Ugandan constitutional court refuses to annul or block enforcement of anti-gay law

Kampala — Uganda’s constitutional court has declined to annul or grant a permanent injunction against the enforcement of the country’s anti-gay law. In their ruling Wednesday, the judges said the law does infringe on some fundamental human rights. Lawyers representing members of Uganda’s LGBT community described the ruling as retrogressive. 

The petitioners in the case had sought to have the court decide whether the anti-gay law passed in 2023 violates the principle of equal protection under the law for all Ugandans.

But, to their dismay, the panel of five judges led by Uganda’s Deputy Chief Justice Richard Buteera had this to announce.

“We decline to nullify the Anti-Homosexuality Act 2023 in its entirety; neither would we grant a permanent injunction against its enforcement.” 

In their ruling Wednesday, the Constitutional Court judges had noted that the law was meant to protect children especially in cases where recruitment and targeting of children has been reported.

However, the judges did rule that the law does infringe on some rights, specifically parts of the law that would effectively deny members of the LGBT community access to health services such as anti-HIV treatment.

“We find that Section 3(2) C violates their rights to health while article 9 and 11, (2d) of the Anti-Homosexuality Act are inconsistent with the right to adequate standard of living and the right to health,” said Judge Buteera.

The ruling nullified those sections of the act.

Lawyer Nicholas Opio described the whole ruling as an inherently faulty judgment of the court. He argues that the court’s decision makes it legal and lawful to discriminate against LGBT people.

“That it is legal to exclude the LGBTI community from participating in the affairs of their country simply on the basis of public sentiments and alleged cultural values.  What is to say you have access to health when your very existence is being challenged and being declared unconstitutional? I think that it is a failed attempt at a balancing act,” he said.

Eric Ndawula, an LGBT activist, told VOA that the community was let down by the court.

“They did not have facts. But rather they were looking at perceptions. They were looking at what the (local) media was saying, rather than what the actual facts were. If you are talking about recruitment but you do not have any evidence of recruitment except statements from an individual that have not been substantiated. It is a sad day,” said Ndawula.

The petitioners can appeal the matter to Uganda’s Supreme Court.

The Anti-Homosexuality Act, which took effect last May, says engaging in acts of homosexuality is punishable with life imprisonment.

The law also imposes the death penalty for what it calls “aggravated homosexuality,” including sexual relations involving people infected with HIV, as well as sex with people categorized as vulnerable, including minors and the elderly.

The law has been denounced by gay activists and many foreign governments, including the Biden administration, as a violation of human rights.

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