Uganda's Constitutional Court has upheld most of the country's draconian Anti-Homosexuality Act signed into law by Ugandan President Yoweri Museveni.
"We decline to nullify the Anti-Homosexuality Act 2023 in its entirety, neither will we grant a permanent injunction against its enforcement," said Justice Richard Buteera, Uganda's deputy chief justice and head of the court, who led the five-member panel in the 200-page unanimous ruling.
The decision was issued April 3.
The justices did strike two sections and two subsections of the law. Those, the court said, violated the right to health care, the right to privacy, and the right to freedom of religion for LGBTQ people, according to a news release from Convening for Equality, a coalition of LGBTQ organizations fighting the anti-LGBTQ law.
Prominent Ugandan gay activist Frank Mugisha, who is executive director of Sexual Minorities Uganda and CFE co-convener, and Andrew Mwenda, one of the 14 petitioners, vowed to appeal the court's decision to Uganda's Supreme Court.
Mwenda was firm in his criticism of the court's ruling.
"What we have witnessed in court is what I would call a temporary reversal in an overall strategic battle or a strategic war against cultural bigotry and prejudice," Mwenda told PBS. "We are going to appeal to the Supreme Court, not for striking down the different components of this law but for overturning this law in its entirety."
The International AIDS Society, the world's largest association of HIV professionals, including people living with HIV, accused the court of not following the science and heeding evidence.
"The ruling is completely at odds with Uganda's stated commitment to ending HIV as a threat to public health by 2030," stated IAS President Dr. Sharon Lewin, responding to the court's ruling. "The consequences for the HIV response, not just in Uganda, but in other African countries grappling with anti-gay sentiment, are severe."
Lewin expressed concern about "the law keeping communities away from accessing HIV services and further marginalizing vulnerable populations."
She noted in the news release that anti-gay laws are associated with a higher HIV rates among men who have sex with men in Africa. Since Uganda's parliament passed the anti-gay law, the number of clients attending drop-in centers providing HIV prevention and treatment services to key populations, including men who have sex with men, dropped from an average of 40 per week to two, according to IAS.
Mugisha called the ruling "wrong and deplorable," in CFE's release.
"The judges have been swayed by the propaganda from the anti-gay movement who kept saying that this is in the public interest and refuting all the arguments that we made that relate to the Constitution and international obligations," he told the New York Times in a telephone interview.
The LGBTQ coalition said the court's decision will only continue the types of human rights violations the advocates described in the release as "state-sanctioned witch-hunts." Pointing to the coalition's August 2023 report, there have been over 180 cases of evictions, 18 cases of forced anal examinations, 176 cases of violations of torture, 159 cases of violations of the right to equality and freedom of discrimination, and 102 hospitalizations directly linked to the violations. These are only the reported and documented incidents, the coalition noted, adding that with the court's ruling, these types of human rights violations will continue.
"This ruling intensifies violations towards the LGBT community," Mugisha told NBC News. "It is like the judges have told Ugandans: 'Go and get violent towards the LGBTQ community.'"
Mugisha also expressed fear of returning to Uganda.
"I am petrified," he told the news outlet. "If the judges can give such a ruling, that means there is no protection for any LGBTQ person in Uganda, and I'm not immune to that."
The Anti-Homosexuality Law 2023 criminalizes people suspected of being LGBTQ with 10-year prison sentences for attempting to engage in gay sex and up to 14 years in prison for multiple attempts if convicted. LGBTQ people can be sentenced to death for having sex with children, are HIV-positive, and are people from other vulnerable communities. Promoting homosexuality can get a person up to 20 years in prison. Those who provide spaces for LGBTQ people to gather or who do not report suspected LGBTQ people can also find themselves in trouble with the law and face long prison terms.
Two of the judges who ruled on the law, Buteera and Christopher Gashirabake, were also involved in the 2022 SMUG case denying the organization to ability to legally register with the country, reported Open Democracy.
SMUG is Uganda's leading LGBTQ organization. The Bay Area Reporter previously reported on the SMUG case.
A decade plus in the making
The B.A.R. has reported on Uganda's long journey toward the country's passage of the draconian Anti-Homosexuality Act 2023. In 2009, it was then dubbed the "Kill the Gays Bill," because it included a death penalty for homosexuality. In 2014, Uganda's Constitutional Court struck down a watered-down version of the bill dubbed the "Jail the Gays Bill," which did not include the death penalty. Museveni signed that bill into law earlier that same year.
However, homosexuality was already criminalized in Uganda. The East African country retained the British-era colonial law when it gained its independence and joined the Commonwealth in 1962. No one has been convicted of consensual same-sex relations since the year the law was enacted, reported the Wall Street Journal. However, it has been widely reported that LGBTQ Ugandans are regularly discriminated against, harassed, and experience violence, including being killed. The violence against the community has intensified since 2014 as other anti-LGBTQ laws, such as restricting HIV/AIDS services, were enacted.
Members of Uganda's Parliament started pushing for the anti-gay bill in 2021, the B.A.R. previously reported. The following year, Uganda's government barred the country's leading LGBTQ organization, SMUG, from legally registering. Museveni signed the new and even harsher anti-gay bill into law in May 2023 after he started championing Uganda and Africa's rejection promoting homosexuality overall last April as the country's parliament pushed the anti-gay bill through the legislative process.
Homosexuality is criminalized in more than 30 of Africa's 54 countries, according to Human Dignity Trust. Anti-LGBTQ sentiment is gaining momentum across the continent. Many African countries — especially Ghana, Kenya, Namibia, Tanzania, and South Sudan — have watched the drama with Uganda's defiance defending the anti-gay law against the Western world's call to repeal the law and to protect LGBTQ rights played out on the international stage closely.
Ghana's parliament passed its own draconian anti-LGBTQ law, the "Human Sexual Rights and Ghanaian Family Values Bill 2021" (originally named, "The Promotion of Proper Human Sexual Rights and Ghanaian Family Values"), in February, the B.A.R. previously reported. Ghanaian President Nana Akufo-Addo recently said he will not sign the bill until Ghana's Supreme Court rules on a case challenging the law's constitutionality.
Uganda law has support
The law is widely supported by Ugandans in the conservative Christian country. However, the Times reported Museveni is worried about Uganda being labeled an outcast, and fallout from the economic repercussions caused by the law.
Opponents are working to apply global pressure.
"We continue to call for this law to be repealed and we are calling on all governments, [United Nations] partners, and multilateral institutions such as the World Bank and the Global Fund to likewise intensify their demand that this law be struck down," Mugisha stated in the release.
"This ruling should result in further restrictions to funding for Uganda — no donor should be funding anti-LGBTQ+ hate and human rights violations," he added.
Outright International Executive Director Maria Sjödin, who identifies as nonbinary and uses they/them pronouns, criticized the court's ruling.
"The international community should maintain and explore deepening sanctions against Ugandan officials and institutions that are complicit in the violation of rights," they said.
Sjödin praised the World Bank, U.S., European Union, and other nations and institutions for upholding their restrictions and sanctions against Uganda.
"International stakeholders should continue to work in concert with Ugandan LGBTQ activists to ensure that international funding and other support to Uganda do not contribute to discrimination and persecution of queer Ugandans," Sjödin said.
The challenge
LGBTQ activists and allies, including Mugisha, academics, journalists, and religious leaders who challenged the law were led by attorney Nicholas Opiyo, who is also executive director of civil liberties organization Chapter Four Uganda and a CFE co-convener.
The coalition and the petitioners argued the legislation was rushed through parliament without adequate public consultation, especially with the LGBTQ community; violated constitutional rights and freedoms; and contravened Uganda's commitments under international human rights law, including the United Nations convention against torture, as some of the numerous reasons for the law's dismissal, reported The Guardian and the Los Angeles Times.
Uganda's Constitutional Court took up the petitioners' challenge to the country's anti-LGBTQ law consolidating four separate petitions and 11 other related applications filed with the court and agreed upon earlier that year on December 18, 2023.
Condemnation
Condemnation of the court's ruling was immediate from U.S. Secretary of State Antony Blinken, U.N. High Commissioner for Human Rights Volker Türk, and other world leaders and human rights and LGBTQ rights organizations.
Türk urged Uganda's authorities to repeal the Anti-Homosexuality Act entirely. Citing reports of nearly 600 acts of violence against Uganda's LGBTQ community since last May, he said in a statement from his office, "It must be repealed in its entirety or unfortunately this number will only rise."
"The Ugandan authorities must uphold the rights and dignity of all, regardless of sexual orientation or gender identity," he stated. "Criminalization of and application of the death penalty to consensual same-sex relations are contrary to Uganda's international human rights treaty obligations."
Blinken called the clauses the court removed from the law a "small and insufficient step towards safeguarding human rights." He stated, "The remaining provisions of the law "pose grave threats to the Ugandan people, especially LGBTQI+ Ugandans and their allies, undermine public health, clamp down on civic space, damage Uganda's international reputation, and harm efforts to increase foreign investment."
"The United States continues to be deeply concerned by reports of human rights abuses in Uganda, including against the LGBTQI+ community," Blinken said in an April 3 statement from the State Department.
State Department spokesperson Matthew Miller told reporters during the April 3 daily press briefing, "The Ugandan government's failure to safeguard the human rights of LGBTQI+ persons is part of the broader degradation of human rights protections that puts all in Uganda at risk and damages the country's reputation abroad."
Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]
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