The Constitutional court petition filed yesterday by 10 Ugandans is clear and to the point: “the anti- homosexuality law is “draconian” and “unconstitutional.”
The petitioners include Prof Joe Oloka Onyango, MP Fox Odoi-Oywelowo, Andrew Mujuni Mwenda, Prof Ogenga Latigo, Dr Paul Nsubuga Semugooma, Jacqueline Kasha Nabagesera, Julian Pepe Onzimema, Frank Mugisha and Human Rights Awareness & Promotion Forum. Attorney General Peter Nyombi is the only respondent.
The petitioners contend that the passing of the Anti-Homosexuality Act on December 20, 2013 by Parliament was done without quorum, an act which contravened Rule 23 of the parliamentary rules of procedure, articles 2(1) & (2), 88 and 94 (1) of the Constitution of Uganda.
Using five law firms, the petitioners argue that sections 1, 2 and 4 of the Anti-Homosexuality Act criminalize consensual same sex/gender sexual activity among adults in private, hence being in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 21 (1), (2) & 4 (4) and 27 of the Constitution.
“That section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalizing touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article articles 2 (1) & (2), 28 (1), (3) (b), 28 (12), 42 and 44 (c) of the Constitution…” the petition partly reads.
Furthermore, the activists argue that by section 2 of the said Act imposing a maximum life sentence for homosexuality is disproportionate punishment for the offence and is in contravention of the freedom from cruel, inhuman and degrading punishment guaranteed under the Constitution.
They allege that by section 3 (3) of the Act subjecting persons charged with aggravated homosexuality to compulsory HIV test is inconsistent with articles 2 (1) & (2), 21, 24, 27, 28, 44 and 45 of the Constitution.
The petitioners, who claim to be believers in rule of law contend that sections 7 and 13 (100) of the Act are illegal because they criminalize aiding, abetting, counselling, procuring and promotion of homosexuality hence creating offences that are overly broad.
They also state that it’s wrong for the act to penalize legitimate debate (on homosexuality), professional counsel, HIV-related service provision and access to health services for gay people. They have asked court to permanently stay the operationalization of the anti-homosexuality law.
They also want court to permanently stay the gazetting of the AntiHomosexuality Act.
“An order permanently prohibiting any person, organization, company and/or entity to write, publish, or mount a campaign against adult persons who profess and engage in consensual same sex/gender sexual activity among themselves as adults.
An order of a permanent injunction and/or gagging order against persons, organizations, company restraining them from publishing, or writing in the print and electronic media including the internet; articles, letters, against adult persons who profess and engage in consensual same,” the petition concludes.
The petition will be argued by lawyers Ladislaus Rwakafuzi, Henry Onoria, Caleb Alaka, John Francis Onyango, Nicholas Opiyo and Fridah Mutesi.