On 16 June 2016, the East African Court of Justice (EACJ) heard final submissions in a case contending that the passing of the now nullified Anti-Homosexuality Act, 2014 (AHA) with certain provisions was in violation of the Treaty for the Establishment of the East African Community (East African Community Treaty).

The AHA, was passed on 20 December 2013 by the Parliament of Uganda, came into force on 14 March 2014 and was annulled by the Constitutional Court of Uganda on 1 August. The nullification was on the basis that it was passed without the necessary quorum.

The case is Human Rights Awareness and Promotion Forum (HRAPF) v Attorney General of Uganda, Reference No. 6 of 2014. It challenges the passing of the Anti-Homosexuality Act, 2014 with the following provisions: section 5(1) on the immunity of ‘victims’ of homosexuality from trial for any offence committed when ‘protecting’ themselves against homosexuality; section 7 on aiding and abetting homosexuality; and section 13 (1)(b) (c) (d) and (e) on promotion of homosexuality. HRAPF contends that the enactment of this law with these provisions was in violation of Articles 6(d), 7(2) and 8(1)(c) of the East African Community Treaty which provisions enjoin partner states to govern their populace on the principles of good governance, democracy, the rule of law, social justice and maintenance of universally accepted standards of human rights.

“The AHA should not have been passed at all with these provisions which were overly broad, promoted impunity, penalised legitimate debate, impeded HIV-related service provision and health services and promoted homophobia and stigma for the time that the Act was in force.’’ said Adrian Jjuuko, Executive Director of HRAPF.

The hearing focused largely on the effect of the nullification of the law on the case. This was raised as a preliminary objection by the Attorney General. The Attorney General contended that since the AHA was nullified by a competent court of a member state of the East African Community, the subject matter of the case had ceased to exist and the case was therefore moot. To this, HRAPF responded that the matter was a live one, for the nullification of the Act did not take away the fact that the Act was passed with provisions that violated the East African Community Treaty, and that during the period when it was in force, violations were committed under these specific provisions. In addition, the members of Parliament who had sponsored the original Bill were given leave of Parliament to allow them time to prepare to re-table the Bill.

The Joint United Nations Programme on HIV/AIDS (UNAIDS) was permitted to file submissions as a friend of the court and they raised concerns as to the effect of such laws on the fight against HIV/AIDS globally.

The judgment of the court is expected before the end of the year. ‘We are looking forward to the judgment of the court as this case raises important issues affecting the rule of law and good governance within the East African region,’ said Patricia Kimera, the Head of HRAPF’s Access to Justice Unit.

Taking human rights to all