Constitutional Court Declines to Fully Nullify Anti-Homosexuality Act 2023

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The Constitutional Court in Kampala, led by Deputy Chief Justice Richard Buteera, has upheld the Anti-Homosexuality Act, of 2023, except for four sections which have been nullified.  The Anti-Homosexuality Act prescribes tough penalties for various offences, including participating in the promotion, facilitation, and failure to report acts of homosexuality, with penalties ranging from death for aggravated homosexuality to imprisonment not exceeding 20 years.

The constitutional court nullified sections 3(2)(c,), 9, 11(2)(d), and 14 of the act for contravening the constitution of Uganda.

This follows four anti-gay petitions of numbers 14, 15, 16, and 85 of 2023 filed before the court, although they were later consolidated into one. Petitioners, including MP Fox Odoi, Frank Mugisha, Pepe Onziema, Jackline Kemigisha, Andrew Mwenda, Kintu Nyango, Jane Nasiimbwa, and Kwizera Linda Mutesi, argued that Uganda’s anti-gay law alters the 2014 judgment of the same court that nullified a similar piece of legislation and is therefore inconsistent with Article 92 of the constitution.

The petitioners further argue that the Act was passed within six days instead of the 45-day period provided for by parliamentary rules.

They added that Parliament enacted the said controversial law without meaning and adequate public participation, which they claim is inconsistent and in contravention with articles 1, 2, 8A, 20, 36, 38, 79, and objective 11 (1) of the National Objectives and Directive Principles of State Policy of the Constitution.

However, while reading the judgment on April 3, 2024, Justice Buteera noted that the evidence on record is that the Anti-Homosexuality Act was enacted against the backdrop of the recruitment of children into the practice of homosexuality, and that is the mischief that Section 11 of the Act seeks to address.

He further noted that Section 112(b) of the Anti-Homosexuality Act aligns with Section 31 of the Uganda Communications Act and Section 13 of the Anti-Pornography Act, all of which aim to uphold societal morals by limiting the use of media to publish or broadcast offensive material.

The Constitutional Court ruled that the Anti-Homosexuality Act does not violate the right to practice business or profession; henceforth, it declined to nullify the Anti-Homosexuality Act 2023 in its entirety.

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