Uganda’s anti-gay laws: what will East African Court of Justice say?

29 August 2023 · Carmel Rickard

The lawfulness of Uganda’s ultra-punitive new legislation on homosexuality has been challenged by two applications filed at the East African Court of Justice. The first was filed in June by controversial Ugandan lawyer, Male Mabirizi. The second just made the court deadline when it was filed by a group of individuals and organisations. Both applications ask the court to declare the law null and void. The new challenge will argue that the principles of good governance were infringed because of an alleged absence of adequate public participation as well as bias and partiality on the part of the speaker of Uganda’s parliament. Further, these challengers say, enacting the law contravened the principles of good governance, including democracy, the rule of law, social justice, and the protection of human rights, in accordance with the African Charter on Human and Peoples’ Rights as well as provisions of the treaty that set up the East African Community.

Read reference for Muhumuza challenge (Shannon – this is the second of the two challenges, filed on 25 July; both are in PDF form)

Read reference for Mabirizi challenge (This is the earlier of the two, brought by Male Mabirizi and filed in June)

When individuals in the member states of the East African Community (EAC) want to challenge a law in force in a country, they have just two months from the law’s enactment to file their application with the East African Court of Justice (EACJ). Uganda’s president Yoweri Museveni signed the highly controversial new Anti-Homosexuality Act, 2023 on 26 May. Two challenges to that legislation have been filed – the second on 25 July, thus just making the deadline.

The first was brought by Ugandan lawyer Male Mabirizi, no stranger to legal confrontation and someone who has been ordered to serve time in prison because of his contemptuous behaviour towards a Ugandan high court judge.

Mabirizi’s filing notice with the EACJ relates to nearly a dozen complaints against the Ugandan courts and government. Among them he claims that the new anti-gay law amounts to an unlawful infringement of the fundamental principles of the EAC. These include good governance, including ‘adherence to the principles of democracy, the rule of law … and the maintenance of universally accepted standards of human rights’.

Ambiguous

In his summary of the laws on which his reference is based, Mabirizi points to a slew of alleged infringements of basic human rights. He also complains that the new law sets up serious consequences for the media in its restrictions on court reporting.

He claims that aspects of the legislation are ambiguous. They would even punish someone ‘in no way engaged in homosexuality’, he says, while the law is ‘intended to make homosexuals homeless and without work or home’ in their own country. Other sections of this law amounted to ‘political persecution’ of anyone who seems ‘not to be against homosexuality’.

Mabirizi further points to a provision of the new law which makes it a crime not to report to the police that someone ‘has committed or intends to commit the offence of homosexuality’. This creates ‘blanket criminal liability’ on everyone in Uganda, he says, and ‘makes every person a law enforcement officer of sorts’.

Ardent belief

The second case filed involves four applicants. Nimrod Muhumuza, an advocate of Uganda’s high court, is also a doctoral researcher at a South African university in the field of human rights and sexual and reproductive health and rights. He says he brings the challenge because of his ardent belief in ‘good governance, the rule of law, democracy and human rights’.

Melba Katsivo, the second applicant, is a Kenyan advocate, specializing in human rights, promoting good governance and access to justice for all without discrimination.

Dr Frank Mugisha, the third applicant, is another Ugandan, co-founder and coordinator of the organisation, Sexual Minorities Uganda (Smug), which promotes the fundamental rights and freedoms, health and wellbeing of Uganda’s gay community.

The fourth applicant is Human Rights Awareness and Promotion Forum (HRAPF), a Ugandan human rights organisation. It provides legal aid services to marginalised people and advocates for legal reform to create a ‘society where the human rights of all are respected, protected and upheld.’

This application will ask the EACJ to declare that the way the new legislation was enacted was contrary to the EAC treaty, and that this in turn makes the whole law null and void.

Bias

These applicants say the ‘process and procedure’ behind the law’s enactment ‘was without meaningful and adequate public participation’. It was conducted in a way that showed ‘bias and partiality’ by the speaker of parliament. The process and procedure thus contravened the Ugandan constitution and its laws.

The lack of meaningful and adequate public participation infringed the principle of good governance, and specified principles such as the recognition, promotion and protection of human and peoples’ rights specified in the African Charter and in the EAC Treaty.

Bias by the speaker of parliament during the enactment of the law similarly infringed fundamental principles of the African Charter.

The relief for which the applicants will ask the court is a declaration that the law contravenes the EAC Treaty and is thus null and void. They also ask for a permanent injunction restraining the Ugandan authorities from enforcing, implementing or effecting this law.

The attorney general is expected to file a response within 45 days.

Imprisonment for life

The Ugandan law, targeted by the two applications, contains, for example, the following provisions:

A person who commits the offence of homosexuality is liable, on conviction, to imprisonment for life.

The consent of a person to commit a sexual act shall not constitute a defence to a charge under this Act.

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.

A person who (a) purports to contract a marriage with a person of the same sex; (b) presides over, conducts, witnesses or directs a ceremony purported to be a marriage between persons of the same sex; or (c) knowingly attends or participates in the preparation of a purported marriage between persons of the same sex, commits an offence and is liable, on conviction, to imprisonment for a period not exceeding ten years.

A person who promotes homosexuality commits an offence and is liable, on conviction, to imprisonment for a period not exceeding twenty years.

A person who knows or has a reasonable suspicion that a person has committed or intends to commit the offence of homosexuality or any other offence under this Act, shall report the matter to police for appropriate action.

Carmel Rickard

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