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The Right to Privacy of People in or Presumed to be in Same-Sex Relationships in Uganda

Document Cited in Related
Vincent
Pages110-118
AuthorJamil Ddamulira Mujuzi
DOI10.3366/ajicl.2012.0023
Published date01 February 2012
Date01 February 2012
INTRODUCTION

Article 27 of the Constitution of Uganda protects the right to privacy in the following terms:

No person shall be subjected to:

unlawful search of the person, home or other property of that person; or

unlawful entry by others of the premises of that person.

No person shall be subjected to interference with the privacy of that person's home, correspondence, communication or other property.1

The right to privacy is also protected under article 41(1) of the Constitution, which provides that: ‘Every citizen has right of access to information in the possession of the State or other organ or agency of the State except where the release of that information is likely to prejudice the security or sovereignty of the State or interfere with the right to privacy of any other person.’

 The right to privacy is also protected in different pieces of legislation such as the Children Act,2

Children Act, Chapter 59 of 1997, section 102.

 the Electronic Media Act,3

Electronic Media Act, Chapter 104 of 1996, section 7(2).

 and in the Press and Journalists Act.4

Press and Journalists Act, Chapter 105 of 1995, section 3(2).

 The Constitution of Uganda expressly prohibits marriage between people of the same sex5

See article 31 of the Constitution.

 and the Ugandan Penal Code criminalises same-sex relationships.6

See section 145 of the Penal Code Act.

 In Uganda senior government officials and religious leaders have publicly and repeatedly made it clear that those in same-sex relationships should be punished and where possible ex-communicated from the church.7

See generally J. D Mujuzi, ‘The Absolute Prohibition of Same-Sex Marriages in Uganda’, 23 International Journal of Law, Policy and the Family (2009): 277–88.

 The Ugandan legislature attempted to enact a law that would have seen the imposition of severe penalties (including life imprisonment and death) on those convicted of some acts of homosexuality.8

See Xan Rice, ‘Uganda Rows Back on Draconian Anti-Gay Law after Western Outrage’, 14 January 2010, The Guardian, available at http://www.guardian.co.uk/world/2010/jan/14/uganda-backpedals-on-gay-law (accessed 18 January 2011).

 Against that background it can be said that the Ugandan government, and in particular the executive and the legislature, is yet to come to terms with the view that people in same-sex relationships enjoy many of the rights (apart from rights such as the right to marry) that those in heterosexual relationships enjoy under the Constitution. The Ugandan public is also generally critical of people who are in same-sex relationships or those presumed to be in such relationships. Recently, however, in the case of Kasha Jacqueline, David Kato Kasule and Onziema Patience v Rolling Stone Ltd and Giles Muhame,9

Kasha Jacqueline, David Kato Kasule and Onziema Patience v Rolling Stone Ltd and Giles Muhame, Miscellaneous Cause No. 163 of 2010, Ruling of 30 December 2010 (by Judge V. F. Musoke Kibuuka, Kampala High Court). It should be recalled that in an earlier judgment the applicants, who were presumed to be in a same-sex relationship, had their home unlawfully searched by the government officials and the High Court found that their right to privacy, amongst other rights, had been violated. See Victor Juliet Mukasa and Yvonne Oyo v Attorney General (Miscellaneous Cause No. 247/06, High Court of Uganda, Kampala, Judgment of 22 December 2008, unreported). It is beyond the scope of this note to discuss the High Court's findings in this case as those findings have been discussing elsewhere; see J. D. Mujuzi, ‘Even Lesbian Youths or Those Presumed to be Lesbians Are Protected by the Constitution of Uganda – But to a Limited Extent: Rules the High Court’, 6(4) Journal of LGBT Youth (2009): 441–5.

 the Ugandan High Court held, amongst other things, that article 27 of the Constitution protects the right to privacy of every person in Uganda including those in or presumed to be in same-sex relationships. The purpose of this note is to discuss that High Court decision dealing with the right to privacy of people in or presumed to be in same-sex relationships. This note is divided into three parts. The first part is the introduction; the second part deals with the right to privacy under the Constitution of Uganda, focusing on the drafting history of article 27; the third part discusses the High Court decision of Kasha Jacqueline, David Kato Kasule and Onziema Patience v Rolling Stone Ltd and Giles Muhame10

Kasha Jacqueline, David Kato Kasule and Onziema Patience v Rolling Stone Ltd and Giles Muhame, supra note 9.

 on the question of the right to privacy; and the last part is the conclusion THE RIGHT TO PRIVACY UNDER THE CONSTITUTION OF UGANDA

Before the discussion of the right to privacy under the Ugandan Constitution, it is worth looking briefly at some of the developments relating to the right to privacy at the African regional human rights level. The right to privacy is protected in some of the African human rights instruments that Uganda has ratified such as the African Charter on the Rights and Welfare of the Child.11

Article 10.

It is also protected in some of the resolutions12

Declaration of the Freedom of Expression in Africa, 23 October 2002, paragraph XII(2).

 and principles13

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle N(h) and 8(b)(9) relating to the protection of the right to privacy of children appearing before courts for trial.

 passed by the African Commission on Human and Peoples' Rights (the African Commission). Communications alleging the violation of the right to privacy have also been brought before the African Commission.14

In Communication No. 307/2005, Mr Obert Chinhamo v Zimbabwe, the complainant submitted, inter alia, that state agents entered his office and deleted files on his laptop and that this amounted to a violation of his right to privacy (paragraph 6). The African Commission found the communication inadmissible, however, for failure to meet the admissibility requirements under the African Charter on Human and Peoples' Rights. In Communication 136/94 William A. Courson v Zimbabwe, the complainant submitted, amongst other things, the Zimbabwean laws that criminalised...

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