The Constitutional court is today expected to rule whether to strike down or uphold the Anti-Homosexuality Act, derided by the West but hugely popular in Uganda.
The petitioners include Prof Joe Oloka-Onyango, MP Fox Odoi-Oywelowo, Andrew Mujuni Mwenda, Prof Morris Ogenga Latigo, Dr Paul Nsubuga Semugooma, Jacqueline Kasha Nabagesera, Julian Pepe Onzimema, Frank Mugisha and the Human Rights Awareness and Promotion Forum. In their March 2014 petition, they claim the anti-homosexuality law, passed by Parliament on December 20, 2013, is "draconian" and "unconstitutional."
On Wednesday, the petition came up for hearing before Justices Steven Kavuma, Solomy Balungi Bossa, Augustine Nshimye, Eldad Mwangusya, and Rubby Opio Aweri.
Nicholas Opiyo, one of the petitioners' lawyers, said the law was illegal because Parliament passed it without quorum. He argued that passing a law without quorum contravened rule 23 of the parliamentary rules of procedure, and Articles 2(1) & (2), 88 and 94(1) of the Constitution.
Opiyo said on the day the Anti-Homosexuality Act was passed, Prime Minister Amama Mbabazi warned Speaker of Parliament Rebecca Kadaga about the lack of quorum.
"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.
Caleb Alaka, another lawyer for the petitioners, said on the day the law was passed, Hatwib Katoto, the Katerera MP, asked Mbabazi why he was opposing the law's passage yet many laws had been passed without quorum.
"My lord, here is a member of Parliament saying that it's normal for the Parliament of Uganda to pass laws illegally. The Hansard will bear us out on this one," Alaka said.
In reply, Principal State Attorney Patricia Mutesi asked court to dismiss the petition. Mutesi contended that 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," she said.
Mutesi contended that the court could not interpret Articles 21, 22, 88 and 94, as requested by the petitioners, in the absence of evidence to prove the alleged lack of quorum.
"We conclude that, for this court to come to the conclusion that there was no quorum, it would be speculation. Even failure to ascertain whether there was no quorum cannot imply that there was no quorum," she concluded.
However, Alaka maintained that the act should be nullified since Kadaga flouted rule 23 of parliamentary rules and procedure. The rule requires that before the speaker puts an issue to a vote, she must first ascertain whether there's quorum or not.
When President Museveni assented to the act in February, angry donors withdrew their aid, citing a violation of individuals' rights.