KAMPALA – A group of Ugandan activists – totalling to 11 have petitioned the Constitutional Court seeking to challenge the Anti-Homosexuality Act of 2023, hours after the head of state had assented to it.
The petitioners including Prof Sylvia Tamale, Fox Odoi Oywelowo – the West Budama North East MP, Dr Busingye Kabumba – a Law don at Makerere University, Andrew Mwenda – Independent News Magazine Chief Executive, Solome Nakaweesi Kimbugwe – a Pan Africanist Feminist Activist and Dr Frank Mugisha – the Coordinator of Sexual Minorities Uganda-SMUG insist the controversial Bill was smuggled into becoming a law.
Kasha Jacqueline Nabagesera – the former Executive Director of Freedom and Roam Uganda-FARUG, Richard Smith Luthimbo – the Executive Director of Uganda Key Populations Consortium-UKPC, Eric Ndawula – a human rights activists and Williams Apako – the Executive Director of Tranz Network Uganda and Human Rights Awareness and Promotion Forum –HPRAF which is headed by lawyer Adrian Jjuuko – were also part of the petitioners.
The group’s petition comes barely a day after President Yoweri Museveni announced on his twitter handle to have assented to the bill, which among others imposes capital punishments to same sex relations and also engaging children below 18 years into homosexuality.
The law, which is largely targeting lesbian, gay, bisexual, transgender and queer people also criminalises the behaviour including having gay sex when HIV-positive, and stipulates a 20-year sentence for ‘promoting’ homosexuality.
But in their petition filed on Monday evening, the petitioners through their lawyers led by Dr Adrian Jjuuko said that they are challenging the new law for falling short of the required procedure by failing to include Public voices and participation.
They argue that the enactment of the Anti-homosexuality Act 2023 by the 11th Parliament on May 2nd 2023 without meaningful and adequate public participation is unconstitutional and contrary to the national Objectives and principles of State Policy enshrined in the Constitution.
According to the petitioners, the conduct of the Speaker during the second and third readings of the Bill on March 21st 2023 and the second and third readings amounted to bias which is unconstitutional.
They further contend that by making it an offence for any person to allow or lease or sublease premises to be used for purposes of homosexuality or activities that encourage homosexuality is inconsistent and in contravention of the principle of legality. That further, criminalising consensual same sex sexual activity among adults in private contravenes the right to equality and non-discrimination, right to dignity , right to liberty, and the right to privacy.
The petitioners further contend that section 11(1) and 2(b) of the Anti-Homosexuality Act 2023 by criminalizing the publication, communication or distribution of any material that promotes or encourages homosexuality is in contravention of the principle of legality, freedoms of speech and expression, freedoms of thought, conscience and belief including academic freedom, the right to impart and access and receive information.
Further that section 12 of the Anti-Homosexuality Act by prohibiting and disqualifying persons convicted of an offence of homosexuality from employment is in contravention with the right to practice ones profession or carry on lawful trade, right to equality and Non-discrimination.
The petitioners now want the entire Act nullified for having been passed and enacted in breach of parliamentary procedure and in the alternative some of the sections complained of also declared null and avoid.
They are also seeking for a permanent injunction restraining the Attorney General who has been listed as the only respondent to the case and any of the government agents from implementing provisions of the Act.
The Attorney General is yet to be summoned to file his defence before this petition can be heard by the panel of five Constitutional Court Justices.
In 2014 the Constitutional Court struck down the Anti-Homosexuality Act on procedural grounds after finding that Parliament had passed it without the required quorum.
Prior to the nullification some Western governments had suspended some aid, imposed visa restrictions and curtailed security cooperation with the Museveni led government.