This morning the East African Court of Justice delivered a blow with its judgment in a matter initially brought before it by a Ugandan based Human Rights coalition.
The matter of Human Rights Awareness and Promotion Forum (HRAPF) v Attorney General of Uganda (and the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS)) was originally filed by HRAPF under the auspices of the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL) in August 2014, soon after the Anti-Homosexuality Act (2014) had become law. The case challenged what came to be known as “The Kill the Gays Bill” – as being contrary to the rule of law and good governance principles of the East African Community Treaty.
After the Constitutional Court in Uganda nullified the Anti-Homosexuality Act, on the technicality that the Ugandan Parliament failed to pass the Act with the required Parliamentary quorum, the Applicants amended its case in the East African Court of Justice, limiting it to “challenging the action of enacting the Act with three provisions which promoted impunity against LGBTI persons and which violated freedom of association, expression and assembly among others, as being contrary to the rule of law and good governance provisions of the Treaty.” (HRAPF)
The Attorney General made preliminary objections that the amendment could not stand as it challenged a law that was already nullified- in essence that the case was moot. HRAPF argued that they were not challenging the Act but the Act of passing the Act with provisions that contravene the Treaty, and that in any case, this was a matter of public interest that the Court could hear as an exception to the moot rule.
UNAIDS was allowed to join as amicus curiae.
The Court in its judgment upheld the Attorney General’s objection that the case was moot as HRAPF was challenging a nullified law. The Court struck out the issue of the action of enacting the Act on the basis that this was never originally pleaded and should therefore never have been part of the amended reference. They refused to also hear the case under the public interest exception because in their view the affidavits on violations do not ‘…sufficiently establish the degree of public importance attached to the practice of homosexuality in Uganda ….’
HRAPF and the CSCHRCL have advised that they are yet to decide on the next course of action, and are currently in the process of preparing an official statement in response to this judgment.
In an email to supporters and human rights defenders HRAPF noted:
However, we can state at this point that we are disappointed with the judgment especially in as far as the court did not consider the ground of the action of enacting the Act which was a key part of the amendment, and also for emphasising (sic) ‘the practice of homosexuality’ and not the violations of the rights of LGBTI persons which is what was cited in support of the public interest exception.
Nevertheless, this is the first time that an international human rights court in Africa has heard a case concerning violations against LGBTI persons and the case leaves open the avenue of going back to the court on the issue of laws that are contrary to the principles of the rule of law and good governance as the court did not rule on the substantive grounds. The case also set precedents in the field of amicus curiae which was relied on by the Supreme Court of Uganda in the presidential election case.
HRAPF and the CSCHRCL want to thank all our partners who have been with us in this struggle, especially the groups that filed to be amicus curiae: UHAI-EASHRI, HDI-Rwanda, Centre for Human Rights, University of Pretoria, Dr. Ally Possi and UNAIDS. We shall be sharing more information on the case including the soft copy of the case and a brief summary as soon as we have them ready.
READ MORE ABOUT THE EAST AFRICAN COURT HERE
SUMMARY BY HRAPF:
EAST AFRICAN COURT OF JUSTICE’S DELIVERS JUDGMENT IN CASE CHALLENGING UGANDA’S ANTI-HOMOSEXUALITY ACT 2014 27th September 2016
Today, the First Instance Division of the East African Court of Justice (EACJ) delivered its judgment in in Reference No.6 of 2014 – Human Rights Awareness and Promotion Forum (HRAPF) v Attorney General of Uganda and the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS).
This case was originally filed by HRAPF under the auspices of the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL) in August 2014 soon after the Anti-Homosexuality Act, 2014 had become law. The case challenged the Act as being contrary to the rule of law and good governance principles of the East African Community Treaty. The Reference was amended in January 2015 with the consent of both parties following the nullification of the Anti-Homosexuality Act by the Constitutional Court of Uganda on 1st August 2014.
The amendment limited the Reference to challenging the enactment of the Act with sections: 5(1) on the immunity of ‘victims’ of homosexuality to be tried for any offence committed when ‘protecting’ themselves against homosexuality; 7 on aiding and abetting homosexuality, and 13 (1)(b)(c) (d) and (e) on promotion of homosexuality which provisions were directly in violation of the fundamental principles of good governance, rule of law and human rights, enshrined in the Treaty for the Establishment of the East African Community.
When the case came up for hearing, the Attorney General raised a preliminary objection that the amendment could not stand as the Anti-Homosexuality Act had been nullified- in essence that the case was moot. HRAPF argued that they were not challenging the Act but the passing of the Act with the three particular provisions that led to the violation of the rights of LGBTI persons during the period when the law was in force, and that in any case, this was a matter of public interest that the Court could hear as an exception to the mootness rule.
UNAIDS was allowed to join as amicus curiae and the made their submissions regarding the impact of such laws on the HIV/AIDS scourge. The Court in a surprise move held that the amendment was irregular in as far as it included statements that point towards acts done during the time the Act was in force. The court in coming to this conclusion seemed to regard as fact the argument for the Attorney General that the amendment of the Reference to include acts done within the period the law was in force was not agreed upon by both parties.
By 2 doing this, the court effectively ruled on the original reference and not the amended Reference. The court then decided that the case was moot since the reference challenged a law that had been nullified by the court. The court relied on their judgment in the Legal Brains Trust v Attorney General of Uganda, EACJ Appeal No.4 of 2012 where it was held that ‘…it is a cardinal doctrine of jurisprudence that a court of law will not adjudicate hypothetical questions- namely, those concerning which no real dispute exists.’
The court considered the public interest exception to the general rule and found that that it did not find the evidence sufficient to ‘…establish the degree of public importance attached to the practice of homosexuality in Uganda….’
HRAPF is proud of its role in this case, as this is the first time that an international human rights tribunal in Africa has heard a case concerning violations against LGBTI. The case also set precedents in the field of amicus curiae which was relied on by the Supreme Court of Uganda in the presidential election case. The case has also brought together Ugandan, East African and African activists to take their destiny in their hands and challenge laws that threaten the rights of LGBTI persons even at the intentional level. HRAPF and the CSCHRCL want to thank all our partners who have been with us in this struggle, especially the groups that applied to be amicus curiae: UHAI-EASHRI, HDI-Rwanda, Centre for Human Rights, University of Pretoria, Dr. Ally Possi and UNAIDS.
The Court made no order as to costs, which was a very good thing, as this was litigation in public interest.
The struggle continues.
While this is not the decision we could have hoped for, hopefully this will point us to a victory, but n the future. Like the producer of “God Lives Uganda,” I’ve been several times, and I too love Uganda and want its human rights to prosper!
A sad defeat for the brave Ugandan activists at HRAPF and the CSCHRCL as well as all their allies. It is difficult at times to establish meaningful jurisprudence. Our first attempts at constitutional challenges here in Canada were also defeated but eventually achieved great success where we could not convince our Parliaments.
Ugandan activists have long-ago shown their determination and using the available international treaties to get their own nation to respect LGBTI rights is a valid strategy to test their own Constitution and one that is likely to pay dividends for future generations of our diverse communities in Uganda and for all of East Africa. The struggle continues.