After court annulled AHA, what next?

By Andrew M. Mwenda

Will the anti gay community try to write a new bill and mobilise quorum in parliament to pass a new law?

Last week, the Constitutional Court in Uganda declared the Anti Homosexuality Act null and void because it was passed illegally i.e. without quorum. Since then, a chorus of Western media has been arguing that the courts did this because of pressure from their governments via suspending and withholding aid. Equally baffling was the claim that the decision of the court was delivered at the time it happened in order to help President Yoweri Museveni arrive in Washington DC for the America-Africa summit in order to meet Barack Obama with a better face.

Western society has increasingly grown arrogant and self-obsessed. For them nothing happens elsewhere in the world, but most especially in Africa, which is not a reflection of what they have dictated. In our struggle for democracy, it is not the voice and sacrifice of domestic actors that count but rather the pressures and demands of Brussels, Washington, Paris and London. Even in economic policy change, it is not the interests of locals but the pressures of World Bank and IMF that will be credited for reform. Thus, from the perspective of the Western media, the efforts and courage of progressive intellectuals, journalists, lawyers, judges and gay activists amounted to nothing in the struggle for gay rights in Uganda.

This absurdity is also evident in the way the debate is framed. Those in the West who opposed the AHA said that the law was designed and sponsored by American evangelical groups who just “manipulated” local legislators with money to enact this law. The right wing in America responds by saying that the gay rights movement is a design by US liberals to promote a dysfunctional lifestyle in Uganda. The two sides may hate each other bitterly and fight intensely against each other but they share one premise: that the struggle in Uganda is not local but American; and that domestic actors lack agency – they are mere pawns in their own struggles.

It would be wrong to assume that this western understanding of Africa’s political dynamics is entirely by Westerners. Africa’s intellectuals make the same mistake. The pro-gay group accuses the anti gay groups of being agents of American right-wing evangelicals. Homophobic Ugandans claim that Ugandans who defend gay rights do it at the behest of Western schemers. The second pathology is to argue that whoever is involved is paid for their position. This argument assumes there are no convictions or even domestically inborn or acquired habits and lifestyles. Africa is just written off, it is denied agency and initiative by its Western and local commentators.

Yet the claims and counter claims of both sides above are more myths than realities. For example, the actual reason Museveni signed the AHA was because of western pressure through threats to cut off aid; it is possible that without such threats he would not have signed the Bill. Thus in writing the 2014/15 budget the government ensured that almost 87 percent of it would be financed from domestic resources. It is only when Western governments abandoned using aid as an instrument of blackmail that people in government began to listen to their concerns. The lesson is simple but fundamental: the best way to resolve our problems is to let the domestic forces battle among themselves.

For example, the Court avoided making judgment on the substantive issues of the law. Instead it struck it down on a “technicality” i.e. that the law was passed without quorum. This was masterstroke. For although I support gay rights, I am aware that 90 percent of Ugandans find homosexuality abominable. Law is (and must be) a reflection of the values, norms, attitudes, beliefs and traditions of the society that it governs. No state, democratic or authoritarian, can force a lifestyle on a society, which 90 percent of the population sees as an abomination. It was therefore only prudent that the judges avoid ruling that our constitution accepts homosexuality. This would have dented the prestige, legitimacy and credibility of the court in the eyes of the public. It was therefore better to throw away the law on quorum.

Western nations want Uganda to be a democracy. But democratic pressure on the state demands passing draconian laws against gays. How does one reconcile this contradiction? Uganda is lucky to possess a strong, independent and progressive judiciary. In fact, it is a precondition for sitting on the Court of Appeal and the Supreme Court for a candidate to make clear that they are not hostile to gays. No judge has been passed by the Judicial Service Commission to sit on both courts that in interviews expressed hostility to gay rights. Yet judges in Uganda are not from UK or USA. They are from our society and understand and appreciate its norms and values. In making a ruling on this matter, therefore, the judges have to balance the interests of social progress against the cost of being insensitive to the traditions, norms, values, beliefs and aspirations of the people of Uganda. The New York Times has no understanding of this.

The fatal mistake for those who defend gay rights will be to seek to alienate legislators who voted for the AHA. Even though many of these legislators may be homophobic, they can be mobilised and convinced to adopt a less hostile stance toward gays. So far the Attorney General has not said he is going to appeal the ruling of the courts. But some MPs may want to now write a new bill, find quorum (which they will easily mobilise in November next year as we get closer to the elections) and pass a new draconian law. With Museveni facing an election, it will be difficult for him to avoid signing this new law.

Therefore, social progressives need to remain vigilant. The forces of conservatism are powerful. The way forward is to have close dialogue with those legislators who oppose gay rights: to listen to their concerns, ascertain their needs, address their fears and accommodate their prejudices. Parliament needs to be persuaded from making a new law, not intimidated with travel bans and threats of aid cuts. And at all costs, we should avoid the weapon of last resort i.e. asking courts to declare that a law against homosexuality is unconstitutional. Ugandan courts are most likely to do exactly that but it would not be good for their image before the people of Uganda.

amwenda@indenpendent.co.ug