{UAH} Here we go again!!!!! The Observer - Museveni behind gay law victory?
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The Observer - Museveni behind gay law victory?
Sunday, 03 August 2014 21:24
President Museveni signs the now quashed Anti-gay bill into law in February
In what appeared like a hurried ruling on Friday, the Constitutional court struck down the Anti-Homosexuality Act, leaving supporters licking their wounds and critics jubilating. The five judges found the controversial law to have been passed without parliamentary quorum on December 20, 2013, and accordingly quashed it.
With the lack of quorum easily proven, the court didn't have to listen to substantive issues in the petition. Assented to by President Museveni in February 2014, the law imposes life imprisonment for aggravated homosexual acts, besides harshly punishing a wide range of related offences.
While popular at home, the law was abhorred in western countries, many of which reacted by cutting off aid to Uganda. With complaints about quorum being raised even before the bill became law and questions emerging about the constitutionality of some of its provisions, it was expected that a court showdown might result in annulment.
However, not even the activists who petitioned the Constitutional court could have expected the swift hearing and judgment. This has led to speculation that perhaps President Museveni, who initially criticised the bill only to become its champion later on, sought to use the court to do what he couldn't do for political reasons.
The petition was filed in March 2014 by an NGO and some prominent individuals, including Prof Morris Ogenga-Latigo, Prof Joe Oloka-Onyango, Fox Odoi and Andrew Mwenda. In June, the court registrar informed the petitioners and the attorney general that conferencing (lawyers discussing contentious issues) would be held in August.
The registrar also informed both parties that the petition would be heard in September 2014. Surprisingly, in a court where some cases have taken five years before resolution, the hearing was pulled forward to July 30, 2014. With hearing underway, it took the court no more than two days (July 30-31) to dispose of it; another rarity.
As if that was not strange enough, judgment was ready the very next day, August 1. Even the attorney general's office was left astonished by the speed at which the matter was executed. When the case was called for an early hearing on July 30, 2014, a surprised Principal State Attorney Patricia Mutesi told court that the state was not ready to proceed.
"My lords, we came here thinking that court was going to hear the application [seeking to stay the gazetting of the Anti-Homosexuality Act] not the main petition, so we are not ready," she pleaded.
Mutesi urged the court to adjourn the case up to a future date, saying the attorney general needed more time to file supplementary affidavits and collect evidence from different government departments.
"My lords, if court proceeds today [July 30] with the hearing of the petition, the respondents' (attorney general) right to a fair hearing, which is guaranteed under article 28 [of the Constitution], will be violated," she said.
But justices Steven Kavuma, Solomy Balungi Bossa, Augustine Nshimye, Eldad Mwangusya and Rubby Opio Aweri would not listen.
They unanimously declined to grant an adjournment, saying the attorney general's chambers had filed a response to the petition and hence the respondents' right to a fair hearing was guaranteed. Unlike the AG's office, the petitioner's legal team led by Ladislaus Rwakafuzi was ready to defend their petition.
Abnormal procedure
Following the court's decision on Friday, Mutesi told The Observer that the judges had not followed the normal court process.
"We were surprised that court called for the hearing of the petition because when we appeared before the Constitutional court registrar in June 2014, he told us that the case would be heard in September but from nowhere it has been heard in July," she said.
Mutesi further noted that contrary to normal court procedure, there was no conferencing. Although the Constitution states that constitutional petitions must be handled expeditiously, the unusual speed at which this particular petition was disposed of has led to conspiracy theories.
Anti-homosexuality activist Pastor Martin Sempa, who was in court, claimed that the judges had rushed the petition to save President Museveni from the international pressure he has endured.
"We know that President Museveni is going to attend a conference next week in America and in that conference he will meet [President Barack] Obama, so he wants to go there with clean hands," Sempa said.
According to Sempa, Museveni wanted the law nullified to please western governments that have since cut aid and imposed travel bans on Uganda's leaders who are deemed to have played a prominent role in creating the law. Ever since the law was passed, the Uganda government has been under tremendous pressure.
The election of Foreign Affairs minister Sam Kutesa as president of the United Nations general assembly was almost jeopardised after human rights activists in Europe and America protested. Only recently, Kampala was forced to issue a statement claiming that the law was being misunderstood as no one would be harassed because of it.
Speaking at a news conference at state lodge Nakasero on Saturday, Museveni criticised parliament for ignoring laid-down procedure when passing the law.
"When the bills come to me, I assent to them...I don't look at how they are passed," he said.
"I know there are capable people who do that…," he added, when asked why he assented to the law even after complaining in a letter to the speaker that there was no quorum.
The president, however, denied that the quashing of the law had anything to do with his US trip. Pastor Sempa, however, wondered why the court was quick to dispose of this petition yet there are several others that have been shelved for years.
"This petition was filed in March, it was heard for two days, then judgment was delivered the following day," he noted. "This is strange because even the attorney general was taken aback. Court process normally takes time."
Sempa, a pastor at the Makerere Community Church, also claimed that "staunch Christian judges" such as Remmy Kasule, Faith Mwondah and Geoffrey Kiryabwire had been deliberately left out of the panel, thus influencing the outcome.
On the other hand, Andrew Mwenda, one of the petitioners, told The Observer that the due court process had been followed, noting that Constitutional petitions are supposed to be heard expeditiously. Mwenda further said that parliament's criminalisation of homosexuality had taken Uganda back to the 17th century.
In their judgment, the judges noted that in his reply to the petition, the Commissioner of Civil Litigation, Denis Bireije, had not specifically denied the allegation of lack of quorum.
"So in that case, we apply the Civil Procedure Act, which states that if an allegation is not denied by the respondent, it's admitted as a fact," said Justice Mwangusya, who read the judgment on behalf of his colleagues.
The judges also agreed with the petitioners that the Speaker of Parliament, Rebecca Kadaga, refused to ascertain whether there was quorum before calling for a vote on the bill.
"The act of the speaker of ignoring the rules of procedure rendered the whole process of enactment a nullity," Justice Mwangusya added.
Dr James Nsaba Buturo, an anti-gay activist who is also a former minister for Ethics and Integrity, told The Observer on Friday that they might consider pushing for a referendum on homosexuality. He described the court's ruling as a temporary setback.
"We have many options. First, we can appeal the judgment at the Supreme court. Secondly, we can push the law to be passed again in parliament, this time with quorum…" he said.
On her part, Mutesi said the state would study the judgment and then decide whether to appeal or not.
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