Homosexuality is criminalised in most African countries. Many nations impose hefty prison sentences on those convicted of offences.⁽²⁾ Sudan, Mauritania, Somalia and parts of Nigeria go as far as to impose the death penalty on those convicted, under their particular laws.⁽³⁾ In Uganda, the Penal Code criminalises “carnal knowledge of any person against the order of nature.” In addition the country tabled a controversial anti-homosexuality bill in Parliament in October 2009. The overarching objective of the bill is to prohibit sexual relations between persons of the same sex and impose penalties for such sexual relations,⁽⁴⁾ including the death penalty for those convicted of offences. People who have knowledge of alleged homosexual behaviour and do not report the behaviour also face potential penalties, including imprisonment.⁽⁵⁾ Against the background of this anti-homosexual rhetoric in Uganda, the Rolling Stone tabloid published an inflammatory article that revealed the identities of alleged homosexuals. This CAI paper discusses the tabloid’s publication, the subsequent court case and the Court’s bold judgment.

The Rolling Stone tabloid’s anti-homosexuality publication and the High Court application

On 2 October 2010, the Rolling Stone tabloid published names, addresses and details of places frequented by alleged homosexuals. The headline of the publication read “100 pictures of Uganda’s top homos leak.” A sub-title of the article said: “Hang them! They are after our children!” The Civil Society Coalition on Human Rights & Constitutional Law (CSCHRC), through its members (the applicants), filed a complaint in the High Court of Uganda against the Rolling Stone tabloid and its managing editor, Giles Muhame (the respondents). The applicants sought a permanent injunction against the respondents from publishing injurious information, an order of compensation for the pain and anguish caused to the applicants as well as payment of the costs of the application.⁽⁶⁾ The complaint resulted in the Court issuing an interim order on 1 November 2010. The interim order restrained the editors of the publication from publishing further information regarding alleged homosexuals until final determination of the case.

The Court hearing

Following an initial postponement of the hearing of the case on 23 November 2010, the case was heard on 26 November 2010 before Justice VF Kibuuka Musoke. Lead Counsel for the applicants, Henry Honoria, argued that the case involved constitutional issues – that is, an infringement or alleged infringement of a number of rights guaranteed under the Ugandan Constitution had taken place. He argued that the Rolling Stone publication violated the right to dignity, privacy, freedom of movement and liberty and the right to life of the applicants. In particular, Counsel argued that the publishing of the applicants’ details, including where they lived, infringed the applicants’ rights to privacy. Counsel argued that the call to hang all homosexuals amounted to a threat to the right to life of the applicants.⁽⁷⁾

Counsel for the respondents, Edward Akankwasa, on the other hand argued, amongst other things, that the applicants should not be entitled to the relief sought in the application. He argued that the applicants had waived their rights to privacy by exposing themselves as homosexuals on the internet. He argued that no evidence had been presented to substantiate that the applicants’ rights to freedom of movement had been infringed. In addition, he argued that due to homosexuality being a criminal offence in Uganda under the Penal Code and because the applicants admitted homosexuality, they had not come to Court ‘with clean hands’ and therefore should be denied relief.⁽⁸⁾

The Court’s decision

On 3 January 2011 the Court issued its final ruling.⁽⁹⁾ It granted a permanent injunction preventing the Rolling Stone tabloid and its managing editor, Giles Muhame, from further publications that reveal the identities and homes of the applicants or any other alleged homosexuals. The Court also awarded UGX 1,500,000 (US $640) to each applicant in damages and ordered the respondents to pay the costs of the application.
The Court, in considering whether the publication infringed, or threatened to infringe the rights of the applicants, made a number of important findings:

- It held that the case was not per se about homosexuality, but rather, whether or not fundamental rights had been infringed or threatened to be infringed;
- It confirmed that article 50 (1) of the Constitution gave the Court competence to deal with rights that have been infringed as well as rights that are being threatened to be infringed;
- It held that “clearly the call to hang gays in their dozens tends to tremendously threaten their right to human dignity”;
- It held that revealing the addresses of alleged homosexuals with the intention of “fighting gayism” infringed the applicants’ rights to privacy;
- The Court held that the publication was a threat to the right to life of the applicants.

Concluding remarks

The judgment is a bold move on the part of the High Court of Uganda. It sends out a clear signal to all members of Ugandan society that the Constitution protects the rights of all citizens, regardless of their perceived sexuality. It also sends out a specific message to media houses to report responsibly. As stated by the Director of the Human Rights and Peace Centre at Makerere University, “it serves as a wake-up call to media houses that are making a mockery of the principles of freedom of speech and responsible reporting.”⁽¹⁰⁾ Despite the Court’s bold move however, many Ugandans still live in fear of persecution due to their sexual orientation. David Kato, whose picture was featured on the front page of the controversial Rolling Stones issue, received several death threats and was murdered in his home on 25 January 2011.⁽¹¹⁾

Ugandans and the international community need to continue to call upon leaders in the country to abandon the anti-homosexuality bill. Leaders should be pressured to follow the international trend to decriminalise homosexuality. This will go a long way to ensuring that the rights enshrined in the Constitution are afforded to all Ugandans.

NOTES:

(1) Contact Nicola Whittaker through Consultancy Africa Intelligence's Rights in Focus Unit (rights.focus@consultancyafrica.com).
(2) For example, Zambia, Malawi, Kenya, Tanzania, Gambia and Sierra Leone all impose sentences ranging from 11 years to life imprisonment for those convicted of offences. See International Gay and Lesbian Human Rights Commission (IGLHRC) website, http://www.iglhrc.org.
(3) International Gay and Lesbian Human Rights Commission (IGLHRC), http://www.iglhrc.org.
(4) The Anti Homosexuality Bill No. 18 of 2009, http://www.ugandans4rights.org.
(5) See article 14 of the Bill, http://www.ugandans4rights.org.
(6) Ruling of Justice VF Musoke Kibuuka under case number 163 of 2010, http://www.ugandans4rights.org.
(7) Author present at court hearing on 26 November 2010.
(8) Ibid.
(9) Available at http://www.ugandans4rights.org.
(10) Statement of Professor Oloka-Onyango, quoted in the CSCHRCL press release, New Vision, 4 January 2011, http://www.newvision.co.ug.
(11) Jeffrey Gettleman, ‘Ugandan who spoke up for gays is beaten to death’, The New York Times, 27 January 2011, http://www.nytimes.com.

Written by Nicola Whittaker ⁽¹⁾