2 LGBTI defendants win their freedom in Uganda

Colin Stewart is a 45-year journalism veteran living in Southern…

A Ugandan judge has dismissed homosexuality-related charges against two LGBTI defendants who had been forced to appear in court four times since their arrest in January. Each time the case was adjourned after the prosecution failed to produce any witnesses against them.

Defense attorney Fridah Mutesi (Photo courtesy of HRAPF)

Again today, no prosecution witnesses appeared in court. But this time Magistrate Lilian Bucyana granted defense counsel Fridah Mutesi’s request that the case be dismissed for lack of prosecution.

The court case began in May against gay businessman Kim Mukisa, then 24, and Jackson Mukasa, 19, a transgender woman.

Before they were granted release on bail in May, the defendants had spent four months in detention, said Adrian Jjuuko, executive director of the Human Rights Awareness and Promotion Forum (HRAPF), which provided their defense.

Mukisa and Mukasa were arrested in January after Mukisa was thrown out of his house and beaten by local officials and neighbors on the basis of allegations that he was a homosexual. The pair was subjected to HIV examinations without their consent, an anal examination was performed, they were paraded before the media as homosexuals and were sent to Luzira Prison.

Jjuuko stated:

“Though dismissal of charges does not bar future prosecution as the charges could be reinstated by prosecution, the two accused persons are now free. Of course their lives have been shattered by the charges and this indeed is the greatest effect of laws criminalising consensual same-sex relations in a country that is largely homophobic.

“The dismissal of the charges is very exciting news but it also underlines the danger of having such laws on the law books.”

Today’s action concluded what was the first trial in the recent history of Uganda’s old anti-gay law, Section 145, according to LGBTI advocacy group Sexual Minorities Uganda (SMUG). Section 145 provides for up to life imprisonment for sex “against the order of nature.” ‘

Although their arrest came in the anti-gay panic that accompanied the passage of Uganda’s Anti-Homosexuality Bill in December 2013, the defendants were not accused of violating that law, which was in effect from its signing in February until the Constitutional Court overturned it on procedural grounds on Aug. 1.

This is Jjuuko’s full report on today’s court action:

The Chief Magistrates Court at Buganda Road has agreed with the prayers of the accused’s lawyer and dismissed the charges against Kim Mukisa and Jackson Mukasa.

Until the case against them was dismissed today in Uganda, the possibility of life in prison confronted Jackson Mukasa, left, and Kim Mukisa.

This is in the case of Uganda v. Mukisa Kim and Mukasa Jackson, Criminal Case No. 0085 of 2014. The two accused persons, a gay man and transwoman were arrested on the 27th and 28th of January 2014 respectively by the Police following a mob’s attempt on the former’s life.

The two were arrested on 27th January 2014 after Kim Mukisa was thrown out of his house and beaten by local council authorities assisted by residents on the basis of allegations that he was a homosexual. The police arrested Jackson first and used her to call Kim to the police station where he was also arrested. The two were subjected to HIV examinations without their consent, and one of them had an anal examination performed on him. Both were paraded before the media as homosexuals.

Kim was charged with ‘having carnal knowledge of a person against the order of nature’ contrary to Section 145(a) of the Penal Code Act Cap 120 and Jackson was charged with ‘permitting a male person to have carnal knowledge against the order of nature’ contrary to Section 145(c) of the Penal Code Act Cap 120.

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They spent seven days in police custody without being produced in court. They were only produced before court when their lawyers from Human Rights Awareness and Promotion Forum (HRAPF) wrote to the Inspector General of Police and the Uganda Human Rights Commission complaining about the continued illegal detention.

Kim Mukisa et Jackson Mukasa étaient détenus dans la prison de Luzira en Ouganda jusqu'à ce qu'ils soient libérés sous caution en attendant leur procès. — Kim Mukisa and Jackson Mukasa were held at Luzira Prison for months before their release on bail.

They were then remanded to Luzira Prison, and produced in court again on 21st January 2014 and though they were granted bail, the Magistrate insisted on a letter from the same local council officials who had thrown Kim out of his home, and also on two sureties. The Local Council authorities refused to write the letter until HRAPF lawyers told them that they would be in contempt of court if they continued to do so. A letter with a disclaimer was later written. For the sureties, the magistrate eventually accepted one surety and both accused persons were released on bail on May 7th for Jackson and May 12th for Kim, after spending a period of 4 months in detention.

From the time of their release to date, the case has been adjourned four times and each time the prosecution failed to produce any witnesses. Prayers to dismiss the case by the accused’s lawyers were not granted in order to give the prosecution more time.

Today, when the prosecution again failed to produce its witnesses, the State Attorney requested for another adjournment. The accused’s lawyer, Ms. Fridah Mutesi from HRAPF responded by asking the Magistrate, Ms. Lilian Bucyana to dismiss the case for want of prosecution. She recounted the number of times that the accused had been appearing in court without the state producing its witnesses and she concluded that the failure of the state to produce witnesses was prejudicial to her clients who have had charges that attract a penalty of life imprisonment hanging over their heads since January 2014.

The Magistrate agreed with Ms. Mutesi and ruled that “The prosecution was granted the last adjournment and has no sufficient reason to ask for further adjournment the case is hereby dismissed under S.119 of the Magistrates Courts Act.”

Though dismissal of charges does not bar future prosecution as the charges could be reinstated by prosecution, the two accused persons are now free. Of course their lives have been shattered by the charges and this indeed is the greatest effect of laws criminalising consensual same-sex relations in a country that is largely homophobic.

The dismissal of the charges is very exciting news but it also underlines the danger of having such laws on the law books.