Posted on July 26, 2023, by Melanie Nathan, ED African Human Rights Coalition and Country Conditions Expert for LGBTQI+ Ugandan Asylum Seekers in U.S.A.
On 25th July 2023, the Convening for Equality (CFE)'s Legal Committee filed a case before the East African Court of Justice (EACJ) challenging the procedure through which the Anti-Homosexuality Act, 2023 was passed. This was done in partnership with colleagues from the East African region who were consulted about the process.
25th July 2023 was the last day on which the Reference could be filed since the Treaty provides for filing within two months of the enactment of a law. President Museveni signed the Act into law on 26th May 2023 and it was therefore enacted then.
The Reference is cited as Nimrod Muhumuza, Melba Katindi Katsivo, Frank Mugisha and Human Rights Awareness and Promotion Forum (HRAPF) v The Attorney General of the Republic of Uganda, Reference No. 29 of 2023.
The applicants - Ugandan human rights lawyer Nimrod Muhumuza, Kenyan human rights lawyer Melba Katindi, Ugandan human rights activist Frank Mugisha and Human Rights Awareness and Promotion Forum (HRAPF) contend that the absence of adequate and meaningful public participation and the bias and partiality on the part of the Speaker of Parliament while enacting the law contravened the principles of good governance including democracy, rule of law, accountability, transparency, social justice, and equal opportunities, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights, and the enhancement of civil society under Articles 5(3)(g), 6(d), 7(2) and 8(1)(c) of the Treaty for the Establishment of the East African Community.
The Applicants want the court to declare the procedure through which the Act was enacted null and void for being contrary to these provisions of the Treaty and therefore declare the resultant Act null and void.
The Court is an international court and issues binding decisions.
The Court process at the EACJ is entirely different from that at the Constitutional Court of Uganda as this is based primarily on the provisions of the East African Treaty while the latter is based on the Ugandan Constitution.
Ideally a decision in one court should have no effect on the other except if it disposes of the subject matter - nullifies the law in its entirety rendering the matter in the other court moot. This happened in 2014 when nullification of the Anti-Homosexuality Act 2014 by the Constitutional Court of Uganda led to the EACJ declaring that the Reference before it was moot (Human Rights Awareness and Promotion Forum v Attorney General of Uganda, Reference 6 of 2014).
The Reference follows an earlier one Male H. Mabirizi. Kiwanuka v Attorney General of the Republic of Uganda, Reference No. 25 of 2023 in which lawyer Male Mabirizi challenged the enactment, assent, publication, enactment, commencement and provisions of the Anti-Homosexuality Act, 2023 for being contrary to the Treaty together with ten other unrelated issues. The Legal committee decided to file a separate Reference which involved consultations with the affected communities. Mabirizi's Reference is also attached here.
The Attorney General is expected to respond within 45 days and then it will be up to the Court to determine conferencing and hearing dates and admission of amicus curiae.
CFE and HRAPF appreciate the efforts of all partners who came together to make this a reality in the very short time that we had to file the Reference, more so our partners from Kenya, Tanzania, Rwanda, and Burundi.
PIC: Copyright AHRC - East African and Ugandan Refugees in African Refugee Camp, who have sought UNHCR protection after being forcibly displaced by Ugandan KILL THE GAYS BILL and persecution.