Anti-gay case awaits judgment on notice, says court

In this file photo, anti-Homosexual activists march on the streets of Kampala carrying placards on August 11, 2014. PHOTO/AFP

What you need to know:

  • No date has been set for the ruling.

The case in which human activists are challenging the Anti-Homosexuality Act enacted in May 2023 is awaiting judgment before the Constitutional Court.

A panel of five judges led by Deputy Chief Justice Richard Buteera, have said that the judgment in the four petitions which were consolidated shall be delivered on notice after lawyers for both the Attorney General and the petitioners agreed to file written submissions.

“Thank you all counsel for the parties, the court shall give its decision on notice,” Justice Buteera held.

Other judges are Geoffrey Kiryabwire, Muzamiru Kibeedi, Monica Mugenyi and Christopher Gashirabake.

The court’s pronouncement followed submissions by lawyers stating that they agreed to proceed with the case by way of written submissions.

Mr Onyango Owor, one of the lawyers representing the petitioners said that they would file their final submissions by Wednesday (December 20) and thereafter the court shall proceed to deliver its judgment.

The court is set to deliver its decision based on 14 issues that were set by the parties in their pleadings for determination.

The petitions were filed by West Budama MP Fox Odoi, lawyer Nicholas Opiyo, Uganda's Ambassador to South Africa Kintu Nyango, Veteran Journalist Andrew Mwenda, Makerere University Law professors; Sylvia Tamale, Busingye Kabumba and several civil society organisations.    

They contend that the Anti-Homosexuality Act 2023 alters a 2014 Constitutional Court decision which nullified a similar law and is therefore inconsistent with Article 92 of the Constitution.

It is alleged that the Anti-Homosexuality Act, 2023 was passed within a record period of six days instead of the 45- day period provided for by the rules of Parliament.

They further allege that Parliament enacted the controversial law on May 2, 2023 without meaningful and adequate public participation which is inconsistent and in contravention of Articles 1, 2, 8A, 20, 36, 38, 79 and Objective 11(1) of the National Objectives and Directive Principles of State Policy of the Constitution.

The petitioners asked the court to throw out the Anti-Homosexuality law because it infringes on the rights and freedoms including speech and association of gay people. They claim that it is unlawful for the government to criminalize consensual same sex among adults.

The petition is against the Attorney General who is the government chief legal advisor, Pastor Martin Ssempa of Makerere Community Church and Eng Stephen Langa of Family Life Network.

The Attorney General who represents the government argues that: “The provisions of the Anti-Homosexuality Act, 2023 are not inconsistent with or in contravention with the provisions of the Constitution, international treaties, covenants and declarations.”

The government lawyers contend that the legislation does not alter the 2014 decision by the Constitutional Court, saying: “The decision/judgment was based on the lack of quorum and did not go to the substance of the legislation.”

He added that the Act was passed by Parliament after conducting wide consultations with the public and their representatives in the form of written and oral memoranda.

The government wants the Constitutional Court to maintain the Anti-Homosexuality law insisting that there is a need to re-emphasise that same sex relationships/marriage is a crime.

About the law

The Anti- Homosexuality Act, 2023 prescribes tough penalties for various offences including participating in promotion, facilitation and failure to report acts of homosexuality.

Penalties range from death for aggravated homosexuality to imprisonment not exceeding 20 years.