IMAGE: Amnesty International
This is a delayed post. We thank the Ugandan Legal Information Institute for making the decision of the Ugandan Constitutional Court freely available online.
In August the Ugandan Constitutional Court handed down judgment in Oloka-Onyango & 9 Ors v Attorney General, striking down the infamous Anti Homosexuality Act 2014 pursuant to a challenge that the legislature lacked quorum.
The challenged was instituted by a coalition of 10 petitioners. They argued that the enactment of the Act by the Ninth Parliament on December 23, 2013, without quorum in the House was in contravention of of the Constitution of the Republic of Uganda and Rule 23 of the Parliamentary Rules of Procedure. (See Articles 2(1) & (2), 88 and 94(1) of the Constitution.)
The petitioners also challenged the substance of the Act, arguing, amongst other things, that the Act contravenes the right to equality before the law without any discrimination and the right to privacy guaranteed under the Constitution.
The petitioners contended that, in criminalising touching by persons of the same sex, the Act creates an offence that is overly broad and is in contravention of the principle of legality by the Constitution. Further, the Act provides for a disproportionate punishment for the offence in contravention of the right to equality and freedom from cruel, inhuman and degrading punishment guaranteed by the Constitution.
They contended that, in criminalising consensual same sex/gender sexual activity among adults in which one is a person living with HIV, the Act contravenes the right to the freedom from discrimination. Further, the Act impinges on the right to dignity of persons with disabilities guaranteed by the Constitution.
In criminalising “aiding, abetting, counseling, procuring and promotion of homosexuality,” the Act limits access to health services, and thus violates the principle of legality, and the freedoms of expression, thought, assembly and association, and the right to civic participation.
Finally, that the Act impinges on obligations under international Human Rights instruments ratified or acceded by Uganda, including the African Charter on Human and People’s Rights, the Protocol to the African Charter on Human and Peoples’ Rights, Rights on the Rights of Women in African, the UN Covenant on Civil and Political rights; and the UN Covenant on Economic, Social and Cultural Rights.
Counsel for the Petitioners argued that the doctrine of legislative sovereignty is crafted in Article 79(1) of the Ugandan Constitution was inapplicable to the Act. The doctrine empowers Parliament to enact laws for the peace, order and good governance of Uganda, and not to violate the Constitution.
Strangely enough, the issue of quorum was raised by the (then) Prime Minister of Uganda, Amama John Patrick Mbabazi. One Member of Parliament responded that: “We passed several bills [yesterday], why are you stopping this one. Madam Chair, we should continue and pass this bill to save the people of Uganda, what is your worry about this?” (my emphasis)
Before the Court Attorney general simply retorted that the existence of quorum is a factual question. The AG argued that, in casu, the Petitioners did not produce sufficient evidence to meet the civil standard of proof.
The decision
The Court’s decision to avoid the substantive challenge, and to focus instead on procedural issues, is disappointing. In any event, the Court held that Coram is defined in the Rules of Procedure of Parliament to mean “at least a third of all the members entitled to vote.”
In casu, the Attorney General (respondent), who sits in Parliament and advises the government, had a duty to provide definitive proof that Parliament was ad corum. Therefore, using the civil standard of proof, the Court held that:
“On the balance of probabilities, the Petitioners have proved that at the time the Prime Minister (twice) and Hon. Betty Aol, raised the objection that there was no Coram and Coram was never established, and that was in contravention of the Constitution and the Rules.”
The Court found that the process of enactment was illegal and a nullity. It declared the procedure, and thus the Act, null and void.
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