Lesbians want protection

KAMPALA
Two years ago, a government official broke into a home, seized property and detained one of the occupants without a warrant. The case seems clear, but will the plaintiff's homosexuality affect the verdict? The ruling, due next month in Uganda's Constitutional court, could set a precedent for sub-Saharan Africa's reportedly conservative masses.

Two Ugandan lesbians are suing the government for trespassing, theft of property, illegal arrest, and inhuman and degrading treatment. The case has been in court since December 2006 and a verdict is expected when the court session resumes in August.

Victor Mukasa, a 31-year-old gay rights activist and Yvonne Ooyo, a 24-year-old Kenyan, claim that on July 20, 2005, LC1 Chairman John Lubega from Kireka Kamuli zone illegally raided and searched and their home without a warrant and proceeded to arbitrarily arrest Ms Ooyo who was alone in the house at the time.

The case is highly contentious, if only because of the complainant's sexuality. Homosexuality is illegal in Uganda. Some religious leaders like born-again Pastor Martin Sempa of the Makerere Community Church, advocate a path of 'redemption' rather than court trials.

"I know many people in my congregation who were lesbian but have turned around and are living a straight life now," he says. "Victor will experience redemption if she is given the right treatment and information," he adds.

This is the first case on legal rights of homosexual citizens in a Ugandan court to receive a public hearing. In fact, aside from South Africa where homosexuality is legal, it is the first case in Africa of a gay person seeking affirmation of their constitutional rights.

Dr Nsaba Buturo, the minister of Ethics and Integrity, suggested that the plaintiffs "suffered under the false notion that homosexuality can be a human rights issue" and cautioned that "next time, they will say bestiality should be a human right."

On her part, Dr Sylvia Tamale, dean of the Makerere Law School, disagrees.
"This is not really a case challenging the legality of homosexuality. It is actually about rights to privacy and property," she says.

 
RIGHTS ACTIVIST: Dr Tamale. File photo
The case is filed as a violation of articles contained in Chapter 4 of the Uganda Constitution which covers the protection of fundamental rights which include the right to privacy, the right to property, the right to protection from inhuman and degrading treatment as well as the right to due process under the law.

These rights, by themselves, are a grey area for the law. Oscar Kihika, the president of the Uganda Law Society, says there is a conflict between Uganda's highly progressive constitutional law and residual laws from British colonial rule and Idi Amin's reign.

"Technically, police are allowed to search your home and detain you for questioning without a warrant at any time if they so much as suspect you are breaking the law," says Mr Kihika. "This was not the case in the 1970s but Idi Amin amended many laws to give police broader powers."

Since homosexuality is illegal, suspicion alone gives sufficient justification for a police search and 'call for questioning.' However, Mr Kihika points out that removing items from a residence without a warrant is still prohibited in all circumstances. Furthermore, the person who entered the home was an LC1 chairman, not a police officer.

"We want people to see that what we suffer is similar to other oppressed groups," says Ms Mukasa, who is the chairperson of Sexual Minorities Uganda, a coalition of three gay rights advocacy organisations.

"We are not asking for the right to marry, we are asking for the same rights that are guaranteed to all Ugandan citizens, even prisoners. My homosexuality does not deprive me of my citizenship of Uganda. I am only exercising my Constitutional rights," she says.

Background
On July 20, 2005, John Lubega, the LC1 chairman of Kireka Kamuli Zone, allegedly raided Ms Mukasa's home without a warrant. Ms Mukasa was away at the time of the raid and Ms Ooyo, a student at Makerere University, was alone in the house that night. Police confiscated materials they described as advocating gay rights and arrested Ms Ooyo for "idle and disorderly" conduct.
She was held in police cells for several hours where, she alleges, she was interrogated and sexually harassed.