by Melanie Nathan, August 01, 2014.
Today, in a packed Constitutional Court in Kampala, Uganda, a panel of five Justices ruled unanimously that The Anti-Homosexuality Act of 2014 (AHA,) is unconstitutional. However, the ruling is based on the manner in which the legislation was passed, rather than on the merits of the AHA itself, and hence jubilation must be tempered with caution.
The LGBTI community of Uganda, as well as human rights defenders from around the world, expressed jubilation with well earned congratulations spreading rapidly through calls, texts, e-mails and social media. This ruling was indeed an extraordinary victory indicative of a strong independent Court. However, the Justices managed to escape having to rule on the question that would have provided one side or the other with a perception of "moral" high ground, leaving the constitutionality of future anti-gay legislation up in the air.
The Court simply ruled that the Anti-Homosexuality Act is unconstitutional because the Ugandan Parliament had failed to pass it with a quorum (the right amount of people needed for the vote) as called by the Speaker.
The ruling failed to pronounce upon the issue of constitutionality of the AHA as it pertains to human rights, and the criminalization of homosexuality still remains onerous in Uganda, through the Draconian Penal Code that continues to outlaw homosexuality.
In its petition filed back in March by the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRSL), the petitioner's had also asked the Court to rule that the Anti Homosexuality Act violated Ugandans' constitutionally guaranteed right to privacy, to be free from discrimination, to dignity, to be free from cruel, inhumane and degrading treatment, to the freedoms of expression, through assembly and association; to the presumption of innocence, and to the right to civic participation.
The Court spared itself having to rule on the human rights issues, and while the ruling is indeed a great victory for the petitioners and Uganda's LGBTI community, this critical fact may not only hamper the jubilation, but also serve to further persecute the LGBTI community.
Since the Court did not rule on the human rights arguments, this victory only further fuels the Anti-LGBTI proponents of the bill. The fact that the Court struck down the Act at all serves to anger the populace at large, setting the LGBTI community up as further targets for vigilante vengeance.
Within hours of the ruling, a source in Kampala called me to inform me that the author of the Anti-Homosexuality Act, David Bahati, had held a press conference, where he promised to re-deliver the Anti-Homosexuality Act to Parliament for a vote and this time to ensure a full quorum.
I have received reports from several members of the LGBTI community who are currently in hiding in Uganda, expressing fear that things could become worse for them.
My source informed me that people had started taking to the streets, in anger, some threatening to "slaughter" gays because they believed the Court should not have ruled against the very popular Anti-Homosexuality Act.
The legislation has always been supported by a majority of Ugandans, even when it included the death penalty, which was subsequently removed. The law had stipulated harsh punishment to include life in prison for aggravated homosexuality, and lengthy prison terms for the so-called "promotion" of homosexuality. The latter, subject to wide interpretation, already caused much harm to LGBTI Ugandans, such as public outings, banishment, evictions, firings, assaults, and death threats.
The anti-gay fervor and sentiment will not go away with a victory over what is perceived to be a ruling about the procedural antics of Parliament, and while homophobia may not have gone away with a ruling on the human rights aspects of the petition, at least some doubt would have been caste upon the belief that the anti-gay proponents had the "moral" high ground.
It is as if we are back to the point before the AHA was passed. It is highly probable that the State will appeal the ruling and that the anti-gay movement will support a call for parliamentarians to try to re-legislate the harsh law, as they believe that they can easily ensure a quorum. In any event, the LGBTI community of Uganda will continue to be victimized by the myth and lies that underpin the Act.
Undoubtedly, regardless of how they do it, the anti-gay forces, emboldened by religious fervor, will reinvigorate the five year long game, where the issue will serve politicians rather than populace, as yet again homosexuality will be used as a ping pong ball to suit political purpose and to scape-goat gays for the real ills of Uganda. This battle could still rage for years to come.
The Petitioners included Prof. Joe Oloka-Onyango, Member of Parliament Hon.Fox Odoi-Oywelowo, veteran journalist Andrew Mwenda, Prof. Morris Latigo, Dr. Paul Nsubuga Ssemugoma, and human rights defenders Jacqueline Kasha Nabagesera, Julian Pepe Onziema, and Frank Mugisha, as well as local organizations such as the Human Rights Awareness and Promotion Forum, and the Centre for Health and Human Rights and Development.