Ugandan Attorney General Fails to Show up at Court Hearing in Case Impacting LGBT Rights

Constitutional Court Uganda | Lady Justice Catherine K. Bamugemereire
Constitutional Court Uganda | Lady Justice Catherine K. Bamugemereire

The Ugandan Constitutional Court has finally allowed argument, for a second time, in a case which has been waiting to be heard for the past 8 years, despite the Defendant’s absence.  Back in July 2015, when the case was previously postponed, the Plaintiff expressed bewilderment at the Court’s perennial lack of a quorum and wondered whether the Justices were taking the matter seriously, noting it had failed the public’s interest. That story here.

Now finally, eight  years after filing the Constitutional Court petition challenging a provision of the Equal Opportunities Commission Act, 2007, the Constitutional Court, in the case of Jjuuko Adrian v. Attorney General, (Constitutional Petition No. 1 of 2009) has heard the case, even though the Attorney general or appropriate representative was not present.

The case was first heard on 3rd October 2011, after a delay of almost two years, which was caused by the lack of quorum.  After some time of being unable to come up with a judgment, despite many requests and reminders from the petitioner, petitioner’s counsel and civil society organizations, an application for rehearing was filed and the court decided to rehear the petition since some of the judges who heard the initial petition had since retired.

What follows is a post hearing report prepared by Plaintiff, Adrian Jjuuko, the Executive Director of Human Rights Awareness and Promotion Forum (HRAPF), as follows: 

Screen Shot 2016-04-26 at 1.54.56 PM“On 25th April 2016, the Constitutional Court reheard the case of Jjuuko Adrian v Attorney General that has been pending before the Court for 8 years. The case challenges Section 15(6)(d) of the Equal Opportunities Commission Act, 2007. The provision provides that the Equal Opportunities Commission (EOC) shall not investigate any matter involving behavior, which is considered to be ‘immoral and socially harmful’ or ‘unacceptable by the majority of the cultural and social communities in Uganda.’  This section has the effect of preventing the EOC from hearing matters regarding marginalized communities such as women, LGBTI persons, and sex workers as long as their behavior are construed by the majority to be ‘immoral and socially harmful and unacceptable.’

The case was reheard by a panel of five justices of the Constitutional Court: Hon. Lady Justice Catherine K. Bamugemereire; Hon. Lady Justice Solomy Balungi Bossa; Hon. Justice Kenneth Kakuru, Hon. Justice Richard Buteera and Hon. Justice Cheborion Barishaki.

By the time the Justices entered, the Attorney General was not represented and the court adjourned for one hour to allow the Attorney General time to appear.

After one hour, the Attorney General had still not made an appearance and counsel for the Petitioner requested the court to proceed without the Attorney General since the Attorney General had been served with the hearing notices. This was agreed to by the court and only the Petitioner was heard.

The petitioner was represented by Mr. Ladislaus Kiiza Rwakafuuzi of M/S Rwakafuuzi & Co. Advocates and Ms Patricia Kimera of Human Rights Awareness and Promotion Forum (HRAPF).

In their submissions, counsel for the petitioner asked court to declare Section 15(6)(d) of the Equal Opportunities Commission Act, 2007 (EOC Act) unconstitutional for the
following reasons:

i) It was a foreign provision in the EOC Act that was inconsistent with the other provisions and spirit of the Act.

ii) It encouraged discrimination that was already prohibited by the Constitution and was thus was inconsistent with Articles 21(1), (2) and (3) of the Constitution. The kind of discrimination that was envisaged under Article 21(4) was positive discrimination to redress imbalances and not the discrimination encouraged under Section 5(6)(d) of the EOC Act.

iii) The provision was inconsistent with Article 20(1) and (2) of the Constitution since fundamental rights of individuals are inherent and not granted by the state. The state, all agencies and persons are supposed to uphold these rights. The language used in this Article was inclusive and could not permit exclusion of certain categories of persons.

iv) The provision was inconsistent with Article 32 of the Constitution, which provides for affirmative action in favor of the marginalized. TheConstitution takes such a strong stand against discrimination that it created a separate Article to protect the interests of minorities. By excluding some people as being morally harmful and socially unacceptable, the provision mandates the EOC and other people to discriminate, which goes against the purpose of the Act.

v) The provision also violates the right to a fair hearing as protected under Article 28 of the Constitution. Since the EOC is given powers of a court, all principles including those under the right to a fair trial must be upheld. By denying the Commission the powers to investigate matters of persons regarded as immoral or socially harmful, the section denies persons regarded as social misfits a right to be heard which is inconsistent with Article 28 of the Constitution.

vi) Although Article 43 of the Constitution limits rights in that their enjoyment should not prejudice the public interest; the public interest only permits the limitation of rights to the extent that is acceptable in a free and democratic society. Therefore any law that seeks to curtail a right must be clear and not ambiguous. The language used in Section (15)(6)(d) is ambiguous and it does not stipulate the parameters under which someone can consider a behavior as immoral or socially unacceptable in society.

The Court reserved its judgment and it will be given on notice. HRAPF and the CSCHRCL are happy that this case has finally been reheard, and we are hopeful that this time, the judgment will not be delayed the same way it was when the case was first heard.”

By Melanie Nathan
Commissionermnathan@gmail.com


3 thoughts on “Ugandan Attorney General Fails to Show up at Court Hearing in Case Impacting LGBT Rights

  1. There are NO and NO LGBT rights, but MESSES and WRONGS!!!! What LGBTs are doing are NOT inherent, but chosen and learnt INHUMAN and not even animal behaviour!! Let us resurrect their conscience, please. Thanks

    1. The only ressurrection of conscience needed here is for people like you Andrew Agoro. There are very accomplished noteworthy LGBT people – who I would not dare to say are messes or wrong or inhuman or worse than animals. (By the way there is nothing wrong with animals. They are magnificent and authentic in their instincts souls and beings) . Here are some of the greats born before 1800 . After you read all about all these fantastic humans who happen to be gay let me know and I will work on the modern list of greats!

      Niankhkhnum and Khnumhotep (fl. 2450 BC) Egyptian overseers of manicurists in the royal palace
      Buried in joint tomb in Saqqara provided by Pharaoh Niusere, wall paintings depict them in intimate embrace, describe them as “Joined in life and joined in death.”

      David (10th cent. BC) 2nd King of Israel (reign. c.1010-971/961 BC)
      Slayer of Goliath, musician and military leader. Famous for his friendship with Jonathan (son of King Saul), whose early death he lamented: “Thy love to me was wonderful, surpassing the love for women.”

      Sappho of Lesbos (c.620-c.560 BC) Greek poet
      The first writer of lyric poetry, which survives only in fragments. Founded a school for girls, to whom she wrote romantic love poems. Her birthplace gave rise to “Lesbian” as an erotic term. Plato called her “The Tenth Muse.”

      Harmodius and Aristogiton (6th cent. BC) Greek political figures
      Lovers famous for overthrowing the tyrant Hipparchus in 527 BCE, thereby inaugurating Athenian democracy. Celebrated for their mutual devotion and love of liberty. Many statues of the pair survive.

      Socrates (469-399 BC) Greek philosopher
      Practiced educational method using analytical cross-examination, emphasizing self-knowledge and rejection of received opinion. Dialogues with his pupils recorded by Plato. Sentenced to death for “corrupting” the youth of Athens.

      Plato (c.427-347 BC) Greek philosopher
      Key figure in Western philosophy, founder of the Academy in Athens, pupil of Socrates and teacher of Aristotle. Dialogues The Symposium and Phaedrus celebrated the spiritual love of youths, but tolerated backsliding. Love poems to Aster.

      Alexander the Great (356-323 BC) King of Macedon
      Conquered most of Greece, Persia, Asia Minor, India & Egypt (founded the city of Alexandria), transmitted Hellenic values across the civilized world. Mourned the death of his lover Hephaestian with extravagant funeral rites.

      Virgil (Publius Vergilius Maro) (70-19 BC) Roman poet
      Chief writer of classical Latin poetry. Epic The Aeneid glorifies the legendary founder of Rome. Idealized pastoral Eclogues celebrate unrequited love of the shepherd Corydon for the beautiful Alexis.

      Dong Xian (1st cent. BC) Chinese favorite
      Powerful male concubine of Emperor Ai (r. 6 BC-AD 1), who one day cut off his sleeve rather than wake up Dong Xian, who lay sleeping across it, giving rise to “the passion of the cut sleeve” as the Chinese term for gay love.

      Hadrian (Publius Aelius Hadrianus) (AD 76-138) Roman emperor
      Patron of art, innovative architect (the Pantheon; his villa at Tivoli), under whose enlightened reforms the empire flourished. Deified his lover Antinous, icon of male beauty, who mysteriously drowned in the Nile.

      Abu Nuwas (c.757-c.814) Arab poet
      Master of witty, erotic love poetry (ghazal), celebrating wine, beautiful boys and song. Famed for his mockery of taboos as the court jester in Baghdad: “Away with hypocrisy … I want to enjoy everything in broad daylight.”

      St Anselm (1033/4-1109) Italian-French-British prelate and scholastic
      Archbishop of Canterbury from 1093. Though committed to celibacy, wrote romantic love letters to former companions in Benedictine monastery of Bec in Normandy, indicating yearning and frustrated desire.

      St Aelred of Rievaulx (c.1110-1167) English monk
      Born Northumbria, educated in the court of King David of Scotland, entered Cistercian monastery of Rievaulx (became abbot 1147). Celebrates intimate friendship in Speculum Caritatis & De Spirituali Amicitia: “God is friendship.”

      Hafiz (Mohammad Shams Od-Din Hafiz) (c.1319-c.1389) Persian poet
      Dubbed Sugar-Lips for his sensuous lyrics, many in praise of rough trade. Regarded as a Sufi mystic, but preferred taverns to mosques. His tomb in Shiraz (southern Iran) is a place of pilgrimage.

      Donatello (c.1386-1466) Italian sculptor
      Founder of modern sculpture (i.e. in the round), reviver of classical antiquity as in his expressive and homoerotic bronze statue of David (a key marker of the birth of the Renaissance) and marble St George.

      Mehmet II, the Conqueror (c.1430-1481) Sultan of Turkey
      Captured Constantinople in 1453 (renamed Istanbul), defeated the Byzantime Empire and founded the Ottoman Empire (incl. Greece, Serbia, Albania). Captured Christian youths were placed in his harem. Patron of learning.

      Marsilio Ficino (1433-1499) Italian humanist, philosopher
      Reconciled Classical and Christian ideals in Neoplatonism. Revived the Platonic Academy and coined the term “platonic love.” Wrote Commentary on the Symposium and the first trans. of Phaedrus for his protégé Giovanni Cavalcanti.

      Leonardo da Vinci (1452-1519) Italian painter, scientist, inventor
      Renaissance “universal genius”, studied art, anatomy, aeronautics, architecture, engineering, hydro-dynamics. Mona Lisa and The Last Supper have come to symbolize the essence of art. Imprisoned for sodomy.

      Michelangelo (Buonarroti) (1475-1564) Italian sculptor, painter, architect, poet
      Portrayed heroic male nudes in sculpture, esp. David, Dying Slave, Medici tombs, and frescos The Last Judgment & Sistine Chapel ceiling. Designs for St Peter’s, Rome. Wrote homoerotic love sonnets.

      Julius II (Giuliano Della Ròvere) (1443-1513) Italian pope
      Established control of the Papal States over many territories. Patron of artists incl. Bramante and Raphael. Commissioned Sistine Chapel ceiling and his tomb from Michelangelo.

      Benvenuto Cellini (1500-1571) Italian sculptor, goldsmith
      His skills ranged from exquisitely jeweled salt cellars to powerful military fortifications; his masterpiece is the bronze Perseus holding up the Head of Medusa. Wrote lively Autobiography while imprisoned for sodomy.

      Michel Eyquem de Montaigne (1533-1592) French essayist, politician
      Skilled diplomat; in 1580 he retired to his estates in Bordeaux, became mayor, began writing Essays that established modern French prose style. “On Friendship” was inspired by his love for a neighbor.

      Sir Francis Bacon (1561-1626) British lawyer, scientist, philosopher
      King’s Counsel and Lord Chancellor under James I. Advocated empirical science in The Advancement of Learning and New Atlantis. Wrote pithy and penetrating Essays; “Of Friendship” celebrates male love.

      Christopher Marlowe (1564-1593) English playwright, poet
      Tragedies incl. Doctor Faustus, Tamburlaine the Great, & Edward II, which sympathetically portrays gay love. Homoerotic passages in Hero and Leander and mythological poems. A rebel, murdered in a tavern.

      William Shakespeare (1564-1616) English playwright, poet
      The full range of human life is encompassed by his plays, some with ambiguous plots in which a boy actor plays a girl disguised as a boy. His Sonnets describe his love for his “Master-Mistress” as well as a “Dark Lady”.

      James VI & I (1566-1625) King of Scotland (from 1567) and England (from 1603)
      United England & Scotland and brought peace to Europe, but frequent disputes with his own parliament, who censured his love for his favourites, esp. George Villiers, created Duke of Buckingham. Set up committee to translate the Bible (King James Version).

      Michelangelo Merisi da Caravaggio (1571-1610) Italian painter
      His style of dramatic realism had a wide impact on European painting. Voluptuous homoerotic figures, incl. saints modeled on his boyfriends. A hot-tempered man, often involved in street violence.

      Catalina Erauso (1592?-1650) Spanish-Mexican soldier
      She left the convent for a life of adventure, became a soldier, was praised by the Spanish Crown for heroic military services, dubbed “The Second Lieutenant Nun”, granted permission by Pope Urban VII to dress as a man.

      Christina (1626-1689) Queen of Sweden
      Clever and beautiful, an “Amazonian” cross-dresser who refused to marry. Attracted great artists and thinkers (incl. Descartes) to the court of Sweden. Became Catholic convert in 1667, retired to Rome, patron of Bernini and Corelli.

      Jean-Baptiste Lully (1632-1687) Italian-French musician, opera composer
      Director of the Opera under Louis XIV, composed many works featuring ballet as an important part of the opera. Became very wealthy and engaged in scandalous homosexual affairs, while keeping a mistress as “cover”.

      Ihara Saikaku (1642-1693) Japanese novelist
      Homosexual love was his major theme, esp. in The Great Mirror of Male Love (1687), a collection of short stories about love between samurai men & boys, monks & boys, and male actor-prostitutes in kabuki theatre.

      Johann Joachim Winckelmann (1717-1768) German librarian, art historian
      Established Neoclassical taste throughout Europe with his History of Ancient Art, using Greek art as a univeral touchstone. Celebrated the ideal beauty of the nude male in a book dedicated to his lover Friedrich Reinhold von Berg.

      Frederick II, the Great (1712-1786) King of Prussia
      Ideal Enlightenment ruler, military genius, musician, composer for the flute, correspondent with intellectuals incl. Voltaire. Forced by his father to marry, but built a Temple of Friendship at his palace at Sans Souci.

      Eleanor Butler (1737-1829) and Sarah Ponsonby (1755-1831) Anglo-Irish gentlewoman
      Eloped together and settled in Wales. Many Romantic authors visited the celebrated “Ladies of Llangollen”. Though idealized for their romantic friendship, some contemporaries called them “sapphists”.

      Jean-Jacques-Régis de Cambacérès (1753-1824) French lawyer
      Arch-Chancellor of the Empire under Napoléon Bonaparte. Drafted the Code Napoléon, which omitted any reference to sodomy (confirming the decision of the Constituent Assembly in 1791), thus decriminalizing homosexuality.

      “Raucourt” (Françoise Saucerotte) (1756-1815) French actress
      Star of the Comédie Française, protected by Marie Antoinette, admired by Napoléon. “Married” a female opera singer and presided over the Anandrynes, a lesbian secret society. Her funeral was attended by 15,000 people.

      William Beckford (1760-1844) British art collector, writer
      Wealthiest man in England, connoisseur and collector of art and books, builder of a “Gothick” mansion, Fonthill Abbey in Wiltshire, author of the oriental novel Vathek (1786). Ostracized by society for his homosexuality.

      Alexander Freiherr von Humboldt (1769-1859) German explorer, naturalist, scientist
      Scientific expeditions to South America (Voyage aux Regions Equinoxiales) & Central Asia, traveled with young companions, studied botany, geology, geography. Left his estate to his valet-lover.

      Rev John Church (c.1782-c.1835) British dissenting minister
      Popular preacher, built the Surrey Tabernacle meeting house in London. Performed funerals for men hanged for sodomy, and blessed gay marriages at The Swan male brothel in Vere Street. Imprisoned for two years for homosexuality.

      George Gordon, Lord Byron (1788-1824) British poet
      Popular Romantic poet (Childe Harold’s Pilgrimage, Don Juan), creator of the brooding “Byronic hero”. Public scandals involving women, but also many private affairs with men. Died helping in the campaign for Greek independence.

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