Uganda's Constitutional Court Upholds Most of Its Anti-Homosexuality Act

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.

Uganda Constitutional Court Upholds Most of Anti-Homosexuality Act; Mandatory Reporting of Homosexuality Invalidated

In Odoi-Oywelowo v. Attorney General, (Const. Ct. Uganda, April 3, 2024), Uganda's Constitutional Court in a unanimous 203-page opinion upheld the constitutionality of most of the country's Anti-Homosexuality Act, 2023. The Act bans homosexuality and the promotion of homosexuality and contains various enforcement provisions. Plaintiffs contended that the law violated a number of provisions of the Ugandan Constitution, including protections of human dignity, equality, privacy and expression. While upholding most of the law, the court struck down provisions that punish unintentional transmission of HIV and provisions prohibiting leasing or allowing of premises to be used for homosexuality. It also found that Section 14 of the Act that imposed a duty to report homosexuality and gave immunity to a person who reports it in violation of a privilege violates the constitutional rights to health, privacy and freedom of religion. That provision would have presumably required clergy who learn of homosexuality in privileged conversations to report it. Reuters reports on the decision.

Uganda Enacts Harsh Ban on Homosexuality

Last Friday, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act 2023 (full text). The new law imposes the penalty of life imprisonment for anyone "who commits the offense of homosexuality." A person who commits the offense of "aggravated homosexuality" is liable for the death penalty. "Aggravated homosexuality" is defined, among other things, as homosexual relations with a child, a person with a disability, an elderly or unconscious person, a person who is mentally ill, or a homosexual act committed by the victim's parent or guardian, the offender is a serial offender, or the offense is committed by duress. Same-sex marriages are prohibited, as is promotion of homosexuality. Individuals have an obligation to report a reasonable suspicion that a person has or intends to engage in homosexual relations. A convicted person may be ordered to undergo "rehabilitation."

The Ugandan Parliament issued a press release announcing the President's signing of the Bill into law, with remarks by the bill's sponsor, Asuman Basalirwa. CNN reports on the passage of the law. On Monday, President Biden issued a Statement (full text) calling Uganda's new law "a tragic violation of universal human rights." U.S. Secretary of State Anthony Blinken also issued a Statement (full text) condemning Uganda's new law and saying in part:

[T]he Department of State will develop mechanisms to support the rights of LGBTQI+ individuals in Uganda and to promote accountability for Ugandan officials and other individuals responsible for, or complicit in, abusing their human rights.

Bloomberg News reports that a suit challenging the new law has already been filed in Uganda's Constitutional Court.

Uganda's Jewish Community Is Split Over Financial Charges and Religious Differences

Haaretz yesterday reported on the controversy-- which has now made its way into the courts-- between factions in Uganda's Jewish community, known as the Abayudaya.  The community's rabbi, Rabbi Gershom Sizomu, has been charged by his half-brother, Joab Jonadab Keki, with mismanagement of the community's funds and property.  Keki has asked a Ugandan court to remove Sizomu as rabbi, claiming he has taken community funds for himself and his family.  Sizomu's supporters deny the charges and have filed a counter-claim. Apparently the controversy also has roots in the attempt by Keki to move the community toward Orthodox Judaism.  Rzbbi Siaomu has completed his rabbinic studies in Los Angeles at the Conservative Jewish seminary, the Ziegler School.  The Orthodox rabbinate in Israel refuses to recognize the Abayudaya as Jewish because the community was converted by Conservative rabbis.

Anti-LGBT Activist Appeals ATS Lawsuit That He Won

As previously reported, earlier this week a Massachusetts federal district court dismissed an Alien Tort Statute lawsuit against activist Scott Lively who was sued over his conduct in Uganda helping anti-LGBT activists there.  The court held that there had been insufficient conduct in the United States to support a suit under the ATS.  However the court's opinion harshly criticized Lively's actions, calling them crimes against humanity. Now, in an unusual move, Lively has filed an appeal even though the suit against him was dismissed.  The Notice of Appeal (full text) in Sexual Minorities Uganda v. Lively, (D MA, filed 6/8/2017), says appellant seeks removal from the court's order of "certain extraneous but prejudicial language immaterial to the disposition of the case and which the district court had no jurisdiction to entertain or enter." It also seeks to have supplemental state law claims which the district court dismissed without prejudice to instead be dismissed with prejudice so they cannot be refiled in state court. Liberty Counsel, representing Lively, issued a press release announcing the appeal and describing their objections to the district court's Order:

Judge Ponsor improperly littered his Order with a prolonged tirade against Lively, badly distorting his Christian views and activism, and insulting him with such unbecoming epithets as “crackpot bigot[],” “pathetic,” “ludicrous,” “abhorrent” and numerous others.

No Jurisdiction Under ATS Over Anti-Gay Pastor's Activity In Uganda

In Sexual Minorities Uganda v. Lively, (D MA, June 5, 2017), a Massachusetts federal district court dismissed a suit that had been brought under the Alien Tort Statute against Scott Lively, a pastor and anti-LGBT activist. The court said in part:

Defendant's positions on LGBTI people range from the ludicrous to the abhorrent....  He has tried to make gay people scapegoats for practically all of humanity's ills.... 

This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal.... 

Plaintiff has filed this lawsuit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, seeking monetary damages and injunctive relief based on Defendant's crimes against humanity. Defendant now seeks summary judgment in his favor arguing that, on the facts of record, the ATS provides no jurisdiction over a claim for injuries -- however grievous -- occurring entirely in a foreign country such as Uganda. Because the court has concluded that Defendant's .jurisdictional argument is correct, the motion will be allowed.

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posed by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason. 

Liberty Counsel which represented Lively issued a press release on the decision describing Lively's activities as "sharing his biblical views on homosexuality during three visits to Uganda...."

Uganda's Constitutional Court Invalidates Anti-Gay Law Because of Lack of Parliamentary Quorum

Uganda's Constitutional Court yesterday struck down the controversial anti-homosexuality law passed by the country's Parliament last December and signed into law by Ugandan President Yoweri Museveni in February. The Court avoided the substantive constitutional issue, instead finding procedural defects in the bill's enactment. As reported by AP:

The panel of five judges on the East African country's Constitutional Court said the speaker of parliament acted illegally when she allowed a vote on the measure despite at least three objections - including from the country's prime minister - over a lack of a quorum when the bill was passed on Dec. 20.

The bill provided for punishment up to life in prison for engaging in homosexual relationships, and also called for prison terms for promoting homosexuality. The World Bank and some European countries have withheld aid because of the law.

According to BuzzFeed, the courtroom yesterday became something of a circus as anti-LGBT pastor Martin Ssempa prayed loudly and argued with petitioners in the case as those in the courtroom sat through a 3-hour recess that preceded the Court's handing down its decision.

It is not clear what the practical effect of the ruling will be. There have been no actual arrests under the law, but there has been a 20-fold increase in incidents of anti-LGBT harassment. Also a colonial-era law criminalizing sex acts "against the order of nature" was unaffected by yesterday's ruling.

Obama Criticizes Uganda President's Signing of Anti-Gay Law

As he said he would, yesterday Ugandan President Yoweri Museveni signed into law a harsh Anti-Homosexuality bill. CNN reports that at the public signing of the bill, Museveni said he would not allow the West to impose its values on Uganda.  In response, the White House issued a statement (full text) reading in part:

Instead of standing on the side of freedom, justice, and equal rights for its people, today, regrettably, Ugandan President Museveni took Uganda a step backward by signing into law legislation criminalizing homosexuality.  As President Obama has said, this law is more than an affront and a danger to the gay community in Uganda, it reflects poorly on the country's commitment to protecting the human rights of its people and will undermine public health, including efforts to fight HIV/AIDS.... 

Ugandan President Says He Will Sign Harsh Anti-Homosexuality Bill; U.S. Objects

The Kampala Observer and the New York Times reported yesterday that Ugandan President Yoweri Museveni says he will sign the harsh Anti-Homosexuality Bill (full text- apparently the final version) passed by Uganda's Parliament last December. (See prior posting.) The announcement came in closing remarks at a retreat of Museveni's political party, the National Resistance Movement (NRM). Originally Museveni had reservations about signing the bill, but in his remarks (full text) to the NRM Museveni explained his current decision:

The reason I had not signed the bill is to scientifically answer the question; are there people genetically born homosexual? For me, I had thought that since there were people born albino there could be people born homosexual.

But since the medical authorities, the department of genetics of the Medical School from Makerere, say there is no proof yet that people are homosexual by genetics, I told those scientists to put it in writing and they are going to do so. Then I will sign the bill.

Am taking all these precautions because am historically answerable for whatever I do as a leader. There were mistakes made in the 1930s by Hitler because he wanted to make Germany strong. Some of these issues are very crucial and should be handled objectively not emotionally....

I know we are going to have a big battle with outsiders, but I will be able to say I asked scientists and this is what they said. That homosexuals are normal people behaving abnormally.

In the United States, yesterday President Obama issued a statement (full text) saying that he is "deeply disappointed" by the decision. He added: "enacting this legislation will complicate our valued relationship with Uganda." White House National Security Advisor Susan Rice tweeted yesterday that she had spoken at length with Museveni to urge him not to sign the bill

Nigeria and Uganda Parliaments Pass Harsh Anti-Gay Laws; Final Approval By President/ Prime Minister Uncertain

Daily Trust reports that last week Nigeria's National Assembly gave final approval to the conference committee's version of the Same-Sex Marriage Prohibition Bill 2011.  It imposes a 14-year prison sentence on same-sex couples who enter a marriage or civil union.  Ten year prison sentences are prescribed for anyone who witnesses or aids or abets a same-sex union.  Section 2 of the bill provides:

Any person, who registers, operates or participates in gay clubs, societies and organisations or directly or indirectly make public show of same sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The bill still needs the signature of President Goodluck Jonathan to become law.  Amnesty International on Friday called on the President to reject the bill. (AFP).

Meanwhile, on Friday, Uganda's Parliament passed an anti-homosexuality law described as draconian.  The Guardian reports on some of its provisions:

British campaigner Peter Tatchell noted that the bill extends the existing penalty of life imprisonment for same-sex intercourse to all other same-sex behaviour, including the mere touching of another person with the intent to have homosexual relations.

Promoting homosexuality and aiding and abetting others to commit homosexual acts will be punishable by five to seven years jail.... "These new crimes are likely to include membership and funding of LGBT organisations, advocacy of LGBT human rights, supportive counselling of LGBT persons and the provision of condoms or safer sex advice to LGBT people.

"A person in authority – gay or heterosexual – who fails to report violators to the police within 24 hours will be sentenced to three years behind bars."

He added: "Astonishingly, the new legislation has an extra-territorial jurisdiction. It will also apply to Ugandan citizens or foreign residents of Uganda who commit these 'crimes' while abroad, in countries where such behaviour is not a criminal offence. Violators overseas will be subjected to extradition, trial and punishment in Uganda.

The Guardian adds:

[The bill] was opposed by Ugandan prime minister Amama Mbabazi, who argued that not enough MPs were present for a quorum, a challenge that might yet discourage Museveni from signing the bill into law. The threat of a withdrawal of western aid could also play into his decision.