UGANDA’S TOP LAWYER SAYS, HOMOSEXUALITY IS A SOCIAL ISSUE NOT A LEGAL ONE

Mr James Mukasa Sebugenyi was recently elected the new President of Uganda Law Society. Behind the Mask Kampala correspondent, Kikonyogo Kivumbi spoke to him about access to justice for all Ugandans, irrespective of their sexual orientation. Below are excerpts from the interview

BTM: ULS is crucial in the management and administration of justice in Uganda. Briefly what role are you playing in this regard?

ULS: The Uganda Law Society is a professional body of all lawyers in the country whose objectives include, among others, to maintain and improve the standards of conduct and learning of the legal profession in Uganda; to facilitate the acquisition of knowledge by members of the legal profession; to protect and assist the public in Uganda in matters touching, ancillary or incidental to the law and to assist the Government and the courts in all matters affecting legislation and the administration and practice of the law in Uganda.

In pursuit of its mandate, the ULS has worked and continues to work with the judiciary together with other Justice, Law and Order Sector (JLOS) stakeholders to ensure proper administration of justice. In addition, the Legal Aid Project of the Uganda Law Society and the Pro bono scheme [Lawyers offering free legal services to the public or at a minimal fee] are both focused on ensuring access to justice for those who cannot afford.

The ULS also continues to come out on topical issues of concern, including taking on public interest litigation cases, dialogue, proposals for legislative reform to parliament in form of position papers to ensure adherence and observance of the rule of law in Uganda.

BTM: Homosexuals often face challenges in accessing justice in Uganda. Why?

ULS It is not correct to say that homosexuals face challenges in accessing justice. Our constitution is clear under the Bill of Rights, specifically on equality and non-discrimination. The courts are independent in the adjudication of all manner of disputes. If there are any challenges, then these challenges are structural and affecting the judiciary and litigants alike. [They are not] based on sexual orientation.

BTM: What plans do you have to enhance equal access to justice for all irrespective of sexual orientation?

ULS: [That is] already enumerated above [where I mentioned] the legal aid and pro-bono.

BTM: ULS took position to oppose passing the Anti Homosexuality Bill 2009. But section 145 of the Penal Code still criminalises consensual adult same sex relationships. What do you plan to do about this?

ULS: ULS opposing the Anti-Gay Bill had nothing to do with the content of the Bill (substantive law), because the Penal Code already outlaws and penalises homosexuality. The ULS’ concern was mainly to do with the proposed offences and sanctions, some of which were really draconian.

The argument is really that human rights, while inherent, are not absolute and must be promoted with the context in mind. Homosexuality is a social and not a legal issue, and all its proponents must look at it from that perspective.

BTM: The judiciary in Uganda has shown exemplary independence in administration of justice in cases filed by gay activists. But some forces get discomfort when lawyers, some of whom are members of ULS making legal representation for homosexuals in courts of law. Why? What do you plan to do about this?

ULS: In the exercise of judicial power, the courts are guaranteed independence under article 128 of the constitution, this independence is for all manner of disputes brought before the courts and not only those brought by gays, to say so would imply discrimination by the courts on grounds of sexual orientation which is outlawed by our constitution. The courts shall not be subject to the control or direction of any person or authority.

Regarding involvement of advocates in these cases [brought by or against gays] Article 28(1) of the 1995 Constitution of the Republic of Uganda, 1995 provides for a right to a fair hearing; it states that: in determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy, and public hearing before an independent and impartial court or tribunal established by law.

This Article continues to provide for the Presumption of Innocence under clause (3)(a), it states:, every person charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty, additionally clause (3)(d) of the same article permits such a person appear before court in person or, at that persons own expense, by a lawyer of his or her choice;

From the above Article, it is notable that every person is entitled to legal representation by an advocate of his or her choice and at his or her own expense. Therefore, when individual members of ULS represent homosexuals in the courts of law, they do so in pursuit of fair trial and rule of law principles enshrined in our constitution and most importantly the presumption of innocence for persons charged with criminal offences.