By Joan Akello
Five judges of the constitutional court have this afternoon nullified the Anti-homosexuality Act 2014 due to lack of quorum in parliament on December 20, 2013 when it was passed.
At 12:34, the panel of judges including the Acting Deputy Chief Justice Steven Kavuma, Augustine Nshimye, Eldad Mwangusya, Solomy Balungi Bossa and Rubby Aweri Opio delegated Mwangusya to read the unanimous ruling saying the Speaker flouted rule 23 of parliamentary rules and procedure. I t is his or her duty to first ascertain whether there’s quorum or not before putting an issue to a vote.
They unanimously agreed that the respondent’s (the Attorney General) silence in proving where there was quorum means he accepts that it was lacking and hence a strong basis to dispose of the law. In addition, three members of parliament including the Prime Minister raised an issue about it but the Hansard shows that the Speaker ignored them and proceeded.
On the first day of hearing, the Principal State Attorney Patricia Mutesi asked court to dismiss the petition because the petitioners had failed to adduce evidence that there was no quorum when the act was passed. “It’s very clear that this is a matter of fact; so, it requires evidence. When an allegation of fact is made, it requires evidence to support it, which has not been done,” she said. Mutesi agreed with petitioners that Kadaga did not ascertain if there was quorum but she insisted that it could not be a ground to nullify the act.
“In the circumstances, it would be unfair for this honourable court to find that there was no quorum since it has not been proved that there was no quorum. What has been produced is just a Hansard which doesn’t show how many MPs were in the session that day…They should have produced a register,” Mutesa said.
Nicholas Opio, one of the five 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 Parliament 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 say the onus was on the Attorney General to approve there was quorum but it did not.
Mutesi was absent today, leaving Kosiya Kasibayoalone to feel the loss on behalf of the Attorney General. Also, her request for an adjournment were twice rejected by the judges on Aug.30 which in essence could mean the government lost the case from the start because it showed that it was ill prepared.
Prof. Joe Oloka-Onyango, Fox Odoi-Oywelowo, Andrew Mwenda, Prof. Morris Latigo, Dr. Paul Nsubuga Ssemugoma, Jacqueline Kasha Nabagesera, Julian Pepe Onziema, Frank Mugisha, Human Rights Awareness and Promotion Forum (HRAPF) and the Centre for Health, Human Rights and Development (CEHURD) filed a petition challenging the constitutionality of the law in March this year.
Kasha says the ruling shows that there is rule of law in Uganda and Ugandans should not worry because any gay person caught recruiting minors or involved in sexual harassment will be brought to the book just like the non- gays.
Pastor Martin Sempa, an anti-Gay activist says he and the other activists will appeal in the Supreme Court because the Attorney General was not given time to collect more evidence.
President Yoweri Museveni at 7: am on August 2 will hold a press conference, and many expect that he will comment on this latest ruling.