Sets Dangerous Precedent; Inhibits Advocacy, HIV Outreach
July 11, 2014

The deeply flawed High Court decision in this case sacrifices freedom of expression and assembly in the pursuit of a discriminatory political agenda. By the court’s logic, educating people about the law would incite them to commit crimes.

Neela Ghoshal, senior researcher, LGBT rights

(Nairobi) – The decision of the Ugandan High Court published on July 9, 2014, endorsing the government closure of a lesbian, gay, bisexual and transgender (LGBT) rights workshop violates the right to freedom of assembly, Human Rights Watch said today. Justice Stephen Musota ruled against four LGBT rights activists who had sued the ethics and integrity minister, Simon Lokodo, for shutting down a February 2012 workshop.

The judge ruled that the workshop participants were “promoting” or “inciting” same-sex acts. “Carnal knowledge against the order of nature” is criminalized under Uganda’s Penal Code. Justice Musota rejected the activists’ argument that the purpose of the workshop was to develop human rights advocacy and leadership skills, finding that such objectives were simply a cover for promoting same-sex acts. The judge reasoned that human rights training on LGBT rights is itself a form of incitement to engage in prohibited same-sex practices. The plaintiffs are appealing the ruling to the Appeals Court.

“The deeply flawed High Court decision in this case sacrifices freedom of expression and assembly in the pursuit of a discriminatory political agenda,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “By the court’s logic, educating people about the law would incite them to commit crimes.”  

At the time of the workshop, the Anti-Homosexuality Act, 2014, which criminalizes the so-called “promotion of homosexuality,” was not yet in effect.

Freedom and Roam Uganda (FARUG), a group that works for the rights of lesbian and bisexual women and transgender people, held the workshop at a hotel in Entebbe, on February 12, 2012. Minister Lokodo personally participated in the raid with his police escort, confiscating materials and threatening to arrest participants.

In March 2012, the workshop organizer, Kasha Jacqueline Nabagesera, and three participants – Frank Mugisha, Pepe Julian Onziema, and Geoffrey Ogwaro – filed a civil lawsuit against Minister Lokodo and the attorney general, contending that closing down the workshop violated their constitutional rights. After a series of postponements, the High Court heard the case in December 2013.

The judgment, orally delivered on June 24 and published in full on July 9, relies on an affidavit by one alleged “ex-gay,” who said that the organizations were “training homosexual youths to safely engage in the same-sex practices by distributing condoms.” Justice Musota relies on this claim to support his judgment, finding that “[a]ll these activities amount to direct or indirect promotion of same-sex practices.”

“From the High Court judgment, it could be inferred that it is now illegal in Uganda to conduct HIV prevention activities, targeting men who have sex with men, including the distribution of condoms,” Ghoshal said. “Such an outrageous position should rightly scare anyone who cares about the prospects for public health in Uganda, and about issues as basic as saving lives.”

The judgment notes as justification for closing down the workshop that article 43 of Uganda’s constitution and article 27 of the African Charter on Human and Peoples’ Rights permit limitations on the rights to freedom of expression and of assembly in the public interest or on grounds of “morality.” However, it ignores the requirement for such limitations to be necessary, proportionate and non-discriminatory.

Limitations to protect “morals” are also permitted under the International Covenant on Civil and Political Rights, to which Uganda is a state party. But the UN Human Rights Committee, which interprets the covenant, has advised governments that, “limitations... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination.”

Human Rights Watch has documented that the Ugandan government is deploying hostile rhetoric and an array of tactics to intimidate and obstruct the work of nongovernmental organizations on sensitive issues such as governance, human rights, land, oil, and the rights of LGBT people. Tactics include not only closing meetings, but also forcing representatives of independent groups to issue apologies, suspensions of activities, as well as occasional physical violence, threats, harassment, and heavy-handed bureaucratic interference in the registration and operation of nongovernmental groups.

“The court’s judgment is yet another blow to activism and advocacy, essential elements of any human-rights-respecting democracy,” Ghoshal said. “Uganda’s international partners should speak up about the threats to LGBT and other nongovernmental groups, particularly the ongoing escalation in government hostility toward freedom of expression and association.”

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