Uganda’s Constitutional Court has today declined petitions to nullify the Anti-Homosexuality Act, 2023.
“We decline to nullify the AHA 2023 in its entirety, neither will we grant a permanent injunction against its enforcement,” the judges led by Deputy Chief Justice Richard Butera ruled on Wednesday morning at the Constitutional Court in Kampala.
Butera stated that the 5-member court reached a unanimous decision.
However, the Court invalidated Sections 3(2)(c), 9, 11(2)(d), and 14 of the Anti-Homosexuality Act, 2023, as they were found to contradict the Constitution of Uganda, 1995.
These nullified Sections previously criminalized renting premises for homosexual activities, failure to report homosexual acts to the Police, and engaging in such acts resulting in another person contracting a terminal illness.
The court rejected arguments that the Anti-Homosexuality Act infringes on the right to conduct business and profession by limiting content promoting homosexuality. Instead, it stated that the law aims to preserve societal morals by restricting the dissemination of offensive material through media.
Butera explained, “The evidence presented shows that the Anti-Homosexuality Act was enacted to address concerns about the recruitment of children into homosexual practices.”
Regarding Sections 12 and 13 of the Act disqualifying homosexual convicts from working in child care institutions, the court stated that this provision is intended to safeguard children and vulnerable groups in society.
In 2023, Uganda’s Parliament passed the Anti-Homosexuality Act because of strong public outcry, discussions in media, and heartbreaking stories of children and families suffering silently from the psychological pain of forced recruitment into homosexual acts.
This law made homosexuality illegal and banned its promotion, funding, and normalization.
When the President approved the law on May 26, 2023, 22 citizens and human rights activists filed four petitions in the Constitutional Court. They argued that the law violated human rights guaranteed by Uganda’s Constitution and international agreements.
The Attorney General of Uganda, Pastor Martin Sempa, Eng. Stephen Langa, and the Family Life Network Limited opposed these petitions. The Court also considered a brief from the United Nations Programme on HIV/AIDS (UNAIDS).
In its ruling, the Constitutional Court declared most parts of the Anti-Homosexuality Act constitutional except for four sections mentioned earlier.
This means the law allowing the death penalty for aggravated homosexuality, especially when involving a child, disabled person, elderly, or someone under the influence of drugs or alcohol, remains in effect.
In coming to its decision, the Constitutional Court considered the following:
- The legislations and judicial decisions from sister jurisdictions that have decriminalised consensual homosexuality between adults in private space.
- The absence of consensus at the global level regarding non-discrimination based sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC). This is reflected in the fact that to date non-discrimination on the basis of the SOGIESC variables has not explicitly found its way into international human rights treaties. Instead, it has been ‘vetoed’ by a bloc of resistant (UN) member states that has prevented the adoption of a binding declaration or similar instrument to strengthen protections for LGBTI human rights.
- The conflict in international human rights law between upholding a universal understanding of human rights and respecting the diversity and freedom of human cultures, with no one culture entirely diminishing the dignities of the other.
- The conflict between individuals’ right to self-determination, self-perception and bodily autonomy, on the one hand; and the communal or societal right to social, political and cultural self-determination, calling for a delicate balance between individual autonomy and communal interests.
- The recent developments in the human rights jurisprudence including the decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 U.S. 215 (2022), where the Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to individual autonomy.
- The uniqueness of Uganda’s Constitution which obliges the courts of law to take into account the country’s socio-cultural norms, values and aspirations when resolving any disputes before them.
- The Anti-Homosexuality Act being, in general, a reflection of the socio-cultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizens.
