MAKERERE UNIVERSITY
FACULTY OF LAW

Name: NTEGYEREIZE ALAUTERIO
Reg/no: 05/U/1129

Student number: 205000106

Course Unit: THE GENDER AND THE LAW (L4205)

Lecturer: Dr.Sylvia Tamale and Ms.Zahara Nampewo

Question:
Make a critical Analysis of the recent High Court Judgement in the Case of:
Victor Juliet Mukasa and Yvonne Oyo v. Attorney General
(Misc. Cause No.247 of 2006)
A CRITICAL ANALYSIS OF THE JUDGEMENT IN THE CASE OF VICTOR JULIET MUKASA AND YVONNE OYO V. ATTORNEY GENERAL
HIGH COURT OF UGANDA (CIVIL DIVISION) MISC. CAUSE NO.247/06

Background to the Case

Kireka Local officials illegally raided the home of sexual minorities’ activist Victor Mukasa, looking for "incriminating material," seized CDs, some papers and a box of diskettes. Mukasa was absent but they arbitrarily arrested and detained her friend Oyo Yvonne and took her to LC1 Chairman’s office where she was subjected to humiliating and degrading treatment by denying her access to the toilet before taking her to the police where she was forced to undress in the gaze of the public in order "to prove that she was a woman.” This was successfully challenged by the applicants as a violation of their rights to privacy, personal liberty and dignity guaranteed under Articles 27, 23 (1) and 24 of the Constitution and article 1 and 3 of the UDHR and CEDAW respectively. Justice Arach warded the 2nd applicant 10 million shillings in damages as compensation for the humiliation, injury and trauma suffered at the hands of state agents. For the 1st applicant, it was held that the detention of her documents by the police was a violation her right to property contrary to article 27(2) of the Constitution and accordingly warded her 3 million shillings as damages.

What then is the significance of this decision?

In the first instance, the ruling is the landmark case in Uganda which for long has criminalized homosexuality and repeatedly made efforts to silence sexual rights defenders.[i] It clarified on the principle of universality of human rights which is to the effect that all persons are equal before and under the law in all spheres of life and shall enjoy equal protection of the law. This is the spirit underpinning Article 21 of our Constitution and Articles 1 and 3 of the UDHR and CEDAW respectively to which Uganda is a signatory.[ii]

Secondly, the ruling is profound in as far it will limit police intrusiveness into private lives of human rights defenders. Accordingly, it forms a basis upon which human rights activists will be able to vehemently and without fear advocate for the recognition of the rights of minorities, including homosexuals and lesbians.[iii] It should be noted that Uganda still applies draconian Victorian, archaic laws.[iv] Therefore, without fear of personal attacks from the state, human rights defenders will ably advocate for the reform of the law to bring it into conformity with the current realities.

Besides, the reform of the law would give sexual minorities an impetus to enjoy their rights in an environment devoid of discrimination, fear of public ridicule, arrest, detention and harassment. Indeed, Victor Mukasa’s case has set this precedent and it is believed that the minorities will stand firm to fight for their rights without such fear.[v]

The plight of Sexual minorities in other Jurisdictions: A comparative study.
Homophobia against sexual minorities is not unique to Uganda. Countries like Nigeria, Papua New Guinea, Australia and many other African Countries equally suppress sexual minorities and their activists. Even where activities of minorities have been legalized the police still intrude into their activities.[vi] South Africa was the first country in the world to recognize the rights of minorities in its Constitution as enshrined in section 9(3) therein by outlawing discrimination on the basis of sexual orientation and it is by far the country where sexual minorities enjoy their full liberty.[vii] Indeed, a number of the decisions by the South African Constitutional Court illustrate this. In the case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others[viii] sodomy laws criminalizing intimate relationships between consenting gay adults were successfully challenged. The constitutional Court held that the existence of these offences violated the right to equality, was degrading treatment and constituted a violation of the rights to dignity and privacy.

The bottom-line is that in other countries the situation is no better from that pertaining in Uganda; the homophobia is institutionalized whereby state authorities and agencies are perpetrating discrimination of minorities and in some instances criminalizing their acts. In the case of Boy Scouts of America v. Dale[ix] the US Supreme Court condoned the expulsion of Dale from the Scouts Association merely because he accepted to be interviewed and gave a comment that was pro-gay rights. Still in the US Andersen v. King County[x] shows that the constitutional Court upheld the provisions of the Defense of Marriage Act holding that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. In Nicholas Toonen v. Australia[xi] we see negative public perception of homosexuality despite the fact that it has been legalized in most of the States in Australia. The statements made by the Lower House of Parliament, Municipal Councilors, the Church and members of the public that homosexuals are no better than Saddam Hussein and that homosexuality is an unacceptable in a civilized society all attest to the homophobia against homosexuals in Australia.[xii]

Why the state does invest in policing sexuality: Cheap politics or patriarchal hegemony!

As already noted above, it is mainly the state that is at the forefront of gagging the rights of sexual minorities in Uganda through the police machinery, the media and the parliament, among others.[xiii] They argue that homosexuality for example corrupts public morals and that it poses a threat to the stability of the family and the social fabric.[xiv] To my belief, this argument is not convincing because like Justice Mary Fairhurst noted in Andersen case (supra), homosexuality does not in any way injure any one’s right; not even that of the state because it is engaged in by two consenting adults and more so, it is a private matter. Rather, I argue that the state merely is promoting patriarchy and look to the conceptions of gender as being merely reproduction.[xv] The ultimately end of such actions is, I believe, to sustain the state in power. By inhibiting and clumping on homosexuals and lesbians on the premise that their acts are against nature, the state is being gender biased because then it would be looking to women as instruments of reproduction (procreation).

In effect, government authorities who are mainly men are working hard to promote archaic cultures by creating a divide between the private and public spheres which marginalizes the woman the more. Moreover, the state relies on archaic laws. It should be noted that the colonialists had created these laws with the aim of creating a gap between the private and public spheres. At common law, women were looked as housewives and only men were looked at as breadwinners. This in itself perpetuates patriarchy. In this modern era of human rights and democratization this cannot be left continue with impunity.

Conclusion:

Apparently the rights of sexual minorities have not gained full recognition and respect world wide, save for South Africa which has explicitly outlawed state discrimination on the basis of sexual orientation. The reason is because most of the societies are built on patriarchal lines and accordingly respective states endeavor to promote patriarchy in order to sustain themselves in power. Nevertheless, Victor’s case remains a profound precedent upon which the rights of minorities can be advocated for. In this era of human rights and democratic dispensation, the state and the general public should develop the spirit of tolerance and allow individuals to enjoy their freedoms and liberties. It is a good illustration of the universality of human rights debate-all people are equal before the law and should enjoy equal protection under the same law. This is principle underpinning in Article 21 of the 1995 Constitution and Articles 1 and 3 of UDHR and CEDAW respectively.



END NOTES
[i] http://www.iglhrc.org/cgi-bin/iowa/article/pressroom/pressrelease/829.html
[ii] It should be noted that the case was about enforcement of human rights generally. Thus, on a negative note it could be argued that the failure to explicitly address the rights of minorities a clear indication that homophobia against sexual minorities is institutionalized. It is argued that were it (homophobia) not institutional, Justice Arach would in her ruling addressed the nexus between human rights generally and the rights of sexual minorities, but she chose to restrict it to enforcement of human rights generally.[ii] Nevertheless, it is my opinion that concept of universality of human rights is adequately addressed by Article 21 clause (2) of our Constitution outlaws discrimination on grounds inter alia of sex. Accordingly, all people are equal in the eyes of the law and shall enjoy equal protection of the law.[ii] Thus, by implication, “human rights generally” encompasses the rights of minorities. It can also be argued that Counsel for the applicants was stained with homophobia against sexual minorities from the fact that he chose to frame the application calling for enforcement of human rights generally not specifically the rights of sexual minorities. But then, I should not crucify Counsel as he had no specific provision to rely on. Apparently, there is no specific provision in our Constitution providing for the rights of homosexuals.

[iii] This view is also held by Scott Long the Director Human Rights Watch. Long says that the legacy of colonialism should no longer be confused with cultural authenticity or national freedom. http://www.sgbutterfly.org/index.php?name=News&file=article&sid=395

[iv] Section 145 of the Penal Code Act, cap.220 outlaws carnal knowledge against the order of nature by punishing it with imprisonment for life. This provision perpetuates patriarchy and male hegemony as it presupposes that sex should exclusively be heterosexual. It confuses sex and sexuality in a sense that one might not be a homosexual but holds strong support for homosexuals in as far as enjoyment of their rights are concerned. Thus, sexual orientation should not be confused with sexual intercourse (the so-called “carnal knowledge”). It also ignores the fact that biologically people are born differently. It may be due to hormonal imbalances that a person may feel so attracted and attached to the people of the same sex. This is a question of sex orientation and should not be viewed as a violation of the law. Moreover, I emphasize, that merely being attracted to same sex people does not in itself imply that a person is a homosexual of lesbian.
[v] Long also buys this ideal (supra). To continue applying these draconian laws amounts to continuous acceptance of the bondage of colonialism even when we have been politically liberated. Independence should not be looked at merely in the context of political independence, but must envisage the recognition of human rights (opinion added).
[vi] In Turkey for instance transsexual orientation has been legalized for adults. However the police still intrude into their private life and mistreat them. See. Dr. Sherifa Zuhur, Gender, Sexuality and Criminal laws in the Middle East and North Africa: A Comparative Study, published by Women for Women’s Human Rights (WWHR) - NEW WAYS in Istanbul, Turkey in 2005, p.49.
[vii] Section 9(3) of the South African provides that:
“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

[viii] Accessed from: http://196.41.167.18/uhtbin/hyperion-image/J-CCT11-98. Similarly, in J and B v. Director General, Department of Home Affairs & Ors section.5 of South African’s Children’s status Act was successfully challenged in as far as it prohibited the registration of children born out of artificial insemination by heterosexual couples. The Act did not permit such a couple to become legitimate parents of such children. This was held to be unfair and discriminatory against married couples and the applicants as permanent same-sex partners and accordingly inconsistent with section.9 (3) of the South African Constitution which prohibits a state from discriminating directly or indirectly against anyone on the ground of sexual orientation. (Case CCT 46/02 heard on 27 February, 2003 and decided on 28 March, 2003.)
[ix] Boy Scouts of America and Monmouth Council, et al., Petitioners v. James Dale 530 U.S. 640 (2000). When he was a student at Rutgers University, Dale became co-president of the Lesbian/Gay student alliance. Then, in July 1990, he attended a seminar on the health needs of lesbian and gay teenagers. During the seminar, he was interviewed, and the work was subsequently published. He was expelled from Scouting after BSA officials read the interview in a local newspaper and Dale was quoted as stating he was gay.
It was the Boys Scouts contention that homosexuality is inconsistent with its objective of instilling values in young people. Dale sued the Scouts on the ground that by expelling him it was in violation of New Jersey state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The case went to the New Jersey Supreme Court which ruled against the Boy Scouts, saying that they violated the State's public accommodations law by revoking Dale's membership based on his homosexuality. This decision was overturned by the US Supreme Court holding that the lower court's decision unconstitutionally violated the rights of BSA, specifically the freedom of association, which allows a private organization to exclude whomever it wishes. Art.29 of our constitution says so.

[x] 138 P.3d 963 (Wash. 2006), formerly Andersen v. Sims. In this case the Andersens challenged the Defense of Marriage Act (DOMA) which prohibited marriage between same sex couples. The applicants had been refused a marriage license under the Act and sued the King County and the state of Washington. In the King County Superior Court, Judge Williams L. Downing had held that the Defense of Marriage Act was unconstitutional in as far as it prohibited same-sex marriages. However, the Supreme Court reversed the decision, Justice Barbra Madsen holding that the DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. The four dissenting judges criticized their colleagues for adopting a “circular reasoning” in formulating their own opinions. Justice Mary Fairhurst posed a question, “Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state’s interest in procreation and healthy child rearing?”

[xi] Communication No. 488/1992 of the Human Rights Committee, Fiftieth session, 4 April 1994, http://sim.law.uu.nl/SIM/CaseLaw/fulltextccpr.nsf/160f6e7f0fb318e8c1256d410033e. Nicholas challenged sections 122 (a) and (b) and 123 of the Criminal Code that criminalize homosexuality as being a restraint on his efforts to advocate for gay rights. That as an activist, his private to life and liberty is threatened by the continued existence of these sections. The Human Rights committee advised that the above provisions were unreasonable in as far they affected the author (Nicholas) and that section 123 is discriminatory in as far it prohibits sexual acts only between men. See p.6 of the Communication.
Like in Uganda, the policing of homosexuality is perpetuated by the so-called “figures of authority” to the effect that they have made derogatory or downright insulting remarks about homosexuals
[xii] In some public meetings, it was suggested that all Tasmanian homosexuals should be rounded up and "dumped" on an uninhabited island, or be subjected to compulsory sterilization. Clearly, this discrimination against homosexuals contrary to Article 1 and 3 of UDHR and CEDAW respectively and illustrates the negative perception that the Ugandans have about homosexuals, lesbians and gay people.

[xiii] In 2005, the Parliament approved a constitutional amendment criminalizing marriage between persons of the same sex. See: http://www.afrol.com/articles/16744. (afrol news).
[xiv] These were the words of Mr. Stephen Lang, the Executive Director of Family Life Network. Him and other religious leaders like Pastor Martin Ssempa were protesting against the practice of homosexuality and presented a petition to the Deputy Speaker of Parliament demanding that a probe be instituted into the practice in the country. Their arguments were that homosexuality poses a threat to the stability and survival of the family and the social fabric of the nation; that it has the potential to destabilize the country socially, politically and health wise. See: Saturday Monitor, April 24, 2009. The irony is that law and morality do not mix. That is why it has been asserted that whereas moralists are free to discuss issues of morality and homosexuality in society, they should not be allowed to legislate.
[xv] Dr. Sherifa Zuhur, Gender, Sexuality and Criminal laws in the Middle East and North Africa: A Comparative Study, published by Women for Women’s Human Rights (WWHR) - NEW WAYS in Istanbul, Turkey in 2005, p.47