In a landmark decision, the Constitutional Court in Kampala has upheld the Anti-Homosexuality Act, citing its primary aim to safeguard children and vulnerable members of society.
“We decline to nullify the Anti-Homosexuality Act 2023 in its entirety neither would we grant a permanent injunction against its enforcement,” said Deputy Chief Justice Richard Buteera.” We respectfully do not share the view that deriving pleasure from an action would negate its criminality; otherwise, offenses like rape would be exempt from criminality.”
The over 200-page unanimous judgment, led by Deputy Chief Justice Richard Buteera and four other justices, addressed key issues raised in the petition challenging the law.
The petitioners, including West Budama MP Fox Odoi, human rights advocate Nicholas Opio, Makerere University Law professors Sylvia Tamale and Dr. Kabumba Businye, veteran journalist Andrew Mwenda, and USAID, argued that certain sections of the Act violated fundamental human rights.
However, the Court emphasized its duty to consider cultural and societal norms, stating that any practices contrary to societal aspirations cannot be endorsed. It dismissed claims of parliamentary procedure violations and ruled against assertions that the law infringed upon rights to discrimination, equality, freedom of association and expression, and engaging in lawful professions.
Observers note that the court is drawing parallels between its anti-gay laws and the recent US Supreme Court’s Dobbs ruling, which upheld anti-abortion laws, arguing that both cases demonstrate how “history and traditions” can supersede individual rights. The development they say underscores the far-reaching influence of US Christian groups on global policies.
Furthermore, the Court highlighted risks associated with anal sex, citing physical harm and disease burden, particularly concerning HIV prevalence among males engaging in same-sex activities.
The Court nullified specific sections criminalizing various aspects of homosexuality, including letting premises for homosexual purposes, failure to report homosexual acts to police, and engagement in acts leading to terminal illnesses. These sections were deemed to violate LGBTQ individuals’ rights to privacy, adequate living conditions, and health.
“Disqualification of homosexual convicts from employment in childcare instititutions under Section 12 and 13 of the Anti – Homosexuality Act is intended to protect children and the vulnerable in society,” said Buteera. While reading the judgement he said the mischief which section 11 of the Anti-Homosexuality Act seeks to address is recruitment of children into homosexuality- “Evidence on record.”
In reaction, Antony J. Blinken, Secretary of State wrote: “The United States continues to be deeply concerned by reports of human rights abuses in Uganda, including against the LGBTQI+ community. The announcement that some provisions of the Anti-Homosexuality Act have been removed by the Constitutional Court is a small and insufficient step towards safeguarding human rights. The remaining provisions of the AHA pose grave threats to the Ugandan people, especially LGBTQI+ Ugandans and their allies, undermine public health, clamp down on civic space, damage Uganda’s international reputation, and harm efforts to increase foreign investment. Uganda should respect the human dignity of all and provide equal protection to all individuals under the law.”
The petitioners, represented by their lawyers led by Nicholas Opiyo, expressed satisfaction with the relief but announced their intention to escalate the matter to the Supreme Court. Judiciary Public Relations Officer, Justice James. J. M Ereemye, explained that the decision considered legislative and judicial precedents and Uganda’s socio-cultural context.
The IAS – the International AIDS Society – expressed grave concern regarding Uganda’s HIV response following the Constitutional Court’s decision to uphold the Anti-Homosexuality Act today. As the world’s largest association representing individuals living with, affected by, and working on HIV, the IAS urges Uganda to prioritize its citizens’ well-being and revoke this detrimental law, which not only threatens its own population but also impedes an effective HIV response.
“The court missed an opportunity to rectify this situation, failing to consider scientific evidence,” stated IAS President Sharon Lewin. “The ruling contradicts Uganda’s commitment to eradicating HIV as a public health threat by 2030. The ramifications for the HIV response, not only in Uganda but also in other African nations grappling with anti-gay sentiments, are severe.”
Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act into law in May 2023, rendering it one of the world’s most stringent anti-gay statutes, including provisions for the death penalty for “aggravated homosexuality”. In response to a petition seeking to annul the act, the court acknowledged that certain sections violated the right to health and deemed the law “inconsistent with the rights to health, privacy, and freedom of religion”. Nonetheless, it declined to nullify the act entirely or grant a permanent injunction against its enforcement.
The IAS is alarmed by the law’s adverse effects, which hinder communities’ access to HIV services and exacerbate the marginalization of vulnerable groups. Anti-gay legislation correlates with a higher HIV prevalence among men who have sex with men in Africa. Since the enactment of Uganda’s anti-gay law, attendance at drop-in centers offering HIV prevention and treatment services to key populations, including men who have sex with men, has plummeted from an average of 40 clients per week to just two.
As previously emphasized in a statement by the IAS, the evidence is unequivocal: criminalizing same-sex relationships significantly heightens the risk of HIV transmission.
AVAC’s reaction to the AHA law:
AVAC is gravely concerned with the Constitutional Court of Uganda’s recent decision to uphold the core provisions of the Anti-Homosexuality Act of 2023 (AHA) that was signed into law nearly one year ago. AVAC stands in solidarity with the LGBTQIA+ community in Uganda, and globally, in calling out this dangerous law.
“We had hoped that the AHA would be repealed in its entirety, as it is a clear violation of the health, rights and humanity of the LGBTQIA+ community, and will undermine and reverse Uganda’s progress in HIV prevention, destroying community wellbeing and taking lives along the way,” said Angelo Katumba, Senior Program Manager at AVAC. “We’ve seen the direct link between criminalization and stigma and the devastating impact both have on HIV incidence. Even with the partial repeal of four provisions within the law, the AHA remains in place and will continue to drive people underground, discouraging the most vulnerable populations from seeking testing, treatment and prevention, and they will setback the fight against HIV.”
The Anti-Homosexuality Act of 2023 (AHA) was brought to the Constitutional Court of Uganda for ruling on its legality late last year with advocates challenging the constitutionality of the law before the courts for months. Civil society advocates for LGBTQIA+ and HIV prevention have worked tirelessly over the years to change attitudes and policy in Uganda and around the world. The failure to nullify this law in full intensifies the threats faced by communities that have fought tirelessly for safety and recognition. Advocates are expected to repeal the ruling to the Supreme Court of Uganda.
Uganda’s Anti-Homosexuality Act is one of the world’s most extreme anti-gay laws, enacted at a time when several other countries, including the US, are seeing the right to health undermined through legal action and anti-LGBTQIA+ laws on the increase. Today, the Uganda’s Constitutional Court even referenced the 2022 United States’ Supreme Court opinion on Dobbs v. Jackson Women’s Health Organization as part of its justification for the legality of the Uganda AHA.
“It is deeply disturbing to see how Uganda’s attack on human rights and evidence-based public health is influenced by and coordinated with extremist views in the US and on the US Supreme Court,” said Mitchell Warren, AVAC’s executive director. “This is a staggering message that a rights-based approach to healthcare is imperiled in many countries by reactionary movements that are gaining strength from each other.”
“We must stand up and fight back against these laws everywhere or we will never end any epidemic. We stand in solidarity with all allies and partners committed to turning the tide from hate and fear to global health equity for all,” Warren added.
Since the Ugandan law was passed last year, the number of clients attending drop-in centres providing HIV prevention and treatment services to key populations, including men who have sex with men, dropped from an average of 40 per week to two.
Reactions to the AHA by Ugandans:
“I think it was a fair judgement. The rights of parliament to make laws was upheld, and the rights of the citizens to housing, and care without fear of being reported are upheld.”
” I too think it was a fair judgement, given the Ugandan context with regards to this matter. It must have been difficult for the judges.”
“I am just waiting to see what will happen if petitioners decide to appeal the judgement in the Supreme Court.”
“I think it would be a prudent thing to do. As much as I am for people having freedom of expression, and the law is contrary to that and other basic human rights, they were passed by an elected parliament with the mandate to pass laws. The constitutional court has upheld the most basic of these rights, but the petitioners should still test the limits of the law through the appellate process.”
“Why would it be a stupid thing to put a law to a test at all levels? I am no lawyer, but I imagine a law that gets tested, including at the Supreme Court, and withstands such scrutiny (even with some sober amendments) is a much better law than one that’s not undergone any scrutiny beyond the corridors of Parliament and State House.”
Background to studies done:
A report titled “Progress and the Peril: HIV and Global Decriminalization of Same-Sex Sex” published jointly by UNDP, GNP+ (Global Network of People Living with HIV), and the O’Neill Institute for National and Global Health Law in 2023 extensively examined the global landscape of laws and policies related to same-sex sexual activity in the context of HIV, highlighting positive progress towards decriminalization alongside ongoing challenges and risks faced by LGBTQ+ communities worldwide.
The HIV Policy Lab (HIVPL) extensively monitors global HIV-related laws and policies across 194 countries, assessing 33 specific issues ranging from clinical care to criminalization of consensual same-sex sexual acts. Their report highlighted a notable trend towards decriminalization of same-sex sex worldwide, with more countries removing punitive laws in 2022 than in any single year over the past 25 years. Since 2017, 13 countries (7% of the world) have removed such laws, including powerful economies and high HIV-prevalence nations.
A significant shift has occurred over time, with two-thirds of countries now not criminalizing same-sex sexuality, representing 129 of the 194 countries tracked by HIV Policy Lab. This shift has positively impacted 63% (24.6 million) of people living with HIV, now residing in countries where same-sex sex is legal. Notably, 24 countries exhibit a de facto policy of non-enforcement despite criminalizing laws, highlighting a pathway to change through non-enforcement before formal law reform.
However, there remains a concerning counter-trend in some countries, with rising homophobia and harsher criminalization affecting LGBTQ+ communities. One-third of countries still maintain illegal same-sex sex laws, with recent prosecutions reported in 41 countries. Some places have introduced severe penalties, including death sentences, for same-sex sexual activities.
The report showcased case studies from countries like Angola, Botswana, India, and others, illustrating varied pathways to decriminalization, both through judicial and legislative processes. These successes emphasized the importance of investing in policy change and law reform to achieve the Sustainable Development Goals (SDGs) and prioritize the most vulnerable populations in the AIDS response. Comprehensive approaches that include law reform, independent human rights institutions, non-discrimination laws, and community services are vital for sustaining positive change in the fight against HIV/AIDS.