We’ll have Uganda’s anti-gay law struck down at the constitutional court, lawyer

Ugandan activists began their fight on Wednesday at the constitutional court in Kampala to have the country’s controversial anti-gay laws overturned. Besides the right to be free from discrimination, one of the key arguments of the petitioners is that the law was passed without the necessary quorum of MPs in parliament. Uganda’s President Yoweri Museveni signed the act into law in February. It rules that homosexuals are to be jailed for life, outlaws the promotion of homosexuality and obliges Ugandans to denounce gays to the authorities. Rights groups say that the law has resulted in an increase in attacks against the gay community. RFI spoke to lawyer Nicholas Opiyo, who is representing the activists fighting to have the anti-gay law struck down.

Nicholas Opiyo appears with anti-gay pastor Martin Ssempa at the constitutional court hearing in Kampala, 30 July 2014. Photo: Nicholas Opiyo/Twitter

You’re arguing that the anti-gay law passed without quorum in parliament. Could you explain this line of argument for this?

That rule is intended to ensure that a few people cannot gang up in parliament and decide to pass a law. The process and manner of enacting the law on 20th December 2013 was in violation of the articles of the constitution and the rules of procedure of the house. But also importantly our courts have held in other cases that any law passed without quorum is unconstitutional. So that’s the argument we made this morning.

Are there other laws in Uganda which have been passed without quorum?

In the past there have been other laws passed without quorum and they have been challenged in a court of law and declared null and void. An example is the referendum act of 2005. That act was enacted to provide for a referendum for a change of political systems. That was passed without quorum. It was challenged and was declared by the constitutional court to be in violation of the articles of the constitution and the rules of procedure.

This case also hinges on discrimination. How will you argue that this law doesn’t guarantee equality as stated in the Ugandan constitution?

The first angle is that in as far as this law provides for criminal sanctions for consensual adult sexual relations of members of the same sex, it is therefore discriminatory. That nobody should be discriminated against on the basis of who they love, and on the basis of who they don’t love. Secondly, the law provides that if the person who is being accused is a person with physical disability, the offense therefore becomes aggregated. Now we’re arguing that that amounts to discrimination of persons living with disabilities. The third angle of the argument is that if the person being accused is a person who is HIV/AIDS positive or who has HIV/AIDS virus, the offense becomes automatically aggravated. We’re also arguing that amounts to discrimination of persons living with HIV/AIDS. The fourth leg of the argument on discrimination is that insofar as the law prohibits anybody to provide a house to a person who is perceived or who is actually a member of the gay community, that law is discriminatory insofar as it denies members of the LGBTI community a chance of renting a house. So those are the four broad strands of the argument in regards to equality before the law. As to other regional and international human rights instruments, we’ll bring all of that to the attention of court to make our case.

Tell us about the five judges overseeing the case, how would you describe them?

Really a mixed bag. First you have a judge who has just returned to the country from the International Criminal Tribunal for Rwanda. She’s been in Arusha for quite a bit. So she’s just returned to Uganda and returned to the constitutional court. Two of the judges on the panel were judges who were high court judges and have only recently been promoted to the constitutional court or the court of appeal. So they are a pretty new panel. The other two are very experienced and seasoned members of the court. In fact, one of them is now the current acting chief justice of Uganda. They are judges who are really experienced and if they choose to focus their mind on the law, will deliver a fairly good judgement, in my view.

Anti-gay pastor Martin Ssempa was at the hearing. Why was that?

Yes, in fact he offered to pray for me and he first imitated to me that he had applied to join the case as an interested party. And in fact he was very upset that his application to join the case had not been considered. But it wasn’t just pastor Martin Ssempa, pastor Langa and all the other Pentecostal pastors who have been pushing for this law were in court. Some of them dressed like priests in their official priestly attire. I think they came to court to make the point that they feel very strongly about this law and they wanted to make their presence felt. They were courting the media and trying to speak to the media. It’s just a continuation for them of their campaign for this law.

Have you been targeted for taking on this anti-gay law?

I have faced enormous problems because of being on this legal team, but also because of public speaking in support of gay people in this country. I can tell you until March this year I was the secretary general of the Uganda Law Society. At the annual general meeting of the law society in March of this year I was vilified, I was targeted, I was insulted and hounded out of the law society. Primarily because they thought that my views on this matter were not in tandem with the values and views of the law society. So yes, I have targeted. My own sister’s child has called me on social media as being retarded. Several friends have attacked me on social media and many places here in town. So, yes I have been a target of several other derogatory comments on Facebook, on Twitter, in newspapers, on email. Yes, it’s true I’ve been targeted.