Comment: Despite today’s court ruling, the situation for gay people in Uganda remains bleak

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Dr Paul Johnson, Reader in Sociology at the University of York, responds to today’s court ruling striking down Uganda’s Anti-Homosexuality Act.

Many people around the world will be rejoicing at the news that Uganda’s Constitutional Court has quashed the country’s recently enacted Anti-Homosexuality Act 2014.

The news came this afternoon that five justices of the Constitutional Court had ruled that the legislation was passed contrary to parliamentary procedure and, as a result, is null and void. The Constitutional Court is a formation of Uganda’s second highest court, the Court of Appeal, sitting to consider constitutional matters.

The issue of quorum

The Constitutional Court’s judgment is a response to a petition it received on the 11 March 2014 by ten petitioners – including an academic, a journalist, human rights activists, and a Member of Parliament – challenging the legality of the Act under the Constitution of Uganda.

The petitioners cited 14 reasons why the Act was inconsistent with and in contravention of provisions in the Constitution. Thirteen of these reasons related to violations of individual rights and freedoms guaranteed by the Constitution.

In today’s judgment, however, the Constitutional Court only ruled on the petitioners’ first complaint, which was that Parliament had passed the legislation without quorum.

Article 88 of the Constitution requires Parliament to observe a quorum (that is, to have a minimum number of Members of Parliament present for any vote).

Parliament’s own rules require that, when it is voting on any issue, one-third of all Members entitled to vote must be present (Rule 23, Rules of Procedure).

The argument over quorum

When Parliament passed the Act on 20 December 2013, the issue of quorum was just one of several irregularities that characterized the parliamentary process.

In a working paper published last month, I detailed various problems in the passage of the Act, such as: the failure to appropriately schedule the reading of the legislation on the Order Paper (which led to many MPs being absent from the House); the inadequate consideration of a Minority Report from the Committee that examined the Bill and recommended that it not be passed; and a general failure of legislators to fully comprehend the law that they were enacting.

The issue of quorum was, however, one of the most problematic aspects of the process.

The Prime Minister, Amama Mbabazi, twice raised the matter of quorum in Parliament as a point of procedure during Committee stage, telling the Chairperson (Rebecca Kadaga, Speaker of Parliament):

“I have raised a matter of quorum. You cannot raise a matter of quorum and it is ignored. That is a fact. So, I have raised it and I want to repeat that this House does not have a quorum now”.

In response, two other MPs urged the Chairperson to continue with the debate with Ms. Aol MP, for example, stating “I believe that if we try to check, maybe we have the quorum”.

Crucially, the Chairperson did nothing and proceeded with the debate. She did not suspend proceedings for fifteen minutes in order to ascertain whether quorum was established (as required by Rule 23). Nor did she give a verbal ruling stating that, in her view, it was not necessary to suspend Parliament since the required quorum existed.

The Constitutional Court accepted that the Parliamentary record (Hansard) combined with an affidavit from Fox Odoi MP (one of the petitioners) was sufficient to establish that Parliament had acted contrary to procedures relating to quorum.

As a consequence, the Constitutional Court held that the Act had not been enacted lawfully.

The consequence of the Constitutional Court judgment

The Act has been nullified and its provisions can no longer be enforced.

However, this may not be the end of the legislation because its supporters can seek to revive it in two ways.

First, the state can appeal the judgment of the Constitutional Court in the Supreme Court, which is Uganda’s highest court. A successful appeal would require that opponents of the Act go back to the Constitutional Court to argue that the Act violates fundamental human rights and freedoms. The Constitutional Court has given no indication that it would uphold such complaints.

Second, Parliament can reenact the legislation. This would necessitate the introduction of a new Bill, which would need to pass through the full parliamentary process.

We should remain cautious

Today’s judgment by the Constitutional Court is significant, but it is important to remember that by declaring the Act null and void the legal situation for LGB people in Uganda remains bleak and, in many ways, unchanged.

The Penal Code Act continues to criminalize ‘unnatural offences’ (S.145) and ‘indecent practices’ (S.148) with maximum sentences of life imprisonment and 7 years respectively. These apply to same-sex activities between men and women and, because of their wording, are very wide in scope.

Same-sex marriage is prohibited by the Constitution of Uganda (Article 31(21a) and unlawfully performing a marriage ceremony is a criminal offence under the Marriage Act 1904.

Furthermore, as the High Court of Uganda ruled on 24 June 2014 (in Nabagesera and Others v Attorney General and Another), it is lawful for the state to prevent and close down LGB focused activities (such as workshops on human rights and advocacy). This is because they amount to ‘incitement to commit homosexual acts and conspiracy to effect an unlawful purpose’ under the Penal Code Act.

Therefore, we need to remember that LGB Ugandans are subject to some of the toughest criminal laws in the world and that the enforcement of these laws will continue.

As with all comment, this does not necessarily reflect the views of PinkNews.