This time last year, Namara* had finally opened her small massage parlour in Jinja, a major tourism city in eastern Uganda, after years of hard work and saving. In August, all that changed when the police raided her business and arrested her. They questioned her: “Why are you not married? Why do you employ only women and where do you get your money?” They accused her of “recruiting girls into homosexuality”.

She was charged with “homosexuality” and “promotion of homosexuality”, offences under Uganda’s 2023 Anti-Homosexuality Act (AHA) that can fetch life and 20-year jail terms respectively, upon conviction. A few weeks into the four months she spent in prison on remand, her parlour was trashed and burgled, and the landlord issued her an eviction notice.

Namara is one of hundreds of people whose lives have been upended by the AHA, and whose hope lay in a court petition filed last year challenging the constitutionality of the law. But that hope too has been decimated.

On Wednesday, a bench of five judges at the country’s constitutional court delivered a unanimous ruling upholding most of the law, and annulling only four sections – including the duty to report suspected homosexuals, and the criminalisation of renting premises to people suspected of engaging in homosexuality.

“We decline to nullify the Anti-Homosexuality Act 2023 in its entirety, nor will we grant a permanent injunction against its enforcement,” said Richard Buteera, the deputy chief justice who read out the ruling. The ruling is a departure from the same court’s annulment of a similar 2014 law on procedural grounds.

The judgment represents a colossal disappointment for gay people in Uganda. It rejected arguments by 22 petitioners who told the court that the AHA violated the dignity of Ugandan LGBTIQ people, and that it went against their constitutional right to equality and freedom of association, and freedom from torture, inhumane treatment and discrimination. In another finding against the petitioners, the court also dismissed the challenge on whether MPs – who took less than a month to debate and pass the bill – had sufficiently consulted their constituents on an issue of such great public interest.

For many queer Ugandans, though, the question before the court was a simple one.

“Are we not human beings? Do they not follow human rights? The judges should know that the people they’re trying to bury – they’re human beings,” said Aggie Nshemereirwe, an activist and head of the Africa Queer Network Uganda, speaking to openDemocracy following the ruling.

‘Homophobic tropes’, church and US influences

Rights campaigners and analysts have accused the court of being swayed by public opinion and repeating tropes that characterised the anti-gay hysteria that gripped the country in the months before and after the law’s passing.

For example, the court found the law’s extreme penalties were justified following “proof” by the respondents that “gullible” Ugandans had been “lured” into homosexuality – including children. “Such a recruitment campaign was inevitably bound to attract a clawback as it did by the enactment of the impugned law,” read the judgment.

Busingye Kambumba, a constitutional law expert and one of the petitioners, told openDemocracy: “[It is] a very strange decision that seemed to give more weight to [public] opinion than the letter and spirit of the constitution itself. That’s what led to what was ultimately a wrong decision.”

An openDemocracy report in January found that homophobic narratives about LGBTIQ organisations sexually abusing and “recruiting” children in Uganda have persisted over the years, fueled by the so-called “ex-gay” movement.

Eric Ndawula, an LGBTIQ activist and a petitioner, was “disappointed” to see the court repeat these claims. “The court could have done better than look at fallacies and homophobic tropes spread on social media, and lies that have been fabricated by known homophobes,” he told us.

Martin Ssempa, a fervent homophobe and a named respondent in the case in his capacity as a campaigner for the anti-gay law, celebrated the ruling. He told reporters outside court that the judgment was “a precedent for the whole world… on how to protect their children from industrialised promotion of homosexuality” and a show of “independence” by the judges.

But some rights campaigners have noted that the Ugandan court relied on the US court case Dobbs v Jackson 2022, infamously known as the case that undid Roe v Wade and the constitutional right to abortion in the country. The Ugandan court’s communique foregrounded the Dobbs decision as an example of “human rights jurisprudence” where the court “considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to overrule the broader right to individual autonomy”.

In what Kabumba calls a show of a “broader turn to the right”, the decision has indicated an increased influence of religion on the court and marked a thinning of the line between the church and state.

He added: “Where, before, the question might have been: ‘What does the constitution say?’, that question might be replaced by: ‘What does the Bible say?’”

Kabumba also warns that this shows that the influences on the court are beyond the Ugandan public: “The court seems to have been signalling a shift in or pushback against the broader human rights movement, especially following a change in the composition of the [US] Supreme Court with the Trump appointees. I think this is not insignificant.”

Ambiguity and confusion

The decision has also raised questions on the parameters in which LGBTIQ health-focused organisations can work to uphold queer people’s right to health without falling foul of the offence of “promotion of homosexuality” under section 11 of the Act, which petitioners unsuccessfully challenged as too vague and ambiguous.

The AHA defines “promotion” of homosexuality as a case where someone “encourages or persuades another” to have gay sex or commit any other offence under the act. It also extends to financing of gay work or activities, and knowingly advertising or publishing material or running an organisation that “promotes”, “encourages” or “normalises” homosexuality. If found guilty, the offender faces up to 20 years in prison.

It is unclear, for instance, whether medical information offered by a clinician on safe gay sex would entail “promotion” of homosexuality.

Jacky Kemigisa, a Ugandan feminist journalist and a petitioner on the case, said the law’s overarching nature was deliberate erasure of LGBTIQ people in the media.

“If we protect ourselves as journalists, then we are doing what the law is asking us to do, which is to invisibilise queerness,” she said.

“It extends to publishing too, which means limitations for academics and researchers or NGO reports about LGBTIQ work. It extends from media to the heart of expression including publishing and academic work.”

As more implications of the law continue to reverberate in the human rights sector, petitioners are determined to appeal the ruling at Uganda’s Supreme Court, the country’s highest court.

* Name has been changed.