A huge flaw prevents Uganda’s Equal Opportunities Commission from fulfilling its responsibility for protecting marginalized people from discrimination. By law, it is not authorized to act on behalf of the most marginalized Ugandans — those who behave in ways that the Ugandan majority considers “unacceptable” or “immoral and socially harmful.”
A prime example: LGBTI people.
On July 8, Uganda’s Constitutional Court, which last summer overturned the country’s Anti-Homosexuality Act, will hear a challenge to that limitation, contained in Section 15(6)(d) of the Equal Opportunities Commission Act of 2007.
Human rights advocates challenging Section 15(6)(d) issued this report on the case:
After years of waiting for an opportunity to know the fate of the petition that was filed seven years ago challenging Section 15(6)(d) of Uganda’s Equal Opportunities Commission Act, 2007, the Constitutional Court has set Wednesday 8th July 2015 as the day for the rehearing.
By way of background, the case Jjuuko Adrian v Attorney General, Constitutional Petition No. 1 of 2009, was filed on 5th January 2009 with the support of OSIEA [the Open Society Initiative for Eastern Africa] and Sexual Minorities Uganda. HRAPF [the Human Rights Awareness and Promotion Forum], the CSCHRCL [the Civil Society Coalition on Human Rights & Constitutional Law] and a loose [Civil Society Organization] Coalition around the case has been following up on it actively.
The Equal Opportunities Commission is intended to “eliminate discrimination and inequalities against any individual or group of persons on the ground of sex, age, race, colour, ethnic origin, tribe, birth, creed, opinion or disability, and take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom for the purpose of redressing imbalances which exist against them”
The commission as established under the Act has the powers of a tribunal under Section 15 which are widely expressed but most importantly it has powers to investigate and provide a remedy on matters under its jurisdiction. These powers, if effectively used, can eliminate discrimination against minority groups.
Section 15(6)(d) is a claw-back clause, which, if implemented effectively, renders the commission incapable of carrying out the role it was created to play. This provision reads as follows:
“The commission shall not investigate
d) any matter involving behaviour which is considered to be i) immoral and socially harmful, or ii) unacceptable, by the majority of the cultural and social communities in Uganda.”
The petitioner avers that the provision is discriminatory, violates the right to a fair hearing before an impartial tribunal, and violates the rights of minorities to participate in civic affairs — all of which are protected under Uganda’s Constitution. The Attorney General is opposing the petition as being frivolous, and they are also relying on the limitation clause in Uganda’s Constitution.
The case was first heard on 3rd October 2011, but judgment has never been delivered to date. HRAPF and the partners have engaged the court in various ways, and brought the delay to the attention of many bodies including the African Commission on Human and Peoples’ Rights. Finally, an application for rehearing was filed, but instead of the court hearing the application, it sent hearing notices for the petition itself, thus effectively deciding to rehear the case.
The hearing will be at the Constitutional Court, Twed Towers, Kampala, on Wednesday, 8th July, 2015, at 9.30 am.
For more information on the case and the act, please see an earlier HRAPF publication dedicated to it in The Human Rights Advocate Magazine.
[That publication contains a package of articles about the law, including “Giving With One Hand, Taking Away With the Other: The Ugandan Equal Opportunities Commission” by Prof. Sylvia Tamale and “Protection of Individuals from Discrimination or Galvanising Discriminatory Cultural Practices?” by Adrian Jjuuko.]
- Human rights defenders urge respect for LGBTI Africans (76crimes.com)
- African Commission backs LGBT rights (76crimes.com)
- Archive of this blog’s articles about HRAPF