Uganda’s Constitutional Court has found the infamous and internationally condemned Jail the Gays law is unlawful but, while a solid victory, the reasoning behind this decision means it may not be the last we’ve heard of the anti-gay law.
The case challenging the law was brought by 10 petitioners including academics, journalists, human rights groups and even some MPs. They argue that the law, which among many other provisions means life in prison for those convicted of “aggravated homosexuality,” is blatantly unconstitutional and that it violates a wealth of human rights standards which Uganda has signed. They also contend that the law is unsafe on grounds of how it was passed into law, which we’ll talk about more below.
For its part, the government has always maintained that this bill is necessary to prevent the West exporting homosexuality to Uganda and so that Ugandans can resist foreign influence — which is ironic given that the impetus behind the bill was a visit by a number of American evangelical groups in 2009, from which the death penalty version of this legislation grew.
While the death penalty was (begrudgingly) removed, the legislation still remains incredibly hostile to LGBT people and, since it was signed into law by President Museveni in February, there has been a marked increase in persecutions and even violent assaults against LGBT Ugandans.
Yet none of this featured in the Constitutional Court’s reasoning that the law is null and void. No, the Court instead focused on how parliament passed the law, and specifically the number of MPs that actually voted on the bill. The bill was voted on in December last year, but even supporters of the bill within the government criticized its passing because the number of MPs attending that day and voting on the bill was not enough to achieve quorum, or a representative number of total MPs in parliament. As such, said critics and supporters alike, the vote was not valid. Despite this, President Museveni signed the legislation, and the government has been enforcing it ever since — but now the Constitutional Court says all this was unlawful because the law never received a valid vote.
“We’re very happy,” law professor Sylvia Tamale told The New York Times. “But it’s unfortunate that the court did not deal with the substantive issues that violate our rights.”
Indeed it is. The law’s champion, back-bencher David Bahati, has already announced this decision will be appealed to Uganda’s Supreme Court. The Supreme Court is hostile to LGBT rights, but the quorum issue appears to be a hard one for the bill’s supporters to win: it’s a bare fact that isn’t open to appeals to history or culture. Therefore, if all is fair and even, we’d expect the appeal to lose. The problem is that, without a ruling against the constitutionality of the substance of the bill, there is absolutely nothing stopping MPs from reintroducing the law. Should that happen, we could see another flashpoint of violence, and there’s always the danger that the law could be further amended to become even more hostile. There’s also the fact that supporting MPs are now calling for an investigation into the impartiality of the judiciary, representing an attack on all fronts.
That’s the drawback of this ruling, but it would be unfair to say that this isn’t an (albeit qualified) victory for Uganda’s LGBT community.
United Nations Secretary General Ban Ki-moon has said in a statement that this ruling is a “victory” for the “rule of law” and has also thanked those behind the court challenge who he acknowledged “spoke out at great personal risk.”
A number of nations have cut aid to Uganda over the law, including the United States and the World Bank. Whether the Constitutional Court’s ruling will see a reinstatement of those funds isn’t clear because, clearly, Uganda’s presiding National Resistance Movement still wants the law active.
At the very least though, this ruling appears to re-frame the battle and give human rights groups another chance to defeat this odious law.
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