PERSONS IN UGANDA

As regards LGBTI persons, the right to privacy has been adjudicated upon by the
High Court of Uganda and found to be applicable to them. In the Rollingstone case 20
where a newspaper had published the names, photos and addresses of actual and
perceived homosexuals and called upon the public to hang them, one of the rights
that the court found to have been violated was the right to privacy. It was not enough
for the respondents to argue that the applicants were self-proclaimed homosexuals
who could not argue that their privacy had been infringed upon by the respondents.
The judge held that using the objective test, the exposure of the identities of the
persons and the homes of the applicants ‘for the purposes of fighting gayism and the
activities of gays’ threatened the right to privacy of those persons. He emphatically
added ‘They are entitled to it’.
This was the same position that had been taken by the same court in the Victor
Mukasa case, 21 which involved local council authorities and the police raiding the
home of an LGBTI rights activist, forcing themselves into the house, and searching
it on the basis that they were looking for incriminating material on homosexuality,
and seizing documents. They then arrested a visitor at the home, took her to the
LC chairman’s office and later to the police station and in the process policemen
undressed her on the excuse that they wanted to determine her sex, fondled her and
also denied her access to toilet facilities. The court found the unlawful search and the
undressing to be violations of the right to privacy, and it made it clear that the sexual
orientation or gender identity of the applicants was not an issue.
v) The right to found a family
This is provided for in Article 31 of the Constitution. The provision under this Article
that specifically concerns LGBTI persons is clause (2a), which provides that: “Marriage
between persons of the same sex is prohibited.”
This is a clause that was introduced by the 2005 Constitutional amendment and it
was largely fuelled by the fear of same sex marriages happening in Uganda. 22 This
is the only provision in the Constitution that expressly restricts the rights of LGBTI
persons. It makes it very clear that although all persons in Uganda have the right to
get married and found a family, this right excludes same sex persons. However it is
important to note that this provision only prohibits marriages and not orientation or
identity.
vi)
The Right to freedom of expression, thought, opinion and assembly
This right is protected in Article 29 of the Constitution. Clause (1) of the Article
provides that every person shall have the right to:
(a) Freedom of speech and expression which shall include freedom of press and
other media
(b) Freedom of thought, conscience and belief which shall include academic
freedom in institutions of learning
20 n6 above.
21 High Court Misc Cause No 24/006
22 For a discussion of how this amendment came to pass, see JD Mujuzi ‘The total prohibition of same sex
marriages in Uganda’ International Journal of Law, Policy and the Family 23, (2009), 277–288.
19