, “Court Cases: Sexual Minorities Uganda V Scott Lively,” Available at https://sexualminoritiesuganda.com/publications/court-cases/ (accessed 24 April, 2020). 45

(d) Religious sentiments The church in Uganda has also made it clear that it is against the LGBT Community. As of recent, the Archbishop Kazimba of the Church of Uganda publicly announced his stance against homosexual activities and this makes it more difficult to tackle when religion, meant to unite people is preaching division.34

6.5 Where Do Paralegals Come In / Role of Paralegals in Fighting For Equal Rights for the LGBT Community

Paralegals are an indispensable part of the legal system and are expected to champion the rights of the marginalized persons including those marginalized by sexual orientation (LGBT community.) This is why and how they can do this.

(a) In touch with society as compared to lawyers Paralegals are necessary to easily reach the grass root levels in carrying out advocacy for the LGBT. They are more credible to society than lawyers who are seen as high-flying individuals only fishing for money.

(b) Less formal engagement Paralegals can champion rights in more informal avenues for a like in LC Courts or in police posts where a lot of violations occur. It has been stated that even the formal mechanisms may not produce as much results yet violations occur at the grass roots.

(c) Interest yourself in LGBT literature and activities. It is always prudent to know the place where these persons come from in order to champion their fight. Further research on the internet, on the law and how other jurisdictions are performing is good to enrich oneself while fighting for LGBT rights. Attend trainings on LGBT rights that are put in place to better understand this.

34 Ephraim Kasozi, “Church Will Not Tolerate Homosexuality- Kazimba,” The Daily Monitor 2 March, 2020, P. 2. 46

Training of personnel in LGBT rights as well as sexual health and reproductive health by TRIUMPH Uganda team.

(d) Write about it. Paralegals may write on any platform on how best to actualise these rights. May use print media, blogs, and social media platforms like Facebook or WhatsApp to write about the issues faced by LGBT community. They should follow up on live stream activities that speak about these rights and use these platforms to speak about this.

(e) Be part of the criminal or civil proceedings to secure LGBT Rights. One of the many challenges faced by LGBT people is the arbitrary and untimely arrests while enjoying their rights. Paralegals should be ready to assist in the release of people arrested because of being LGBT through police bond, bail out these people, act as sureties in the event of bail applications and visit the ones languishing in detention centres. Paralegals can always research and generate defences in the event of prosecution and most of all can act as witnesses in Courts of law or deponents to documents filed in Court as advocates for human rights of the LGBT People.

(f) Timeliness Paralegals should know the right time to take action against such violations. This also comes with ability to know which forum to use to achieve the remedy. Timeliness is necessary to allow for positive results in the fight for LGBT rights as well as avoid regressive practices. Any legal action poorly times may have disastrous effects to realisation of LGBT rights.

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6.6. Challenges in Enforcing LGBT Rights

(a) Dormant judiciary Lack of a pro-active judiciary impedes LGBT Rights. An independent and forward-looking judiciary is critical to the full and effective realisation of these rights. In this regard, judicial activism is essential to give full meaning to the content and scope of LGBT rights, to interpret the constitution as an all-inclusive and ever changing body of laws depending on the society. To remember that the judiciary has been at the forefront of realisation of these rights in countries like Botswana and South Africa.

(b) Society perceptions It is rare for persons or advocacy groups fighting for LGBT rights to be accepted as undertaking honest work. They are usually labelled as against cultural settings and introducing cultures of the west more so to gain donor funds. In the case of Jacqueline Kasha Nabagesera, Frank Mugusha & 2 Others Vs Attorney General & Fr, Simon Lokoddo (HCMC No. 233 of 2012), Court ruled that actions of Freedom and Roam Uganda (FARUG) and SMUG were to promote and encourage homosexuality and same sex relations yet such promotion in itself is prejudicial to public interest. It went on to state that any international norms (as LGBT rights are commonly referred to) have to be consistent with African practices and norms and LGBT practices have no place in Uganda and Africa.

(c) Lack of government support. Government has a duty to fulfil, respect and protect human rights. It equally has mechanisms and institutions to support rights of many marginalised people such as rights of women, disabled or indigenous. The LGBT community, however, is on its own and worse, the government is the one fighting it. For instance the Minister for Ethics Father Lukodo has made it his major agenda to fight the LGBT community.

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(d) Financial constraints A lot of the ways in which paralegals come in to help with the fight involve use of money such as bail out, transportation costs, facilitation of persons, use of social media and this may hamper the realisation of the said rights. They are underpaid and cannot perform adequately.

(e) Security of person, violence and destruction of property Taking a role in LGBT rights in Uganda is not only a brave decision, it is dangerous decision. Several personnel fighting for rights of LGBT people face physical and digital violence in their operations. Cyber bullying is also one of the issues where internet is used to insult and threaten safety of human rights activists. The organisations are labelled as entities encouraging, supporting and promoting same sex practices among homosexuals in Uganda. Many break-ins have happened to offices of organisations fighting for the rights of the LGBT.35 Such horror befell TRIUMPH Uganda on 10th December, 2019.

35 Sstatement on the Break-in at TRIUMPH Uganda Offices by TRIUMPH Executive Director at https://web.facebook.com/pg/triumphuganda/posts/. Also see World Organisation against Torture “Uganda: Break-in of the offices of TRIUMPH Uganda,” 13th December, 2019. Available at https://www.omct.org/human-rights-defenders/urgent-interventions/uganda/2019/12/d25641/(acessed 25th April, 2020). 49

ABOVE: TRIUMPH UGANDA offices in Mbale that were broken into on the night of 10th December, 2019.

LEFT: Police carry out investigations. To date, no one has been arrested or prosecuted for this crime.

(f) Absence of a vibrant Civil Society presence on LGBT The scene in Uganda is one of general quiet when it comes to LGBT rights. There are very few CSOs that champion for these rights and the few are always threatened and do not operate in a free environment. This makes the fight a lonely fight.

(g) Acc eptance from the LGBT community. Many people fighting for the LGBT rights may not necessarily be LGBT. This presents issues of identity and allegations of only obtaining benefit out of the struggle of others.

(h) On and off government stance on LGBT Government has time and again shown a lukewarm attitude towards LGBT rights. At one time it accommodates them and the next minute violently abuses their rights. This is a major challenge especially in monitoring progress as a nation.

6.7 Over Coming Challenges

Adding or reiterating what was mentioned earlier in Chapter 6.5 on how Paralegals can come in, this section provides a few recommendations to overcome the challenges faced.

(a) Coordinate with organisations such as TRIUMPH, SMUG, HRAPF, Pride Uganda, and Chapter Four among others. Together, CSO make greater impact. In case help is needed could be financial, regarding security of a person and the like, you may contact the other organisations.

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(b) Clear conscience. With all the society backlash for those championing LGBT rights, paralegals should have a clear conscience that they are fighting for the rights, freedoms and social justice of all in society.

(c) Arm yourself with the law. Having understood how the law can be used to advocate for the rights of the LGBT, use the law to protect these rights while keeping in mind the regressive provisions of the law that affect the rights of the LGBT people.

(d) Paralegals must cooperate and engage in LGBT activities to be accepted as part of the fighters for their rights. One cannot stay aloof and wait to fight for a people they are not in cooperation with.

RIGHT: Gay Pride parade in Entebbe, Uganda, 2015. LEFT: Activists for Uganda LGBTI Rights in the diaspora.

(e) Train others. Having established that there is a knowledge gap regarding LGBT rights, paralegals should train and inform the unaware masses about these rights to change attitudes. From here on, teach and practice what you have learnt.

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Conclusion

In conclusion, the duty of paralegals in LGBT rights advocacy cannot be overstated. It takes spirit but most of all resilience to take on this mantle and despite the challenges, there have been many positive strides taken in Uganda.

It is our honest belief that while Covid-19 pandemic sweeps on, social restrictive measures on and exacerbated by the reluctance of the government to declare lawyers essential to use road transport (private cars) to access detained members of the LGBT community at different police stations and prisons, Paralegals within their districts can play an important role in bridging this gap hence this timely Resource-book to Resource Book them.

TRIUMPH UGANDA will remain committed to remotely provide back-up information to the paralegals taking on the human rights mantle using digital social spaces.

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