Why the Anti-Homosexuality Act 2014 Was Unconstitutional
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A Publication of Human Rights Awareness And Promotion Forum (HRAPF) BEYOND QUORUM: WHY THE ANTI-HOMOSEXUALITY ACT 2014 WAS UNCONSTITUTIONAL SECOND ISSUE MARCH 2015 THE HUMAN RIGHTS ADVOCATE SECOND ISSUE, MARCH 2015 HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 1 THE HUMAN RIGHTS ADVOCATE EDITOR’S NOTE elcome to the second issue of law in the Constitutional Court and on the Human Rights Advocate. 1st August 2014, the law was declared WThe Human Rights Advocate unconstitutional. This was on the basis is a bi-annual human rights magazine that the Act was passed by the legislature produced by Human Rights Awareness and without following the procedures provided Promotion Forum-Uganda (HRAPF). It is for in the Constitution and under the rules produced under the legislative Advocacy of Procedure of Parliament as regards and Networking Program. quorum. HRAPF is an independent, not-for-profit, The Act sought to “prohibit any form non-partisan, and non-governmental of sexual relations between persons of organisation. It is fully incorporated under the same sex; prohibit the promotion the laws of Uganda. HRAPF focuses or recognition of such relations and to on human rights awareness, advocacy provide for other related matters.” The Act and access to justice for marginalised created offenses including: homosexuality, groups. It employs legal aid services, legal aggravated homosexuality, and attempt and policy analysis, legal research and to commit homosexuality. It also created documentation, and strategic litigation to the offences of aiding and abetting further its objectives. homosexuality, conspiracy to engage in homosexuality, having or conducting This magazine focuses on legislative a same-sex marriage, promotion of review and advocacy in favour of homosexuality, among others. All the marginalized groups. Each edition features offences could result in fines and prison writers on a topical legislative issue that sentences ranging from five years to life concerns marginalised groups in order to imprisonment. advocate for laws that promote human rights and access to justice for all. The law was a direct attack on the rights to: equality and freedom from discrimination, This second edition of the Human Rights privacy, press freedom, freedom of Advocate magazine is dedicated to expression, assembly and association, reasons why the Anti-Homosexuality property, freedom from cruel, inhuman Act 2014 (AHA) was unconstitutional, and degrading punishment, and civic even beyond the issue of quorum. The participation. Above all, the Act would Anti-Homosexuality Act was passed by institutionalise a culture of hatred and Parliament on December 20, 2013 and legitimise discrimination against one of signed by the President on February the most margainlised groups in Ugandan 24, 2014. It became operational on society. March 10, 2014. On 11th March 2014, HRAPF and 9 others challenged the The petition that nullified the Act is officially 2 HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) THE HUMAN RIGHTS ADVOCATE SECOND ISSUE, MARCH 2015 cited as Prof. J. Oloka Onyango, Hon. Fox and maintenance of universally accepted Odoi-Owyelowo, Prof. Morris Ogenga- standards of human rights which include inter Latigo, Andrew M. Mwenda, Dr. Paul alia, provision of equal opportunities and Semugoma, Jacqueline Kasha Nabagesera, gender equality as well as the recognition, Julian Pepe Onziema, Frank Mugisha, promotion and protection of human and Human Rights Awareness and Promotion people’s rights in accordance with the Forum and the Centre for Health, Human provisions of the African Charter on Human Rights and Development (CEHURD) v and Peoples’ Rights. However, this case has Attorney General, Constitutional Petition not been heard by the Court. No. 008 of 2014. The Petitioners were: a law professor, one of the MPs who This second edition of the Human Rights authored the minority report on the Anti Advocate contains the editorial, feature, two Homosexuality Bill 2009, a former leader opinion articles and three commentaries. of the opposition in the eigth parliament, It also includes articles on experiences a journalist and media house owner, a HIV of living with the AHA, the AHA from activist for men who have sex with men, international law perspective, legislative a gay activist, a trans activist, a lesbian history and updates on two cases filed against activist, an organisation offering legal aid the annulled Anti-Homosexuality Act 2014. services to marginalised groups, and an organisation working on health issues In the editorial, the editorial team explores respectively. It was filed on 11th April 2014; reasons why the AHA was unconstitutional a day after the Act came into force. The beyond quorum. The feature describes the case was heard and judgment delivered contents of the AHA. The first opinion article on August 1st 2014, leading to annulment reveals that almost all Ugandans could of the law. easily fall foul of the provisions of the Act, yet the second opinion article weighs the The law was also challenged at the East implications of the law on public health in African Court of Justice. The reference Uganda. In commentaries, the first article was filed on April 25, 2014 by HRAPF. exposes the time bomb of the death It is officially cited as Human Rights sentence that was hidden in Section 5(1) of Awareness and Promotion Forum (HRAPF) the Act, the second article illuminates the vs. Attorney General of the Republic of experience of judges in South Africa with Uganda, Reference No. 006 of 2014. It discriminatory apartheid laws and advised contends that Uganda was in violation Uganda’s judges to recognise the AHA as a of the Treaty for the Establishment of tool of oppression and marginalization, and the East African Community by enacting the third article assesses the implications the AHA, and that certain provisions of of the Anti-Homosexuality Act on the Uganda’s AHA are in violation of the right to health of Ugandans. Under real life Treaty for the Establishment of the East experiences, there is an article, which profiles African Community in Articles 6(d), 7(2) the harsh effects of living with the law for and 8(1)(c) , which provisions enjoin LGBTI persons, including what marginalised partner states to govern their populace people have already experienced since the on the principles of good governance, passing of the law. Under international law democracy, the rule of law, social justice perspective, there is an article discussing the HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 3 THE HUMAN RIGHTS ADVOCATE effects of the AHA from an international human rights implications of the Anti- law perspective while under legislative Homosexuality Act, and any similar anti- history, there is an article which journals homosexuality laws that may emerge. We the genesis and impact of recent legislation also hope that the issue will open people’s in Uganda. Case updates I and II gives an eyes to the dangers that such laws pose overview and update of the cases filed to every Ugandan. Finally, we hope that against the AHA in the Constitutional Court this information can be used in advocacy of Uganda and the East African Court against laws aimed at stigmatising and of Justice. Finally, the press statement marginalising people. released by HRAPF on International Women’s Day 2014 is included in the HRAPF would also like to acknowledge appendix. the contributors of articles to this issue of the magazine. Prof. J. Oloka Onyango of Although the AHA has been annulled, the School of Law, Makerere University; these articles remain relevant for several Dr. Stella Nyanzi (PhD) of the Institute of reasons. First, the AHA was annulled Social Research, Makerere University; Dr. based on the issue of procedure Paul Semugoma; Mr. Francis Tumwesige under which it was passed rather than Ateenyi; Mr. Edward Mwebaza; Ms. Linette substantive, grounds. These articles Du Toit, Ms. Joaninne Nanyange, Ms. Asia chronicle the harmful effects of the AHA Russel of Health Gap and Ms. Jenevieve and the ways in which it violated the Discar. HRAPF also acknowledges the Ugandan constitution as well as Uganda’s contribution of HRAPF members, the international obligations; as such, the AHA Board of Directors and staff who helped in was unacceptable for reasons outside of compiling, contributing to and reviewing and more significant than quorum. Second, this magazine. the AHA motivated and legitimised human rights violations against individuals and Adrian Jjuuko continues to do so, despite having been Editor annulled. Third, a similar bill is being proposed to be tabled before Parliament in the near future—in fact, a new draft bill EDITORIAL TEAM entitled The Prohibition of Promotion of Unnatural Sexual Practices was recently Editor leaked to the media, which though not owned by any entity is substantially similar Adrian Jjuuko to and, in some ways, worse than, the AHA.1 Thus, a comprehensive examination of the Associate Editor AHA remains necessary. Edward Mwebaza We hope that readers find this to be a useful resource in analysing the legal and Contributors Flavia Zalwango 1 PROHIBITION OF PROMOTION OF UNNATURAL SEXUAL Joaninne Nanyange PRACTICES BILL, 2014 (Oct. 29, 2014), available at http://www. scribd.com/doc/245855111/The-Prohibition-of-Promotion-of- Jenevieve Discar Unnatural-Sexual-Practices-Bill-of-2014. 4 HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) THE HUMAN RIGHTS ADVOCATE SECOND ISSUE, MARCH 2015 PAGE IN THIS ISSUE