The attorney general has asked the Constitutional court to dismiss three petitions challenging the Anti-Homosexuality Act, 2023 on grounds that they were filed in bad faith.
According to AG Kiryowa Kiwanuka, the petitions are not only brought in bad faith but were filed with intentions to destroy and overthrow the constitutional social order by seeking court orders for the protection of an unconstitutional and illegal act of homosexuality.
Kiryowa says the three petitions were all misconceived and devoid of any merit and during the hearing, he will put the petitioners on strict proof regarding their allegation.
Evidence before court shows that on February 28, 2023, parliament granted Bugiri Municipality MP Asuman Basalirwa leave to introduce a private members bill titled the Anti-Homosexuality Bill 2023 which was gazetted on March 3, 2023 in the Gazette supplementary number three of 2023. It was later assented to by President Yoweri Kaguta Museveni in May 2023 thereby coming into force as a law.
The act among others imposes capital punishments for same-sex relations and also for engaging children below 18 years in homosexuality.
The law which is largely targeting lesbian, gay, bisexual, transgender, and queer people also criminalizes the behaviour including having gay sex when HIV-positive, and stipulates a 20-year sentence for “promoting” homosexuality and the death penalty for those found guilty of aggravated homosexuality.
After the president assented to the bill, the Anti-Homosexuality Act was challenged before the courts of laws by activists, Makerere University senior lecturers, and transgender people in three different petitions by a combined total of 18 petitioners.
The first one was filed by eight activists on May 29, 2023, and a CSO, Human Rights Awareness and Promotion Forum (HRAPF) through its executive director Dr Adrian Jjuuko.
A day later on May 30th, six LGBTQ activists together with veteran journalist Andrew Mwenda, two MPs Fox Odoi Oywelowo (West Budama), and Paul Buchyana Kwizera (Kisoro) filed a second petition.
The third petition was filed by lawyer Robert Rutaro. In the three petitions, they argued that the act was passed hurriedly without proper consultation of the wider public, and as such parliament breached its own procedural rules.
The petitioners also said the law as it was passed its implementation was to violate the right to privacy by consenting adults in same-sex relations. They further said the law violates the fundamental rights in the constitution such as freedom of the press, and expression.
Some of the petitioners argued that when adults are consenting to the consensual same-sex act, it is a violation of their right to privacy unless they involve in children or go ahead to commit same-sex relations in public and that section 6 of the Homosexuality Act should be nullified because it is broad and vague.
They also asked the court to nullify section 7 of the act which requires editors, publishers, reporters, columnists, announcers, producers, film directors, or any other person to seek authority from the victim or court before publishing any material tending to establish the identity of the victim and personal circumstances, establishes an unjustifiable restriction on the public’s right to know, press freedom and the freedom of expression in trials that are open to the public, whittles away judicial independence and discretion which is unconstitutional.
The petitioners among other grounds raised issues that they said touched on violations of the rights in the constitution, international laws, and financial management and had far-reaching consequences on the taxpayer. The attorney general has responded to each petition separately but relying on affidavits sworn by MP Basalirwa.
Basalirwa contends that Uganda is a dualist nation and before the application of international convention or treaty, the same must be domesticated under a law passed by parliament, the interpretation and application of which must be compliant with the Constitution of Uganda.
“That I know that the right to privacy and the right to freedom of expression, thought assembly, and association are derogable rights and do not guarantee a right to immunity from state interference where the offenders are guilty of doing acts of commissions which are unlawful under the law,”, said Basalirwa in an affidavit opposing the Fox Odoi led petition.
Basalirwa, says all the derogable rights are subject to constitutional limitations and that it is the duty of the state to promote cultural values that are inherent and acceptable to the society as required by the national objectives and direct principles of state policy.
The government denies the allegations that the act imposed a charge on the consolidated fund as stated by the petitioners and that the certificate of financial implication obtained to support it was acquired in line with the laws governing the Finance Management Act.
The government further argues that sexual practices are prohibited by the constitution and no one can consent to an illegality even if they are an adult and this, the government maintains that whoever does it will be prosecuted, and if the act was aggravated, the person will be liable to suffer death.
“I know that sexual practices between persons of the same sex are a dehumanizing act, inhuman practice and undignifying contrary to other human rights guaranteed under chapter four of the Constitution of the Republic of Uganda,” reads Basalirwa’s affidavit in response to Jjuuko’s NGO petition.
“I know that under the laws of Uganda, unlawful sexual activities are prohibited notwithstanding consent of the participating adults”, says Basalirwa.
The attorney general adds that there are several other sexual offenses by consenting adults that are prohibited under the law including incest, prostitution, bigamy, and elopement, and therefore, the petitions are misconceived and devoid of merit and the petitioners are not entitled to the reliefs sought.
The Constitutional court is yet to fix the matter for hearing. In 2014 the Constitutional court struck down the Anti-Homosexuality Act on procedural grounds after finding that the parliament had passed it without the required quorum.
The Observer
