Why verdict in anti-gay case came as no shock

In 2014, when a group of petitioners challenged the Anti-Homosexuality Act, the Constitutional Court was hurriedly constituted and it duly listened to the case. Within days, it had struck down the law on grounds that Parliament passed it without quorum.

This, the court added, contravened Rule 23 of the parliamentary rules of procedure, articles 2(1); (2), 88 and 94 (1) of the Constitution of Uganda.  

The interpretation of the court’s decision to annul the law not on its merits but rather on a technicality was that it had succumbed to political pressure. This pressure was twofold—from the West which funds many activities of the Judiciary, and also from the Executive after donors threatened to withdraw aid.  

“We wonder why they didn’t put Born-Again judges Justice Faith Mwondha and Geoffrey Kiryabwire on the panel. We have a feeling the Judiciary was influenced by politics,” Pastor Martin Ssempa, an anti-gay activist, said. 

Before the court nullified the law, the Global North had reacted by describing the law as a tragedy for Uganda. John Kerry, the US Secretary of State at the time, warned that the world’s biggest economy would review its aid.

The World Bank even said it had postponed a $90m (Shs346b) loan to Uganda over the law. While the United Kingdom didn’t follow suit, its Department for International Development (DFID), nonetheless, revealed that it had cut direct aid to the Ugandan government in the aftermath of the scandals in the Office of the Prime Minister (OPM) and the Public Service ministry.   

Elsewhere, Norway and Denmark took a tougher stance as they immediately withheld $8m (Shs30.7b) and $9m (Shs34.6b) respectively.  

“We cannot distance ourselves too strongly from the law and the signal that the Ugandan government now sends to not only persecuted minority groups but to the whole world,” Mogens Jensen, Denmark’s Trade and Development minister at the time, said, adding future development aid—bar support for water and rural roads projects—was likely to be directed away from the government.  

As if that wasn’t enough, Austria warned that it was reviewing its aid programmes. The Netherlands went a step further by saying it was cutting $9.6m (Shs37b) in aid.  

No déjà vu?   
The West mounted the same pressure when Parliament passed the Anti-Homosexuality Act last year and President Museveni signed it into law.

Key among the sanctions that the United States issued in reaction to the passing of the law was striking Uganda off the list of the African Growth and Opportunity Act (Agoa) beneficiaries. This effectively ended Kampala’s ability to export certain commodities to the US duty-free. 

The World Bank said it would halt giving Uganda loans, but President Museveni remained defiant that the Western pressure wouldn’t make him change his stance. 

“You cannot fight a war when you are a pleasure-seeker,” Mr Museveni last year told lawmakers from his National Resistance Movement (NRM) party retreat in Kyankwanzi after the Bill received support across the political divide, adding, “War is not for soft life.”  

Despite Mr Museveni’s defiance, the expectations were that the Judiciary would buckle, especially since Western donors fund Judiciary programmes. Yet the signals were sent that the courts weren’t fazed by what Mr Museveni describes—rather disparaging—as “non-tariff barriers.” 

In March, the Court of Appeal ruled that the Uganda Registration Services Bureau (URSB) had rightly refused to register Sexual Minorities Uganda (SMUG) under the company law.

The three judges led by Justice Catherine Bamugemereire were quick to dismiss the appeal on grounds that SMUG couldn’t be legally registered in Uganda because its objectives of championing rights of lesbians and gays are criminalised under Section 145 of the Penal Code Act. 

“This appeal wasn’t about abrogating any particular behaviour in our society. I have already found the appeal was on name reservation.  The learned trial judge did err when she found that the respondent (URSB) was justified in the decision taken in the public interest,” Justice Bamugemereire ruled. 

Once bitten, twice shy?
Besides Justice Bamugemereire, the other judges on the panel that dismissed SMUG case included Deputy Chief Justice Richard Buteera and Christopher Gashirabake—both who were part of the panel that heard the consolidated petition challenging the 2023 anti-homosexuality Act.

The duo would later be joined by justices Geoffrey Kiryabwire, Monica Mugenyi and Muzamiru Kibeedi in upholding a significant swathe of the Anti-Homosexuality Act on April 3. 

The easiest argument made by the petitioners that the court quickly dismissed was that the current homosexuality law contravened the 2014 judgement of the Constitutional Court. The five justices said this argument had no legs because the court hadn’t determined the case on its merits.  

“We have carefully considered the judgement in Prof J Oloka Onyango and others Vs Attorney  General. It was rendered in respect of the Anti-Homosexuality Act of 2014, which the court adjudged to have been passed without the requisite quorum. Although the petitioners in the case challenged the constitutionality of several substantive provisions in the Act, the veracity of those claims was never tested by the court,” the justices ruled, adding, “Consequently, given that no determination was made as to the constitutional rights of the petitioners in that case, it can’t be suggested that the current Anti-Homosexuality Act changes or obliterates undeclared rights.” 

The other issue that was raised by the petitioners was that in the passing of the Anti-Homosexuality Bill, now Act, public participation was constricted. They said the Bill was introduced to the House on March 9, 2023, referred to the Committee on Legal and Parliamentary Affairs on the same day and as of March 22, 2023, when the Bill was returned to Parliament, the Committee stage of the Bill had taken only six days rather than the 45 days allotted by the parliamentary rules of procedure. 

The petitioners argued that in light of that, the Ugandan people were not extensively consulted at any stage of the legislative process. The hasty passing of the Bill, they added, denied them the opportunity to exercise the power conferred upon them under Article 1 of the Constitution or participate in the legislative process in contravention of Article 3B(2) of the Constitution.   

“We respectfully do not share the view of the ninth to 16th petitioners that Objective l (i) of the National Objectives and Directive Principles of State Policy and Articles 8A, 20, 36, 38 and 79 of the Constitution oblige the Ugandan Parliament to facilitate Ugandans’ participation in the public consultation process,” the judges said.  

Article 1(a) is particularly, the justices said, pertinent to the issue under consideration insofar as it underscores the expectation that the Ugandan people shall express their preferred mode of governance either by representative participation through the election of their representatives or, more directly, by individual participation through referenda.  

“It does thus resolve the construction to be applied to Article 38(1) of the Constitution, which literally empowers, urges and confers upon Ugandans the right to participate in the governance of the country either individually through a referendum or by representation through their elected representatives. The ‘affairs of government ‘that are contemplated under that constitutional provision would include the legislative processes that are under contestation in this petition,” they said.

Speaker’s conduct  
The petitioners contended that Articles 2(1) and (2), 89(1) and (2), and the oath of that office, impose a duty upon the Speaker of Parliament, Anita Among to be impartial while presiding over the House, a standard that she fell short of during the debate on the Ant-Homosexuality Bill.

They said Speaker Among violated these provisions during the parliamentary proceedings of March 2, 2023, when she said Ugandans must see and hear those who are supporting homosexuality. The petitioners also said Speaker Among made statements during the proceedings of March 9, 2023, such as “we shall know them by their deeds and, what you are going to do will impact on the next generation, your children.” 

The argument here was that Speaker Among’s utterances sought to and did influence the outcome of the parliamentary vote. This, they added, is in contravention of Rule 77 of the Parliamentary Rules of Procedure, and the alleged threatening atmosphere created in the House negated objectivity and rationality in the debate on the Anti-Homosexuality Bill.  

Although Speaker Among was partial, the Constitutional Court said she didn’t violate any provision of the Constitution.  

“Consequently, whereas the Speaker’s conduct might indeed have depicted undue partiality in her guiding of the debate, that would have been a matter for the House itself to address under its procedural rules. It is our finding, therefore, that a violation of Rule 77 of the Parliamentary Rules of Procedure would not amount to a constitutional violation to invoke this court’s jurisdiction,” they said.   

Back in their case, the petitioners had cited the case of Mr Francis Zaake (Mityana Municipality lawmaker) in which the court found that it was unconstitutional for Speaker Among to preside over a case where she was a de facto complainant.   

The justices held that there was a difference because in this case, it was her partial guidance of the House debate that was under challenge.  

“Considering the overwhelming support the Bill attracted from the House, we are unable to abide the view that the Speaker’s conduct so influenced the debate as to affect the vote on the Bill. We, therefore, find no violation of Article 89(1) of the Constitution,” they said.