Anti-gay verdict sends donors to drawing board

The government yesterday welcomed a Constitutional Court verdict upholding the Anti-Homosexuality Act, 2023, despite an announcement by petitioners earlier in the day to take the legal battle to the Supreme Court.

In Kampala and western capitals, the decision of the five-member Coram triggered closed-door meetings to scrutinise the text of the 200-page judgment, the implications and how to respond.

The World Bank, which froze new lending to Uganda after President Museveni last May signed the Act into law, said it was still studying the verdict while the United States, whose President Joe Biden condemned the legislation as a “tragic violation of universal human rights”, had said nothing by press time.

Other development partners and dozens of foreign diplomats accredited to Kampala, among them those of the 27-member European Union (EU), were reportedly holding consultative meetings among themselves and with their headquarters on a final position.

Among untouched parts of the law is the provision on aggravated homosexuality punishable by death by hanging, which drew immediate reproach.

The EU’s Delegation to Uganda in an interim three-paragraph statement issued last evening reiterated its position that the anti-gay law “is contrary to international human rights … [and] regrets the retention of the death penalty to which the EU is opposed in all circumstances”.

“The European Union will continue to engage with Ugandan authorities and civil society to ensure that all Ugandan citizens, regardless of their sexual orientation and gender identity, are protected and treated equally, with dignity and respect,” the statement read in part.

Sources said diplomats were exploring how to implement a package of tougher measures earlier handed down by their home governments – whose executions were paused in the hope the court would annul the impugned law - without falling out with Kampala buoyed by yesterday’s unanimous decision.

“We respectfully decline to nullify the Anti-Homosexuality Act, 2023, in its entirety as has been sought by the petitioners … neither would we grant a permanent injunction against its enforcement as invited to do…,” the judges held in the judgment read by the Deputy Chief Justice Richard Buteera.

The other justices that determined the consolidated petition by Member of Parliament Fox Odoi and 21 others against the Attorney General and three others were Geoffrey Kiryabwire, Muzamiru Kibeedi, Monica Mugenyi and Christopher Gashirabake.

They struck down Section 14 of the Anti-Homosexuality Act for infringing on the right to health, privacy, and freedom of religion that the judges said are recognised under Article 12 of the Universal Declaration of Human Rights and

Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR).

In summary of yesterday’s Constitutional Court decision, the Judiciary noted that parts of the law that the judges nullified had criminalized the letting of premises for use for homosexual purposes, the failure by anyone to report acts of homosexuality to police, and the engagement in acts of homosexuality by anyone which results in the other person contracting terminal illness.

“The upshot of our judgment is that this consolidated petition substantially fails with the following orders: (a) Sections 3(2)(c), 9, 1 1(2Xd) and 14 of the Anti-Homosexuality Act, 2023 do not pass constitutional muster, and are hereby struck down,” the justices wrote in their voluminous judgment.

The annulled Section 3(2)C defined aggravated homosexuality as the crime where the person against whom the offence is committed contracts a terminal illness as a result of the sexual act.

While Section 9 of the Act, which was also nullified, provided that a “person who, knowingly allows any premises to be used by any person for purposes of homosexuality or to commit an offence under this Act, commits an offence and is liable, on conviction, to imprisonment for a period not exceeding seven years.”

Information Minister Chris Baryomunsi, who is the government spokesman, said they welcomed the judgment and, in agreeing with a proposal earlier in the day by Deputy Speaker of Parliament Thomas Tayebwa, said the government would task the Attorney General’s office to examine if there is a basis for appeal over the few nullified parts of the law.

The Constitutional Court left all provisions of the legislation largely intact to thunderous applause by lawmakers during yesterday’s session. The petitioners had, among others, canvassed in their petition that the conduct of Speaker Anita Among --- her public proclamations in support of the MP Asuman Basalirwa’s Private Member’s Bill eventually enacted into law - were unconstitutional.

They also said the Legislature enacted the legislation without “meaningful and adequate” consultations with, and participation of, the public.

In yesterday’s verdict, the judges decided that the evidence on record showed overwhelming support for the law among voters and legislators improbable to be altered by additional consultations.

Mr Bernard Tabaire, the external affairs officer at World Bank’s Uganda office, last night said they were still studying the judgment to inform their next decision.

In pulling the plug on financing to Uganda last August, the World Bank – which is a major funder of the government’s big ticket programmes including road infrastructure – said the anti-gay law “fundamentally contradicts their values”.

The law, the Bretton Woods institution argued, undermined its vision of eradicating poverty on a livable planet that could only succeed if it included everyone “irrespective of race, gender, or sexuality”.

These comments, and the cash flow freeze, drew terse condemnation from President Museveni who excoriated the bank for what he called its arrogance and declared that Uganda was on an unstoppable progress - with or without WB money.

He also asked Ugandans to ignore a United States government to remove Uganda from the list of countries eligible for tax-and-quota-free preferential trade arrangement with the US under the Africa Growth Opportunity Act.

The Biden administration also imposed travel and visa restrictions on Ugandan officials it accused of violating internationally-recognised rights through their participation in enacting the anti-gay law, specifically withdrew visa to Speaker Anita Among and sanctioned the Commissioner General of Uganda Prisons, Dr Johnson Byabashaija.

Threats and harassment

Speaker Among, like other notables, scoffed off Washington’s onslaught, and revealed that she had endured worse threats and harassment from gay rights groups and lobbyists throughout the period Parliament considered the impugned law lawmakers considered necessary safeguard against alleged recruitment of Ugandan youth into homosexuality against family values and African culture.

Parliament yesterday said it would not back down from its defence of Ugandan values through legislations, with one MP telling the West to concern itself with laws in their individual countries.

In a statement released shortly after the judgment, Outright International, a US civil society organisation, condemned the decision by the court to invalidate only a few provisions of the Anti-Homosexuality Act, 2023, while leaving the rest intact.

The civil society called upon the international community to deepen sanctions against Uganda, noting that the judgment “falls short of the necessary action to protect the rights and lives of Lesbian, Gay, Bisexual, Trans-gender, Queer and Intersex (LGBTQI) individuals in Uganda”.

In London, Amnesty International expressed dismay with the verdict and said the Constitutional Court had “turned its back on its responsibility” to fully protect the country’s Constitution and homosexuals.

“It’s shocking that an opportunity was missed to revoke a law that undermines the rights of LGBTQI persons in Uganda, their allies and human rights defenders and activists by criminalising consensual same-sex acts…,” the organisation said, quoting its Regional Director for East and Southern Africa Tigere Chagutah.

In Kampala, Pastor Martin Ssempa, one of the respondents, celebrated the judgment at court with singing and dancing as he held his walking stick aloft.

The legal victory was for Ugandan family values and culture, he proclaimed, in contrast to proclamations by Mr Andrew Mwenda and MP Fox Odoi, two of the petitioners, that they would petition the highest court in the land where they self-assured of a win.

Human Rights Campaign, America’s largest civil rights organisation that prides itself as working to achieve equality for homosexuals, said the judgment means further discrimination of gay people.

“For the Constitutional Court of Uganda to uphold such a draconian law in any capacity is a horrific display of hatred that will mean further discrimination and physical harm for LGBTQ+ Ugandans…,” the organisation President Kelley Robinsonsaid.

Without providing evidence or statistics, the group claimed that attacks on gays and lesbians have been on the rise since enactment in May last year of the Anti-Homosexuality Act.

No person, according to police and court records, has been prosecuted under the law whose enactment the Constitutional Court has upheld as largely constitutional.

Homosexuality is a globally polarizing, with rise in anti-gay legislations across African countries, among them Kenya and Ghana. Russia’s Vladmir Putin has said no to gays and lesbians in his country while Saudi Arabia, a strategic ally of the US in Middle East, punishes homosexuality with death.

This notwithstanding, Washington does business with the country, taking billions of its petrodollars for military equipment --- something critics have seized on to criticise the US of being double-faced in its homosexuality campaign that punishes smaller, weaker and poor countries.

The Anglican Church in Uganda severed ties with Lambeth last year after the Church of England endorsed blessing for same-sex marriages following a separate endorsement of homosexuality by Archbishop of Canterbury Justin Welby and Pope Francis on a joint Africa trip.

Namirembe, the provincial seat of the Church of Uganda, said Lambeth had digressed from Biblical teachings and it would not follow lost souls. The divide prompted religious leaders in Uganda to nudge Parliament and the Executive to urgently enact an anti-gay law, whose text mirrored a similar legislation that the Constitutional Court annulled on technicality in 2014.

President Museveni signed the new version of the legislation into law on May 26, 2023, kicking up a storm locally and in the West.

Bugiri Municipality MP Asuman Basalirwa tabled the Anti-Homosexuality Bill, 2023, following a public outcry over the alleged recruitment of school-going children into same-sex activities.

He last evening welcomed the Constitutional Court verdict that he said preserves the “soul and spirit” as well as the basic principles of the law.

“The punishments therein have been maintained; it is a very welcomed move. I want to assure the country that this particular judgment resonates with the wishes and aspirations of Ugandans,” Mr Basalirwa said.

He added: “We respect the decision of the court as far as those [rejected] provisions are concerned, but I want to add that they are not so critical to the law. What is important is that the letter, spirit, structure, and soul of the law have been preserved.”

The timeline of the Anti-Gay law from February 2023 to April 2024

Feb 28, 2023

Plans: Speaker of Parliament Anita Among reveals plans by Parliament to process the new Anti-gay law to be introduced as a Private Member’s Bill. On the same day, Bugiri Municipality lawmaker Asuman Basalirwa is granted leave to process the Anti-gay Bill, 2023.

March 9

Tabling Bill: Basalirwa tables the Anti-Gay Bill, 2023 proposes tough penalties for same-sex relationships. Among subsequently refers it for scrutiny to the House’s Legal Parliamentary Affairs Committee.

March 14

Public hearing: Parliament commences public inquest into the Anti-Gay Bill. Basalirwa appears first before the committee and defends the Bill, saying same-sex relationships are against the order of nature.

March 21

Passed: This is after the second reading of the Bill with the Legal and Parliamentary Affairs Committee presenting the main report and Mr Fox Odoi (West Budama North East) presenting the minority report. The Bill is passed by acclamation after the third reading.

March 23

Threats: Speaker Among reveals to have received all kinds of threats ahead of the passing of the Bill including one concerning the cutting off of aid.

April 2

Protest in Canada: Ugandans in Canada protest against anti-gay law. They held demonstrations at the Legislative Assembly of Ontario - Queen Park, Canada.

April 20

Back to House: President Museveni sends the Anti-gay law back to Parliament to facilitate the reinforcement of its provisions.

May 2

Passed again: Parliament reconsiders the Bill following the President’s request and passes it with amendments.

May 29

Signed into law: President Museveni signs the Anti-Gay Bill, 2023 into law. A confirmation is made by Speaker Anita Among via a social media statement. Activists petition the Constitutional Court seeking to nullify the law. In total, four different petitions were filed but the court later consolidated them.

June 12

Travel advisory: The United States updates travelers following the signing of the law. Travelers are told, “Reconsider travel to Uganda due to crime, terrorism, and anti-LGBTQI+ legislation.

June 26

Mabirirzi runs to EACJ: Lawyer Hassan Male Mabirizi petitions the East African Court of Justice (EACJ) in Arusha, Tanzania, challenging the same law.

November 28

Hearing date set: Courts sets December 11, 2023, as the hearing date for the anti-gay petitions.

December 13

Amendments: The Court allows Pastor Ssempa and Mr Stephen Langa to join as defendants with the Attorney General in defending the law. Five days later, Court says it will deliver its judgment on notice.

April 3, 2024

Notice: Constitution Court upholds the controversial Anti-Homosexuality Act, 2023. Sections 3 (2) C, 9, 11 (2) d, and 14 of the Act were nullified for being inconsistent with the Constitution as they same violates the right of homosexuals to health, privacy, and freedom to religion.