Kicking out the Anti-gay Act

By Independent Team 

Why the Attorney General will not appeal

By 11:20am, as the court room was overflowing with both pro and anti-gay activists, it was becoming ominously clear that the government side did not expect a good outcome.

Heated arguments between those for and against the Anti-homosexual law flowed freely until 12:34pm when the panel of judges entered the court. An hour or so after, Acting Deputy Chief Justice Steven Kavuma, and Justices Augustine Nshimye, EldadMwangusya, Solomy Balungi Bossa and Rubby Aweri Opio were unanimous.

“We uphold issue one in favour of the petitioners and grant them that the act of the ninth parliament in enacting the Anti-Homosexuality Act 2014   on December 20, 2013 without quorum in the House is inconsistent with contravention of Articles 2(2) 88 and 94 of the Constitution…and rule 23 of the parliamentary rules of procedure and thus null and void,” Justice Kavuma read.

The gay activists in the courtroom and their lawyers unfurled their huge rainbow flag, burst into cheering, and started chanting victory. In another part of the courtroom, the anti-gay activists remained equally defiant, displaying placards. There were emotional scenes. One man had to be escorted out of the courtroom by the police who feared he was becoming a danger to the peace.

A few moments after the court ruling, David Bahati, called a press conference to the effect that the government plans to appeal.

“The court case ruling is no victory at all, the morals of the people of Uganda will prevail,” he said, “Our competent legal team will continue to petition the Supreme Court and I believe we will win.”

If that happens, then Bahati and Attorney General Peter Nyombi will either have furnished President Yoweri Museveni with new compelling arguments or will be acting in defiance.

As The Independent went into print, sources close to the case were indicating that the attorney general was unlikely to appeal the case.

“The AG does not want to make this case an issue,” one source who spoke on condition of anonymity, told The Independent.

Pressure mounts

According to the source, the AG’s reluctance to pursue an appeal could be partly based on the extent to which President Museveni, his Cabinet, and Bahati were feeling the pressure since the law was signed on Feb. 24.

At the time of signing, Museveni sounded firm.

“I would advise Western countries, this is a no-go area,” he said as he signed the Act into law, “I don’t mind being in a collision course with the West. I am prepared.”

But as The Independent reported in our July 6 issue “Museveni’s Anti-gay misstep,” even as all government officials have maintained the defiant tone when standing in front of media cameras and microphones, quiet diplomacy involving especially the EU countries has been going on behind the scenes.

The Independent has learnt that the EU envoys have been frustrated that since the anti-homosexuality law was signed, they have dealt with no other business.

“Up to 90% of all their correspondence is on this single law,” a source said, “there is no talk of trade, cultural exchanges or anything else; it is frustrating.”

There was concern that foreign arrivals at Entebbe International Airport from EU carriers like KLM, Brussels, Air France, and Turkish Airways had dropped by over 50%. A major boycott of Uganda was apparently gathering pace.  Apart from the much talked about aid cuts, consumption of Ugandan products in the west was becoming unpopular.

As a result, The Independent has learnt, President Museveni held numerous meetings with his Cabinet to find a way to either have the law or parts of it repealed.

Museveni’s argument is that if the law is designed to stop rich pro-gay westerners from recruiting poor Ugandan who go into it for money, then it is better to make Ugandans richer so that they are not easily recruited.

“Let’s address the root cause, not the symptoms,” the President reportedly argued.

Museveni has also been involved in several meetings aiming at finding a way out. At the heart of the discussion was how to resolve this issue without compromising on the seriousness with which the law is viewed in western capitals and the passion with which over 90% of Ugandans appeared to support it.

“For the envoys, the anti-homosexuality law is a human rights issue, while for most Ugandans it is a moral issue,” sources told The Independent.

The Independent has learnt that matters came to a head sometime in mid-July when Museveni received a delegation of Chinese, European, and American business people. All were representatives of the world’s top apparel designers, including Calvin Klein and Gucci. The meeting was attended by Susan Muhwezi, President Museveni’s senior advisor on the African Trade and Opportunity Act (AGOA).

The delegation wanted to get involved in Uganda’s cotton sector by making bulk purchases of Ugandan lint and some apparel. However, they had one concern. If consumers of the top designers’ products found out that they were made from cotton from a country with draconian ant-homosexuality laws, they could face a boycott.

Sources tell The Independent that when Museveni heard this, he immediately summoned MP Bahati to show him how the Anti-gay law was hurting trade.

There has been a lot of buzz around African cotton exports recently.

In April, the Minister of Trade, Industry and Cooperatives, Amelia Kyambadde, announced that cotton exports from Uganda would increase if recommendations by trade ministers in the Bali 9th Ministerial Conference are implemented under the World Trade Organization (WTO).

At around the same time, the U.S. government agreed to extend the AGOA for another five years, until 2020.

According to reports, Africa accounts for only 12% of world cotton lint exports. Up to 90% of Africa’s cotton is sold raw to other countries for processing.

In the same month, the textile lobby; the African Cotton and Textile Industries Federation (ACTIF), announced that buyers are considering sourcing material from new markets because of a sharp rise in labour costs in China, India, and other key textile-sourcing markets.

ACTIF Chairman, Jaswinder Bedi, even advocated a fund to prepare local cotton millers in Africa to acquire world grade technology.

He was backed by ACTIF Executive Director, Rajeev Arora who said their goal was to change perceptions about Africa.

“We want to make the value chain more visible as a source of cotton, textile and apparel products for the domestic, regional and international markets,” he said during the 2014 edition of “Origin Africa”, a global campaign to raise awareness about Africa as a preferred apparel-sourcing destination in Nairobi.

China, India, the U.S., and Pakistani are the top four cotton producing countries in the world. The US is the world’s largest exporter of cotton, and China the largest importer. However, rising labour costs have led to cuts in production of cotton items, especially in China and India.

Many countries in Sub-Saharan Africa produce cotton, and Uganda is among those with the best quality fibre.

As early as ten years ago, Chinese textile companies have been interested in cotton lint from Uganda.  A Chinese firm; Jinda International Textiles Corporation Limited (JITCO), even bought Lira Spinning Mill in northern Uganda. In 2004, JITCO announced that it had secured a US$8.7 million contract (about Shs 21 billion) to export lint to China. The deal fell through mainly over low production, seed technology, and quality. That is why Museveni has this time acted very fast.

As the search for a way out of the noose of the Anti-homosexuality law raged, several options were considered.

At one point, The Independent has learnt, President Museveni considered sending the law back to Parliament to be amended and the unpalatable sections removed. However, this route was abandoned because of the obvious popularity of the law among MPs and the unpredictability of politicians.

Legal solution sought

That is when the legal route was sought. But even here, there was some trouble.

Museveni’s legal minds told him that although most judges in Uganda’s top courts are liberal and would throw out the anti-homosexuality law as unconstitutional, it would be at a heavy price to the legitimacy, and respectability of the Judiciary.

The judges’ liberal attitude is apparently underpinned by a procedure in the recruiting process of the Judicial Service Commission, which required every judge to state categorically their view on gay rights.

No judge who opposes gay rights is ever appointed, according to those familiar with the process.

However, even liberal judges must contend with the demands of the objective conditions in their communities. In Uganda’s case, the judges were aware that up to 90% of the population was happy with the anti-homosexuality law. The challenge was to find a way of throwing the law out without making a ruling on its substance. The lack of quorum was like manna to the judges.

So the case was split into two parts; one part dwelt with the issue of quorum and the other the substantive issue of whether the law itself was unconstitutional.

Nicholas Opio, one of the three lawyers representing the nine petitioners, said passing a law without quorum contravenes rule 23 of the parliamentary rules of procedure, and Articles 2(1) and 88 (2) and 94(1) of the Constitution and the Speaker was notified.

“The Rules of Procedure provide that once it’s brought to the attention of the Speaker that there is no quorum, he/she should stand over the session such that a count is done and if it’s found that indeed there’s no quorum, the session is adjourned. But the Speaker did none of the above,” he said.

The judges said the onus was on the Attorney General to prove that there was quorum because the Prime Minister Amama Mbabazi had twice raised the issue. MP Betty Awol also raised objection that there was no quorum and that was in contravention of the procedural rules.

“Even if this was not the case, it is an illegality which court’s attention has been brought. This court cannot overlook it and it overrides all pleadings.”

“We find that the respondent in these pleadings and submissions did not even attempt to suggest that the Right Hon. Speaker responded in any way to the objection raised that there was no quorum.  Rule 23 of procedure requires the Speaker even without prompting  from anybody  to ensure that a quorum exists  we note that the Speaker was prompted  three times so  the Speaker was obliged to ensure that there was  a quorum. We come to the conclusion that she acted illegally.”

What next?

Bahati’s camp is hoping to demand a judicial review of the ruling. In this case, a lawyer told The Independent, they could raise the pending case of an application the Churches had made to be added to the suit. In this case, they must prove what lawyers call a “manifest case”, meaning they must show that “court in its ruling made a mistake which any right-thinking member of society can see”. This is a very tall order, especially for courts that are not largely anti-gay.

Alternatively, they could exploit the court’s tactical refusal to rule on the substantive issues to return it to Parliament and have it passed; this time with quorum.

According sources, this route is likely to run into trouble at two levels.

First, the government controls some of the instruments required for a private member to table a Bill in Parliament. Although Bahati successfully tabled it last time, he or any other MP might be blocked on a technicality this time.

The other alternative is for the Bahati camp to pursue court to hear what State Prosecutor Mutesi had called a “sensitive and important petition”.

Martin Ssempa, a top anti-homosexuality activist and pastor, says this is one of the reasons he and the government will appeal the ruling in the Supreme Court.

“We are deeply grieved; we are distressed…the speed has never ever been  seen  in our court system,” Ssempa said. “We are aware that there is a lot of pressure over travel bans, seizing of bank accounts, of stopping economic activity  or donations of not  only political leaders but  even the judges and the individuals involved in the defence of our culture.”

He also says the ruling was influenced because it was delivered a week to the US-Africa Summit called by US President Barack Obama, which Museveni was invited to.

Whether Ssempa is right or not, it is clear that as Museveni touched down in Washington DC for that Summit, he must have felt lighter. A huge weight had been lifted off his shoulders. He could look the western leaders and their media in the eye and tell them how democracy and rule of law were alive and well in Uganda.

He could say: “Parliament can pass a law, I can assent to it, but the courts can throw it out. That is what happened with the Anti-homosexuality law”.

Then on returning to Uganda; he could look Ugandans in the eye and say: “Sorry, we passed our good anti-homosexuality law but the bad courts threw it out.”  In both cases, there would be only one winner; President Museveni. That is why the AG is unlikely to appeal.

(Additional reporting by Joan Akello)