BY DEO WALUSIMBI
Barely two months since the controversial anti-homosexuality bill was passed by the Ugandan Parliament, chapter four, a civil human Liberties Organization and West Budama North MP also a lawyer, have joined hands to render an opinion on the constitutionality of the bill.
The bill is currently awaiting President Museveni’s signature to become law.
The Unwanted Witness-Uganda, has reliably leant that the duo have critically scrutinized the passed bill and thus coming up with six opinions regarding its illegality, hence asking for Museveni’s indulgence to consider them valid by rejecting the bill.
A document in which a set of six opinions are embed, of which unwantedwitness-Uganda obtained a copy was sent to Museveni on February132014,copied to the Vice President Edward Ssekandi, the Prime Minister Amama Mbabazi and the Attorney General Peter Nnyombi.
“We have been instructed by our client …. to perform a legal analysis of the Anti-Homosexuality Bill to determine whether it complies with the Uganda Constitution and Uganda’s obligations under International law” the activists said, before concluding that “We have concluded that the bill violates the Ugandan Constitution of 1995 ad Uganda’s obligations under international law in numerous respects”
The activists therefore, remind the President of his obligations when the say that “Because the President is obliged to protect and defend the constitution of Uganda, it [analysis]concludes that if the Bill is presented for his signature in materially the same form as the text we reviewed, the law requires him to reject it”
Activists say in part of their analysis of the law that, “Many of those provisions are commonly understood to borrow heavily from a 2009 version of the bill which has been made public”
They maintain their review of the passed bill reveals that its core provisions are “unconstitutional”
The lawfulness of the bill passed version of the law
Activists begun their highlight of the illegalities, by referring to the “objectives and Directive principles that guide the state policy according to the Constitution”
“Every effort shall be made to integrate all the peoples of Uganda while at the same time recognizing the existence of their ethnic, religious, ideological, political, cultural diversity” they said, referring the President to the Constitution.
They go further to tell the President that “The constitution of the republic of Uganda guarantees all citizens of Uganda certain human rights and freedoms, including, Inter alia, the right to fundamental freedom[Article 20], equality and freedom from discrimination[Article21] and the right to privacy of the person, home, and other property [article 27”
They went further to justify their argument when they said that“By regulating the behavior of gay and lesbian Ugandans while not regulating similar behavior by heterosexual Ugandans, the bill discriminates against the former and violates the right to equality enshrined in Article 21”
“Because the bill attempts to criminalize that which normally takes place privately in the home, and in order to be enforced would require either physical intrusion into the home or public revelation of that which takes place in the home, itviolates the rightto privacyin one’s home guaranteed by Article 24”activists tell the President to focus on invading of human rights to privacy.
Speaking about section three of the bill, activists assert that it violates article 21 of the Constitution when they said that “It defines aggravated homosexuality” they noted, explaining that “Among other things, this includes touching another person with the intention of engaging in homosexual conduct when one is HIV positive, whether one knows his/her status or not” they thus conclude that section three discriminates unconstitutionally in violation of article 21.
These activists also say that “Section 13 of the bill prohibits persons from promoting or sponsoring homosexuality” which they again say that would criminalize free speech such as “writing an article in opposition to the bill or providing commentary in support of gays or lesbians”
“Furthermore, this section would criminalize mere association with gay and lesbian in the Country if that association were seen to give counsel, support or guidance. All of this would violate article 29’s guarantees of freedom of expression, conscience and association” they said before attacking the rationale under which the bill was passed.
“According to various sources which we are yet to confirm it is said that the Anti-homosexuality bill was passed without the requisite quorum by the 9thParliament” they noted.
This they say is contrary to article 23of the constitution and the parliamentary rules of procedures 2012, which state that the quorum of Parliament shall be one-third of all members of Parliament entitled to vote and that quorum shall only be required at the time when Parliament is voting on any question.
“If indeed the bill was passed without the requisite quorum, it cannot stand and, if assented by the President, would be null and void on this ground alone with no reference to any other provisions of the Constitution” activists said.
Activists concluded their analysis of the bill, by saying that it violates Uganda’s obligations to the International law.
“The United Nations Human rights Council, which has interpreted the International Covenant on Civil Political Rights which Uganda, is a signatory has held laws criminalizing consensual homosexual conduct violate the ICCPR’s privacy protections in Article 17 of the ICCPR and its prohibition on discrimination in Articles 2 and 26of the ICCPR. Because the bill criminalizes the homosexual conduct, it violates the ICCPR and therefore Uganda’s International obligations under it”
President obliged to reject the bill
After making a critical analysis of the bill, activists urged President Museveni to reject the bill as a move to respect the constitution, which is the supreme law of the land.
“Article 99states that it shall be a duty of the President to abide by, uphold and safeguard this Constitution and laws of Uganda” they guided the President, adding that “These provisions require that when an unconstitutional bill is presented to the President pursuant to Article 91 (1) and (3) (a) of the Constitution, the President is obliged to reject such a bill” they said.
They also warned the President that if he disregards their opinion to sign the bill into an enforceable law, he would be violating the dictates of the Constitution.
“Failure to do so would violate the President’s duty under the constitution to uphold the same”