Uganda’s court of appeal has ruled that a leading LGBTIQ rights group cannot officially register as a company because its name is “undesirable” and goes against the country’s colonial-era ‘unnatural offences’ law.

The ruling upholds an earlier decision by the high court and could stop the organisation – Sexual Minorities Uganda (SMUG) – from operating formally in the country.

SMUG says the judgment is another sign of the shrinking civic space for LGBTIQ people in the country.

Campaigners also fear it will stop other LGBTIQ groups from being able to register as companies. Some groups looking to register have already started choosing names that remove any reference to being LGBTIQ inclusive.

Others have decided to review their company objectives, removing references to LGBTIQ work “in case URSB [the Uganda Registration and Services Bureau] comes looking”.

The long-running legal dispute began in 2016 when SMUG sued the bureau over its refusal to register SMUG’s name, saying it was “against public interest”.

Uganda’s company law gives the registrar of companies the right to stop reservation of a company name “which in the opinion of the registrar is undesirable”.

SMUG’s executive director Frank Mugisha petitioned the court along with its co-founders Dennis Wamala and Ssenfuka Joanita Mary. They argued the registrar’s refusal was against their constitutional freedom of association.

But judges sided with the registrar, saying: “The respondent was well within their mandate to disallow the name proposed by the appellants.”

The petition was, however, successful on two other grounds. The court found there was unreasonable delay by the URSB, which took over a year to respond to SMUG about its decision, and the judges also overturned a lower court’s ruling to award costs to the URSB, which SMUG would have had to pay.

LGBTIQ rights campaigners told openDemocracy they are worried about the broader implications of the ruling for queer organising in the country.

“The law is supposed to protect minority groups, not suppress them in the name of public interest,” said Mugisha.

Edward Ssemmambo, the head of strategic litigation at Human Human Rights Awareness and Promotion Forum (HRAPF), whose lawyers represented SMUG, told openDemocracy last week: “This decision has given a licence to the registrar of companies to reject the registration of entities whose objective is to promote the interests of LGBTIQ people. It is bad news generally.”

Back to back constitutional blows for queer community

The ruling in SMUG’s case preceded this week’s decision by Uganda’s constitutional court to reject a challenge to last year’s draconian Anti-Homosexuality law (AHA).

The AHA prescribes life in prison for the “offence” of gay sex, and up to 20 years for the “promotion” of homosexuality. The law’s definition of “promotion” includes offering financial support to gay people, leasing housing, and running an organisation that “encourages homosexuality” or “normalises its conduct’.

Two of the judges involved in the SMUG case – deputy chief justice Richard Buteera and Christopher Gashirabake – also ruled on the AHA appeal.

The country’s increasing hostility towards LGBTIQ people has also seen other queer focused and inclusive organisations face frustration and intimidation from government registration institutions in recent years.

In January 2023, a leaked report by the NGO bureau, the country’s charity regulator, showed the organisation had investigated four rights organisations – including SMUG – that it “suspected to be involved in the promotion of LGBT activities in the country”. It also listed 22 other organisations – including Women With a Mission – that are still under investigation and have not been registered by the charity bureau.

“We are in a state of uncertainty…we have never received a formal decision by the NGO bureau,” said Sean Awali Shibolo, executive director of TRIUMPH, one of the other four organisations investigated by the charity regulator in 2022. This contravenes the 2016 NGO Act which gives the bureau 30 days to issue in writing a reason for refusing registration to an organisation.

Another reason the SMUG ruling could be so damaging is that all NGOs first have to register as companies in order to operate.

“The court has essentially allowed URSB and the NGO bureau to refuse to register – or even deregister – any queer focused group. Many organisations could be at risk and homophobic Ugandan officials could make it a point to harass queer organisations and their allies,” said Mugisha.

Organisers told openDemocracy that organisations whose listed objectives include HIV/AIDS, or that care for groups such as sex workers and people who use drugs, are most at risk as they are regarded as “promoters” of homosexuality by government registration bodies.

Betty Balisalamu, a lawyer and the executive director of Women With A Mission (WWM), a human rights NGO in the eastern Mbale district, said many rural organisers in her region were refused registration by URSB if they had the words “rainbow”, “trans” or “sexualities” in their proposed company names.

HIV/AIDS organisations have already reported that Uganda’s anti-gay law is keeping patients away from treatment and undoing decades of hard-earned progress.

Now the SMUG court decision has created confusion and contradictions regarding Uganda government’s assurances over priorities of LGBTIQ people’s access to health services.

In August last year, following the AHA ruling, the health ministry issued a statement calling for non discrimination of patients, irrespective of gender or sexual orientation.

“SMUG and other LGBT groups are the link between legal, health, safety, for LGBTIQ community,” said Mugisha. “But the contradictory message the organisations are getting from government institutions is a threat to this. They’re saying something different in [some institutions] while doing something different in others,” he added.

Ultimately, the ruling leaves the queer community more isolated.

“It is a systematic kind of erasure and discrimination by the government and then also by the only organisations catering to the LGBTIQ community,” said Balisalamu.

But not all hope is lost. Mugisha said they’d appeal the decision at the Supreme Court, the highest court in Uganda.

“I am not shaken. Our journey of advocacy includes strategic litigation and we are going to pursue other remedies to the end as well,” said Mugisha.