Pro-gay lawyers to demand Shs15b in costs

Kampala- The lead lawyer of petitioners against the Anti-Homosexuality law 2014 that was annulled last Friday will demand a “high and expensive” bill of costs in the region of Shs15b, according to Mr Caleb Alaka.

Mr Alaka, however, hastened to add the team of lawyers that argued out the case is yet to meet and agree on estimates of their bill to be filed for approval by the Court’s Registrar.

In a telephone interview yesterday, Mr Alaka said the petition was very expensive as it involved voluminous research.

“If you saw us entering court you must have observed we carried heavy files. I have never read such literature. We had to research widely and that made the petition very costly.

That is why court awarded us 50 per cent of the cost,” Mr Alaka said.
However, Mr Ladislaus Rwakafuzi, a renowned human rights lawyer, yesterday told Daily Monitor that they would ask a maximum bill of Shs500m “since it was a public interest case.”

Ms Fridah Mutesi, another lawyer who represented the petitioners declined to estimate what the bill would look like, saying: “We shall go with whatever court gives us after taxation.”

The petition against the Anti-Homosexuality law was filed by 10 pro-homosexuality rights activists including former Leader of Opposition in Parliament, Prof Morris Ogenga Latigo, Makerere University law don, Prof Joe Oloka Onyango and journalist Andrew Mwenda.
Recently, court awarded Shs12.9b, almost twice the entire Judiciary annual wage bill, to city lawyer Severino Twinobusingye who blocked Parliament from forcing PM Amama Mbabazi, Ministers Sam Kutesa and Hilary Onek to ‘step aside’ over oil bribery allegations.

In an interview with this newspaper a month later, Mr Twinobusingye called the hefty award mere ‘peanuts.’

Seemingly picking a lesson from the Twinobusingye case, Mr Alaka said, “Since Twinobusingye was given Shs13b, ours will certainly be in that range or higher.”

When pressed harder, Mr Alaka said, “About Shs15b.” “We are yet to meet and agree but of course our bill will be high. With 50 per cent awarded by court that means we shall get Shs7b,” he explained. However, Mr Rwakafuzi expressed shock at the amount, saying: “That is not true. It is impossible! The maximum we can get is shs500m. There were 10 petitioners so if each is given shs50m that is 500m but remember that we were awarded half so it translates to shs250m.

HOW COURT ANNULLED THE ANTI-HOMOSEXUALITY LAW 2014

Last Friday, a panel of five justices of the Constitutional Court, including acting deputy Chief Justice Steven Kavuma, annulled the anti-gay law. Our reporter Athony Wesaka was in court and below presents a slightly edited judgment of how the Act was annulled.

a). That the enactment of the Anti-Homosexuality Act 2014 by the 9th Parliament on December 20, 2013, without quorum in the house was in contravention of Articles 2(1) & (2), 88 and Rule 94(1) of the Constitution of the Republic of Uganda and Rule 23 of the Parliamentary Rules of Procedure;

b). That Sections 1,2, and 4 of the Anti Homosexuality Act 2014, in defining the criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) &(2), 2KD (2) &(4) and 27 of the Constitution of the Republic of Uganda respectively;

c). That Section 2(1 )(c) of the Anti-Homosexuality Act 2014, 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 Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda.

d).That Section 2, of the Anti-Homosexuality Act 2014,in imposing a maximum life sentence for Homosexuality provides for a disproportionate punishment for the offence in contravention of the right to equality and freedom from cruel, inhuman and degrading punishment guaranteed under Articles 2(1) &(2), 2a and 44(a) of the Constitution of the Republic of Uganda.

e). That Section 31(b) of the Anti-Homosexuality Act 2014, in criminalising consensual same sex/gender sexual activity among adults in which one is a person living with HIV is in contravention of the freedom from discrimination guaranteed under Articles 2(1) & (2) and 21(1) & (2) of the Constitution of the Republic of Uganda 1995.

f). That Section 3(1 ),(e) of the Anti-Homosexuality Act 2014, in criminalising consensual same sex/gender sexual activity among adults in which one is a person with disability is in contravention of the freedom from discrimination and the right to dignity of persons with disabilities guaranteed under Articles 2(1) &(2), 21(1), (2) & (4c) and 35 of the Constitution.

g). That Section 3(3) of the Anti-Homosexuality Act 2014, in subjecting persons charged with aggravated homosexuality to a compulsory HIV test, is in contravention of the freedom from discrimination, the right to privacy, freedom from cruel, inhuman and degrading treatment and the right to the presumption of innocence guaranteed under Articles 2(1) & (2), 21, 24, 27, 28, 44 and 45 of the Constitution of the Republic of Uganda.

h). That Section 4(2) of the Anti-Homosexuality Act 2014 in imposing a maximum life sentence for attempted aggravated homosexuality, provides for a disproportionate punishment for the offence in contravention of the right to equality, and the freedom from cruel, inhuman and degrading punishment guaranteed under Articles 2(1) & (2), 21, 24 and 44(a) of the Constitution of the Republic of Uganda 1995.

i). That Sections 7 and 13(1) & (2) of the Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counseling, procuring and promotion of homosexuality, create offences that are overly broad, penalise, legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under
Principle xiv of the National objectives and Directive Principles of State Policy, Articles 2(1) &(2), 8A, 28(1),(3b), & 12, 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda.

j). That Section 8 of the Anti-Homosexuality Act 2014, criminalising conspiracy by any means of false pretence or other fraudulent means, is vague, uncertain and ambiguous and in contravention of the principal of legality under Articles 2(1) & 2, 28(1), & (3b), 42, 44(c) 28(12) of the Constitution of the Republic of Uganda 1995.

k). That Section 11 of the Anti-Homosexuality Act, 2014, in classifying houses or rooms as brothels merely on the basis of occupation by homosexuals, creates an offence that is overly broad and in contravention of the principle of legality guaranteed under Article 28(12) of the Constitution; and is further in contravention of the rights to property and privacy guaranteed under Articles 2(1) & (2), 21,26,27 and 28 (12) of the Constitution of the Republic of Uganda 1995.

I). That the spirit of the Anti-Homosexuality Act 2014, by promoting and encouraging homophobia, amounts to institutionalised promotion of a culture of hatred and
constitutes a contravention of the right to dignity and is inconsistent with and in contraventional and national objectives and Directive Principles of State Policy especially objection NO. III,V,VI and XIV and Articles 2(1) & (2), 8A, 24 and 44(a) of the Constitution of the Republic of Uganda of 1995;
m).

That the Anti- Homosexuality Act 2014, by encouraging homophobia and stigmatisation, is in contravention of the duty of the government to respect, protect and promote the rights and freedoms of persons likely to be affected by the Act as stipulated under Articles 2(1) & (2), 20(2)f2l(l), 32(1) and (2) of the Constitution.
n).

That the Anti Homosexuality Act 2014 in criminalising consensual same sex/gender sexual activity among adults, is in contravention of obligations with regards to the rights guaranteed under international Human Rights instruments ratified or acceded by Uganda, including the African Charter on Human and People’s Rights, the Protocol to the African Charter on Human and Peoples’ Rights, Rights on the Rights of women in African, the UN Covenant on Civil and Political rights; and the UN Covenant on Economic, social and Cultural rights; and in contravention of Objectives xiv, xxxviii(i) (b) of the National Objectives and Directive Principles of State policy, articles 2 (1) & (2), 8A, 20, 45 and 287 of the constitution.

Submissions
Counsel Rwakafuzl L, Alaka Caleb, Nicholas Opiyo and John Francis Onyango represented the petitioners While the Attorney General was represented by M/s Patricia Mutesi, a Principal State Attorney and Bafilawala Elisha a senior state Attorney at the Attorney General’s Chamber.

Eleven issues were framed to be resolved by this Court. However, at the commencement of the hearing counsel for both parties agreed with us that we should first hear them on the first issue which has the probability of disposing of the whole petition, namely;

“Whether the Anti-Homosexuality Act 2014, was enacted without quorum in the House in a manner that is inconsistent with and in contravention of 190Articles 2(1) & (2) and 88 of the Constitution of the Republic of Uganda 1995 and Rule 23 of the Parliamentary Rules of Procedure.”

Counsel Nicholas Opiyo submitted that the gist of the above issue was that the process, procedure, and manner of the enactment of the Anti-Homosexuality Act, particularly the proceedings of the 9th Parliament on December 20th 2013, was in contravention with provisions of article 88 clause 1, 94 of the constitution of the Republic of Uganda and in violation of Rule 23 of the rules of Procedure of the 9th Parliament.

The rationale was to preserve the principle of constitutional supremacy entrenched in Article 2 (1) of the constitution, in his view, Parliament was accordingly expected to be guided by the provisions of the constitution.
Counsel pointed out the particular acts of violation complained of which are contained in the affidavits, particularly of Professor Maurice Ogenga Latigo, the former leader of opposition in the 8th Parliament and that of the Hon. Fox Odoi, who was the chairperson of the Parliamentary Committee on Rules and Privileges.

In brief, they are that on 20th December, 2013 when the Anti-Homosexuality Act was being put to vote before Parliament, a procedural question as to quorum in the house was raised by none other than the Rt Hon. Prime Minister of this country Amama John Patrick Mbabazi who is also the leader of government business in Parliament as recorded in the certified Hansard of Parliament VOL 1 at pages 168 and 177 annexed to the affidavit of the 2nd petitioner. The Prime Minister said;

“Madam Chair I rise on a point of procedure because I wasn’t aware, you should be very careful that if you pass this law it must be with quoram. Please these are not joking matters, Therefore l would like to raise that point and to say that certainly l would like to see a quorum realized in this house to pass this bill therefore rise on a point of procedure one on consultations and the second on quorum”

The Prime Minister raised this point twice. According to counsel, the concern was also supported by Hon. Betty Aol Ochan who said that the house should only pass the law if there was quorum.

Counsel pointed out that the Rules of Procedure of the 9th Parliament particularly Rule 23 require that when a procedural question is raised about quorum, the question has to be determined.
The Speaker of the House shall suspend the proceedings of the House for an interval of 15 minutes and a bell be rang.

On resumption of the proceedings after the expiry of the 15 minutes, if the number of members present is still less than the required quorum for voting, the speaker shall proceed with other business or suspend the sitting of the House or adjourn the House without putting the question and the Chairperson shall adjourn the committee.

To counsel, it was a fundamental provision to protect the integrity of Parliament and to ensure that Parliament is not turned into a cacoon of people conniving to pass laws without quorum.

This procedure was ignored by the Hon. Speaker of the house who went ahead to put the question to vote.
Counsel referred to the affidavit of Hon. Fox Odoi particularly in paragraphs 7-11 which highlights what happened in the house on the named date.

He further relied on the affidavit of the Hon. Professor Maurice Ogenga Latigo which elaborates the mandate of the speaker to determine the business of the house
under the rules of procedure and in doing so, she has got to follow the law, and rules of Parliament and the dictate of the Constitution.

Counsel Alaka, associated himself with the submissions of his colleague, Nicholas Opiyo and reminded Court of the basic principles of constitutional interpretation such as interpreting the constitution as a whole, the rule of harmony, completeness and exhaustiveness.
Equally, according to him, in the affidavit of Dennis Bireije, Commissioner Civil Litigation, there is no single denial or mention about quorum. He kept quiet about it so there was no evidence to rebut the assertion which was ably raised on the floor of Parliament and which the Speaker ignored.

Attorney General’s response
In reply, learned counsel Patricia Mutesi opposed the petition and relied on their answer to the petition and the supporting affidavit of Mr.

Dennis Bireije. According to her, the only issue in respect of passing of the Act is pleaded in paragraph 12 of the 2nd petitioner which states that the enactment of the Anti-Homosexuality Act by the 9th Parliament on 20th December 2013 without quorum in the house was in contravention of the stated Articles and the Parliamentary Rules of Procedure.

The key aspect to this petition was an allegation that Parliament in passing that Act without a quorum violated the constitution, so the key issue arising from the pleading is “the absence of quorum”.

She wondered how court would determine either the existence, or absence of quorum as alleged by the petitioners. She contended that it’s very clear that it’s a matter of fact and it requires evidence. She argued that when an allegation of fact is made in any court of law, it can only be proved by evidence.

She referred us to the evidence of the petitioners that was filed and said that the only relevant affidavits in respect to the passing of the Act was that of Hon Fox Odoi and Hon. Prof. Ogenga Latigo.
She argued further that Hon. Prof. Ogenga Latigo was not a member of the 9th Parliament.

His affidavit clearly states that he was a member of the 8th Parliament and he never alleged to have been present when the Act was passed.

In the affidavit of Hon. Fox Odoi, the relevant provisions are paragraphs 7-13, where he stated that during the proceedings in plenary on that date when the Bill was being put to vote, the Rt Hon. Prime Minister raised a procedural question as to quorum.

According to her, entire affidavit adduced evidence to show that the speaker did not follow the rules of Parliament, she didn’t act in accordance with Rule 23 by not ascertaining quorum and that her act was contrary to the law, the constitution and the rules.

The two deponents did not state what is the required number of quorum in the present Parliament.

Maybe going by Rule 23 she wondered what was equivalent of the third. Counsel contended further that there was no single allegation by any of the deponents that they know the number of MPs who were in chambers and that they were below the required one third.

There was equally no allegation that anybody ascertained from the register or from those in chambers so as to be able to know that there was no quorum.

She emphasized that there was nothing in the pleadings which alleges that the failure of the speaker to act in accordance with Rule 23 is inconsistent with the Constitution, in her view, counsel for the petitioners were arguing a hypothetical case that was not before Court.
What was before Court was that an Act was passed without quorum which omission is inconsistent to the constitution. She prayed that we dismiss the petition with costs to the Attorney General.

In rejoinder counsel Alaka Caleb clarified that the enactment of the Anti-Homosexuality Act 2014, by the 9th Parliament on 20th December 2013 without Coram in the house was in contravention of Articles 21 and 2, 88 and 94, 1 of the Constitution of the Republic of Uganda and Rule 23 of the Parliamentary Rules of Procedure. The affidavit evidence of Hon. Fox Odoi brought out the fact clearly.

Counsel John Francis Onyango supplemented by submitting that our Parliament has no power to ignore the conditions of law making process that are imposed by our Constitution. He prayed that a declaration that the act of Parliament in passing into law and enacting the Anti Homosexuality bill without quorum is inconsistent and in contravention of Article 2, 88, 94 of the Constitution and Rules 23 of the Parliamentary Rules of Procedure and that the Act ought to be declared null and void.

Decision of the court
We have heard and considered the useful submissions made by both counsel and we are highly indebted to them. Though much has been said, two simple questions emerge for our answer on issue one.
1. Was the Anti Homosexuality Act passed in accordance with the law?
2. Whether the petitioners had proved that during the enacting process of the Anti Homosexual Act, the Rt. Hon Speaker ignored to invoke Rule 23 when the Prime Minister and Hon. Betty Aol raised an objection that there was no quorum at the time the Bill was put to vote at the 2nd and 3rd reading as alleged?

Answer to question one
The petitioners in their petition and evidence allege that the Anti-Homosexuality Act was not passed in accordance with the law. On the other hand, the respondent states that there is no evidence to prove that there was no quorum and that the burden to prove that fact rested with the petitioners.

We agree with learned counsel Mutesi Patricia that the burden of proof of that fact rested with the petitioners who alleged violation of various provisions of the Constitution and Rule 23 of the rules of Procedure of Parliament.

An exception to the above Rule is that where one has alleged fact and the person against whom the fact is alleged, does not deny, he is presumed to have accepted that fact.

The respondent was served with the petition and accompanying affidavits of Hon. Fox Odoi and Professor Ogenga Latigo, among others, alleging violation of the Constitution and Rules of Procedure in the process of passing of the Anti-Homosexuality Act.

In his reply, and accompanying affidavit of Mr. Bireije, Commissioner, Civil litigation, the respondent did not specifically deny the said allegations of violation and lack of Coram.

In view of the above rule and in the absence of a specific denial by the respondent (AG) in his pleadings with regard to issue one, we are unable to accept the submission of learned counsel Patricia Mutesi that the petitioners had a burden to do more than what they did. The evidence contained in the affidavit (including the annexure of the Hansard), of Hon. Fox Odoi stood strong and unchallenged.

Lutaya vs Candesha
It is clear from that evidence, that at least three members of Parliament including the Prime Minister expressed concern about the issue of lack of quorum. Quorum is defined in the Rules of Procedure of Parliament to mean at least a third of all the members entitled to vote. As indicated above, court may take judicial notice of the Uganda Gazette where Members of Parliament representing deferent constituencies are published and court may easily ascertain what a-third of eligible voting members is equal to.

It is our decision that the respondent (AG) having been presumed to have admitted the allegations of the petitioners in the petition that there was no quorum, we find that on the balance of probabilities, the petitioners had proved that at the time the Prime Minister (twice) and Hon. Betty Owol, raised objection that there was no quorum and that was in contravention of the Constitution and the Rules.

Answer to question 2
We find that the respondent (AG) in his pleadings and submissions did not even attempt to suggest that the Rt. Hon. Speaker responded in any way to the objection raised that there was no quorum. We come to the conclusion that she acted illegally.

Following the decision of Makula international Vs cardinal Emmanuel Nsubuga, supra failure to obey the Law (Rules) rendered the whole enacting process a nullity; it is an illegality that this court cannot sanction.

In the result, we uphold issue one in favor of the petitioners and grant them the following declarations under prayer (e).

(i) That the act of the 9th Parliament in enacting the Anti-Homosexuality Act 2014 on 20 December 2013 without quorum in the House is inconsistent with and in contravention of Articles 2(1) and (2) and 88, 94 of the Constitution of the Republic of Uganda 1995 and Rule 23 of the Parliamentary Rules of Procedure and thus null and void.

(ii) That the act of the Rt. Hon. Speaker of not entertaining the objection that there was no quorum was an illegality under Rule 23 of the Rules of Procedure which tainted the enacting process and rendered it a nullity. The Act itself so enacted by this reason is unconstitutional. The issue therefore of disposes of the whole petition. We award the petitioners 50 per cent of the taxed costs.