Kasha Jacqueline, David Kato Kisule and Onziema Patience v. Rolling Stone Ltd and Giles Muhame, High Court of Uganda at Kampala (30 December 2010)
The applicants filed a complaint to the High Court alleging that the publication of an article by the respondents violated their constitutional rights. As relief, they requested compensation for the pain and anguish caused as well as an injunction restraining the respondents from publishing further injurious information about them.
The respondents were the publishers of a newspaper called “Rolling Stone”. On 2 October 2010, an article with the title “100 Pictures of Uganda’s top homos leak” was published in the newspaper. The article accused the gay community of trying to recruit “very young kids” and “brainwash them towards bisexual orientation”. It called on the government to take a bold step against this threat by hanging dozens of homosexuals.
The article published the names and pictures of several members of the Ugandan LGBT community and provided information about them and, in some cases, their home addresses. With regard to the first applicant, the article accused her of hosting at her house gatherings of the gay community, sometimes ending in orgies. The article also accused the third applicant of planning to recruit children at schools. The second applicant’s name and address were published in the article and his picture appeared on the cover.
Whether the applicants’ rights to human dignity and protection from inhuman treatment and to privacy of person and home had been violated.
Constitution of Uganda, Article 22 (right to life), Article 23 (protection of personal liberty), Article 24 (respect for human dignity and protection from inhuman treatment), Article 27 (right to privacy), and Article 29 (freedom of conscience, expression, movement, religion, assembly and association).
Penal Code Act, Section 145 (criminalising sodomy).
Hugh Owen v. Saskatchewan Human Rights Commission, Saskatchewan Queen’s Bench, Canada, 2002 (upholding the hate speech provision of the provincial human rights code).
Reasoning of the Court
The applicants first argued that the article had exposed them to possible violence, ridicule, hatred and “mob justice”, amounting to a threat of violation of their right to human dignity and protection from inhuman treatment.
Moreover, the call for homosexuals to be hanged, coupled with the threat of violence and mob justice, amounted to a threat of death without due process. It was therefore a threat of violation of the applicants’ right to life.
Third, the applicants argued that the article threatened their rights to liberty and to freedom of movement. They also submitted that the article violated their right to privacy of the person and home.
The respondents argued that the applicants were not entitled to the relief sought for several reasons. They had already exposed themselves as homosexuals on the internet and had also voluntarily appeared in public as homosexual activists. According to the respondents, they could not invoke a violation or a threat of violation of their right to privacy. Furthermore, the applicants had presented no evidence to show that the article had exposed them to any danger with regard to their lives or incited any public violence; their claim that their rights to life and freedom of movement had been violated was therefore ill-founded. Finally, the respondents noted that homosexuality was a criminal offence under the Penal Code Act. Since the applicants admitted being homosexuals, they “had not come to court with clean hands” and should therefore be denied relief.
The Court decided to limit its analysis to two rights only: the right to human dignity and protection from inhuman treatment, and the right to privacy of the person and home.
The Court first stressed that the motion under consideration did not concern homosexuality as such, but rather the alleged infringement or threat of infringement of fundamental rights and freedoms. Next, the Court affirmed that its jurisdiction covered infringed rights but also threats to fundamental rights and freedoms. The fact that the applicants had provided no evidence of actual violence against their persons or their homes was not relevant.
With regard to the applicants’ right to human dignity and protection from inhuman treatment, the issue was whether the article threatened or tended to threaten the human dignity of gay persons in general and, in particular, the applicants.
The Court found that the publication of the applicants’ identities and addresses, coupled with the explicit call to hang gays by the dozen, tended to “tremendously threaten” their right to human dignity.
As for the applicants’ right to privacy of the person and home, the Court affirmed they had “no doubt” that this right had been threatened by the exposure of the applicants’ identities and addresses in the article.
Lastly, the Court addressed the criminalisation of homosexual acts and noted that, under section 145 of the Penal Code Act, a person was not considered a criminal for the sole fact of being gay. In order to be regarded as a criminal, one had to commit an act prohibited under that provision. The Court thus distinguished between the being gay and sexual conduct.
The Court held that Rolling Stone threatened the applicants’ rights to human dignity and protection from inhuman treatment, as well as their right to privacy of the person and home. The Court issued the injunction sought by the applicants, restraining the respondents from publishing more information about the identities and addresses of Ugandan gays and lesbians.