LGBTI Ugandans have renewed reason to hope that they might gain a powerful ally in their fight against discrimination by anti-LGBTI employers and landlords.
They can base that hope on the Constitutional Court, which last month held a hearing on a legal challenge to a provision of Ugandan law that has been interpreted as prohibiting Uganda’s Equal Opportunity Commission from investigating complaints brought by LGBTI people.
That provision bars the EOC from taking up issues involving behavior that is considered to be “immoral and socially harmful” or “unacceptable by the majority of the cultural and social communities in Uganda.” As the legal rights advocacy group HRAPF (Human Rights Awareness and Promotion Forum) explains:
“This section has the effect of preventing the EOC from hearing matters regarding marginalised communities such as women, LGBTI persons, and sex workers as long as their behaviour are construed by the majority to be ‘immoral and socially harmful and unacceptable.’ “
HRAPF filed suit against that provision shortly after the Equal Opportunities Commission Act was passed in 2007, but the courts have dragged their heels instead of deciding the case. A panel of judges heard arguments in 2011, but never made a decision.
The Constitutional Court needed to hold a second hearing because the delay, compounded by turnover on the court, meant that the original judges could no longer complete their duties to reach a decision. At the new hearing on April 25, the panel of judges was completely different from the one that heard the case in 2011.
The EOC was created to fight discrimination on the basis of sex, race, color, ethnic origin, tribe, creed, religion, social or economic standing, political opinion, disability, gender, age or based on history, tradition or custom. The EOC is also supposed to evaluate the need for affirmative action programs to help marginalized groups.
None of which has been accomplished for LGBTI Ugandans.
Adrian Jjuuko, executive director of HRAPF, expressed optimism about the case: “We are excited that the rehearing finally happened, and we hope that the judgment will this time round not take forever as it did before.”
After eight years in operation, the EOC tribunal might start advocating for fair treatment of LGBTI people, Jjuuko said.
Referring to the new hearing, he said, “This gives hope to the LGBTI and other minorities that their cases will be heard by the Commission in exactly the same way as the others.”
Uganda’s Attorney General did not attend the court hearing.
“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).”
Among other arguments, attorneys for HRAPF and Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL) stated about the contested section:
“It encouraged discrimination that was already prohibited by the Constitution …
“The provision was inconsistent with Article 32 of the Constitution, which provides for affirmative action in favour of the marginalised….
“The Constitution 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.”
- 7 years of delay stymie Ugandan anti-bias lawsuit (July 2015, 76crimes.com)
- Uganda helps minorities, except those most in need of help (July 2015, 76crimes.com)
- Human rights defenders urge respect for LGBTI Africans (May 2015, 76crimes.com)
- African Commission backs LGBT rights (May 2014, 76crimes.com)
- Uganda OKs bill that allows repression of activist groups (Nov. 27, 2015, 76crimes.com)
- In Uganda, new bill threatens LGBTI advocates (August 2015, 76crimes.com)
- Anti-gay fervor in Uganda hurts region’s AIDS projects (May 2014, 76crimes.com)