Maverick Citizen

OPED

An unyielding judiciary could throw a potential lifeline to Uganda’s LGBTQI+ community

An unyielding judiciary could throw a potential lifeline to Uganda’s LGBTQI+ community
Participants during the annual gay pride march hold a poster reading 'Love Uganda, Hate Homophobia' in Cape Town, South Africa in March 2014. South African gays and lesbians marched in solidarity with the people of Uganda. South Africa's highest court ruled in December 2005 that it is unconstitutional to prevent gay people from marrying, making South Africa the first to legalise same-sex unions on the continent. (Photo: EPA / NIC BOTHMA)

The question arises: can the Ugandan judiciary, once again, follow in the footsteps of its counterparts in South Africa, Namibia, Botswana and Kenya? The decolonisation of courts across Africa may be the answer to dismantling discriminatory laws.

As an LGBTQI+ activist in Uganda, I have witnessed firsthand the government’s relentless intimidation, arrests and the passage of the Anti-Homosexuality Act, which has only emboldened President Yoweri Museveni’s regime to further harm the lives of queer individuals in the country. In the face of such adversity, one question lingers: Can the judiciary, unencumbered by compromise, truly save lives in Uganda?

Across Africa, courts have historically been known for affirming leaders in disputed elections, but they have not been viewed as a lifeline for queer activists challenging their governments on archaic colonial-era laws that seek to erase our existence.

However, there is hope for change. Recent cases in different African countries have demonstrated the judiciary’s potential to play an interesting role in affirming LGBTQI+ lives.

Kasha Jacqueline Nabagesera is a Ugandan LGBTQI+ rights activist and the founder and executive director of LGBTQI+ rights organisation Freedom & Roam Uganda. (Photo: Supplied)

Take South Africa, for example, where President Cyril Ramaphosa passed the Civil Union Amendment Act into law in October 2020. This crucial legislation prevents officiating officers from refusing to conduct same-sex marriages based on their conscience and belief, providing a glimmer of hope for same-sex couples who have long faced difficulties in legally formalising their unions.

Similarly, Namibia’s supreme court ruling in May 2023 recognised same-sex marriages contracted abroad between Namibian citizens and foreign spouses. This landmark verdict granted LGBTQI+ couples the same rights to a spousal visa as heterosexual couples, ensuring a step towards equality and recognition.

In Botswana, the Court of Appeal issued a judgment on November 2021, declaring sections of the Penal Code that criminalised consensual same-sex relationships as unconstitutional. This decision was based on evidence that these laws perpetuate discrimination, breach individuals’ rights to privacy and equal protection, and fuel societal stigma and violence.

Masked Kenyan supporters of the LGBTQI+ community stage a protest against Uganda’s anti-gay bill at the Ugandan High Commission in Nairobi, Kenya, on 10 February 2014. Ugandan President Yoweri Museveni is to decide before 16 February whether to enact the proposed anti-gay law, whereby homosexuals in Uganda would face life imprisonment. (Photo: EPA / DAI KUROKAWA)

Punishable by 14 years in prison

Even in Kenya, where same-sex acts remain punishable by up to 14 years in prison, a supreme court ruling in favour of the National Gay and Lesbian Human Rights Commission (NGLHRC) allowed the rights body to register as a non-governmental organisation. While this ruling was a minor affirmation of LGBTQI+ Kenyans’ place in society, it also exposed the backlash faced by the community in a deeply conservative environment.

The courts have the power to protect and preserve lives by striking down unjust laws, challenging societal norms, and ensuring the fundamental rights of all citizens.

Now, the question arises: can the Ugandan judiciary, once again, follow in the footsteps of its counterparts in South Africa, Namibia, Botswana and Kenya? The Constitutional Court’s decision to hear a challenge to the Anti-Homosexuality Act is a significant step in the right direction. This draconian law, punishing some same-sex acts with the death penalty, has drawn international condemnation and has left the lives of LGBTQI+ individuals in constant fear. Remember, in 2014, Uganda’s Constitutional Court overturned a similar law that called for a 14-year jail term for a first conviction and imprisonment for life for “aggravated homosexuality”. 

The decolonisation of courts across Africa may be the answer to dismantling discriminatory laws. By embracing the principles of justice, equality and human rights, the judiciary can become a powerful ally in the fight against homophobia, transphobia and the manufactured fear of gender non-conforming people. Changing public perception of queer bodies is a formidable task, but it is one that Africa must be willing to undertake.

Impartial judiciary offers hope for progress

It is disheartening to witness a law that endorses the killing of individuals in same-sex relationships. However, with an impartial judiciary, there is hope for progress.

The courts have the power to protect and preserve lives by striking down unjust laws, challenging societal norms, and ensuring the fundamental rights of all citizens.

In Uganda, where the LGBTQI+ community faces relentless persecution, it is essential for the judiciary to rise above external pressures and affirm the humanity and dignity of all individuals, regardless of sexual orientation or gender identity. The courts have the potential to be a beacon of hope, guiding us toward a future where love, acceptance and equality prevail.

Let us stand together, advocating for an unbiased judiciary that upholds justice and protects the most vulnerable members of society. Only then can we hope to create a Uganda where queer lives are valued, respected, and celebrated. DM

Kasha Jacqueline Nabagesera is a Ugandan LGBTQI+ rights activist and the founder and executive director of  LGBTQI+ rights organisation Freedom & Roam Uganda. She received the Martin Ennals Award for Human Rights Defenders in 2011 and the Right Livelihood Award in 2015.

Gallery

Comments - Please in order to comment.

Please peer review 3 community comments before your comment can be posted

X

This article is free to read.

Sign up for free or sign in to continue reading.

Unlike our competitors, we don’t force you to pay to read the news but we do need your email address to make your experience better.


Nearly there! Create a password to finish signing up with us:

Please enter your password or get a sign in link if you’ve forgotten

Open Sesame! Thanks for signing up.

We would like our readers to start paying for Daily Maverick...

…but we are not going to force you to. Over 10 million users come to us each month for the news. We have not put it behind a paywall because the truth should not be a luxury.

Instead we ask our readers who can afford to contribute, even a small amount each month, to do so.

If you appreciate it and want to see us keep going then please consider contributing whatever you can.

Support Daily Maverick→
Payment options

Daily Maverick Elections Toolbox

Download the Daily Maverick Elections Toolbox.

+ Your election day questions answered
+ What's different this election
+ Test yourself! Take the quiz