The International Commission of Jurists (ICJ) is gravely concerned about the disastrous impact on human rights of the Ugandan Constitutional Court’s refusal to strike down the “Anti-Homosexuality Act, 2023” (AHA). This appalling ruling is an affront to and violates the human rights of lesbian, gay, bisexual, transgender and intersex (LGBTIQ+) persons to life, dignity, freedom from discrimination and equality, freedom of torture, liberty and privacy, among other rights.
Despite widespread condemnation from civil society organizations, human rights advocates and United Nations expert human rights mechanisms, in May 2023, President Yoweri Museveni signed the AHA into law. Several human rights activists, academics, lawyers, religious leaders, journalists and civil society organizations advocating for the human rights of LGBT persons subsequently filed a petition with the Constitutional Court of Uganda (the Court) to have the law struck down. They challenged the AHA on a wide range of bases, including: the lack of meaningful public participation in the legislative process; negative financial implications for the country’s budget; and the violation of a range of human rights enshrined in the Ugandan Constitution and international human rights instruments by which Uganda is bound, including the African Charter on Human and Peoples’ Rights, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, guaranteeing the rights to equality, non-discrimination, privacy, freedom of expression, freedom of association and health, among others.
On 3 April 2024, the Court largely dismissed the petitioners’ challenge to the AHA, albeit it did strike down certain provisions pertaining to: restricted access to housing and healthcare for “homosexual people” pursuant to the criminalization of renting premises to them (s 9 and 11(2)(d)); the creation of an obligation to report alleged “acts of homosexuality” (s 14) and the criminalization of transmission of a “terminal illness” as a result of a “homosexual act” (s 3(2)(c)).
Reacting to the decision, Kaajal Ramjathan-Keogh, ICJ Africa Regional Director, stated:
“In its detailed judgment the Ugandan Constitutional Court has abysmally failed to apply international human rights law and standards, which undoubtedly require the striking down of the Anti-Homosexuality Act as unlawful and unconstitutional in its entirety.”
“Instead of applying now very well established international human rights law and standards, as required by the Ugandan Constitution and the country’s international human rights law obligations, the Court has peddled a discourse that explicitly questions the universal nature of human rights based on purportedly specific societal contexts and popular homophobic opinion in Uganda,” she added.
Compounding existing stigma, discrimination and violence against individuals based on animosity and even hatred motivated by their real or imputed sexual orientation and/or gender identity or gender expression, the AHA creates new “criminal offences”, including “the offence of homosexuality”, which proscribes certain consensual same-sex sexual activity, carrying a sentence of life imprisonment upon conviction and ten years’ imprisonment for attempts to commit the offence. It also introduces an offence of “aggravated homosexuality”, making those convicted liable to capital punishment. Moreover, the Act makes it an offence to engage in advocacy supporting the human rights of LGBTIQ+ individuals, making it punishable upon conviction with a sentence of 20 years’ imprisonment and a hefty fine for a legal entity, such as a non-governmental organization, that has been found to commit the offence of “promoting homosexuality”.
The ICJ is particularly concerned by the Court’s willingness to accept “evidence” presented by the government that the law was “enacted against the backdrop of the recruitment of children into the practice of homosexuality”, and the judges’ interpretation of universal human rights as subject to restriction based on the “communal right to socio-cultural self-determination”. The judgment itself thereby perpetuates outmoded and discriminatory stereotypes in contravention of international law and standards.
“ICJ stands in solidarity with LGBTIQ+ individuals in Uganda who continue to be subjected to various human rights abuses, including rapes, forced evictions and torture. The enactment of this anti-LGBT law, and the Constitutional Court’s judgment upholding its validity increases the persecution of LGBT persons in the country and violates their human rights,” says Ramjathan-Keogh
“We urge the Ugandan government to uphold its obligations under international human rights law and respect the rights of all individuals, regardless of sexual orientation or gender identity and gender expression by taking immediate steps to repeal this discriminatory and hateful legislation,” she concluded.
Background
Uganda has a long history of persecution of LGBT individuals, dating back to colonial era laws, such as the Penal Code Act (1950), whose homophobic provisions are still in force today. In a submission to the United Nations (UN) Human Rights Committee last year, ICJ expressed profound concerns about Uganda’s failure to fulfill its obligations under the International Covenant on Civil and Political Rights in a number of areas, including by enacting the “Anti-Homosexuality Act”. Among its many troubling provisions, the law explicitly reinforces the ban on same-sex marriage; creates new “criminal offences”, including “the offence of homosexuality”; and makes provision for a court to order that a person convicted of the “offence of homosexuality” be provided with “rehabilitation” services.
The enactment of this law follows a trend of several other African countries similarly introducing laws that have a persecutory effect against LGBTIQ+ persons. For example, the Ghanaian Parliament recently approved “The Human Sexual Rights and Ghanaian Family Values Bill”, the constitutionality of which is currently being challenged in the Supreme Court of Ghana.
Uganda must uphold the human rights of LGBTIQ+ persons under its Constitution and pursuant to its international human rights law obligations, including under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. These human rights include the rights of LGBTIQ+ persons to life, dignity, equality, non-discrimination, privacy, liberty and security of persons, freedom of expression and freedom of association, health and privacy.
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director, Kaajal.Keogh@icj.org
Mulesa Lumina, ICJ Africa Legal and Communications Associate Officer, Mulesa.Lumina@icj.org
Resources:
- Constitutional Court Judgment
- Anti-Homosexuality Act, 2023
- Constitution of Uganda
- ICJ Submission on Uganda to UN Human Rights Committee
- ICJ, The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty”
- Yogyakarta principles – Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.
- Yogyakarta Principles Plus 10
- Resolution 275 of the African Commission on Human and Peoples’ Rights – Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity.
- ICJ, Ghana: ICJ condemns Ghana’s anti-LGBTIQ+ Bill and calls on the President to refuse to assent to the Bill and ensure the rights of LGBTIQ+ persons in the country
- ICJ, Uganda: The enactment of “the Anti-Homosexuality Act, 2023” will foster further stigma, discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons.
- ICJ, The Right to Freedom of Association For LGBTQI+ Rights Advocates in Africa.
- ICJ, Realizing the rights of LGBT+ persons in Africa.