A disappointing Constitutional Court

How deeply entrenched cultural prejudices and bigotry took hold of our otherwise intelligent judges

THE LAST WORD | Andrew M. Mwenda |  On Wednesday, the Constitutional Court upheld the retrogressive Anti Homosexuality Act (AHA). Although it struck down four provisions of this barbaric law, it left most of the act intact, declaring its draconian and inhuman provisions constitutional. Nothing could have been more unconstitutional. As I sat in the court room listening to the Deputy Chief Justice, Richard Butera, read the unanimous judgment, I could not help but feel a deep sense of loss. I went to court confident the law would be overturned. Yet I was confronted by a panel of five of some of our most intelligent and enlightened jurists ignoring science, the constitution and basic commonsense in favor of their deeply entrenched prejudices.

We tend to believe human beings are rational; that judges adjudicate based on researched facts, scientific or otherwise. But we forget that cultural prejudices act as a blanket on our intelligence. In his powerful book, The Righteous Mind, the moral psychologist, Jonathan Haidt, argues that people’s moral judgments shape their reasoning, not the other way round. Reasons purport to explain and justify judgements. But in fact, we grasp at reasons and pull them into service to legitimize judgements that we have already made based on our moral tastes. On no significant issue is all evidence lined up on one side of the argument. Our ethics determine the reasoning and evidence we are prepared to accept. We give credence to the flimsiest of straws in the wind that are aligned to our values while dismissing opposite evidence with a torrent of contempt and vitriol.

This insight was at play in the court. I will focus on four of the reasons our esteemed judges gave to justify the AHA. First, AHA was necessary and constitutional because of massive recruitment of kids in schools into homosexuality. This is a common gossip on the streets, in markets, in bars and on social media in Uganda. We have intelligence/security organizations with power and resources to investigate and apprehend the recruiters. The rumor has been around for over 15 years. Not one case of such recruitment has been reported to police, not one person has been arrested in a school conducting such recruitment and not a single victim has claimed they were recruited. Why do intelligent jurists seated on a nation’s Constitutional Court fall prey to such allegations? Haidt has given the answer.

The second justification for the AHA, the judges said, was to reinforce laws to protect children from abuse. The Uganda Police crime report for 2022 reported 13,000 cases of defilement of which 12,700 were of heterosexual men defiling little girls as young as three months. Only 300 (and that is 2.3%) were cases of homosexual defilement. The parliament of Uganda, supported by our Constitutional Court, remains impervious to the plight of 97.7% of victims of defilement who are girls. Why? Because in our hetero-normative culture, such abuse is tolerable.

The third justification was that homophobia is a deeply entrenched cultural “sentiment” in Uganda. The judges argued that the constitution mandates them to uphold the culture and values of the people. But what if the public has a strong sentiment against atheists or Muslims or a given ethnic group. Public sentiment and cultural prejudice cannot be the justification for taking away someone’s civil liberties. If that were the case, how would Uganda have ended patriarchal practices? In fact, the whole foundational structural of our constitution is to protect the rights of minorities against majorities willing to use the weight of numbers to suppress them.

The fourth argument almost made me hide under the chair. The judges argued that homosexuality leads to unhealthy outcomes because of annal sex. Did our judges even think about this argument before writing it? How do they know how homosexuals enjoy sex? Do female homosexuals indulge in annal penetration? Since it is very likely many don’t, would they be exempted from this law? If male homosexuals indulge in mutual masturbation and/or oral sex, would they be exempted? And what of millions of heterosexual couples, both male and female, who find erotic gratification through annal sex? Many couples, heterosexual and homosexual, indulge in sex acts that cause bodily harm because they derive pleasure from it – like sadomasochists. Should it become the business of the state to regulate sex in people’s bedrooms?

I hold all the five judges who sat on that bench in high esteem. All of them are intelligent, analytical, widely read and widely travelled jurists. How did they allow cultural prejudices to cloud their fine minds? I could not bring myself to judge them harshly because I have many friends, relatives, workmates, neighbors – including my own sister, Margaret Muhanga (one of the most well read and widely traveled people I know) – who hold similar prejudices. Besides, friends frustrate me daily by failing even to distinguish homosexuality from rape and defilement.

We are going to appeal this judgment to the Supreme Court. I hope our justices there do a google search to establish facts about homosexuality. Such little efforts will allow them to see homosexuals as normal people who are victims of cultural prejudices and religious bigotry.  They are a minority that needs and deserves our protection, most especially by courts. Why courts? Because elected officials are under electoral pressure to pander to the whims of the majority. Judges are not in a popularity contest. However, our Constitutional Court behaved like the American Supreme Court in the case of Dred Scott in March 1857. Scott sought freedom from slavery, but the court ruled that slaves were personal property like horses and the American constitution guaranteed the right to property.

Ultimately slavery in America was not ended by democratic means. It was via the Emancipation Proclamation issued by a president using emergency powers. No legislature in Alabama or Mississippi could have ended segregation (apartheid) in the American south in the 1950s and 60s. That was done by the US Supreme Court. The Supreme Court of Uganda stands on the cusp of making history by going against our strongly held cultural and religious prejudices and annulling this primitive and barbaric law.

To our friends in the Western world: we understand you are under enormous pressure from your constituents to act. At this point, the tools at your disposal are your power over our poor nations: economic sanctions, visa restrictions, aid cuts, etc. Please keep out of this debate. When you threaten and/or impose sanctions and travel bans, Ugandans think you want to impose your values on our country. This undermines our local efforts because your actions make us appear like your fifth columnists in a cultural war. We appreciate your solidarity but do not need your help.

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amwenda@independent.co.ug