People waving Ugandan and rainbow flags take part in the Gay Pride parade in Entebbe in 2015. Homosexuality remains illegal in Uganda
When Uganda’s Constitutional Court ruled on Thursday to scrap a provision in the Equal Opportunities Commission Act it deemed unconstitutional, it in effect granted the country’s lesbian, gay, bisexual, transgender and intersex (LGBTI ) people the right to approach the commission.
Coming nine years after the matter was first brought before the court, the ruling was welcomed by the LGBTI community as “a very strong sign of hope”.
Although the Act serves to protect citizens from discrimination and inequality, it included a provision that sidelined the LGBTI community. The provision in question – which stated that the commission would “not investigate any matter involving behaviour which is considered to be immoral and socially harmful, or unacceptable by the majority of the cultural and social communities in Uganda” – left minority groups who faced discrimination with little in the way of legal recourse.
Isaac Mugisha is the co-ordinator of the annual Pride Uganda, which this year saw crackdowns by the police force.
In welcoming the court’s ruling, Mugisha said: “This is a very strong sign of hope for the LGBTI community in Uganda. It assures us that the Constitutional Court is on our side.”
The matter was brought before the court by Adrian Jjuuko, executive director of Human Rights Awareness and Promotion Forum (HRAPF), an organisation that aims to promote and protect the rights of marginalised people.
Although Jjuuko says his organisation was initially “very excited” about the 2007 Act coming into law, it quickly realised that the provision, section 15(6)(d), would prevent the minorities it was working for from accessing the commission.
“It was quite clear that the parliamentarians intended to restrict ‘homosexuals and the like’ from using the commission to ‘fight against marginalisation’. That is when we decided to challenge this provision in the Constitutional Court.”
Jjuuko adds: “Since the Act’s inception, no single case concerning LGBTI persons has been filed with the commission – which means that the systematic violations against LGBTI persons have gone unaddressed by the commission since 2007.”
Joining HRAPF in petitioning the court were the case’s lead lawyer, Ladislaus Rwakafuuzi, and LGBTI rights organisation Sexual Minorities Uganda (Smug).
Following the passing of the Anti-Homosexuality Bill – which the Constitutional Court subsequently declared invalid on procedural grounds – Smug produced a report that found that Uganda had seen a significant spike in the number of homophobia-related incidents, including mob violence, lynching, blackmail, job losses and suicides.
The document, From Torment to Tyranny – Enhanced Persecution in Uganda following the Passage of the Anti-Homosexuality Act 2014, found that in 2012, 19 cases of persecution perpetrated against LGBTI people were reported.
Between December 2013 and May 2014 this figure had skyrocketed to 162.
This, the report noted, “represents an increase of between 750% and 1 900% on previous years – an increase which can only be explained by the passage of the Act and the virulently homophobic atmosphere this has engendered in Uganda”.
In a statement released shortly after the ruling, Maria Burnett, associate director for Human Rights Watch in East Africa, said: “All Ugandans should now be able to bring cases of discrimination – against their employers who fired or harassed them, or landlords who kicked them out of their homes – and finally receive a fair hearing before the commission.”
In addition to allowing LGBTI people to access the commission, the ruling also potentially paves the way for increased lobbying by LGBTI and human rights activists to have the country’s colonial-era sodomy laws either amended or scrapped.
“The ruling provides hope to LGBTI persons and all discriminated groups that challenging such provisions works. As such it is a great step in the right direction. It shows that even the anti-homosexuality laws can be challenged,” said Jjuuko.
As for whether LGBTI activists will now pursue challenging the anti-homosexuality laws, Mugisha is clear: “Through continued lobbying, we will hope to have other laws amended. For now, though, we are all very, very excited.”
Celebratory mood aside, there is an awareness that “the struggle for LGBTI equality in Uganda continues”, said Jjuuko.
“This case was a small step towards ensuring equality for everyone in Uganda. This struggle will not end today or tomorrow and it also will not be ended by the courts; but small steps like these do matter.”
Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian
