PERSONS IN UGANDA

eings, and they find their application in human interaction. 12 In Uganda this principle
is entrenched in Article 20 of the Constitution in the following terms:
(1) Fundamental rights and freedoms of the individual are inherent and not granted
by the State.
(2) The rights and freedoms of the individual and groups enshrined in this Chapter
shall be respected, upheld and promoted by all organs and agencies of Government
and by all persons.
Significantly, the Constitution does not stop at re-stating the inherent nature of
human rights but goes ahead to impose positive obligations on the state and all
persons to respect, promote and uphold the rights of all persons and groups. They
can only be limited in specific circumstances that are clearly provided for under the
Constitution.
ii) The Right to equality and freedom from discrimination
The right to equality and freedom from discrimination is provided for under Article
21 of the Constitution. It provides that:
(1) All persons are equal before and under the law and in all spheres of political,
economic, social and cultural life and in every other aspect and shall enjoy equal
protection of the law.
(2) Without prejudice to clause (1) of this article, a person shall not be discriminated
against on grounds of sex, race, colour, ethnic origin, tribe, birth, creed or religion,
social or economic standing, political opinion or disability.
(3) For the purposes of this article, “discriminate” means to give different treatment
to different persons attributable only or mainly to their respective descriptions
by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic
standing, political opinion or disability.
Article 21 is a protection against discrimination on grounds that largely have to do
with inborn attributes of a person. No one can be treated differently based only or
mainly on those attributes.
The argument that has arisen as regards to Article 21 is whether it covers LGBTI
persons. In the absence of a Constitutional Court interpretation of Article 21 as
regards LGBTI persons, the question is still open.
The main argument for the group that is opposed to recognition of LGBTI rights is
that Article 21(2) does not list ‘sexual orientation’ or gender identity’ as protected
grounds. A deeper examination of the provision shows that the grounds listed are
all based on natural attributes except perhaps the one on social-economic standing.
As such, other analogous grounds can be accepted including sexual orientation and
gender identity. The framers of the Constitution did not lay down a list that cannot be
added to. To the contrary, they came up with a flexible list, and the language used in
Article 21(2) clearly shows this. The provision makes reference to Article 21(1) and uses
the words ‘without prejudice to clause 1 of this article.’ This clearly makes article 21(1)
12 Viljoen, F. International Human Rights Law in Africa, 2 nd Edition, (2012) Oxford University Press, 1.
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