Hearings on the petition against the Anti-Homosexuality Act 2014 began today at the Constitutional Court

By hrapf
In July 30, 2014
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The Constitutional Court of Uganda began hearing the petition against the Anti-Homosexuality Act 2014 today. The petitioners were represented by Counsel Ladislaus Rwakafuzi, Fridah Mutesi, John Francis Onyango, Nicholas Opio and Caleb Alaka, while the Attorney General was represented by Counsel Patricia Mutesi and Elisha Bafirawala. The justices hearing the case are Hon. Justice Nshimye, Hon. Justice Kavuma, Hon. Justice Opio Awere, Hon. Lady Justice Bbosa and Hon. Justice Mwangusya.

Whereas the petitioners were ready to proceed with the hearing of the petition, counsel for the respondent, the Attorney General, was not ready to proceed on grounds that she received the hearing notice on the 25th of July 2014. She claimed that this was not enough time to prepare comprehensive submissions given the sensitivity of the case. She asked the court to allow the respondent to proceed with hearing the application for a temporary injunction instead. The court, however, insisted that the hearing proceed.

The Attorney General also argued that if the court went on to hear the petition without granting her time to prepare, it would violate the respondent’s right to a fair hearing under Articles 28 and 126 of the Constitution. She further informed the court that on 25th of June, the Attorney General appeared before the registrar and applied to allow extended time to file affidavits up to the end of August 2014. This was granted by the registrar and they were directed that conferencing would take place on 10th September. Relying on this position, the Attorney General argued that an earlier hearing was prejudicial to the state.

Counsel for the petitioners argued that given the state had plenty of time to prepare since the petition was filed in on 11th March, the Attorney General was served on 17th March, and she responded on 26th March. He also noted that the respondent’s reference to the registrar for extended time is not valid because the Registrar has no jurisdiction over constitutional matters. Counsel for the petitioners prayed that since the Attorney General has been aware of the petition since March 11th 2014 and this petition is urgent, it would be “in the interest of justice” that the court proceeds with the hearing.

The court adjourned for 20 minutes and ruled for the petitioners that the case should proceed. Since the respondent had not applied to the court for extended time for filling affidavits, they had no grounds for relying on the registrar’s word or claiming they did not have time to prepare.

The respondent said the state was aggrieved by the ruling and applied for an immediate appeal under Rule 2(2) of the Court of Appeal Rules, which would stay the hearing of the case. The counsel for the petitioners opposed the request, arguing that it would be a waste of the court’s time and an abuse of the judicial process. Counsel also noted that this application was being brought in bad faith to defeat the petition, because the Constitution requires that constitutional petitions must be heard and decided expeditiously, even if it means staying other business of the court.

A unanimous decision was taken by the Justices to proceed with the hearing of the petition. The Attorney General however noted that the state was aggrieved by the decision to proceed with the hearing and she prayed that she be allowed to submit written submissions after the petitioners finished their arguments. Without answering her request, the court allowed the counsels for the petitioners to proceed with their submissions on to the issue of whether Parliament passed the Anti-Homosexuality Act 2014 without quorum. Counsel Ladislaus Rwakafuzi introduced the counsels for petitioners to the Court and presented the judges with the authorities for the petitioners, which comprised 5 volumes. The Attorney General responded that she had not had time to read any cases on this issue.

Counsel Nicholas Opiyo for the petitioners proceeded with the first issue. They argued that the process, procedure and manner of passing the Anti-Homosexuality Act 2014 was inconsistent with provisions of the Constitution of the Republic of Uganda 1995 and violated  the Rules of Procedure of the 9th Parliament. Counsel for the petitioners further submitted that the rationale for these provisions is to preserve the supremacy of the Constitution under Article 2. Counsel Caleb Alaka, also for the petitioners, further referred to evidence in two affidavits and the parliamentary hansards, which clearly indicated that the issue of quorum was raised during the Parliamentary debate but ignored by the Speaker. The counsel also cited cases from Ugandan Courts where acts passed by Parliament without quorum were declared unconstitutional. The petitioners prayed that the improper procedures used in the passing of the Anti-Homosexuality Act 2014 lead the Constitutional Court to declare it null and void.

The Attorney General was not asked to make a response but was given an adjournment until tomorrow, 31st July, at 9:30am.

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