In Odoi v. Attorney General, (Const. Ct. Uganda, April 3, 2023), the Constitutional Court of Uganda in a 203-page opinion upheld most of the Uganda Anti-Homosexuality Act 2023. The Act imposes a life imprisonment sentence for anyone who engages in a homosexual act, and the death penalty for aggravated homosexuality which in general is defined as engaging in a homosexual act with various types of vulnerable persons. However, the court struck down four sections of the Act: §3(2)(c) which defines aggravated homosexuality as including the situation in which the victim contracts a terminal illness as a result of the sexual act; §9 and §11(2)(d) which criminalize knowingly allowing premises to be used or leased out for homosexuality or activities encouraging it, and §14 which imposes a duty to report homosexuality even by individuals who would normally be prevented by privilege from reporting. In a press release, the Court summarized the decision in part as follows:
In coming to its decision, the Constitutional Court considered the following:
... 2. The absence of consensus at the global level regarding non-discrimination based sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC)....
3. The conflict in international human rights law between upholding a universal understanding of human rights and respecting the diversity and freedom of human cultures....
4. The conflict between individuals’ right to self-determination, self-perception and bodily autonomy, on the one hand; and the communal or societal right to social, political and cultural self-determination....
5. The recent developments in the human rights jurisprudence including the decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 U.S. 215 (2022), where the Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to individual autonomy.
6. The uniqueness of Uganda’s Constitution which obliges the courts of law to take into account the country’s socio-cultural norms, values and aspirations when resolving any disputes before them.
7. The Anti-Homosexuality Act being, in general, a reflection of the sociocultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizens.
