PERSONS IN UGANDA

commit a crime, which is prohibited under the Penal Code Act. 25
It therefore appears that LGBTI persons are entitled to the exercise of their rights
to the freedoms of association, opinion, assembly, and speech for as long as such
exercise is not aimed at or does not result into the promotion of same sex relations,
which are criminalised in Uganda. This case is however on appeal, 26 and so this is not
the final position of the law yet.
vii)
Affirmative action in favour of marginalised groups
The Constitution under Article 32 gives a provision for the protection of marginalised
groups of people in Uganda. It requires state agencies to provide affirmative action
for all groups marginalised. It states that:
(1) Notwithstanding anything in this constitution, the state shall take affirmative
action in favour of groups marginalised on the basis of gender, age, disability
or any other reason created by history, tradition or custom, for the purpose
of redressing imbalances which exist against them.
(2) Laws, cultures, customs and traditions which are against the dignity, welfare
or interest of women or any other marginalised group to which clause (1)
relates or which undermine their status, are prohibited by this constitution.
The Constitution therefore acknowledges the existence of marginalised groups in
the country and provides for affirmative action for them. The article however does
not specify what these groups are and merely lists some of the causes of their
marginalisation. It remained to the legislature to decide which group of persons can
be classified as being marginalised.
From the list provided in the article on the causes of marginalisation, LGBTI persons
can be classified as marginalised by reasons of gender as far as transgender and
intersex persons are concerned; and history and tradition as far as lesbians, gays
and bisexuals are concerned. However as already noted, same sex relations are
criminalised in Uganda and most of the protections afforded to other groups might
not be readily availed to LGBTI persons, and so they may even not be regarded as
marginalised.
viii)
Right to civic participation
This right is provided for in Article 38, which provides that:
1. Every Uganda citizen has the right to participate in the affairs of government,
individually or through his or her representatives in accordance with law.
2. Every Ugandan has a right to participate in peaceful activities to influence the
policies of government through civic organisations.
This is one of the fundamental rights, which are restricted to only Ugandans. Beyond
that, there is no further restriction and specifically there is no restriction based
25 High Court Civil Division, Misc. Cause No. 33/012, Pgs 4 & 5
26 Kasha Jacqueline Nabagesera & 3 Others v Attorney General & Rev. Fr. Simon Lokodo, Civil Appeal No. 195
of 2014.
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