Colin Stewart is a 45-year journalism veteran living in Southern…
Scene at Ugandan Constitutional Court hearing on challenge to the Anti-Homosexuality Act. (Photo courtesy of HRAPF via MambaOnline.com)
Judges in the Ugandan Constitutional Court have scheduled a key ruling for tomorrow in the challenge to the legitimacy of the country’s harsh new Anti-Homosexuality Act.
Yesterday the signs had seemed to point to a ruling today, as noted in yesterday’s blog post, “Ugandan court might overturn anti-gay law tomorrow.” But instead today’s court session was devoted to legal arguments over whether the Anti-Homosexuality Bill was passed without a quorum present in parliament and whether that was cause to overturn the law.
“Tomorrow is the big day,” says Adrian Jjuuko, executive director of the Human Rights Awareness and Promotion Forum — Uganda (HRAPF).
Principal State Attorney Patricia Mutesi argued today that the plaintiffs had not proven that a quorum was lacking. Attorneys for the plaintiffs argued that Speaker of Parliament Rebecca Kadaga failed to perform her duty of ascertaining whether a quorum was present when the issue was raised.
One gay-friendly observer in the courtroom — Ugandan anthropologist and social science researcher Stella Nyanzi —- reported on the scene and on the government’s forceful response to the plaintiffs’ arguments:
Lead Justice Steven Kavuma
Principal State Attorney Patricia Mutesi is brilliant! She made a strong argument in her REALLY convincing submissions. I am standing with the petitioners in this case, but I was impressed by the twists, turns and thinking that this Counsel unleashed. Powerful bulb-moments in her argument included:
1) The petitioners’ allegation that Parliament flaunted the Constitution and the Parliamentary Rules of Procedure is a matter of fact that requires evidence.
2) The evidence that the petitioners provided proves that the Speaker of Parliament did not ascertain that there was quorum, however this cannot be translated to amount to evidence that there was no quorum.
3) The Prime Minister’s statement is not evidence of the existence or absence of quorum, but rather it is evidence that he raised a challenge to the Speaker of Parliament that there was no quorum.
4) The Evidence Act requires even the Constitutional Court to exercise judicial power in accordance with the law and established principles of court.
5) The allegation of lack of quorum is a hypothetical question that cannot be answered based on the evidence provided. Doing so would be very speculative.
The rejoinder made by Counsels Caleb Araka, Jane Francis Onyango and Nicholas Opiyo strongly reiterated the gist of our petition, as well as the gist of our prayers. It was all like an episode from those captivating movies about legal suits. Court was adjourned until tomorrow at 09:30AM when we shall receive the decision of the judges on this first tier of issues in this amazingly historical petition. Aluta Continua!
Jjuuko’s report on today’s proceedings provides additional information with less personal commentary:
Adrian Jjuuko, executive director of the Human Rights Awareness and Promotion Forum (HRAPF)
Today court opened with the State submitting on the issue of quorum. PSA Patricia Mutesi argued that the Petitioners had not proved that there was no quorum that day since the Hansards [records of parliamentary debates] on which they seek to rely only record proceedings and not attendance. That the fact that the Speaker did not ascertain quorum as per the Hansards does not prove that there was no quorum that day. The burden of proving that there was no quorum squarely lay on the petitioners and they had not discharged it on a balance of probabilities. She prayed that the court dismisses the petition with costs against the petitioners.
The Petitioners were given an opportunity to respond to this, and they argued that it was the duty of the Speaker to ascertain quorum when the issue was raised. By not doing so, she flouted the Rules of Procedure of Parliament. Parliament cannot deliberately ignore the conditions of law making that are imposed upon them by the Constitution which is the Supreme law of the country. That this was an illegality that nullifies the outcomes of the procedure. As such the law should be struck down for it was passed in a manner inconsistent with the Constitution.
The Court then adjourned until tomorrow at 9.30am when they will make a ruling on the issue of quorum.
The significance of this is that a ruling in favour of the Petitioners effectively disposes of the petition since there would be no need to consider the issues of non-discrimination, privacy, freedom of expression, etc., since the law would have been struck down. A ruling in favour of the state would mean that the Court will continue hearing the matter on the other substantive grounds and make a decision as to whether the law is unconstitutional.
The [plaintiffs’] legal team remains ready to proceed on all the legal issues.
The next steps to take will also be determined by the ruling tomorrow. …
Tomorrow is the big day.
