Sexual Minorities Uganda-SMUG filed a Memorandum of Appeal against the decision of Justice Patricia Basaza Wasswa where Uganda Registration Services Bureau-URSB refused to reserve and register SMUG saying the name is undesirable. In her ruling Justice Basaza said although fundamental rights and freedoms of people are inherent and not granted by the state it is also trite that not all fundamentals and other human rights and freedoms cannot just be granted without restriction or limitations. She added that a distinction must be drawn between non-derogable and derogable fundamental rights and freedoms as per article 44 of the constitution.
The question to be answered therefore is whether URSB’s ground for the refusal to register SMUG was justified and falls within the ambit of article 43 of the Constitution. In the opinion of the registrar, the objective of Sexual Minorities Uganda is to advance for LGBTIQ rights contrary to section 145 of the penalty code act. Counsel for the respondents argued that it is a principle of criminal law that in addition to the substantive offence it is prohibited to directly or indirectly encourage or assist the commission of the offence or to conspire with others to committees it regardless of whether the offence is actually committed or not.
Our counsels argued that the limitation under article 43 does not apply to the present case, they also argued that the phrase “all persons” under article 21 and 2 under the constitution includes LGBTIQ people in Uganda. The right to equality and non-discrimination applies to all persons and therefore the impugned action, URSB violated the right to equality and freedom from discrimination under article 29 of the constitution. The delay of twenty months without URSB responding to several reminders to reserve the name was a violation of article 42 of the constitution.
Our Memorandum of Appeal reads|:
- The Learned Judge erred in fact and in law when she mis-constructed the Constitution of Uganda and law by holding the association for unlawful purposes and practices by LGBTIQ persons is prohibited in Uganda.
- The Learned Judge erred when she speculatively held that the name “Sexual Minorities Uganda” and objectives of of the proposed company were to promote behavior that contravenes section 145 of the Penal Code and Article 31 of the constitution Of Uganda.
- The Learned Justice also erred in law and in fact when she held the inordinate delay by the Respondent to respond to Applicants’ application for reservation of the name “Sexual Minorities Uganda” did not violate article 42 of the Constitution.
- The Learned Judge she erred when she awarded costs to the Respondent in an application for enforcement of fundamental rights and freedoms guaranteed under the Constitution.
- The Learned Judge erred when she declined to grant the prayers south by the Applicants, Justice Patricia Basaza Wasswa erred in her judgment.
Based on all these unfortunate errors we thereby pray that this Honorable makes orders that; the decision of the Justice Patricia Basaza Wasswa be set aside, the appeal be allowed and the costs of this appeal and costs in high court be provided for.
In 2016 on behalf of applicants namely Frank Mugisha, Dennis Wamala and Ssenfuka Joanita Warry with representation from consels at Human Rights Awareness and Protection Forum-HRAPF filed an application in the High Court challenging the refusal by URSB to register SMUG saying the name is undesirable.