Case Summary and Outcome

The Constitutional Court of Uganda ruled that Uganda’s Anti-Homosexuality Act 2014 was passed in contravention of the Ugandan Constitution and the Ugandan Parliamentary Rules of Procedure, because quorum was not established when it was being voted on.  As such, the Act, which was enacted by Parliament in December of 2013, was declared null and void. The petitioners had also raised some 11 issues before the Court including violation of freedom of expression, the right to privacy, principles of legality, the right to equality, freedom from discrimination, the right to dignity, and of rights guaranteed under various international human rights instruments (the African Charter on Human and People’s Rights and the International Covenant on Civil and Political rights, inter alia).

Facts

Professor J Oloka-Onyango, the Honorable Fox Odoi-Oywelowo, Andrew M. Mwenda, Professor Moris Ogenga-Latigo, Dr. Paul Nsubuga Semugoma, Jacqueline Kasha Nabagesera, Julian Pepe Onziema, Frank Mugisha, Human Rights Awareness & Promotion Forum, and the Centre for Health, Human Rights & Development brought this case before the Constitutional Court of Uganda against the Attorney General on the grounds that Uganda’s Anti-Homosexuality Act 2014 (Act) violated several articles of the Ugandan Constitution.

Eleven issues were raised before the Court, including violation of freedom of expression, the right to privacy, principles of legality, the right to equality, freedom from discrimination, the right to dignity, and of rights guaranteed under various international human rights instruments (the African Charter on Human and People’s Rights and the International Covenant on Civil and Political rights, inter alia). However, the case was decided on one issue: whether or not quorum was met at the time the Act was passed.  The Constitutional Court held that, because quorum was not met, the Anti-Homosexuality Act 2014 was passed in violation of the Constitution and must be invalidated.

Freedom of expression was explicitly discussed in section (i), which alleges that “Sections 7 and 13(1) & (2) of the Anti- Homosexuality Act 2014, in criminalising aiding, abetting, counseling, procuring and promotion of homosexuality, create offences that are overly broad, penalise, legitimate debate, professional counsel, HIV related service provision and access to health services, 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, Articles 2(1)&(2), 8A, 28(1), (3b), & 12, 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda.”

Decision Overview

Although the petition was brought up on numerous issues, the Constitutional Court of Uganda made its ruling on one question of law: was the Anti-Homosexuality Act 2014 passed in Parliament without quorum, thereby in violation of the Constitution of the Republic of Uganda and of the Parliamentary Rules of Procedure?

The Court acknowledged that if this threshold, procedural issue was decided first, the entire petition could be disposed of without addressing the other issues presented. After considering the evidence on the issue of quorum, the Court held that quorum was not established when Parliament voted on the Anti-Homosexuality Act 2014. Thus, this failure to establish a quorum rendered the Act’s passing a constitutional violation, and, therefore, void.