Uganda’s constitutional court has declined nullify in its entirety the country’s Anti Homosexual law. The court also rejected the petitioners prayer to issue an injunction against the law’s enforcement in Uganda.
The legislation was overwhelmingly passed by the national parliament in May last year.
The decision was delivered by a panel of five Justices led by the Deputy Chief Justice, Hon. Justice Richard Buteera; Justice Geofrey Kiryabwire, Justice Monica Mugenyi, Justice Kibeedi Muzamiru, Justice Christopher Gashirabake.
“We decline to nullify the Anti-Homosexuality Act 2023 in its entirety, neither will we grant a permanent injunction against its enforcement,” said lead judge Richard Buteera, reading the judgment on behalf of his four colleagues.
However, the court struck down certain sections it said were “inconsistent with right to health, privacy and freedom of religion”.
In particular the court said the section of the legislation requiring the mandatory reporting to authorities of people suspected of having committed homosexual offences violated individual rights.
The Constitutional Court of Uganda has nullified Sections 3(2)(c), 9, 11(2)(d) and 14 of the Anti-Homosexuality Act, 2023 for contravening the Constitution of Uganda, 1995.
This was in the unanimous judgment delivered today, the 3rd of April 2024, by the panel of five justices of the Constitutional Court led by the Deputy Chief Justice in Consolidated Constitutional Petition Nos. 14, 15, 16 & 85 of 2023 Hon. Fox Oywelowo Odoi, Prof. Sylvia Tamale, Advocate Rutaro Robert, Bishop James Lubega Banda & 18 others Vs Attorney General & 3 Others.
The nullified Sections had criminalised the letting of premises for use for homosexual purposes, the failure by anyone to report acts of homosexuality to the Police for appropriate action, and the engagement in acts of homosexuality by anyone which results into the other persons contracting a terminal illness.
In coming to its decision, the Constitutional Court considered among other ; The conflict between individuals’ right to self-determination, self-perception and bodily autonomy, on the one hand; and the communal or societal right to social, political and cultural self-determination, calling for a delicate balance between individual autonomy and communal interests.
The recent developments in the human rights jurisprudence including the decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 U.S. 215 (2022), where the Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to individual autonomy.
The uniqueness of Uganda’s Constitution which obliges the courts of law to take into account the country’s socio-cultural norms, values and aspirations when resolving any disputes before them and the Anti-Homosexuality Act being, in general, a reflection of the sociocultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizens.
