10

The multifaceted struggle against the Anti-Homosexuality Act in Uganda

Adrian Jjuuko and Fridah Mutesi

On 1 August 2014, the Constitutional Court of Uganda – in a unanimous judgment – nullified the hugely popular Anti-Homosexuality Act (AHA).¹ The annulment was on the grounds that the Parliament of Uganda had passed the law without the requisite quorum as provided for by the country’s constitution.² This was one of the most memorable moments in the history of lesbian, gay, bisexual, transgender, intersex (LGBTI) organising in Uganda; people wept, shouted, and danced, and the rainbow flag was waved triumphantly in the courtroom.

This momentous event was in sharp contrast to the incident witnessed only five months earlier, on 24 February 2014, when Uganda’s President Yoweri Museveni, in a telecast aired live on national television and in front of local and international press, unexpectedly signed the AHA. That moment was the epitome of all the efforts to ensure that the Anti-Homosexuality Bill (AHB) became law, which had begun when the latter was first tabled before parliament by the MP for Ndorwa West, David Bahati in October 2009.³ The signing of the law and its subsequent coming into force on 10 March 2014 – just a day before the landmark petition that nullified it was filed – had a chilling effect on LGBTI organising in the country. The AHA, in the hands of anti-gay groups, was the ultimate weapon for subjugating pro-gay arguments and sentiments. The original AHB’s notorious provision for the death penalty had been removed. However, the AHA still contained most of the AHB’s other draconian provisions, such as: broadly defining homosexuality to include acts like ‘touching with the intent’ (Section 2, subject to life imprisonment); and granting immunity to anyone who committed ‘any crime … as a direct result of his or her involvement in homosexuality’ (Section 5(1)).⁴ Additional provisions addressed the aiding and abetting of homosexuality (Section 7), and a sweeping one prohibited ‘promotion’ of homosexuality (Section 13). Some included pejorative language such as referring to the houses of LGBTI persons or the hotels which accommodated them as ‘brothels’ (Section 11).

Parliament’s passing of the AHA on 20 December 2013, and indeed its coming into force in March 2014, saw a spike in the number of cases documented involving LGBTI persons, including arrests, prosecutions for ‘carnal knowledge against the order of nature’, landlords and local authorities throwing people out of their rented accommodation, and cases of threatened and actual violence, including mob violence. The Human Rights Awareness and Promotion Forum (HRAPF) and the Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation (hereafter, Consortium) recorded 89 cases of violations against LGBTI persons in 2014 (Consortium, 2015). Of these cases, 48 (47 per cent) were by non-state actors (ibid.). Contrasting this with the 13.7 per cent recorded for 2013 and before reveal a large increase in violations by non-state actors, a growth which could be due to the passing of the AHA. Frank Mugisha, executive director of Sexual Minorities Uganda (SMUG), describes the situation thus:

We saw this very harsh reaction from not only law enforcers, but including our fellow Ugandans. People started being evicted, people started being thrown out of their homes, being thrown out of school. And the reference was always this law, the president signed the law . . . We received very many cases of violence, discrimination towards LGBT persons, and we wrote it exactly as it was and published a report (SMUG and the National LGBTI Security Team, 2014). Within the period of the passing of the law and the period of our report, that was only a period of four months, we had documented about 164 cases and these were individuals coming to us and telling us this happened to me because of the law.⁵

Another effect of the law was the emigration of ordinary LGBTI persons from Uganda. Many ended up in neighbouring Kenya, where they were subjected to more violations,⁶ while some were resettled outside Africa. The UN High Commissioner for Refugees recorded 363 Ugandans who had sought asylum in Kenya on grounds of persecution based on sexual orientation and gender identity (SOGI) (Zomorodi, 2015). Fifty per cent of these arrived in 2014, while the rest arrived in early 2015 (ibid., pp. 12–13). Prior to the passing of the act, only 20 cases had been registered (ibid., pp. 25–6). Some organisations temporarily closed and key leaders left the country.⁷ The LGBTI community’s main allies were raided by the police and others were ordered to stop providing services.

Although many people were arrested during this period, none, surprisingly, were charged under the new law, but rather under the colonial Penal Code Act. Its Section 145(a) is considered to be the main provision criminalising same-sex relations in Uganda using this terminology: ‘carnal knowledge against the order of nature’, a concept derived from the British anti-sodomy provisions that were imported into the colonies. People were also charged under the Penal Code’s vague and sweeping provisions on ‘idle and disorderly persons’ (Section 167) and ‘rogues and vagabonds’ (Section 168).⁸ The increased clampdown on service provision and the increased violations were based on the new law, but without any resultant prosecution this created uncertainty and apprehension, as no one knew what to expect.

After the law had been nullified, the number of reported violations appeared to have dropped, before increasing again. Legally speaking, however, for many individuals and organisations, the nullification of the law lifted a yoke from their necks.⁹ Nevertheless, LGBTI individuals continued to face violations, especially from non-state actors. One Ugandan activist (Zomorodi, 2015, pp. 11–12) stated:

Even though they struck down the law, the general public has been poisoned. It’s not the law people are afraid of – it’s their very neighbors, their friends, their relatives. When you hear about violations, it’s not done by the law. The police arrest you and parade you, but then they release you because they have nothing to charge you with. Once you go back to the community, you are at the mercy of the people you live with.

Nullification of the AHA was the result of deliberate and painstaking planning and lobbying. This chapter documents its defeat. The authors were at the centre of the struggle, from October 2009 when the bill was tabled through to its nullification in August 2014, as they both worked at HRAPF which coordinated the legal efforts of the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL, or simply Coalition). The chapter opens with a background on the AHA, from the time it was tabled as a bill in Uganda’s parliament to when it came into force, including civil society efforts to organise against it.¹⁰ It then discusses the aftermath, the violations and the impact on LGBTI persons. It delves into the legal challenge made to the AHA and the process: building a group of petitioners and legal teams, analysing the issues, drafting the constitutional petition, the hearing, the application by the anti-gay groups to join the petition as parties, and the outcome. It also documents the case at the East African Court of Justice (EACJ),¹¹ which was filed at almost the same time as the Constitutional Court case. Finally, it discusses the advocacy strategies of the struggle against the AHA and the aftermath of its nullification.

The long road: the making of the AHA, 2014

Hugely popular from the time of its tabling in parliament by the Hon. David Bahati, the Ndorwa West MP, in October 2009,¹² the AHB appeared poised to sail through. This was never to be easy, however, for it took the bill five turbulent years to go through the legislative process. Touted as the perfect solution to the ‘problem’ of homosexuality, the bill was supported by most religious leaders − the most outspoken of whom was evangelical pastor, Martin Ssempa; political leaders led by the then minister of ethics and integrity, Nsaba Buturo and his successor Rev. Fr Simon Lokodo; parliamentarians led by its sponsor, the Hon. David Bahati, and later the parliament speaker, Rebecca Kadaga; and the majority of the population.

The bill was promoted as a way of protecting the ‘traditional family’ and children and young people from homosexuality, as well as safeguarding culture and traditional values.¹³ However, its extreme provisions led to an outcry from civil society and development partners. Those who opposed it pointed out that the bill was too draconian and if passed into law would violate the rights not only of LGBTI persons but also of others (Coalition, 2011). They also pointed out that its provisions could not address the problems it was intended to solve. In addition, it was not possible to clearly identify the traditional family as such extended families were dying out, afflicted by so many things extraneous to homosexuality, including increased economic hardship, domestic violence and alcoholism (Tamale, 2009). As for children and young people, the Penal Code Act had been amended in 2007 to protect boys and girls from sexual exploitation.¹⁴ And the right to culture was clearly protected in the Uganda Constitution (Article 37), and recognised as a source of law, although there is a proviso that subjects customary law to natural justice, good conscience and the law.¹⁵ Again, even if homosexuality were indeed a threat, the existing law on ‘unnatural offences’ would have curtailed any threatening homosexual practices. Significantly, not a single conviction has been recorded under the Penal Code in Uganda’s postcolonial legal history (Coalition and HRAPF, 2013, pp. 35–56).

The bill did not seek to repeal the Penal Code provisions, but instead sought to supplement them by creating the new offence of ‘homosexuality’, defining it as an act rather than an orientation. It included touching with the intent to commit homosexuality among the more usual acts relating to carnal knowledge. Punishment for this new offence was life imprisonment.¹⁶ The AHB also sought to create the offence of ‘aggravated homosexuality’, punishable by death (Clause 3(2)). Clause 3(1) stated that this had been committed when any listed aggravating factor was involved, such as the accused being a ‘serial offender’, the ‘victim’ being a child aged under 18, the victim having a disability, or the offender being HIV positive. The provision on children (Clause 3(1)) was unnecessary, since the Penal Code already provided for it with the same punishment (Penal Code Amendment 2007, Section 2). The provision on persons living with HIV/AIDS (Clause 3(1)(b)) would have had a negative effect, as it would further fuel the stigmatisation of people living with HIV/AIDS. The new offence also portrayed people with disabilities (Clause 3(1)(e)) as lacking the capacity to consent to same-sex relations. It then provided for protection of ‘victims’ by making those who had been ‘coerced’ into homosexuality immune to prosecution for crimes committed while involved in homosexual acts (Clause 5(1)). Aiding and abetting homosexuality was another controversial provision, which could include anything done for or about a homosexual (Clause 7). Promotion of homosexuality, covering a wide range of acts, could make NGOs, as well as individuals, criminally liable simply for advocating for equal rights or providing services to LGBTI people (Clause 13). In one of its most infamous provisions, the bill sought to oblige all ‘persons in authority’ to report any homosexual they were aware of within 24 hours. Failure to do so would be a crime (Clause 14). This meant that parents would be obligated to turn in their children, teachers their students, and lawyers and doctors their clients, regardless of any professional oaths. It made all the offences extraditable (Clause 17) and provided for the nullification of international instruments that were inconsistent with the spirit and provisions of the bill (Clause 18(1)). The bill was passed with all these provisions intact, except that it replaced the death penalty for ‘aggravated homosexuality’ with life imprisonment, removed the obligation to report, and deleted the nullification of international instruments.

Despite its huge popularity, the bill met its match in civil society organising. Bodies working on behalf of women’s and refugee rights, LGBTI people and sex workers, alongside religious organisations and legal aid service providers, among others, formed an alliance of 50 members to oppose the Bill. This was the aforementioned Coalition, which sought to oppose the bill on the grounds of defending LGBTI rights but also because of the implications of the bill for civil society rights. As Professor Joe Oloka-Onyango,¹⁷ a key Coalition member, argued:

The idea behind the coalition was that, yes, the Anti-Homosexuality Act was focused against LGBTI people, but it also had implications beyond that community. And we were very concerned that those implications as well undermined the observation of rights: for example, freedom of association, freedom of assembly, freedom of speech, even what people could talk about.

The Coalition immediately set about creating awareness of the law and lobbying the Ugandan government and others to oppose the bill. But they had limited success, since the main modes of creating awareness, such as the mass media, were not readily available. Print media humiliated and routinely exposed the personal details and addresses of people perceived to be LGBTI. This increased the violence and threats perpetrated against community members. Television and radio stations rarely hosted LGBTI people or activists.¹⁸ The leading media house in Uganda, the Vision Group, had (and still has) an editorial policy that prevents the publication or broadcasting of content including advertisements, that ‘propagates’ homosexuality and instead can publish only content from the president, parliament, or courts (Vision Group, 2014).

Nevertheless, advocacy worked quite well. Members of Parliament (MPs) were approached, and influential thinkers like Professors Makau Mutua of the State University of New York, Sylvia Tamale from the law faculty at Makerere University in Kampala, Uganda, and Joe Oloka-Onyango at Makerere’s Human Rights and Peace Centre, held public talks which targeted MPs. The Coalition brought the bill to international attention. As a result, Uganda and its stance on the AHB became a key feature of foreign policy in many countries, particularly the United States, the United Kingdom, Sweden and the Netherlands. Many other countries in the Global North spoke out against the bill. It was debated in the international press, and indeed at one point, the Ugandan president had to warn MPs to go slow on the bill, as it had become a foreign policy issue (New Vision, 2010).

The bill then became a tool for concealing scandals and corruption, for as soon as any erupted, moves were made to reintroduce the bill, and local and international attention was diverted back to that. Moreover, the AHB needs to be seen in the context of several pieces of legislation introduced to regulate civil society. Nicholas Opiyo,¹⁹ one of the lawyers in the Constitutional Court challenge against the AHA, observed,

You have several legislations now emerging that seek to constrict the space, not just for LGBTI but for everybody else who is involved in activism – the NGO Amendment Bill . . . and the NGO laws in practice now seek to limit civil liberties. The Public Order Management Act seeks to limit people who want to challenge government. So there’s an emergence of legislation that seeks to eat away, to eat at the edges of civil liberties across the board.

The Coalition continued to guide international attention to all the violations and scandals going on in the country, since at one time the focus on the AHB had threatened to render other violations largely invisible.

The bill came close to being passed in 2011, just before parliament closed but, in the absence of a quorum, the speaker, Edward Ssekandi ruled that there could be no vote. Increasingly the bill came to be used for political ends, sacrificing the human rights of a small minority to political ambitions. Under the stewardship of Rebecca Kadaga, the deputy speaker, the Ninth Parliament raised the stakes once more. The bill continued to be used as a tool for political aggrandisement as she made it her personal mission to get it passed. On 29 October 2011, she led parliament in saving all the bills that had been tabled in the Eighth Parliament, including the AHB. As Nicholas Opiyo explained,

As opposed to being a law that sought to make an act criminal, the law was then being used for meeting people’s own political ends, namely the Speaker of Parliament who at the time was said to be angling to contest for the presidency. When she realised that the law was so famous amongst people here in the country, she took it upon herself, it became her own personal crusade, and she then promised the country the law as a Christmas gift; and promised to pass it.

In October 2012 Kadaga told John Baird, Canada’s foreign minister, to back off on Ugandan issues (Mugerwa, 2012). She was then treated to a hero’s welcome on her return, and promised to give the bill to Ugandans as a Christmas gift by the end of the year (Naturinda, 2012). And she actually delivered that gift, albeit one year later than planned, when the AHA was passed on 20 December 2013. In a heated session discussing the bill, the speaker brushed aside the prime minister’s caution that a quorum was needed. This later proved to be the chink in the armour of the crusade to pass the law, for even though Kadaga had achieved what she wanted, this was the ground upon which the Constitutional Court later nullified the AHA.²⁰ The recommendations of the legal and parliamentary affairs committee to remove redundant and anti-human rights provisions (Parliament of Uganda, 2012) were largely ignored, and most provisions remained. The minority report by four MPs was completely rejected, and the law was passed.

After the bill had been passed, the president sent a letter to the speaker and MPs saying there was no need for homosexuality to be criminalised for in his view homosexuals were ‘abnormal persons’ who needed help. He appeared to indicate that the bill had been passed without adequate consultation and that the government did not support it. Indeed many interpreted this as the president’s veto of the bill (Mugerwa, 2014).

Although the president had indicated that he fundamentally disagreed with the law and would not sign it, nonetheless, according to Opiyo, ²¹

Certain geo-political events happened in the region that forced the hand of the president. Uganda was heavily involved in the conflict in the Sudan. There was a public fallout between the US and Uganda, in which the head of state of the United States asked President Museveni publicly to withdraw from Sudan. That in many ways angered President Museveni, and in so doing, he found recourse in the AHA as a way of getting back at the American head of state for his public rebuke for Museveni’s role in South Sudan. Nationally, the president went on a countrywide … Christmas tour … And every place the president went he was being told by religious leaders, by ordinary people, to sign the law. His own political party, in a party caucus retreat, made a public plea to the president to sign this law in exchange for the party declaring him as a sole candidate in the forthcoming election.

Further, in a strange twist, the president stated that his signing would depend on the opinion of scientists on whether homosexuality was caused by nature or nurture. He interpreted their largely inconclusive report as concluding that it was a nurture issue rather than a nature one. He thus called a press conference and signed the bill into law on 24 February 2014 amidst fanfare and before local and international media. He blasted the West for interfering in governance issues and for directing African countries on how they should conduct their affairs. He asserted Uganda’s sovereignty and capacity to pass any laws it wished (BBC News, 2014a; Kasasira, 2014). Following Museveni’s assent to the bill, the AHA came into force on 10 March 2014.

Immediate effects of the AHA

As soon as parliament passed the AHA on 20 December 2013, violations against LGBTI people increased. This trend continued until the president signed the bill into law, after which they surprisingly became less frequent. The following analysis of the effects covers the time after it was passed and the period when the AHA was in force.

This section on the immediate effects, broadly categorised into violations by state actors and non-state actors, relies primarily on data collected by HRAPF and the Consortium, which is chaired by HRAPF. The latter operates the only specialised legal aid clinic for LGBTI people in Uganda. It records and documents violations against such individuals, and produces periodic reports on this issue. The organisation chairs the Coalition’s legal committee and was responsible for coordinating the legal and advocacy efforts involved in challenging the AHB and the AHA.

Violations by state actors

Most rights violations that occurred when the law was in force were committed by state actors. The main perpetrators were members of the Uganda Police Force (Consortium, 2015, p. 21).

In the aftermath of the act being passed, many LGBTI people were subjected to arbitrary arrests − that is, arrests not based on reasonable suspicion that a crime had been committed. They began three days after the AHA became law − HRAPF recorded eight arrests of LGBTI persons (involving ten people in total) between 20 December 2013 and 13 March 2014.²² According to HRAPF’s records relating to time-spans of less than three months, this period saw the largest number of LGBTI people taken into custody.²³ In contrast, at the same stage of the previous year, HRAPF recorded only five arbitrary arrests, where those apprehended had either been found walking on the streets (especially transgender persons) or had been detained following tip-offs from hostile members of the public.

On 20 December 2013, police arrested a transgender woman while she was walking on the street, held her overnight for ‘impersonation’, and released her next day without charge. On 27 January, four people were taken into custody, two of them men found watching a movie, whose crime was ‘possession of pornographic materials’. The third person was a transgender woman, apprehended as she was about to board a taxi after being attacked by a mob. The fourth was a transgender woman, arrested after escaping from a mob which had raided the house where she was spending the night with a colleague. The next day, 28 January, a man reported assault after being beaten by a mob and thrown out of his house by local leaders who suspected him of being gay and of housing gay people. He was apprehended, along with a transgender woman who had escaped the mob violence. The two were later charged together under the Penal Code provision of having carnal knowledge against the order of nature. On 10 February, a transgender man was apprehended for impersonation while visiting a colleague who had previously been arrested. Private guards seized another person on 5 March when he was at a friend’s gate and later took him to the police station. Yet another was arrested after sending a text message. On 13 March, a man suspected of being gay was apprehended after police received a complaint that he had touched another man with the intent to commit a homosexual activity.²⁴

Of the ten people arrested, only four were formally charged with an offence, and of those only two made it to court.²⁵ In both instances, the charges were dismissed for want of prosecution (Yahoo News, 2014), demonstrating that the arrests were not based on real evidence but instead constituted persecution, and revealing a connection between the passing of the act and the arrests. There was an increase in the latter soon after the AHA was passed, and a reduction when the act was nullified.²⁶ It is interesting that none of those apprehended were charged under the act, but the spike in numbers clearly shows that the passing of the act inspired the police to perform these actions. It is important to note that the police usually act on tip-offs from members of the public and usually make an arrest before carrying out investigations.

After the above individuals had been apprehended, other rights besides the right to liberty were violated. These violations during arrest (multiple in the majority of cases) were:

1. Lengthy pre-trial detentions without charges. The Consortium reported that in 2014, out of the 36 persons arbitrarily arrested, 18 spent more than the constitutional 48 hours in police detention without being formally charged (Consortium, 2015, p. 25). In three of these cases, the individuals were taken to court only after HRAPF had submitted complaint letters to the Inspector General of Police and the Uganda Human Rights Commission.²⁷

2. Denial of access to lawyers. None of the detainees were informed of their right to a lawyer as prescribed by Article 23(3) of the Uganda Constitution (Consortium, 2015, pp. 26–7). Sometimes, when HRAPF lawyers went to the police stations to meet with clients, the officers there were hostile and sometimes refused to grant them access to their clients, claiming that the cases were ‘very serious’ and that they were still being investigated.²⁸

3. Forced medical anal examination. The police subjected three of the 32 people arrested in 2014 to anal exams (Consortium, 2015, p. 29). Such exams have been discredited as a way of proving whether sexual acts have taken place, and are invasive violations of privacy – constituting inhumane and degrading treatment. The results were never used as medical evidence during trials. Indeed no full trial concerning consensual same-sex relations has taken place in Uganda (Coalition and HRAPF, 2013, pp. 35–6).

4. Forced HIV tests and revelation of results. The police disregarded the requirement of consent before subjecting the suspects to HIV/AIDS tests. Four detainees were subjected to these tests without their consent and without being counselled (Consortium, 2015, p. 29). The results of one case were declared to the media, which later led to publication of disparaging stories about the suspect. For example, the Kampala tabloid Red Pepper published an article called ‘HORRIBLE: city sodomite infects 17 boys with HIV’ (2014).

5. Parading the suspects before the media. Eleven of those arrested in 2014 were presented before the media as if they had already been found guilty of the offences (Consortium, 2015, p. 30). This is a common but illegal, cruel, inhumane and degrading practice going against the spirit of the constitution, which is underpinned by the presumption of innocence. When the LGBTI suspects were arrested, whether or not evidence warranted their charges, they were exposed to the media as homosexuals or ‘wrong persons’ attempting to con the public. In most cases they became the laughing stock of police officers, who in turn notified the press. A transgender woman reported, ‘I became like a cartoon for the police. They would call the press, every five minutes I was in and out of the cell. They would call the press and make me sit there and ask me embarrassing questions, some of which were difficult to answer.’²⁹

6. Threats and abuse from prison authorities. Those who ended up in prison faced abuse. Sam Ganafa, ³⁰ executive director of Spectrum Uganda Initiative, was arrested along with three others, paraded before the press, and subjected to abuse and threats from the prison authorities. As he recounts his experience,

The deputy himself was insulting us, even told other prisoners on morning parade . . . he was alerting other inmates, ‘Be very careful with these people, these are homosexuals, they can rape you, they are rapists, they can rape you in the cells, so be very, very careful with them.’ So when he came to me he says, ‘This one is accused of homosexuality.’ And the guy who was receiving us boxed me in the back, saying, ‘You man, if you do those things here, we are going to kill you.’

Kim Mukisa and Jackson Mukasa,³¹ who were also arrested, recollected their prison experience:

MUKASA: We felt so scared when we reached in prison. Things were not so easy. The place was so disgusting. Even, they told me, ‘That is your food.’ Do you know maize bran? They brought for me maize bran.

MUKISA: It’s food for the pigs.

MUKASA: For real! I just touched the food. I felt like I want to vomit. The plate – since you are gay – the plate you have to use is different. The food you eat, it’s also different. The bathrooms you have to use, they’re different. You have to sleep on the floor. You understand? On the floor, since you are gay!

MUKISA: When they get to know that you’re gay, you have to sleep in the bathroom.

MUKASA: Take these gays to the toilet.

The overall effect of all the abuses listed here is that many LGBTI persons are afraid of reporting cases of violations to the police for fear of being arrested instead of the perpetrator(s). Moreover, out of all those reported to the police, only one has been resolved – and that not fully, as some of the perpetrators were never apprehended.

During the period that the act was in force, direct attacks on service providers and institutions that include LGBTI persons in their provision of service, were made. Examples that stood out were the raid on the Makerere University Walter Reed Project (MUWRP) and the suspension of the Refugee Law Project (RLP), part of Makerere University’s School of Law. On 4 April 2014, the Ugandan police raided MUWRP, a US-funded HIV research and treatment centre that also provides health information and services to LGBTI people as part of its studies (Kafeero and Ayebazibwe, 2014). The raid took place after allegations that the project was ‘recruiting’ people into homosexuality. The police took away files and HIV/AIDS-prevention materials, including lubricants and condoms, and arrested a member of staff. As a result of this raid, the US embassy directed the centre to close, and consequently service provision for LGBTI persons came to an immediate halt.

In the second case, the RLP, the host and a key member of the Coalition, had its services in refugee camps suspended by the minister of relief, disaster preparedness and refugees, in the Office of the Prime Minister, over allegations of ‘promoting homosexuality’. This was later extended to shutting down the Kampala office completely (Feder, 2014). The suspension was eventually lifted. As the RLP was a leading service provider, its suspension had a huge effect on service provision and also on other organisations, which resorted to stopping their services or disguising them for fear of being closed.

Violations by non-state actors

Following the passing of the act, violations by non-state actors included evictions of LGBTI persons from rented premises. Some were evicted after being arrested, others after being outed in the media or merely because their landlords suspected them of being LGBT. The Consortium and HRAPF documented 20 evictions during this period (2015, pp. 32–4) while SMUG and the LGBTI security committee recorded 68 examples of people being expelled from their homes (2014, p. 7). The expulsions were illegal, as the tenants had not been given the requisite notice. Some were also violent and people lost their property. In three cases documented by HRAPF,³² evictions were perpetrated by local council leaders who worked with the landlords to turn out suspected LGBTI persons. In the first, the local council chairperson actually led the team carrying out the eviction. In the second, on the day the bill was assented to, the landlord complained to local leaders about a tenant he suspected of being a homosexual and evicted him for no clear reason. He did not wish to reveal his real motive to the HRAPF lawyers who intervened, although he did admit the individual had been a good tenant. In the third example, a trans man was given 48 hours to vacate the house in a letter signed by the landlord and stamped by the local area chairperson.

Another consequence of the act being in force was mob justice. At this time HRAPF registered its first two cases of mob justice against LGBTI people in Uganda. One was incited by the area’s local council chairperson who stormed the house of a suspected gay man at 6 am and ordered him and his visitor to leave. This attracted a mob which started beating the suspects until they managed to escape with significant physical injuries. When they reported what had happened, the police completely ignored their allegations of mob justice and arrested them on charges of having carnal knowledge against the order of nature (Consortium, 2015 p. 26). In the second case, a transgender woman and a gay man were separately tricked into a house by unknown persons who had tracked them on Facebook. They were then beaten and forced to confess their homosexuality. One of them was released and called HRAPF lawyers, who involved police leaders who then rescued the second person. One attacker was arrested and later convicted only of robbery (ibid., p. 23).

Effects on LGBTI organising

Passage of the act also led to the weakening of the Coalition and LGBTI organisations. Leading LGBTI activists were forced to seek asylum in other countries following persecution and threats of violence. They joined many others who had left when the bill was before parliament. Several LGBTI organisations operated on a much smaller scale and disguised their activities, some turning their offices into bedrooms to avoid being questioned. Many Coalition members also reduced their activity in the Coalition and others suffered a loss of morale. The few that remained in operation continued with their activism, albeit at a more cautious level.

The multipronged approach: how the AHA was finally defeated

Coalition activists created a strategy on how they would react to the bill should it be passed by parliament. It began with lobbying the president not to sign the bill into law, guiding and controlling international response to the passage of the bill, and creating awareness of the negative provisions of the law in the general population. If the bill was enacted into law, the plan was to focus on litigation, challenging the law before the Constitutional Court as being inconsistent with the constitution. It was the success of this multipronged approach that finally got rid of the AHA.

Litigation: building the case

Challenging the law had always been part of the Coalition’s strategy since the anti-gay groups first decided to use the law-making process to forward their agenda. The Ugandan Constitution is the country’s supreme law, and all laws inconsistent with it are null and void to the extent of their inconsistency (Article 2). Article 137(3) allows any person to challenge any act or action of any organ if they feel the act or action is inconsistent with or is in contravention of the constitution. It was strongly believed that the AHA was in contravention. Indeed, the Coalition in its submissions to the legal and parliamentary affairs committee in 2011 had clearly indicated that the only way parliament would legally pass the bill with such provisions would be by amending the constitution first (Coalition, 2011).

As soon as the bill was passed, preparations began for the legal challenge that would become the case, Professor J. Oloka-Onyango and nine others v. attorney general of Uganda, spearheaded by the Coalition’s legal committee, which was chaired by HRAPF and composed of key lawyers and representative organisations which work on legal issues.³³ Nothing was left to chance. The legal committee resolved that the act should be challenged in the Constitutional Court. This was approved by the steering committee,³⁴ and all that remained were the practicalities.

Laying down the strategy

A two-day strategising workshop, held in Kampala on 11 and 12 February 2014, was attended by more than 30 people including activists and lawyers and some participants from other East African countries. All attendees were familiar with the AHA’s provisions.³⁵

The workshop studied the AHA, provision by provision, to identify inconsistencies with the constitution. Almost every provision violated a constitutional provision, except for the clause under ‘aggravated homosexuality’ which criminalised same-sex relations with children.³⁶ It was thus decided that all provisions of the law should be challenged that could be said to contravene the constitution. The Constitutional Court was identified as the best avenue for carrying this out.

It was feared the case would be delayed at the Constitutional Court, as had happened with earlier filed cases,³⁷ so the decision was made to explore alternative international and regional mechanisms. In light of the requirement to exhaust local remedies, which was a precondition before going to the African Commission on Human and Peoples’ Rights (ACHPR), other options had to be investigated. The EACJ was the best alternative. Although it does not have a human rights jurisdiction, Articles 6(d), 7(2) and 8(1)(c) of the Treaty for the Establishment of the East African Community (EAC Treaty) enjoin partner states to govern their populace on the principles of good governance, democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights. Treaty provisions include inter alia, provision of equal opportunities and gender equality as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. Cases have been brought to and entertained by the court before through this avenue. As such, it was also decided to go to the EACJ and because this court had a time limitation of two months from the date of the law’s enactment and was the court of first instance in the treaty’s interpretation, the cases would be filed almost simultaneously. The legal committee was instructed to prepare to file in both courts but first priority was given to the Constitutional Court case.

Building the legal team

The legal committee’s first task was to engage the lawyers who would work on the case. The Coalition had suggested names of senior lawyers who would be willing to handle procedures jointly with lawyers previously used by the Coalition. Five lawyers were thus approached and all five rejected the instructions. Most of them refused outright to take on the case on the basis of not seeing anything wrong with the law. Those who were at least willing to engage stated that they could not take instructions for fear of losing their other clients and also for fear of the security implications of handling the case. The legal committee sat again and suggested other individuals, who were also approached but only one, Caleb Alaka, agreed to join the legal team. The Coalition thus had to rely mainly on the lawyers it had worked with previously. The most senior was Dr Henry Onoria, who was lead counsel in Kasha Jacqueline, David Kato Kisuule and Pepe Julian Onziema v. the Rolling Stone Ltd (the Rolling Stone case),³⁸ which successfully challenged the Ugandan tabloid’s publication of pictures, names and addresses of suspected gay persons and its call for them to be hanged. The third lawyer in the team was Ladislaus Kiiza Rwakafuuzi, who has handled many human rights cases in Uganda, including the first civil case concerning LGBTI rights: Victor Mukasa and Yvonne Oyo v. attorney general (Victor Mukasa case).³⁹ The fourth was Francis Onyango, co-counsel in the Rolling Stone case, and lead counsel in Jacqueline Kasha Nabagesera, Frank Mugisha, Julian Pepe Onziema, and Geoffrey Ogwaro v. attorney general and Hon. Rev. Fr Simon Lokodo (Lokodo case),⁴⁰ which challenged the stopping of an LGBTI skills-training workshop by minister of ethics and integrity, Simon Lokodo. The fifth lawyer was Nicholas Opiyo of Chapter 4 Uganda, a civil liberties organisation, who was at the time secretary general of the Uganda Law Society (ULS). The sixth was Fridah Mutesi, head of HRAPF’s access to justice department. And the seventh lawyer was Adrian Jjuuko, HRAPF’s executive director, who was the team’s Coalition representative liaising between the lawyers and the Coalition’s legal committee. This legal team, put in place within a very short period, prepared the petition and handled the case in court. Each member was brought on board on different terms, taking on separate tasks and foci.

For the EACJ case, Ladislaus Kiiiza Rwakafuuzi was given instructions to represent the applicants. He was supported by Fridah Mutesi from HRAPF.

Engaging the lawyers also entailed fundraising for them, a task that was taken on by UHAI-the East African Sexual Health and Rights Initiative (UHAI-EASHRI), which paid the lawyers’ fees for both cases at the Constitutional Court and at the EACJ. The lawyers were duly instructed to begin work.

The lawyers who agreed to challenge this popular law risked their careers to stand up for what they believed in. Those in private practice, especially those handling their first LGBTI-related case, reported that their more religiously inclined clients had withdrawn instructions. Others lost their positions on the boards of legal bodies. Nicholas Opiyo, who was the ULS secretary general, intended to stand for the same post again. However, a Christian organisation sent an email to some members of the ULS body that has the mandate to elect executive members. Arriving just in time for their annual general meeting (AGM), it stated in part that ‘some of those vying for major positions are people who petitioned against the Anti homosexual Act 2014 (sic). In that regard, your presence is called for to safeguard the legal profession leadership against such candidates.’⁴¹ At the AGM on 22 March 2014, Opiyo contested for the position, but lost. Another member of the legal team also reported losing his position on a board in his home area because of his involvement in the case.

The choice of petitioners

There were ten petitioners:

1. Professor Joe Oloka-Onyango, a constitutional law professor who was director of the Human Rights and Peace Centre, Makerere University, and is widely published in the areas of human rights, constitutional law and the history of Uganda. His experience includes being a member of the UN Sub-Commission on the Promotion and Protection of Human Rights, and UN Special Rapporteur on Globalisation and Human Rights.

2. Fox Odoi-Owyelowo, a lawyer and a member of the Ninth Parliament, representing West Budama County North, Tororo District, chairperson of the Rules and Privileges Committee of the Ninth Parliament, and member of the Ninth Parliament’s legal and parliamentary affairs committee. He is an author of the minority report on the AHB.

3. Andrew Mwenda, journalist of global repute, founder and owner of the Independent, a current affairs news magazine, a John S. Knight Journalism Fellow at Stanford University and an advocate of freedom of expression. He was a petitioner in the second constitutional appeal (2002) that challenged the constitutionality of the publication of the offence false news, which was a provision in the Penal Code Act.

4. Professor Morris Ogenga-Latigo, former MP and leader of the opposition in the Eighth Parliament, and former associate professor of entomology and ecology, Makerere University.

5. Dr Paul Semugoma, medical doctor, who offers medical treatment to gay persons in Uganda. He is also a global activist on HIV/AIDS prevention and non-discrimination of sexual minorities in provision of health services.

6. Kasha Jacqueline Nabagesera, an LGBTI rights activist and recipient of the Martin Ennals award for human rights defenders. She is founder and former executive director of Freedom & Roam Uganda.

7. Pepe Julian Onziema, a transgender man, activist and recipient of the 2012 Clinton Global Citizen award. He is SMUG’s programmes director and advocacy officer.

8. Frank Mugisha, activist and recipient of the 2011 Robert F. Kennedy human rights award and the 2011 Thorolf Rafto prize. He is SMUG’s executive director.

9. The organisation, HRAPF, which works to achieve equality, non-discrimination and equal access to justice for marginalised groups in Uganda. It operates a specialised legal aid clinic for LGBTI persons.

10. Centre for Health, Human Rights and Development (CEHURD), an organisation working towards an effective, equitable, people-centred health system and ensuring the full realisation of the right to health and the promotion of human rights.

This was a diverse line-up of petitioners, far broader than had been anticipated. The petition brought together people who belonged to different political camps, people who did not identify as LGBTI and those who did, and people who had been on the front lines in opposition to the AHB. It was an impressive collection, which demonstrated support for the human rights of LGBTI people and also showed that the act not only violated their rights but was also an unprecedented abuse of the rule of law and constitutionalism.

This line-up did not come about by accident; rather, it was built and organised after thorough consideration. Each petitioner had something to add to the petition and each affidavit was unique. Professor J. Oloka-Onyango’s affidavit focused on the unconstitutionality of the AHA in light of the constitutional provisions, including those on quorum and substantive human rights. The Hon. Fox Odoi-Oywelowo’s affidavit focused on what happened in parliament, and on its procedures, on the day the bill was passed, in his capacity as the chairperson of the parliamentary rules and privileges committee. Andrew Mwenda’s was on the act’s effect on freedom of expression. The Hon. Ogenga-Latigo’s was on parliamentary procedures and the effect of the law. Dr Paul Semugoma’s affadavit was on the act’s effect on HIV service provision. Kasha Jacqueline Nabagesera’s was on the act’s effect on LGBTI organising and on LGBTI individuals. Pepe Julian Onziema’s was on the act’s effect on transgender people. That of Frank Mugisha was on LGBTI organising generally. The focus of HRAPF’s affidavit was the impact on legal aid service providers and on LGBTI persons generally, based on the cases it had so far received. Finally, that of the Centre for Health, Human Rights and Development concentrated on how access to health services had been affected.

Having approached all potential petitioners, the legal team ended up being spoilt for choice as there were far more people willing to join the petition than could be included. This was a really humbling moment because the petitioners were taking on a popular law, and had more to lose than to gain. Indeed, the decision to be petitioners cost some of them dearly, especially those with political ambitions. The Hon. Fox Odoi-Owyelowo faced hostility in his constituency because of his stand (The Observer, 2014a), and eventually lost his position in the 2016 elections.

Preparing the petition

Preparation of the petition took a long time, with the legal team working in concert to classify the violations in accordance with the constitutional provisions they violated, then producing a working draft.

The first draft was submitted to a team of lawyers and advisers, composed of professors of law, legal practitioners and key activists, for comment on its suitability. They suggested improvements and also advised on the strategic implications of filing the draft as it was. The Coalition then submitted the draft for input to more than 20 lawyers from jurisdictions all over the world. Contributions were received from organisations and lawyers in Kenya, South Africa, the US, Canada and the UK. These contributions were considered by the legal team and the Coalition’s legal committee, and a final draft agreed upon with the Coalition’s steering committee, which is responsible for strategic decisions. Fourteen issues were identified:

1. Enactment of the AHA, 2014, by the Ninth Parliament on 20 December 2013 was without quorum, in contravention of Constitution Articles 79(1) and (3), 88 and 94(1) and Rule 23 of the rules of procedure which enjoin parliament to respect the constitution and to pass laws with the quorum stipulated in those rules.

2. Sections 1, 2 and 4 criminalised consensual same-sex relations among adults, in contravention of the right to equality before the law without discrimination and the right to privacy guaranteed under the Constitution − 21(1), (2) and (4) and 27.

3. Section 2(1)(c) criminalised touching by persons of the same sex, which created an offence that was overly broad and in contravention of the principle of legality under the Constitution − 28(1), (3b), (12), 42 and 44(c).

4. The penalty for homosexuality was life imprisonment, a disproportionate punishment for the offence and thus in contravention of the right to equality and freedom from cruel, inhumane and degrading punishment guaranteed under Constitution Articles 21, 24 and 44(a).

5. Section 3(1)(b) criminalised consensual same-sex/gender sexual activity among adults one of which is a person living with HIV, in contravention of the freedom from discrimination guaranteed under Constitution Articles 21(1) and (2).

6. Section 3(1)(e) criminalised consensual same-sex/gender sexual activity among adults one of which is a person with disability, in contravention of the right to freedom from discrimination and the right to dignity of persons with disabilities guaranteed under Constitution Articles 21(1), (2) and (4c) and 35.

7. Section 3(3) subjected persons charged with ‘aggravated homosexuality’ to a compulsory HIV test, in contravention of the freedom from discrimination, the right to privacy, freedom from cruel, inhumane and degrading treatment, and the right to the presumption of innocence guaranteed under Constitution Articles 21, 27, 24, and 28, 44 and 45 respectively.

8. Section 4(2) imposed a maximum life sentence for attempted aggravated homosexuality, providing a disproportionate punishment for the offence in contravention of the right to equality, and the freedom from cruel, inhuman and degrading punishment guaranteed under Constitution Articles 21, 24 and 44(a) respectively.

9. Sections 7 and 13(1) criminalised aiding, abetting, counselling, procuring and promotion of homosexuality; created offences that were overly broad; and penalised legitimate debate, professional counsel, HIV-related service provision and access to health services, all in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, and Constitution Articles 8A, 28(1), (3b), and (12), 29(1), 36, 38(2), 42 and 44(c).

10. Section 8 criminalised conspiracy by any means of false pretence or other fraudulent means, and its provision was vague, uncertain, ambiguous and in contravention of the principle of legality under Constitution Articles 28(1) and (3b), 42, 44(c), 28(12).

11. Section 11 classified houses or rooms as brothels merely on the basis of occupation by homosexuals, creating an offence that was overly broad and in contravention of the principle of legality guaranteed under Constitution Article 28(12) and the rights to property and privacy guaranteed under Constitution Articles 21, 26 and 27.

12. The spirit of the AHA, 2014, promoted and encouraged homophobia, amounting to institutionalised promotion of a culture of hatred and constituting a contravention of the right to dignity protected under Constitution Articles 24 and 44(c) and the National Objectives and Directive Principles of State Policy, especially objective no. III, V, VI and XIV

13. The AHA 2014, by encouraging homophobia and stigmatisation, was in contravention of the duty of the government to respect, protect and promote the rights and freedoms of persons likely to be affected by the act as stipulated under Constitution Articles 20(2), 21(1), 32(1) and (2).

14. The AHA, 2014, in criminalising consensual same-sex/gender sexual activity among adults, was in contravention of obligations with regards to the rights guaranteed under international human rights instruments ratified or acceded to by Uganda, including the African Charter on Human and Peoples’ Rights; the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; the UN Covenant on Civil and Political Rights; and the UN Covenant on Economic, Social, and Cultural Rights; and in contravention of Objectives XIV, XXXVIII(i)(b) of the National Objectives and Directive Principles of State Policy, Constitution Articles 2(1) and (2), 8A, 20, 45 and 287.

Controversial issues arose during the preparation of the petition. One was whether to include the issue of a quorum, and another was whether to use this opportunity to challenge Section 145 of the Penal Code. On the matter of a quorum, all members agreed that the law had been passed without the requisite quorum, and this ground had previously been used to nullify a controversial law. The point of contention was more strategic; it was on whether or not to include it in light of the fact that the judges might use it as a quick way out and nullify the act on this basis, without looking at the grounds based on equality and non-discrimination. Some members did not see this as a bad thing and argued that if the judges relied on quorum alone to nullify the act, this would result in it no longer being on the law books and, moreover, was the only ground that could lead to it being totally nullified. Including it was therefore the best course of action. The second school of thought held the view that if the judges nullified the act on this basis, then the rights-based arguments would not be considered, and this would leave all parties involved without a decision on whether consensual same-sex relations were unconstitutional. The former view carried the day, and quorum indeed became the deciding feature of the petition.

The issue of challenging Section 145 and the AHA together had proponents who argued that the Coalition should seize this opportunity to challenge laws criminalising same-sex conduct. This way the court would pronounce itself once and for all on the constitutionality of such laws, and if the legal team were successful, there would be no need to bring another suit specifically on Section 145. Opponents of this view argued that since the whole structure of the AHA went beyond same-sex sexual relations into matters like promotion and aiding and abetting, it would be more strategic to limit the petition to the AHA and address all the issues it raises, dwelling on consensual same-sex relations only in sections that specifically addressed it. And if the court declared the provisions on same-sex relations unconstitutional, Section 145 would falter too, since a precedent had been set. Putting emphasis and focus on the laws criminalising consensual same-sex sexual relations would alienate some petitioners who were interested in the broader scheme. The Coalition was firmly of the latter view since, strategically, decriminalisation was planned through an incremental approach, and Section 145 had been deliberately left unchallenged, despite pressures from many quarters to challenge it. The Coalition’s view won the day, and Section 145 was left to rest, at least for the moment.

The petition and the accompanying affidavits and their attachments spanned more than 200 pages, and 12 volumes were prepared and bound. Each affidavit had to be commissioned by a commissioner for oaths, who would also mark and verify each attachment. Putting the documents together alone took three days. In addition to the petition, there were two applications from the same parties, each with their own supporting affidavits. One was for an interim injunction and the other for interim orders. Aimed at obtaining a temporary injunction or interim orders to stop the implementation of the law, they were applied for by notice of motion and chamber summons respectively. All documents were prepared at the same time.

Filing the petition

Usually filing court cases is a simple matter of paying the requisite fees and getting the documents stamped by the court registry. This was essentially what happened with the AHA on 11 March 2014, but it was accompanied by more pomp and publicity. The filing was planned for 2 pm at the Constitutional Court, at Twed Towers, Nakasero, Kampala. Of the petitioners, the Hon. Fox Odoi-Owyelowo, Professor Ogenga Latigo, Pepe Julian Onziema, and HRAPF were expected to be present and to hold a press conference nearby afterwards. The media had been alerted and were there in droves, long before the lawyers arrived with the petition.

At 2 pm, final touches were still being put to the petition at the HRAPF offices, which are about eight kilometres from the court. The vehicle carrying it had to negotiate rush-hour traffic with double indicators flashing in an attempt to make up time. Thirty minutes later, the documents were at court. Adrian Jjuuko, the HRAPF executive director and chair of the Coalition’s legal committee, and his HRAPF colleague, Fridah Mutesi, led the team carrying the petition. They joined Counsel Ladislaus Kiiza Rwakafuuzi and Nicholas Opiyo, who were waiting at the court premises, and then the Hon. Fox Odoi and Professor Ogenga Latigo. Followed by flashing cameras, the group strode to the Office of the Registrar, where the documents were received, stamped and the petition was allocated the number ‘8 of 2014’ and filed.

The petitioners and lawyers led the group of journalists and activists to the press conference, where they were addressed by the Hon. Fox Odoi-Owyelowo, the Hon. Ogenga Latigo, Adrian Jjuuko and Nicholas Opiyo. When asked whether this would not affect his re-election to parliament, the Hon. Odoi’s response that all he cared for was justice and equality for all, and not just his re-election, stood out. The Hon. Ogenga Latigo stated that the passing of this law had brought him out of semi-retirement because he strongly believed that consensual same-sex relations should not be criminalised. Adrian Jjuuko recounted the number of cases of human rights violations against LGBTI persons that HRAPF had recorded since the law was passed. Nicholas Opiyo emphasised that this was a struggle for justice and equality for all. The press conference was a resounding success and many newspapers, radio stations, and TV stations locally and internationally carried the news (BBC News, 2014b). It was clear that this group of individuals and organisations including prominent Ugandans had decided to stand up for what was right.

The hearing

The hearing of the petition came as a surprise to many, including the petitioners and the attorney general. The date of 25 June was fixed for conferencing. On that date, counsel for both sides appeared in court but Justice Kiryabwire, who was to handle the conferencing, was indisposed and the parties instead appeared before Deo Nzeyimana, the registrar, who adjourned it to 10 September. However, on 25 July, in a surprising and unusual twist, the Constitutional Court served the parties with notices of the hearings of the constitutional petition and the two applications, which were scheduled to start on 30 July at 9.30am. In spite of this change of date, the Coalition’s legal team was prepared and only had final touches to make. At the hearing, the attorney general’s legal team applied for an adjournment, which the court denied. They then asked the court to start with the applications rather than the main petition, but the judges informed them the petition was to be heard first.

The justices asked the petitioners to address the first issue, that of the lack of a quorum. The petitioners’ lawyers argued there had been no quorum in parliament when the law was passed and the speaker had disregarded the rules of procedure when the matter of quorum was raised. The attorney general’s legal team did not deny the allegations but insisted that the petitioners had to adduce evidence showing there was no quorum in the house when the law was passed. The evidence provided included an affidavit by the Hon. Fox Odoi, one of the petitioners and a member of the Ninth Parliament, and copies of Hansard reporting its proceedings the day the act was passed.⁴² The attorney general insisted that this was insufficient proof and that the petitioners needed to adduce more evidence. The justices took time off to give their ruling on the issue of quorum.

The anti-LGBT-rights lobby and its attempt to join the case

The hearings took place over two days. On day one, three anti-gay organisations filed an application to be joined as parties through Miscellaneous Constitutional Application no. 23 of 2014. They were the Inter Religious Council of Uganda, the Family Life Network (FLN) and the Uganda Centre for Law and Transformation and they cited the attorney general and the ten petitioners as respondents. The application was by notice of motion supported by affidavits filed by Bishop Joseph Serwadda of Victory Christian Centre and Stephen Langa of the FLN. The application was filed after the petition hearing had already commenced, and it was never fixed for hearing. They had aimed to become petition respondents in order to ‘effectively oppose’ the petitioners as they believed the attorney general did not seem ready to do so.

The decision

The unanimous decision of five justices of appeal sitting as a Constitutional Court was delivered by the deputy chief justice on 1 August 2014. The court held that the AHA had been passed without the requisite quorum: that during the session the prime minister and leader of government business had raised the issue of the lack of a quorum, which the speaker Rebecca Alitwala Kadaga brushed off. The justices pointed out that he who alleges must prove, and to that end the petitioners had backed up their allegation that there was no quorum with sworn affidavits. The court further noted that in reply to the attorney general’s petition, the attorney general had not specifically denied that there was no quorum, and a general rule existed that where the respondents do not deny the allegations, they are considered to have conceded on that point. The justices further noted that this was a civil case where the standard of proof was on a balance of probabilities, and the evidence of the Hon. Fox Odoi’s affidavit and the Hansard records were sufficient to prove lack of a quorum in parliament. They also noted that the speaker has a constitutional duty to observe a quorum and this time, although she was prompted three times on the issue, she had failed to perform her duty, as mandated under the law. They therefore held that on the evidence adduced, and the failure of the attorney general to specifically deny the allegations, the act had been passed without a quorum and was declared null and void. That was it. The hugely popular AHA was no more!

The surprise nullification of the AHA by Uganda’s Constitutional Court within months of the petition being filed was quite simply unprecedented. No other petition had been heard so quickly since the court’s formation in 2005. The court did not state what prompted them to decide the case in such record time, and so the real reason is subject to speculation, but it was quite clear that political forces beyond the judicial process were also at play.

The continued pursuance of the case at the EACJ

The Consitutional Court’s surprisingly quick and decisive decision had implications for the case that had been filed at the EACJ.⁴³ As previously mentioned, this reference was filed at almost the same time as the one at the Constitutional Court in order to beat the two-month time limitation imposed by the EACJ. It had been expected that the EACJ would deliver its judgment ahead of the Constitutional Court.

Since the two cases were almost the same, the determination of the constitutional petition clearly made the one at the EACJ moot and academic. A decision thus had to be made whether to proceed with the case or to withdraw it.

Originally, the case had challenged the AHA as being contrary to the rule of law and good governance principles enshrined in the EAC Treaty. It also challenged the resultant violations, which saw a marked increase in abuses of the human rights of LGBTI people.

The EACJ case had implications for other East African countries beyond Uganda since a decision made by that court affects them all. An East African Convening was therefore organised in Kampala which brought together activists and lawyers from across the region to discuss what to do in relation to the EACJ case. It was decided to proceed with it, albeit in an amended form, in order to avoid the ‘mootness’ barrier. The reasons for this decision were both legal and strategic. Legally, it could be argued that the case was not moot since Article 1(2)) of the EAC Treaty also included repealed laws in its definition of laws, and as such they could arguably be challenged. Moreover, the EACJ has on various occasions ruled that correcting wrongdoing does not take away the fact that the violation occurred. As such, nullification of the law did not remove the fact that its enactment violated EAC Treaty provisions. Finally, it could be argued that the subject matter of the reference differed from the Constitutional Court of Uganda’s decision, which focused on the constitutionality of the act, as the case was concerned with whether or not its passing had violated EAC Treaty provisions. The strategic reasons were: the need to proactively test the extent to which the treaty’s provisions have meaning for the wellbeing of all citizens of the East African region, and to forestall the process of having a new bill passed by the Parliament of Uganda or by any of the other East African countries.

Soon after the AHA had been nullified, government officials attempted to have the act brought back before parliament to be passed again, this time with a quorum. To forestall this, the Coalition wrote to the speaker informing her of the existence of the case that had been filed before the EACJ. According to the rules of procedure, this fact would stop parliament from retabling the bill until those proceedings terminated.

Having been amended to reflect the fact that the AHA had been nullified in Uganda, the reference was thus limited to the fact that the AHA had been passed with particular provisions that were in violation of the fundamental principles of good governance, rule of law and human rights, as enshrined in the EAC Treaty. The selected provisions were: Section 5(1) on the immunity of ‘victims’ of homosexuality from being tried for any offence committed when involving themselves in homosexuality; Section 7 on aiding and abetting homosexuality; and Section 13 (1)(b) (c) (d) and (e) concerning promotion of homosexuality.

The Coalition encouraged different groups to join the reference as amicus curiae. Health Development Initiative Rwanda (HDI Rwanda), UHAI-EASHRI, Dr Ally Possi and the Centre for Human Rights, University of Pretoria, and UNAIDS responded to this call and filed amicus applications. Of these, only the one from UNAIDS was accepted.

Before the case was heard, the attorney general objected to the amendment on the basis that it went beyond the fact that the AHA had been nullified. They also raised the issue of mootness: the fact that since the act’s nullification by a competent court of an EAC member state, the other points due to be raised during the case had ceased to exist so it was now moot. To this, HRAPF responded that the matter was still live, for the act’s nullification did not take away the fact that it had been passed with provisions that violated the EAC Treaty, and that during the period when it was in force, violations were committed under these specific provisions. In addition, the MPs who had sponsored the original bill had been given leave of parliament to allow them preparation time for retabling the bill.

The court delivered its judgment on 27 September 2016. It decided that the case was moot since the reference challenged a law that had been nullified by the court. It considered the public interest exception to the general rule and found there was insufficient evidence to ‘establish the degree of public importance attached to the practice of homosexuality in Uganda.’⁴⁴ Although the case had been lost, this was the first time an international tribunal in Africa had heard a case concerning laws primarily affecting LGBTI persons. It galvanised Ugandan, East African and African activists into taking their destiny in their own hands and challenge the passing of laws threatening the rights of LGBTI individuals. According to the chief executive officer of the Pan African Lawyers Union (PALU), Donald Deya,

The Applicant has shown that African citizens – through their civil society formations – have the knowledge, skills, experience and courage to challenge in international courts any legislation or policy that they feel may infringe upon the human or peoples’ rights of LGBTI and PLHIV.⁴⁵ The States have been put to sufficient notice, and we believe that they will be much more circumspect when formulating law or policy in future (HRAPF and the Coalition, 2016).

Advocacy

Courts do not operate in a vacuum, so the hearing of the petition at that particular time was perhaps the result of advocacy rather than the mere fact that a petition had been filed. National and international partners supported the move to challenge the act. Advocacy began as soon as the law had been passed, aimed at the president, the Ugandan population and the international community.

Advocacy directed towards the president

Parliament’s passing of the AHA drew significant attention to the president, since after the former had played its part, it was legally the latter’s call from then on. The president has the power to sign any law passed by parliament. There are three options: to sign, to refuse to sign, or to ask for the law to be amended. The last was crucial in stalling the bill, since it would mean that parliament would have to pass the law again, and if the president again refused to sign, it would have to pass it one last time with a two-thirds majority. This process would have considerably delayed the passing of the law.

The president could refuse to sign such a law because he had a constitutional duty to uphold the constitution. Signing a law that was passed without a quorum and one with provisions that clearly violated the constitutional protections of human rights would not be the right thing for the president to do. The only problem was how to get to the president in order to convey this viewpoint. No Coalition member had access to the president, so indirect routes would have to be taken.

The only effective route was to engage diplomatic community members who were already concerned about the law. Coalition members met with representatives of several countries and asked them to request their governments to engage the president on this issue through diplomatic channels. In some cases the Coalition advised on public statements, especially those from world opinion leaders. Indeed, some governments like that of the United States did so more publicly, and then US President Barack Obama warned of effects on the relationships between Uganda and the US (Arinaitwe and Mulondo, 2014).

However, using foreign governments to deliver the message has always been a double-edged sword because it is common for Western governments to be willing to speak out and this feeds the perception among many leading figures in Africa that a Western agenda exists which aims to make homosexuality acceptable in the continent. This attitude was evident during the president’s public signing of the law.

The president’s reaction did not necessarily favour the Coalition’s position. He began by writing to the speaker of parliament, criticising the way the bill had been passed into law, and stated that criminalisation would not in general be the best way of approaching the matter. He promised to handle it through parliament’s ruling party caucus. Many thought this meant that he had vetoed the law (Mugerwa, 2014). However, legally speaking, he could only veto by clearly stating so. What he did do was bring the matter before the caucus and seek the advice of scientists in Uganda on whether homosexuality is a matter of nurture or nature (Tugume, 2014).

Coalition members used this opportunity to ask partners for a scientific opinion to present to the president. An open letter signed by more than 200 international leading scientists was sent to him and published in Ugandan newspapers (Throckmorton, 2014). The internationally accepted scientific position was that no known gene caused homosexuality, but that a combination of natural and environmental factors contributed to sexual orientation. The Ugandan scientists’ report came to the same conclusion, but the president chose to dwell on the point that no single gene had been identified as causing homosexuality, and he interpreted that to mean that scientists had found it is nurture – and not nature – that causes homosexuality (Republic of Uganda, State House, 2014).

His delay in signing the law was greeted with substantial opposition. Nevertheless, he finally signed it on 24 February 2014, in the presence of local and international media at a function which was televised live (BBC News, 2014a; Kasasira, 2014). He blasted the approach of Western governments on this issue, especially the statement on aid conditionalities, but also blamed the scientists, who in his opinion had concluded homosexuality was largely due to nurture rather than nature, and even those who had proposed the bill in the first place. The president did not discuss the constitutionality of the process through which the law had been passed or that of the law’s provisions, though they were brought to his attention.

Signing the law was not the president’s last action on it, since he went out of his way to warn against enacting another law. Soon after it had been nullified by the Constitutional Court, he warned parliament that such a law was not good for Uganda’s economic growth, since international organisations and investors would cut ties with the country (New Vision, 2014). This perhaps demonstrates he had after all understood the message from foreign governments and international organisations about the effects of signing the law but he had done so for domestic political reasons, since elections were just two years away. Indeed some commentators suggested that he signed the law knowing that it could not survive Constitutional Court scrutiny (The Observer, 2014b). Via these means he balanced demands within the country while the Constitutional Court satisfied those of the international community.

Efforts directed towards the president continued, both before and after the law had been nullified in August 2014. Demonstrations took place against him when he visited London in May that same year. The tabloid, Sunday Pepper, ran an article on 10 May called, ‘Homos attack M7 with rotten eggs’ (Special Forces Command, 2014). The Coalition did not necessarily support or call for these actions, but they were done to show solidarity with the Ugandan LGBTI community.

Advocacy directed at the international community

The AHB had attracted attention from governments, human rights bodies, organised groups and individuals in other countries, especially in the US, Canada, Australia and almost all Western European countries. Most of them were also opposed to the AHA. In this international interest lay the real challenge: how could these groups be of help without awakening the feeling that a ‘western agenda’ existed to promote homosexuality in Uganda, and Africa at large? The silence from African countries – including those, like South Africa, that had decriminalised homosexuality and had extensively inclusive laws – was loud. No African leader spoke against the bill. Instead, Kenya (KenyaNews247.com, 2014) and Tanzania (Muga, 2014) seemed to be preparing similar laws. It was the activists in these countries who stood in solidarity with the Ugandan LGBTI community and its allies.

The Coalition advised the international community on moves that would be helpful⁴⁶ after the law had been passed, especially encouraging public statements and actions directed towards the president.

Amnesty International with Human Rights Watch (2014) and many other organisations condemned passage of the act and revealed its violations. They relied on information provided by individual bodies like HRAPF and the Coalition.

The Coalition also reached out to UN agencies, including the Office of the High Commissioner for Human Rights (OHCHR) and special rapporteurs. Partly as a result of this, the UN Secretary General roundly condemned the law (NDTV, 2014) as did the OHCHR (2014a). Moreover, a joint communication from UN special rapporteurs was produced, including one on human rights defenders⁴⁷ (UN OHCHR, 2014b). Specialised agencies from the UN also spoke out, especially UNAIDS (2014).

The World Bank also reacted, postponing the US$90 million due to Uganda, and reached out to activists, seeking their views (New York Daily News, 2014). As a result, the minister of health issued a directive for the non-discriminatory provision of health services (Republic of Uganda, Ministry of Health, 2014).⁴⁸

The Coalition also made it clear that it did not support aid cuts (aid conditionality), since they affected ordinary Ugandans, including LGBTI Ugandans. However, the Coalition respected the decisions of states to cut aid. Countries such as Sweden (Croome, 2014) and Norway (Butagira, 2014a) did so immediately. The US started a review of its relationship with Uganda, which led to an examination of military support and the imposition of travel restrictions (Butagira, 2014b). The US also severed its aid to some agencies which supported the act, like the Inter Religious Council of Uganda (Tajuba and Ssenkabirwa, 2014). The general national mood may thus also have affected the court, leading to the expedited hearing of the petition and the law’s later nullification.

In effect, during the few months that the AHA was in force, Uganda had become a pariah state and the fact that it had been ostracised may have contributed to the law being nullified.

Advocacy directed at the Ugandan public

Efforts were also made to target the Ugandan population, though this proved increasingly difficult, especially when the law was in force. The raid on the US Department of Defence-funded Makerere University Walter Reed Project, which was conducting HIV/AIDS research; the suspension of the organisation hosting the Coalition; and escalated arrests of LGBTI persons were clear blows that made every other organisation fear for its own survival. This also affected the activists, and few dared to speak out; indeed, many of the leading voices had left the country and sought asylum elsewhere. The Vision Group (2014), which is partly owned by the government, banned publication of homosexuality issues, and other media houses feared speaking out. Nevertheless, social media were rife with stories of violations and efforts were made to protect and defend LGBTI persons. Indeed, virulent comments on social media were not as frequent as before.⁴⁹

Publications offered another available avenue. Professor J. Oloka-Onyango (2014) published an excellent analysis of the laws that had been passed within the period that the AHA was in effect. It showed that it was part of a broader agenda to narrow political and civic space. A volume of HRAPF’s Human Rights Advocate Magazine, which was dedicated to the AHA, included articles by Professor Oloka-Onyango, Dr Stella Nyanzi, Linnette Du Toit, Francis Tumwesige, Joaninne Nanyange, Jenevieve Discar, Edward Mwebaza, Asia Russell and Adrian Jjuuko (2015a). HRAPF also initiated a public dialogue on the act’s effects and published statements on the case challenging the AHA filed at the EACJ. A report of violations that had occurred since the AHA had been passed was published by SMUG, and it made many similar attempts to demonstrate the effects of this law to the public (SMUG and the National LGBTI Security Team, 2014).

Although the impact of such efforts may be difficult to measure, it was clear that the message was getting out. Indeed, articles by opinion leaders began to appear in the press which criticized the AHA. These two factors may also have contributed to the Constitutional Court’s decision to expedite the hearing.

Many more factors besides litigation therefore played a part in the fight against the AHA.

The aftermath: the AHA’s legacy

The decision to nullify the act was a great relief and excellent news to the LGBTI community and their allies. A seemingly popular law had been short-lived. This was a huge win, one we should continue to celebrate, despite the looming threat of yet another long battle with a new anti-gay law.⁵⁰

The attorney general immediately filed notice of appeal, which remains in court records, and the appeal could be instigated at any time. As soon as parliament reconvened, members expressed their intention to reintroduce the law after it had been nullified by the Constitutional Court. Signatures began to be collected almost immediately to show how popular the law was, and within one week of the decision, more than 200 MPs had signed a petition to return the law to parliament. Unfortunately for them, a collection of signatures was of no legal consequence in legislative procedures.

Despite the act’s nullification, its effects endure; the most important being the chilling effect on LGBTI organising. The significant number of leaders who had already left could not be brought back nor could organisations be revitalised. It may thus take a long time for this trend to be reversed or even for the movement to return to where it was pre-AHA. Although the Walter Reed Project has been reopened and the RLP started operating again, the Coalition has no physical and fiscal host, and morale among LGBTI movement allies is generally low.

What stands out is the resilience of the Ugandan LGBTI community and its allies. Despite continued threats and intimidation, it held a successful Pride event on 9 August 2014, and has continued to push boundaries and beat odds to hold Pride annually.⁵¹ Members of the LGBTI community stood strong against attacks and violations. Although many activists left the country, others, like Frank Mugisha, Pepe Julian Onziema and Kasha Jacqueline Nabagesera, stayed and were all petitioners in the case. These individuals and many others have proved that although the law was passed against them, they could not remain seated. During the hearing, the Constitutional Court was full of activists who never shied away from raising the rainbow flag in court. Envisioning Global LGBT Human Rights (Envisioning) documented these successes in And Still We Rise,⁵² a moving 70-minute documentary. It reveals the LGBTI community’s resistance and resilience against the AHA, until it was finally nullified. The court process would not have been successful without the dedication and determination of these LGBTI people. In them, the lawyers had a firm client.

Conclusion

Efforts to nullify the AHA were much broader than litigation. It was a multi pronged approach with the judiciary as the last resort. The executive and the legislature had been adequately engaged and the bill had not become law for five years, despite the overwhelming support in parliament and among the general population. Advocacy was the main tool keeping the bill at bay for that whole time; but ultimately, it was litigation that finally defeated the law. The judiciary was the only governmental organ that had not yet expressed an opinion. The courts were under great pressure to pronounce themselves, as parliament and the executive had done. Luckily for the LGBT movement, the judiciary overruled the other two organs (executive and legislature) of government – albeit on an issue of parliamentary procedure in passing the law. Efforts to have a new law retabled were countered through maintaining the case at the EACJ. Even though it was lost on the ground of mootness, it had helped to show that LGBTI persons and human rights defenders will not simply remain passive when basic rights are violated through oppressive laws. Despite all the movement’s gains against the AHA, parliament is committed to bringing back provisions of the nullified act; if not as it was, then in piecemeal form in subsequent legislation such as the NGO Act 2016.⁵³ Therefore, all this has been just one battle in an ongoing war.

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Documentary film

And Still We Rise (2015) dir. R. Lusimbo and N. Nicol (Uganda and Canada: Sexual Minorities Uganda and Envisioning Global LGBT Human Rights), available at: https://vimeo.com/178217397. Extracts are cited from interviews with: Frank Mugisha, Joe Oloka-Onyango, Kim Mukisa, Jackson Mukasa, Sam Ganafa, and Nicholas Opiyo.

______________

1 For the 2014 AHA see: www.refworld.org/pdfid/530c4bc64.pdf (accessed 11 Feb. 2017). For the court case that resulted in its nullification, see: Oloka-Onyango and nine others v. attorney general (Constitutional Petition no. 8 of 2014) [2014] UGCC 14 (1 Aug. 2014), available at: www.ulii.org/ug/judgment/constitutional-court/2014/14/ (accessed 11 Feb. 2017).

2 The bill was passed following a session that fewer MPs had attended than the third required to pass a law. Two members including the then prime minister raised the issue of quorum on the parliament floor, but were overruled by the speaker who did not follow the procedure laid down for such cases (see Parliament of Uganda, 2013).

3 The full text of the 2009 AHB may be found at: http://hrapf.org/laws/ (accessed 20 Mar. 2018).

4 This provision effectively allowed immunity to anyone who committed a crime, including murder, against a person with whom they had been engaged in homosexual acts. In such a case, the defendant would allege that the victim of the violent crime tried to involve them in homosexuality through romantic and sexual advances, a move so offensive and frightening to the defendant that it brought on a psychotic state characterised by unusual violence.

5 Interviewed on 26 Nov. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

6 Court record of David Malombe’s affidavit filed in support of HRAPF’s filed reference challenging the AHA at the EACJ, May 2015.

7 Among the leading activists forced to leave at the time were Nikilas Mawanda (then executive director of Trans Support Initiative Uganda), John Wambere alias Long John (member of Spectrum Uganda), Junic Wambya (executive director of Freedom and Roam Uganda), and Robert Karemire (member of Frank and Candy and chair of the LGBTI security committee).

8 The Uganda Penal Code was introduced in 1930 as the Penal Code Ordinance no. 7 of 1930. It became Cap 128 when the laws were compiled. Few amendments have been made to the Penal Code, and provisions intended for use during the colonial times are still present. For a more detailed discussion of its origins, see Jjuuko (2013).

9 Other laws exist that the state could still use to restrict the work of LGBTI organisations. For example, the Non-Governmental Organizations (NGO) Act, 2016 contains provisions that deny registration to organisations whose objectives ‘contravene the law’. It also imposes special obligations that could be used against LGBTI groups, including doing nothing to prejudice the security interests and laws of Uganda, or the dignity of the people of Uganda. For a detailed analysis of the bill from which it emerged, see HRAPF (2015b). For the NGO Act, 2016, Republic of Uganda, see https://www.ulii.org/node/25931 (accessed 9 Sep. 2017).

10 See also ‘Kuchu resilience and resistance in Uganda: a history’, ch. 12, this volume.

11 Human Rights Awareness and Promotion Forum v. attorney general of Uganda, available at: http://hrapf.org/?mdocs-file=9243&mdocs-url=false (accessed 17 Feb. 2017).

12 David Bahati is now minister of state for finance, planning and economic development. He was reelected unopposed in 2011 after tabling the bill and retained his seat in 2016. He had become the vice chair of the parliamentary caucus of the National Resistance Movement (NRM, the ruling party) by the time of his appointment as minister.

13 See generally, Memorandum to the Anti-Homosexuality Bill, 2009, in Human Dignity Trust (2014), p. 1.

14 Penal Code (Amendment) Act 2007, Section 2, which replaced Section 129 of the Penal Code Act Cap 120, accords protection to both boys and girls in cases of defilement, unlike the previous section, which only protected girls. The protection is valid regardless of whether the sexual exploitation occasioned is hetero-or homosexual in nature.

15 Section 15(1) of the Judicature Act Cap 13 provides that ‘Nothing in this Act shall deprive the High Court of the right to observe or enforce the observance of, or shall deprive any person of the benefit of, any existing custom, which is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by necessary implication with any written law’.

16 Curiously, this is the same punishment as under Section 145 of the Penal Code for ‘carnal knowledge against the order of nature’, and so apart from clearly defining the acts that could be regarded as homosexual, it did not seek to enhance the punishment.

17 Interviewed on 3 Dec. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

18 This was partly due to a fine imposed on a media personality for hosting a person who identified as lesbian. See Mugisa (2007).

19 Interviewed on 21 Nov. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

20 Professor Oloka-Onyango and nine others v. attorney general, Constitutional Petition no. 8 of 2014.

21 Interviewed on 21 Nov. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

22 Data provided by Patricia Kimera, who was interviewed on 15 Sep. 2015 by Adrian Jjuuko, Envisioning. She was a legal officer at HRAPF in charge of receiving and handling cases relating to LGBTI people.

23 Para. 15(a), court record of Adrian Jjuuko’s affidavit filed in support of HRAPF’s case challenging the AHA at the EACJ, 23 Apr. 2014.

24 Patricia Kimera, interviewed on 15 Sep. 2015 by Adrian Jjuuko, Envisioning.

25 Kim Mukisa and Jackson Mukasa were charged with carnal knowledge against the order of nature.

26 Patricia Kimera, interviewed on 15 Sep. 2015 by Adrian Jjuuko, Envisioning.

27 Ibid.

28 Ibid.

29 Brenda Kiiza, interviewed on 4 Apr. 2014 by Richard Lusimbo, SMUG and Envisioning.

30 Interviewed on 29 Nov. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

31 Interviewed on 26 Nov. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

32 Patricia Kimera, interviewed on 15 Sep. 2015 by Adrian Jjuuko, Envisioning.

33 The legal committee was composed of Adrian Jjuuko and Fridah Mutesi (HRAPF); Kim Mukasa (RLP); Stella Murungi, Tabitha Netuwa and Rosette Arinaitwe (East and Horn of Africa Human Rights Defenders Project − EHAHRDP); Professor Joe Oloka-Onyango (individual capacity); Professor Sylvia Tamale (individual capacity); and Sarah Kihika (individual capacity).

34 The steering committee was responsible for the Coalition’s day-to-day work. It was made up of the host organisation (RLP), represented by Dr Chris Dolan as chair with Walter Aliker as the alternate; LGBTI community members (SMUG) represented by Dr Frank Mugisha with Pepe Julian Onziema as the alternate; Freedom and Roam Uganda (FARUG) represented by Jacqueline Kasha Nabagesera with Ssenfuka Warry (Biggie) as the alternate; Strategic Initiatives for People with Congenital Disorders (SIPD), represented by Julius Kaggwa, with Tom Makumbi as the alternate; mainstream organisations represented by HRAPF with Adrian Jjuuko, representative, and Flavia Zalwango, alternate; organisations working on defenders’ security, represented by EHAHRDP with Hassan Shire Sheikh, representative, and Nora Rehmer, alternate; and Geoffrey Ogwaro and Clare Byarugaba, the co-coordinators, who were ex officio members.

35 Almost all had been with the Coalition since its formation in October 2009.

36 This provision protected children; however, it was simply a repetition of Section 129 of the Penal Code Act as amended by the Penal Code Amendment Act 2007 and was therefore unnecessary.

37 For example, Jjuuko Adrian v. attorney general, Constitutional Petition no. 1 of 2009, which was filed to challenge the Equal Opportunities Commission Act and had been pending in the court since Jan. 2009.

38 Misc. cause no. 163 of 2010.

39 High Court misc. cause no 247 of 2006.

40 High Court misc. cause no. 33 of 2012.

41 Email dated 20 Mar. 2014 forwarded to the authors which indicated that it was from the Administration of the Uganda Christian Lawyers Fraternity (UCLF).

42 Parliament of Uganda Hansard, parliamentary official report, 3rd session, 2nd meeting, 20 Dec. 2013.

43 The case had been filed in April 2014 as Human Rights Awareness and Promotion Forum (HRAPF) (applicant) v. attorney general of Uganda (respondent) and the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) amicus curiae), ref. no. 6 of 2014.

44 HRAPF (applicant) v. attorney general of Uganda (respondent) and UNAIDS (amicus curiae), ref. no.6 of 2014.

45 People living with HIV/AIDS.

46 For a more detailed discussion, see Jjuuko (2016).

47 Margaret Sekaggya, who was Uganda’s special rapporteur on the situation of human rights defenders at the time, contributed to the report.

48 See also DeBarros (2014).

49 Patricia Kimera interviewed on 15 Sep. 2015 by Adrian Jjuuko, Envisioning.

50 Shortly after the AHA’s nullification, MPs threatened to retable the bill and the government established a committee to look into a new law. Soon, an alleged bill surfaced, called ‘The prohibition of promotion of unnatural sexual practices bill, 2014’. However, no one acknowledged ownership of it and it was never tabled.

51 In 2016, and again in 2017, organisers were forced to cancel the Pride parade because of police raids and threats from the ethics minister.

52 For more on And Still We Rise, see ‘Telling Our Stories: Envisioning participatory documentary’, ch. 14, this volume.

53 Non-Governmental Organizations Act, 2016, Republic of Uganda, available at: https://www.ulii.org/node/25931 (accessed 9 Sep. 2017).