Invisibility and stigma go hand in hand. Since the Anti-Homosexuality Act (AHA) was passed in December 2013 and subsequently annulled by the Constitutional Court in 2014, members of the lesbian, gay, bisexual, and trans* community in Uganda have experienced a series of blows to their collective morale following a spate of raids orchestrated through state organs, mainly the Minister of Integrity Simon Lokodo and the Uganda Police Force.
Despite reassurances by some LGBT rights activists about the cozy nature of their relationship with then IGP Kale Kayihura, the LGBT community has largely remained unable to organize publicly. Without the draconian AHA, Uganda Police Force (UPF) resorted to the Public Order Management Act (POMA), passed around the same time as the notorious ‘Mini-skirt’ law (The Anti-Pornography Act) in a period of deep repression scapegoated with moral panic.
The government previously took a lay-low approach towards the LGBT community following the international criticism, which arose AHA between 2009 and 2014 and shone a spotlight on the regime’s regressive human rights practices. But in 2016, according to a Human Rights Watch Report, the LGBT community was shocked into a new era of unprecedented state sponsored violence when armed members of UPF stormed a night-club in Kampala on the third night of the week long annual Pride Event. The police detained hundreds of people for nearly 90 minutes, then proceeded to assault participants (especially trans* people), beatings, humiliating people, groping and fondling them, taking their photos and threatening to publish them and confiscating cameras. 1 person jumped from the sixth floor window, sustaining serious injuries to their spinal cord, and 16 people were arrested without formal charges or prosecutions levied against them. The Police claimed that the social event was an illegal gathering that did not have police clearance as required by POMA. The subsequent Pride event in 2017 was cancelled because the Minister of Ethics and Integrity deemed it an illegal gathering under POMA.
Activists have long lamented that the limits set by POMA were irrational and vague, an ordinary person is unable to contemplate the conduct it forbids and the conduct it does not. This was one of the concerns raised by then Taala Foundation Director, Noah Mirembe, in a joint meeting with the EU representatives in Kampala last year. As a result of the absence of regulations to govern the implementation of POMA, the law had become an instrument of political oppression. “It criminalizes legitimate political dissent, debate, discussion and any other form of public political expression. It criminalized membership of (political opposition and) other members of society. This is neither a legitimate nor a legal purpose of law”(page 63 of the Judgment). This has been evident in the implementation of the law over the years.
In May 2018, the same Minister accompanied by the Police, cancelled an event to commemorate the International Day Against Homophobia, Biphobia, and Transphobia event in Kampala. He also threatened to cancel the annual Nyege Nyege Music festival over allegations of promoting homosexuality and therefore being an illegal gathering. Another violent incident occurred last November when the UPF raided a known gay-friendly bar in Kampala on a supposed narcotics tip. They invited a local news broadcaster to cover the raid and proceeded to parade those loaded onto the waiting police trucks. These events have sent a chill down the community spine, highlighting the state’s willingness to use all available machinery to target visibility of the LGBT community.
Last Thursday 26 March 2020, the Constitutional Court at Kololo delivered a ruling that will offer some reprieve for LGBT organizing in Uganda. In a majority 4-1 decision, the court delivered a resounding critique of the Public Order Management Act, a law enacted by Parliament in 2011 to regulate public meetings and gatherings. In HURINET & others versus Attorney General Constitutional Petition no 56 of 2013, the petitioners challenged various provisions of the Public Order Management Act including Section 8 which majority of the court agreed had been enacted as a blatant attempt at disregarding the checks on legislative powers, specifically Article 92 which prohibits parliament from passing retrogressive legislation in response to court rulings.
They found the law to be unconstitutional in so far as it contained retrogressive measures presumably passed by the legislature in response to an earlier court decision in Muwanga Kivumbi versus Attorney General, which overturned provisions with a similar effect in the Police Act. The court expressed that it is unfortunate that, “Uganda Police Force believes POMA empowers them to violently disperse or to ban public meetings of a political nature or even social gatherings organized by certain categories of individuals.”
The lead judgment handed down by Justice Cheborion offers guidance on the exercise of the right to freedom of expression in relation to the right to assemble as guaranteed under Article 29 of the 1995 Constitution of Uganda. The court criticized the use of the POMA as a tool directed to partisan purposes under the guise of preserving public order, stating that law enforcement organs in democratic societies do not suppress public gatherings or peaceful protests in the name of protecting public order; they have absolutely no legal authority to stop the holding of public gatherings on grounds of alleged possible breach of peace if such gatherings were allowed to proceed.
The police’s duty is to regulate the holding of public gatherings and ensure there is not breach of peace, they may provide security for those who seek to lawfully exercise their right to assemble peacefully and prevent others from interfering with that right. They stated unequivocally, “Public processions, meetings, or gatherings irrespective of whether they are of a political, religious, or social nature are protected by the constitutionally guaranteed freedoms of expression, free speech, and assembly.”
The notion that public gatherings should be held without inconveniencing anyone is without merit. Further, police permission is not required before the public can assemble or hold a demonstration, and unlawful orders including those issued by law enforcement agencies such as police, may be lawfully disregarded. The court also made positive reference to the historical influence of the development of the law in England and the law here in Uganda, embracing the positive evolution of the right to assemble as protected in democratic societies.
This means that Ugandan courts could theoretically be persuaded to embrace such similar positive developments especially for marginalized groups, thus furthering protections for these individuals. This decision ushers in a new era of accountability where citizens, who are made aware of their legal entitlements and responsibilities, can hold state actors accountable for their actions. It calls for a balancing of rights between the individual and the greater public interest. The court further approvingly cited its own past cases addressing this issue. In Moses Mwandha versus Attorney General, the court stated, “it is the duty of every government to listen to the voice of its people and to attend to their grievances, lest this country returns to the dark days of the past.” They also cited the Col (Rtd) Dr. Kizza Besigye versus Attorney General case, which held that “One of the key tenets of democracy is that those with dissenting or minority opinions must be allowed to express them within the law. Whilst doing so they commit no offence.” These developments affirm the judicial position that LGBT identity is in itself not criminalized, neither is their presence in public space or discussion.
Credit goes to Chapter Four Uganda for posting the judgment. Download the full judgement here:
https://chapterfouruganda.org/sites/default/files/downloads/POMA-Judgment.pdf