Annulment of the Anti-pornography law

Women’s Rights Movement of Uganda lauds it as a signal of hope for gender equality, warns of battles ahead

COMMENT | PRIMAH KWAGALA | When the five-judge panel at the Constitutional court annulled the retrogressive Anti-Pornography Act, 2014 last month, the celebrations from the women’s movement and those members of society who are allies of women were loud. The relief was irrepressible because the unanimous judgment by Justices Frederick Egonda-Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi, and Irene Mulyagonja stands out as a beacon of hope in a society threatening to take women back to the patriarchal age of male oppression and unquestioning submission from women.

Section 2 of the Act which vaguely defined pornography left women at the mercy of men to assess whether their dressing amounted to pornography and thus rendered them culpable or not. These deferring lenses led to violation of women’s rights to privacy and freedom from cruel, inhumane and degrading treatment and expression. They were also a violation of the constitutional requirement that offences must be clearly defined to avoid arbitrarily charging persons.

Many thanks to the justices for upholding the rights of women, and other members of society that face numerous vulnerabilities that had been further put under the risk of oppressive enforcement of this law by the police and other law enforcement agencies, and the general public at large in Uganda.

Among others, the justices of the court of appeal found the definition of the word pornography under Section 2 to mean “any representation through publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual excitement;” to be null and void. They found that it contravened the constitutional principles of legality owing to the fact that the nature of the offense was vague and imprecise and may lead to inconsistent enforcement of the law.

Other provisions of the law that were found to be unconstitutional include; Sections 11, 13, and 15.  It is also our considered view that owing to the centrality of these provisions to the implementation of this law, the entire act has inadvertently also been rendered a nullity.

We, however, remain cautious because annulling a law that should not have been passed in the first place whilst marking progress for the respect and protection of women’s rights, also signals the end of one battle and preparation for the upcoming more challenging fights.

While the Act was annulled because of its unconstitutionality, we cannot downplay the conditions in our society that led to the birth and enactment of such a law in the first place.

The enactment of the Anti-Pornography law served to reinforce the historical oppression of women at a time when the government has ratified a number of regional and global instruments that mandate it to promote gender equality and address all historical and social oppression against women and girls. The Ugandan constitution is also explicit about the rights to equality. Thus, the court decision is a reminder to the government to remain committed and true to its obligations under SDG pillar 5, to preventing violence against women as a critical development issue.

We are not yet on top of the hill; far from it. But we now have a real chance to fight for real progress in the quest for women’s rights; especially their bodily autonomy and gender justice.

In the seven years the law was in place, it only accumulated casualties and lived up to none of its promises. It is ironic that a law created to supposedly protect women and children has only left in its trail the harassed, bruised, and battered bodies and minds of women while protecting the perpetrators of such forms of abuse of women and children in some instances.

This is not damage that is easily erased by simply acting as if the law never existed in the first place. The paper may be off the table, but the damage that this piece of legislation caused to the lives of women; and especially girl children, will be with us for years.

I commend the court’s decision because justice has prevailed, albeit a delayed and imperfect justice. While the moment calls for celebration, the more urgent response is a deep reflection about the series of events and decisions that led to the law in the first place. Keen attention should also be paid to the various forces that have risen up in arms and are seeking to reverse the decision of the constitutional court regarding this law. Their motives should be questioned and their actions quashed because there is no doubt that such a law serves no purpose in a free and democratic society like Uganda.

We still live in the same society that punishes women in the name of protecting them. We are still subject to many laws, written and unwritten, that explicitly and implicitly police women’s bodies, treating us like second-class citizens, and only tolerating our presence whenever we express our autonomy.

Look at the spurt of femicides experienced in Uganda with over 28 women being killed in Entebbe in 2017 and the manner in which sexual and gender violence offenses continue to exponentially increase year after year in Uganda. To date, no conclusive investigations and convictions have happened, and given the silence around this issue, it appears that it is no longer a priority of law enforcement agencies and the state. There is no doubt that women in Uganda need a more robust legal and policy framework to protect them against the various vulnerabilities they face on a daily basis in the various spheres of their public and private lives.

Women paid the price in implementing a law meant to protect them. Women were the ones who were assaulted and undressed by men in public spaces making them afraid to leave their houses, go to work, parties, and express their autonomy, precisely because of this law.

Notably, the composition of the five-judge panel that annulled the oppressive law (3 men and 2 women) is also illustrative of the gender justice tension that is yet to be won even as we celebrate the little battles won. We need more women with a gender-responsive approach in decision making spaces, not simply as tokens and talking points, but as real leaders and decision-makers worth the dignity and respect owed to all human beings and social justice.

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This piece was authored by Ms. Joy Asasira, Grace Namataka, Elizabeth Kemigisha, Marie Lwanga and Primah Kwagala – all members of the women’s movement in Uganda.