Constitutional Court Strikes Down Uganda’s Anti-Homosexuality Bill
August 1st, 2014
Breaking news , I am officially legal . The constitutional court in Uganda has declared anti homosexuality law 2014 null and void
— Dr. Frank Mugisha (@frankmugisha) August 1, 2014
At noon this morning Kampala time, Uganda’s Constitutional Court has declared the draconian Anti-Homosexuality Act null and void. The Court said that the law was invalid because Parliament lacked the constitutionally-mandated quorum when it passed the legislation last December. Article 88 of Uganda’s constitution (PDF: 469KB/192pages) requires that at least one third of members be present any time Parliament votes “on any question.”
Still in celebration mood safely made it out of court amidst crowd of journalists & demos' by anti gay groups – UG anti gay law nullified
— Dr. Frank Mugisha (@frankmugisha) August 1, 2014
The court room was reportedly tense as people gathered this morning for the session to start at 9:30 local time (2:30 a.m. EDT). The court had heard testimony on Wednesday and Thursday over the quorum issue, and observers were expected the court to rule on that question today. As 9:30 came and went, the Court announced that they were putting off the morning’s session until noon. Pastor Martin Ssempa reportedly became agitated as the morning progressed, and police had to step in to settle the situation down.
Pastor Ssempa seems to be engaging ALL the petitioners! Police officer has stepped in to cool down the tempers. #Petition008
— Kemigisha K Ophelia (@k_ophelia) August 1, 2014
When the Constitutional Court resumed at Noon, it read its judgment nullifying the Anti-Homosexuality Act.
Judges of the constitutional court listening to their colleague, Mwanguhya, read the judgment in the anti homo act pic.twitter.com/e7N9gxkOmy
— Andrew M. Mwenda (@AndrewMwenda) August 1, 2014
— Kasha Jacqueline (@KashaJacqueline) August 1, 2014
Meanwhile, Ssempa’s twitter feed went silent after the court’s verdict. As of this moment, this was his last tweet:
— Martin Ssempa (@martinssempa) August 1, 2014
J. Lester Feder reports that LGBT activists are bracing for another round of violence following the court’s decision:
The law’s supporters, like Ssempa and the leadership of the Inter-Religious Council of Uganda, had been whipping up their supporters during the two days of hearings before the ruling, and LGBT activists expected a backlash if they won.
“Many people are going to retaliate and attack community members,” said Kasha Jacqueline of the organization Freedom and Roam Uganda, another of the petitioners. “People are going to retaliate — not just the members of parliament and anti-gay groups and religious leaders, but in the community as well.”
The Anti-Homosexuality Act provided a lifetime sentence for those who convicted of homosexuality. It also imposed a lifetime sentence for those who convicted of “aggravated homosexuality,” which include “serial offenders” of homosexuality “or related offences.” Related offenses include lifetime imprisonment for entering into a same-sex marriage, seven years for conducting one, five to seven years for advocacy by or on behalf of LGBT people, five years for providing housing to LGBT people, and seven years for providing services to LGBT people. The Act also provided for the extradition of any “person charged with an offence under this Act.”
Before its passage, the Anti-Homosexuality Bill had been safely bottled up in Parliament, but observers believe domestic politics eventually took over and ensured the bill’s passage. Originally introduced in 2009, the bill remained bottled up in the House, which failed in its last minute efforts to pass the bill before the Eight Parliament expired in 2011. House Speaker Rebecca Kadaga had spent much of 2012 and 2013 raising her profile in a possible bid to challenge President Yoweri Museveni in the run-up to the 2016 general elections, engineered the bill’s reintroduction in Parliament in February 2012. It’s passage appeared imminent at the end of that year when it became a political football in a larger fight over control of the country’s newly-developing oil reserves. As Parliament tore itself apart over a contentious oil bill, the Anti-Homosexuality Bill rose to the top of Parliament’s published Order Papers, which sets the agenda for the day, under the heading of “Business to follow,” of actions to take place after the oil bill’s passage. It was believed that the hugely popular Anti-Homosexuality Bill was being held close at hand as a potential unifying measure. But after Parliament passed the contentious petroleum legislation, it broke for Christmas and the Anti-Homosexuality Bill was quietly removed from the Order Papers when Parliament resumed in the Spring of 2013.
But behind-the-scene plans to swiftly pass the Anti-Homosexuality Bill without debate emerged in April 2013, when the opposition magazine Observer reported that a MP’s were lobbying Kadaga to hold the debate in a closed-door session so that individual members could speak freely without having foreign donations to their pet projects or travel visas jeopardized. On December 20, Kadaga made a snap call to bring the Anti-Homosexuality Bill before the house for a final vote, despite the bill not appearing on the order papers for the day. Prime Minister Amama Mbabazi objected to the vote citing the lack of quorum, but Kadaga overruled Mbabazi and the bill passed on December 20.
Museveni’s initial reaction was to wrote a letter to Kadaga criticizing Parliament’s rushed approval about the bill. Among his many complaints were that the bill was passed without the proper quorum. He told representatives of the Robert F. Kennedy Center for Justice and Human Rights in January that he would reject what he called the “fascist” Anti-Homosexuality Bill. But again, politics intervened. Mbabazi was also maneuvering to challenge Museveni’s position at the same time as Kadaga, and he was already on record as objecting to Parliament’s passage of the legislation. Museveni’s about-face in February was seen by many as part of a larger effort to counter Mbabazi’s efforts to build a rival power base within the ruling National Resistance Movement. Museveni signed the bill on February 24.
The bill’s signing initiated a wave of anti-gay vigilantism in the press while the government raided several NGO’s for allegedly “promoting” homosexuality. In March, a coalition of human rights groups petitioned the Constitutional Court, charging that the Anti-Homosexuality Act violated several constitutionally-guaranteed rights, including the rights to privacy, free expression, thought, assembly, association, civil participation, and the rights to be free from cruel, inhuman and degrading treatment. It also charged that Parliament acted improperly in passing the bill without a quorum.
In Uganda, it’s typical for court cases to proceed at a snails pace, with months passing between small bursts of activity. Cases often languish for years. So it was a significant surprise when the Court’s first act came late last week with a snap call for both sides to present their cases on Wednesday and Thursday, which caught a lot of people off guard. State Attorney Patricia Mutesi complained that she wasn’t prepared to proceed with her arguments and asked for a delay, but the court rejected that request. It heard testimony Wednesday and Thursday, and delivered its decision today. That lightning-quick movement is practically unprecedented, leading many to speculate on the politics behind the court’s dramatic move. Museveni is planning to travel to Washington, D.C. next week to attend a summit of African leaders.
LGBT and human rights activists say they expect the Anti-Homosexuality Bill to be reintroduced in Parliament again, but it would mean starting the entire process over again, including motions to seek permission to introduce the bill, a certificate of financial implication from the government, and committee hearings. That certificate of financial implication is likely the most logical step for Museveni to step in to quash the bill. When the bill was first introduced, the certificate certified that there were no financial implications, but with several countries suspending or canceling foreign aid to Uganda over the AHB, the financial toll of reintroducing the bill is now known to be enormous. It is believed that foreign aid makes up from twenty to thirty percent of Uganda’s GDP, and about twenty percent of the government’s budget.
Uganda’s Constitutional Court Hears Challenge to Anti-Homosexuality Act
July 31st, 2014
NTVUganda reported on Wednesday’s proceedings before Uganda’s Constitutional Court challenging the constitutionality of the Anti-Homosexuality Act. Petitioners challenging the AHB contend that the law not only violates the constitution, but was passed in Parliament without a quorum. If this report is representative, it appears that the central question in today’s proceedings was the lack of quorum. Uganda’s Daily Monitor this morning provided further details of that exchange:
“You should be very careful if you are to pass this Bill, you must have quorum. These are not joking matters,” (attorney for petitioners) Mr. (Nicholas) Opiyo quoted the Prime Minister as saying to the Speaker of Parliament.
Mr Opiyo further quoted the Prime Minister: “I would like to see quorum in the House before passing this Bill.”
He argued that Ms Kadaga violated the Rules of Procedure of Parliament and the Constitution. Another lawyer representing pro-gay activists, Mr Caleb Alaka, accused Ms Kadaga of not minding to check whether there was the right quorum to pass the Bill into law despite being alerted about the lack of the same.
Mr Alaka added that another MP during the voting process, whose name he did not mention, shouted that they should go ahead and pass the Bill into law, saying after all they had passed other Bills into law without the recommended quorum.
Mr Alaka submitted that the AG, through the affidavit of Mr Denis Bireije, the commissioner of Civil Litigation has not challenged the issue of quorum, literally meaning that they have conceded.
In the circumstances, Mr Alaka asked the court to allow their petition and among others, declare that the Anti-Homosexuality Act was passed without the right quorum, hence its null and void.
The matter of a quorum is very important here. Article 88 of the Uganda Constitution (PDF: 469KB/192 pages) is very specific about it:
88. Quorum of Parliament.
(1) The quorum of Parliament shall be one-third of all members of Parliament entitled to vote.
(2) The quorum prescribed by clause (1) of this article shall only be required at a time when Parliament is voting on any question.
(3) Rules of procedure of Parliament shall prescribe the quorum of Parliament for the conduct of business of Parliament other than for voting.
There are 375 members of Parliament, 263 of which are held by the ruling National Resistance Movement. A quorum would consist of 125 members.
There was one interesting bit of pertinent information that came out of this report. In order for a law to go officially in effect, it must be printed in the Uganda Gazette. “Gazetting” a law is a common procedure in Commonwealth countries. It’s typically a mere formality but an important one, as it marks the law’s first official day in force. According to Daily Monitor:
The pro-gay activists, among others, want court to issue permanent orders staying the operationality of the Anti-Homosexuality Act. They also want court to permanently stay the gazetting of the Anti-Homosexuality Act, 2014 which has not yet been gazetted.
This should be surprising, as the government has been raiding NGO’s and shutting them down over allegations that they were violating specific clauses of the AHB, namely those prohibiting the “promotion” of homosexuality.
The WBS report was considerably less balanced, reporting unfounded allegations that the former Opposition leader Prof. Moris Ogenga Latigo was petitioning against the AHB “to get quick money from individuals promoting inhuman acts.” Pentecostal Pastor Martin Ssempa, one of the AHB’s staunchest supporters, was given free access to WBS’s cameras for his speech.
The law that was passed, was passed out of great difficulty. And we see over here many men and women who have been given money by the whites, the Europeans, the Americans, to come and to try to stop the good law that was made. And they are using every trick necessary. They have also threatened our judges and our officers that if they do not make rules or they are seen as against homosexuality, that they will not have visas, they will not travel.
In a separate article, Daily Monitor reported that after the State Attorney tried to put off proceedings to a later date, she submitted the government’s response Thursday morning. This means that Constitutional Court could deliver a ruling as early as tomorrow.
Petitioners against the AHB include Makarere University School of Law’s Prof. Joe Oloka-Onyango, MP Fox Odoi-Oywelowo, veteran journalist Andrew Mwenda, former opposition leader Prof. Morris Latigo, Dr. Paul Nsubuga Ssemugoma (who longtime BTB readers may remember as the formerly-anonymous blogger GayUganda), and LGBT activists Frank Mugisha, Kasha Jacqueline Nabagesera, and Pepe Julian Onziema.
Human Rights Groups Petition Uganda’s Constitutional Court over Anti-Homosexuality Act
March 11th, 2014
Uganda’s Daily Monitor reports:
A coalition of fifty civil society organisations on Human rights today filed a petition in the constitutional court challenging the legality of Law on Homosexuality.
The activists argue that the Anti Homosexuality Act violates Ugandans’ Constitutionally guaranteed right to: privacy, to be free from discrimination, dignity, to be free from cruel, inhuman and degrading treatment, to the freedoms of expression, thought, assembly and association; to the presumption of innocence, and to the right to civic participation.
In a statement issued by the Coalition Members, the petitioners said that the Act represents an effort by the Executive and Parliament to scapegoat an unpopular minority for political gain.
There are ten named petitioners, including LGBT rights activists Dr. Paul Semugoma (longtime BTB readers may know him as the formerly the anonymous blogger GayUganda), Freedom and Roam Uganda founder Jacqueline Kasha Nabagesera, transgender rights activist Julian Pepe Onziema, and Sexual Minorities Uganda executive director Frank Mugisha. The petition was also signed by Joe Oloka-Onyango, a Professor of Law and Director of the Makerere University Human Rights and Peace Centre in Kampala; Andrew Mwenda, a journalist and founder of the Ugandan news magazine Independent; and M.P. Fox Odoi-Oywelowo. Rounding out the named petitioners are the Human Rights Awareness and Promotion Forum (HRAPF) and the Centre for Health, Human Rights and Development (CEHURD).
The petition states that the Anti-Homosexuality Act was passed by parliament without a proper quorum as required by Uganda’s Constitution and that it violates the Constitutions guarantees of equality and privacy. The petition also argies that “in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality” under the Constitution. The petition then goes on to each clause of the Anti-Homosexuality Act and describes the articles of the Constitution the clause violates.
It would appear that the law itself is not yet officially in effect. The final step to make a law official is for it to be “gazetted,” or published in the official Uganda Gazette. This is a common formality in a number of British Commonwealth nations, but Daily Monitor notes that the Anti-Homosexuality Act has not yet undergone that step. The petition asks the court to “permanently stay() the gazetting of the Anti-Homosexuality Act.”
The petition is also calling on the court to issue an order barring media from publishing photos, names, addresses and occupations of people thought to be gay. Since President Yoweri Museveni signed the Anti-Homosexuality Act on February 24, tabloids like Red Pepper, Hello and others have been waging mass vigilante campaigns on their front pages and publishing other stories designed to incite hatred and violence. There have been reports on blogs and social media that LGBT people are receiving eviction notices from their landlords.
The Secret Plan to Pass Uganda’s Anti-Homosexuality Bill by Stealth
December 27th, 2013
Last Friday’s passage of the draconian Anti-Homosexuality Bill by Uganda’s Parliament caught quite a lot of people by surprise including, it would appear, members of President Yoweri Museveni’s government. The bill was nowhere to be found on Parliament’s Order Paper for the day (RTF: 131KB/5 pages), and there is still some question of whether Parliament actually had a proper quorum when Speaker Rebecca Kadaga (who is among the bill’s more vigorous defenders) called for a snap vote. Warren Throckmorton points to this article by Uganda’s Observer which gives us a few clues about the plan to bring the bill up by stealth:
But promoters of the bill were encouraged by the recent passage of similar laws in Russia and Nigeria. Sources said the final onslaught was planned mid last week, and on Thursday evening. The bill’s promoters sent out messages to supportive MPs from both NRM and opposition.
“I went to bed knowing that this bill was coming up, they sent me a message yesterday [Thursday],” Dr Lulume Bayigga (DP, Buikwe South) told The Observer.
At least four MPs: Fox Odoi (West Budama North), Sam Otada (Kibanda), Krispus Ayena (Oyam North) and Abdul Katuntu (Bugweri) were known to be against the bill, having dissented from the position of the Legal and Parliamentary Affairs committee, and wrote a minority report against the bill. The minority report was, however, signed only by Odoi and Otada, who were not in the House to defend their position.
“I was not aware that it was coming because it [was] not reflected on the [hard] copy and the electronic copy of the order paper that was sent to my email,” Odoi said when contacted.
As Parliament voted to pass the bill, (M.P. David) Bahati, the promoter, paced the corridors, following proceedings on TV, and only appeared after it was passed to join his colleagues in celebration.
“This is the perfect Christmas gift we could give Ugandans, I want to thank the speaker for her courage that led to the passing of this bill,” Bahati told journalists.
He later told The Observer that it was tactical not to include the bill on the order paper because they feared government would block it.
“We knew that if it were to be included on the order paper, they [government] would scheme against it, it was in our plan that members request for it and the speaker uses her prerogative to have it included on the order paper,” Bahati told us on Friday.
…(Pentecostal pastor Martin) Ssempa was part of the group that planned the final onslaught. He said the plot was hatched on Wednesday, but they agreed to keep it secret.
“If we had let it out, we couldn’t have handled the resistance of gay activists; by this time, this place [Parliament] would be flooded by whites resisting the law,” he said.
Journalist Andrew Mwenda, founder of Uganda’s Independent newspaper, appeared on NTV to give his thoughts on Parliament’s move on what he calls “a very primitive law”: