Legal issue

Whether the refusal by URSB to reserve the name of the proposed Company and consequently register it contravened the Constitution of Uganda.

Ruling

The Court stated not all fundamental rights and freedom are absolute. Regarding the question of whether URSB’s rejection to reserve and register SMUG as a company limited by guarantee fell within the ambit of Article 43(1) that allows the limitation on the enjoyment of certain human rights and freedoms including association which is not absolute in nature. The court held that the proposed company would be formed to promote the freedom of assembly or association of persons who are homosexuals whose practices, ideals, beliefs and objectives contravene the law. It concluded that the applicants had not prove to the Court that the values and laws in Kenya and Botswana which embrace freedom of expression and association for the LGBTQI communities at the time were the same as those of Uganda.

Reasoning of the Court

When distinguishing the decision in the case of Eric Gitari of Kenya and the case of Thuto Ramogge of Botswana in which the respective Courts held that persons who identified as LGBTQI are entitled to freedom of expression and association, the Court did not agree that the reasoning of the Courts in these cases is relevant to Uganda, because the laws and societal values in Botswana and Kenya are not the same with Uganda. Registration in Uganda is based on a company conducting lawful activities. The association of the LGBTQI community in Uganda is unlawful. The purposes and practices by the community whose rights SMUG intended to advance are prohibited. The Court further lectured further that what happens or is allowed in other jurisdictions does not apply in Uganda and indeed in most African States.

The three applicants were promoters of SMUG (Sexual Minorities Uganda), a proposed non-governmental organised purposed to promote the rights of the LGBTIQ community in Uganda, through research, health care services and legal representation. The applicants applied to URSB, a statutory body responsible for civil registrations (including marriages and divorces but not including births, adoptions, or deaths), business registrations (setups and liquidations), registration of patents and intellectual property rights, insolvency and receivership, chattels registry and any other registrations required by law, to reserve the name SMUG. The URSB rejected their application on the basis that the proposed name (SMUG) was undesirable and thus un-registrable given that the proposed organization aimed at advocating for the rights and well-being of the LGBTIQ community. For the URSB’s, the LGBTQI community engage in acts that amount to unnatural offences criminalized by Section 145 of the Penal Code Act, Cap. 120. Discontented by the decision of URSB, the applicants filed this case before the High Court alleging that the refusal by URSB to reserve and thereafter register the proposed company was inconsistent with the provisions of the Constitution including but not limited to Article 29(1)(e) which provides for the freedom of association.

The applicants filed this application in accordance with Articles 20(1) & (2), 21(1)(2), 29(1)(b)(d) & (e), 32(1) & (2), 36, 38, 42 and 50(1) of the Constitution of the Republic of Uganda and Order 52 Rule 1 of the Civil Procedure Rules challenging the actions of Uganda Registration Service Bureau (URBS).

The freedom of association can be limited where its enjoyment is intended to promote unlawful conduct or activities.