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.
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.
"They kept teasing me about whether I am a girl or a boy" she recounts. She says the police officers did not believe her when she asserted to be female and asked her to undress in front of an officer for a "thorough check".
The officer allegedly felt her private parts and pressed upon her breasts, ostensibly to confirm her gender. "I know that she did this because she felt that since I am a homosexual, I did not deserve any dignified treatment," claims Ms Ooyo.
After the raid, both complainants claim they lived in fear of more attacks. Amnesty International got involved and helped Ms Mukasa flee to South Africa on the basis of the complaints. She only returned to Uganda for the first hearing of the case.
The third and final hearing next month will therefore determine what fate awaits her desire to be guaranteed normal rights, despite her sexuality.
Hostility to gays
Uganda does not permit homosexuality which is considered a crime under the country's penal laws. Many Ugandans view homosexuality as a perverted practice.
"I have told the CID (Criminal Investigations Department) to look for homosexuals, lock them up and charge them," said President Yoweri Museveni while opening a reproductive health conference in Kampala in the late 90's. The statement provoked diplomatic protests from, among others, the US State Department.
Recently, after a split in the Anglican church of America over gay rights, Ugandan churches stepped up to provide pastoral assistance to several dioceses which were anti-gay. Gay rights activists like Sexual Minorities Uganda (SMU) claim the atmosphere in Uganda is constantly hostile to them.
In October 2006, The Red Pepper tabloid published a list of names of suspected gays and lesbians. The gay rights group says several people whose names appeared on the list lost jobs and received harsh treatment from their family members.
Uganda is a signatory to the International Covenant of Civil and Political Rights, which mandates the universal protection of civil and political rights for oppressed groups regardless of political affiliation, race, religion, gender, or sexual orientation. However, activists say this has had no apparent effect on the way homosexuals are regarded.
According to SMU, gays and lesbians in Uganda report that they have been harassed by police, taxi drivers, and people on the street. Others reportedly claim they are humiliated at school assemblies, forced to undress in church to "remove male spirits," or raped to "prove" they are women. The group also says most of these acts go unreported because gay people fear they will end up in jail.
"This is not just a case of one lesbian woman seeking justice. It is a case of every gay person in this country whose rights have been violated in one way or another," says Ms Mukasa. It remains to see how the ruling will affect the way gay people live in Uganda.