Principle

Constitutional law—rules of constitutional interpretation—Limitation of fundamental human rights and freedoms of LGBTQ persons.

Constitutional Law—public participation in legislative processes—participation through elected members of Parliament—validity of legislation.

Case Summary and Outcome

After the enactment of the Anti-Homosexuality Act, 2023 (“AHA 2023”), the Appellants (then petitioners) separately filed Constitutional Petitions Nos. 14, 15, 16, and 85 of 2023 challenging the constitutionality of the provisions of the AHA 2023 and the legislative procedure leading to its enactment.

The petitioners argued that the law is unconstitutional, among others, having been passed without adequate and meaningful public consultation and for violating fundamental rights and freedoms of LGBTQI+ people in Uganda.

The Constitutional Court consolidated the petitions and, while dismissing them, the Court upheld the law and found that it was valid under Uganda’s Constitution on the grounds that the law was intended to protect the country’s social culture, norms, values, and to protect children and vulnerable individuals.

Holding of the Constitutional Court

1. Findings on procedural points

The Constitutional Court held that the process that led to the enactment of the AHA 2023 did not contravene provisions of the Constitution because there was meaningful and adequate participation of the public through their elected members of Parliament, that the certificate of financial implications issued by the Minister of Finance complied with Article 93 of the Constitution, and that the law did not have any retrospective effect of altering past court decisions in lights with Article 92 of the Constitution.

2. Findings on the substantive points

The Constitutional Court further held that the provisions of the AHA 2023 did not contravene the principle of legality, as the plain and natural meaning of the wording in its sections could be easily ascertained.

When resolving issues related to the fundamental rights and freedoms of LGBTQI+ individuals, the Constitutional Court held that the AHA 2023 introduced justifiable limitations that passed the constitutional test under Article 43 of the Constitution. As a result, the Court found that the provisions of the AHA 2023 did not contravene the fundamental rights and freedoms guaranteed, namely, equality and freedom from discrimination, the right to life, respect for human dignity and protection from inhuman treatment, right to privacy of person and home, freedom of conscience, expression, and association.

However, the Constitutional Court nullified and struck down Sections 3(2)(c), 9, 11(2)(d) and 14 of the AHA 2023 for violating the right to health, adequate standards of living, privacy, and freedom of religion.

Reasoning of the Constitutional Court

The issues canvassed by the Constitutional Court at the hearing of the petitions were broad. For purposes of this case digest, our focus shall be on the key reasoning of the Court:

1. The Constitutional Court held that there is no obligation for facilitating of direct public participation in legislative processes under the Ugandan Constitution because meaningful and adequate public participation can be done through democratically elected members of Parliament in accordance with Objective II (1) of the National Objectives and Directive Principles of State Policy and Articles 1, 2(1) and (2), 8A, 20, 36, 38, and 79 of the Constitution.
2. That Sections 6, 7, 11(1) & (2)(a), (b) (c) and (e) of the AHA 2023 were not inconsistent with Article 28(12) of the Constitution because the wording and phrasing of the impugned provisions does not violate Article 28(12) on account of uncertainty and vagueness as they can be assigned meaning by courts of law using rules of statutory interpretation.
3. Sections 2(1)-(4), 3(1) &(2)(d), (f) & (h), (3) & (4), 5(2), 6, 12, 13 & 16 of the AHA 2023 are not inconsistent with the right to equality and freedom from discrimination guaranteed under Articles 21(1), (2), (3) & (4), 32(1), 43(2)(c) & 45 of the Constitution on the following grounds: [a] An interpretation of Article 21 that included protection on the basis of sexual orientation would contravene the rule of harmony in constitutional interpretation; [b] The prohibition of same sex marriage under Article 31(2a) of the Constitution precludes sexual orientation as an analogous ground of discrimination under Article 21; [c] ‘Sex’ as a protected ground of discrimination does not encompasses sexual orientation; [d] Public opinion is a legitimate public interest which may justify an interference with the right to freedom from discrimination; and [e] Homosexuality is not innate, and therefore, there is no right to equality before the law for people who identify as homosexual.
4. That Sections 2(1) – (4), 3(1), 2(d)-(f) & (h), 5(2), 6, 12, 13(1), and 16 of the AHA 2023 are not inconsistent with the right to human dignity and protection from inhumane and degrading treatment guaranteed under Articles 24 & 44(a) of the Constitution on grounds that Article 32(2a) of the Constitution prohibits marriage between persons of the same sex.

Significance of the Decision

By largely upholding the AHA 2023, the decision reinforces discrimination against LGBTQI+ people in Uganda and failed to protect of the rights of minorities against popular prejudice. The Court also undermined the rights to freedom of expression, association, and civic participation for Non-Governmental Organizations and human rights defenders by declining to strike down the provisions on “promotion of homosexuality”.

Status

The appellants filed Constitutional Appeal No. 7 of 2024 in the Supreme Court of Uganda. The appeal seeks to overturn the decision of the Constitutional Court, save for Sections 3(2)(c), 9, 11(2)(d) and 14, which were nullified.

The appeal is premised on the grounds that the Constitutional Court erred in law and fact when it held that the procedure that led to the enactment of AHA 2023 was constitutional and that the AHA 2023 was constitutionally valid because it introduced justifiable limitations under Article 43 of the Constitution.

The appeal is pending hearing before the Supreme Court of Uganda.