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Nabagesera v. Attorney General

Closed Contracts Expression

Key Details

  • Date of Decision
    June 24, 2014
  • Outcome
    Dismissed, Law or Action Upheld
  • Case Number
    Cause No. 033 of 2012
  • Region & Country
    Uganda, Africa
  • Judicial Body
    First Instance Court
  • Type of Law
    Criminal Law, Constitutional Law, International/Regional Human Rights Law
  • Themes
    Freedom of Association and Assembly / Protests
  • Tags
    Civil Society Organizations, LGBTI, Public Interest, Human Rights

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Case Analysis

Case Summary and Outcome

The organizer and several participants of an LGBTI workshop challenged the order from the Ugandan Minister of Ethics and Integrity that the workshop be shut down. The High Court dismissed their claims, holding that individual rights can be restricted in favor of the public interest and that the exercise of individual rights has to be within the law.


Facts

Jacqueline Kasha Nabagesera and a group called Freedom and Roam Uganda organized this workshop with the purpose of training LGBTI activists in project planning, advocacy, and human rights. The Minister of Ethics and Integrity intervened and ordered the close of the workshop. He alleged that the workshop was an illegal gathering of homosexuals prohibited by Section 145 of the Ugandan Penal Code.

Nabagesera submitted that neither hosting nor attending the workshop constituted a criminal offense under the terms of Section 145, which solely criminalizes homosexual acts. She and Freedom and Roam Uganda challenged the actions of the Minister for closing the workshop, submitting that the closure of the workshop constituted a violation of their rights to freedom of expression, political participation, freedom of association, assembly, and equality before the law.


Decision Overview

Justice Stephen Musota delivered the opinion of the High Court of Uganda at Kampala. He acknowledged that Article 43 of the Constitution of Uganda allows certain constraints to be placed on human rights in favor of the public interest. Furthermore, Justice Musota argued that these restrictions can be made as long as they “do[] not amount to political persecution and [are] justifiable [and] acceptable in a free democratic society” (p. 9).

However, Musota determined that, even though the applicants had been exercising their rights to freedom of expression, association, and assembly, they were, in fact, promoting prohibited and illegal acts. According to Musota, the promotion of prohibited acts was prejudicial to the public interest. He also established that the “[p]romotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions.” (p. 9). Musota determined that the Ugandan laws prohibited their acts. For these reasons, he determined that organizing the workshop was not a valid exercise of their rights and constituted an act contrary to the public interest.

Musota added that Article 9 of the African Charter on Human Rights and Peoples’ Rights states that the expression has to be exercised within the law. According to Musota, the applicants had not exercised their rights within the law because they promoted homosexual acts prohibited by Section 145 of the Ugandan Penal Code. Also, Musota considered that the protection of unpleasant, controversial, false, or wrong speech is not extended to protecting the expression that promotes prohibited and illegal acts. Therefore, he concluded that the closing of the workshop had not violated the applicants’ right to freedom of expression.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The decision of the High Court contracts freedom of expression because it established that the government can limit the exercise of rights if they are contrary to the public interest and to the values of society. The High Court interpreted various international law instruments in order to justify its decision to restrict rights in favor of public interest. Moreover, the decision disregarded foreign precedents that have established as an unjustifiable restriction the prohibition of homosexual acts as offenses against public morals.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The High Court reaffirmed the constitutionality and validity of Section 145 of the Penal Code prohibiting homosexuality. It also established that under Article 43 of the Constitution, human rights can be limited in favor of the public interest. Furthermore, the High Court determined that the right to freedom of expression has to be exercised within the law, as established in the African Charter on Human and Peoples’ Rights.

Official Case Documents

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