Today, 27th September 2016, the First Instance Division of the East African Court of Justice (EACJ) delivered its judgment in in Reference No.6 of 2014 – Human Rights Awareness and Promotion Forum (HRAPF) v Attorney General of Uganda and the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS).
This case was originally filed by HRAPF under the auspices of the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL) in August 2014 soon after the Anti-Homosexuality Act, 2014 had become law. The case challenged the Act as being contrary to the rule of law and good governance principles of the East African Community Treaty.
The Reference was amended in January 2015 with the consent of both parties following the nullification of the Anti-Homosexuality Act by the Constitutional Court of Uganda on 1st August 2014. The amendment limited the Reference to challenging the enactment of the Act with sections: 5(1) on the immunity of ‘victims’ of homosexuality to be tried for any offence committed when ‘protecting’ themselves against homosexuality; 7 on aiding and abetting homosexuality, and 13 (1)(b)(c) (d) and (e) on promotion of homosexuality which provisions were directly in violation of the fundamental principles of good governance, rule of law and human rights, enshrined in the Treaty for the Establishment of the East African Community.
When the case came up for hearing, the Attorney General raised a preliminary objection that the amendment could not stand as the Anti-Homosexuality Act had been nullified- in essence that the case was moot. HRAPF argued that they were not challenging the Act but the passing of the Act with the three particular provisions that led to the violation of the rights of LGBTI persons during the period when the law was in force, and that in any case, this was a matter of public interest that the Court could hear as an exception to the mootness rule.
UNAIDS was allowed to join as amicus curiae and the made their submissions regarding the impact of such laws on the HIV/AIDS scourge.
The Court in a surprise move held that the amendment was irregular in as far as it included statements that point towards acts done during the time the Act was in force. The court in coming to this conclusion seemed to regard as fact the argument for the Attorney General that the amendment of the Reference to include acts done within the period the law was in force was not agreed upon by both parties. By doing this, the court effectively ruled on the original reference and not the amended reference, except for the fact that the grounds of the Reference had been reduced.
The court then decided that the case was moot since the reference challenged a law that had been nullified by the court. The court relied on their judgment in the Legal Brains Trust v Attorney General of Uganda, EACJ Appeal No.4 of 2012 where it was held that ‘…it is a cardinal doctrine of jurisprudence that a court of law will not adjudicate hypothetical questions- namely, those concerning which no real dispute exists.’ The court considered the public interest exception to the general rule and found that that it did not find the evidence sufficient to ‘…establish the degree of public importance attached to the practice of homosexuality in Uganda….’
HRAPF is proud of its role in this case, as this is the first time that an international human rights tribunal in Africa has heard a case concerning violations against LGBTI. The case also set precedents in the field of amicus curiae which was relied on by the Supreme Court of Uganda in the presidential election case. The case has also brought together Ugandan, East African and African activists to take their destiny in their hands and challenge laws that threaten the rights of LGBTI persons even at the intentional level.
HRAPF and the CSCHRCL want to thank all our partners who have been with us in this struggle, especially the groups that applied to be amicus curiae: UHAI-EASHRI, HDI-Rwanda, Centre for Human Rights- University of Pretoria and UNAIDS.