Could Uganda's Constitutional Court Overturn 'Jail the Gays' Law?
BY Thom Senzee and Sunnivie Brydum
July 30 2014 5:12 PM ET
Following two days of argument before Uganda's Constitutional Court, LGBT activists and attorneys in the east African nation are cautiously optimistic that the court may strike down the draconian Anti-Homosexuality Act on a procedural technicality.
The first two days in the Kampala courtroom focused primarily on whether Uganda's Parliament had legally passed the law in the first place. The court considered whether or not Parliament had established quorum — a required minimum number of members present to vote — when it passed the Anti-Homosexuality Act in December 2013. Widespread reports at the time indicated that Speaker of Parliament Rebecca Kadaga did not meet quorum before taking a vote on the legislation. Uganda's prime minister even told the BBC that the Speaker had not established quorum at the time.
If that is indeed the case, pro-LGBT advocates say the law is inherently unconstitutional, and point to other laws that have been overturned after they were passed without quorum.
"Importantly, our courts have held in other cases that any law passed without quorum is unconstitutional," attorney Nicholas Opiyo, who is representing the LGBT and allied Ugandans challening the law, told Radio France Internationale's Africa outlet. "So that's the argument we made this morning."
According to reports from Ugandan activists who attended the hearing, Uganda's attorney general claimed there was no evidence that quorum had not been established, and asked the court to dismiss the case. However, if the court determines that the bill was unlawfully passed, it could nullify the law in its entirety, without considering the constitutional issues the LGBT plaintiffs hope to raise.
"The significance of this is that a ruling in favour of the [LGBT] Petitioners effectively disposes of the petition since there would be no need to consider the issues of non-discrimination, privacy, freedom of expression etc., since the law would have been struck down," Kasha Jaqueline, a Ugandan activist and founder of the country's first LGBT group, Freedom and Roam Uganda, wrote on Facebook this morning.
"A ruling in favour of the state would mean that the Court will continue hearing the matter on the other substantive grounds and make a decision as to whether the law is unconstitutional," she continued.
Jacqueline and others in Uganda's LGBT activist community speculated about possible outside factors that may have influenced the court's decision to take up the case now, when it was not scheduled to be heard until September. Indeed, the state has repeatedly contended that it has not had sufficient time to prepare its arguments, while counsel for the plaintiffs remains prepared to argue their case before the court, according to Jaqueline.
International discussion of Uganda's punishing antigay law and the impact it is having on the heavily aid-reliant country's economic status may have prompted the expedited hearing, said Jaqueline. After several European countries and the U.S. announced deep cuts to the funding granted to several Ugandan governmental programs — including state-run health care, which is almost entirely funded by international aid — Sweden recently announced its intent to restore some funding to social service groups in Kampala, particularly those that are pressuring the government to jettison the antigay law.
Jaqueline also pointed to an anonymous source who suggested that the upcoming U.S.-Africa Summit may have impacted funding decisions, referring to an individual among a coalition of Ugandan religious organizations who she says believes the August 4-6 summit at the White House — along with the restored Swedish financial aid — has "compromised" the goverment's antigay cause.
Court proceedings will continue tomorrow in Kampala, where judges are expected to decide if the case will rest on parliamentary issues like the lack of the quorum, or the substantive constitutionality of the law.
Uganda's punishing antigay law was enacted in February when it was signed by President Yoweri Museveni. It passed the Ugandan Parliament in December 2013 after changes were made that removed the death penalty for acts of "aggravated homosexuality." Instead of capital punishment, such "offenses" are now punishable by life sentences for such acts as same-sex contact with a minor with "sexual intent," repeated instances of same-sex sexual contact between consenting adults, or any instance of same-sex contact with someone is HIV-positive or mentally disabled.
But the law doesn't stop with gay men. It criminalizes lesbianism for the first time in Uganda's history, and provides sentences of up to seven years for family members, neighbors, and friends who don't report those known to be LGBT to police, and requires landlords to evict LGBT tenants.
In addition to a perception among Ugandan activists that the tone and substance of today's hearing indicates that there is a possibility the constitutional court could strike down the antigay law, Public Radio International's The World notes that LGBT activists in Uganda and other African nations have won significant court victories in recent years.
The late Ugandan activist David Kato — often credited as the first openly gay man in Uganda — won his lawsuit against the now-defunct Rolling Stone newspaper in Kampala (not connected to the U.S.-based magazine of the same name). However, Kato's victory was bittersweet, as he was murdered only days after winning in court.
The newspaper had printed Kato's name, photo, and address along with the names of other suspected LGBT people, including some of those who are now seeking the law's reversal in Uganda's constitutional court. Referring to all who were listed as Uganda's "100 Top Homos," the 2010 Rolling Stone article included a yellow banner across its cover that read, "Hang Them."
Despite a court's declaration that so-called newspapers like Rolling Stone were no longer allowed to publish personal information of those suspected to be LGBT, another popular tabloid, the Red Pepper, plagarized text and photos this year from an award-winning Advocate feature that profiled several of the LGBT activists who are challenging the law in court. That tabloid reprinted the Advocate's first-person profiles in full, without attribution, and retitled the story "Uganda's Top Gays Speak: How We Became Homos."