Constitutional Court stands by anti-gay law

Homosexuality and its promotion remains a criminal offence in Uganda, the Supreme Court says, but opens health centres to allow treatment of gay persons

LEGAL | The Constitutional Court has rejected a strong bid to overturn the anti-gay law in its entirety, but struck down controversial clauses in a potentially win-win landmark judgement.

The panel of five justices in the Wednesday verdict in the Anti-Homosexuality Act (AHA) nullified provisions that directly impede health service and freed property owners from criminal responsibility.

However, they confirmed that advocacy, activism, and organising LGBTI campaigns are illegal.

The controversial law, in its Section 9, had pinned property owners on the wall if they rented out their premises such houses and hotels to persons who then engaged in the activities that have been criminalised under the AHA.

In 2014, the same court nullified a similar anti-gay law but after Parliament re-enacted it, petitioners including MP Fox Odoi, journalist Andrew Mwenda and human activists were hoping for more of the same verdict.

The passing of the legislation in May last year triggered Western sanctions, including from the World Bank and US.

The World Bank halted new lending to the country while the U.S. announced visa and travel cautions.

The particular clause that imposed the death penalty on aggravated homosexuality had left human rights activists and the West in a tetchy knot.

But in June last year, President Museveni, who assented to the AHA on May 26, 2023, told the West that the new law had been misinterpreted.

He clarified that the Anti-Homosexuality Act 2023 forbids recruitment by homosexuals of non-gay people into the practice of homosexuality, exhibitionism and promotion of sexual orientation, and performing homosexual sex on another person.

However, Mr Museveni clarified in his State of the Nation Address in June last year that the legislation he signed into law does not criminalise those who identify as LGBTQ+, but still prescribes the death penalty for “aggravated homosexuality”.

“The law now says that a homosexual will not be criminalised for merely being so, if one keeps the being to oneself,” he said.

“What, then, does the law fight? It fights this homosexual when he or she goes from merely being and starts recruiting other people by misinforming or bribing etc. There, he becomes a criminal and, if convicted, goes to prison for a period not exceeding 20 years."

He said a person who rapes another commits a capital offence and he faces a maximum sentence of death.

“These are the three substantive points – being is your personal problem; promoting is criminal and qualifies you for prison; raping qualifies you for a possible death sentence,” the President added.

And with the death penalty not struck down, the petitioners left the court on the humid Wednesday morning feeling a sense of glass half full and half empty.

Mr Mwenda took to X, former Twitter, saying they had "secured a small partial victory but a victory nonetheless".

"This is very disappointing and we are going to appeal to the Supreme Court," he said.

"I am disappointed by our justices for failing to stand above our cultural prejudice and bigotry and make history for Africa and for humanity."

Mwenda, a veteran journalist and businessman, claimed that the justices had behaved like politicians and "relied on public sentiments and rumours, instead of the Constitution, to make their judgment".

"The judges claimed the AHA was made to stop recruitment of kids into homosexuality," he said. "The defense did not present any evidence of recruitment... Not one person has ever been arrested for recruitment by [government] agencies."

However, with the increased impetus on LGBT rights, especially by the US government, it is unlikely that donors and the West will be appeased by the ruling.

They have been demanding the law be nullified in entirety despite President Museveni's clarifications on his government's position.