The Constitutional Court has largely upheld the controversial Anti-Homosexuality Act, 2023, for being in line with the values and the Constitution of the land.
However, the five justices struck out Sections 3 (2) C, 9, 11 (2) d and 14 for being inconsistent with the Constitution as the same violate the right of Homosexuals to health, privacy and freedom to religion.
Richard Buteera, the Deputy Chief Justice ruled on behalf of the panel of five justices that”Having held as we have, we decline to nullify the Anti Homosexuality Act 2023 in its entirety, neither do we grant a permanent injunction against its enforcement.”
Adding:”We however…declare that Section 3 (2)C, 9, 11 (2)d and 14 of the Anti Homosexuality Act, 2023 violate the right health, privacy and freedom to religion, which rights are respectively recognised in the universal declaration.
This petition substantially fails with the following orders; Sections 3 (2)C, 9, 11 (2) d and 14 of the Anti Homosexuality Act are hereby struck down. Each party bears its own costs. Its so ordered.”
The nullified Sections had criminalised the letting of premises for use for homosexual purposes, the failure by anyone to report acts of homosexuality to the Police for appropriate action, and the engagement in acts of homosexuality by anyone which results into the other persons contracting a terminal illness.
This law was enacted majorly to protect the children in schools who were being recruited into Homosexuality practices.
In 2023, the Parliament of Uganda passed the Anti-Homosexuality Act following the public outcry, social and broadcast media discussions and homosexualityvictims’ ‘painful and gruelling stories’ of children and families that were ‘dying insilence’ from the psychological trauma of forced recruitment of children into homosexual acts.
The Act criminalised homosexuality, its recognition, promotion, financing and normalization.
The Petitions were opposed by the Attorney General of Uganda, Pastor Martin Sempa, Eng. Stephen Langa and the Family Life Network Limited.
In their submissions, the petitioners had asked the court — the second highest court in Uganda — to throw out the anti-homosexual law, arguing that it infringes on the rights and freedoms, including speech and association, of gay people.
They claimed that it is unlawful for the government to criminalize consensual same sex among adults.
The petitioners also argued that the process of enacting the Ant-Homosexuality Act, 2023 without meaningful and adequate public participation was inconsistent with and in contravention of Articles 1, 2, 8A, 20, 36, 38, 79 and objective II (1) of the National Objectives and Directive Principles of the State Policy of the constitution.
They contended that the conduct of the Speaker of Parliament, Anita Among, during the second and third readings of the Anti-Homosexuality Bill, 2023 on March 21 and May 2 last year, amounted to bias and was inconsistent with and in contravention of Article 89 (1) and (2) of the constitution.
The petitioners further stated that Sections 1, 2, 3 and 6 of the Anti-Homosexuality Act, 2023, in criminalizing consensual same-sex sexual activity among adults in private, are inconsistent with and in contravention of the right to equality and non-discrimination guaranteed under Articles 20 and 21 (1) and (2) of the constitution.
“Section 4 of the Anti-Homosexuality Act,c2023, in providing for criminal liability of every child below 18 years, is inconsistent with and in contravention of the rights of the child guaranteed under Articles 20, 34, 45, 8A and 287,” read part of the petition.
The petitioners further asserted that Section 9 and 11 (1) and (2) (d) of the anti-homosexuality law, by making it an offence for any person to allow and or lease or sub-lease premises to be used for purposes of homosexuality or “activities that encourage homosexuality”, is consistent with and in contravention of the principle of legality guaranteed under Articles 20, 28 (12) and 44 (c) of the constitution.
But, the Attorney General, represented by Director of Civil Litigation Martin Mwambustya, asked the court to maintain the anti-homosexuality law, stating that same-sex is a crime.
The Attorney General and Pr Martin Ssempa contended that due to ethical and moral reasons, the law prohibiting same sex marriages and its severe punishments consented to by President Yoweri Museveni in May, last year, should be saved.
The law imposes capital punishment for some behaviour, including having gay sex when HIV positive, and stipulates a 20-year sentence for “promoting” homosexuality.
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