The right to non-discrimination under article 21 of the constitution: the case of the Penal Pathologisation of sexual and gender minorities in Uganda

Abstract

This dissertation examines the discrimination against sexual and gender minorities (LGBTQ+ individuals) in Uganda, with particular focus on the unsubstantiated claims linking them to child sexual abuse. Through comprehensive historical, constitutional, empirical, and comparative analysis, the study challenges the rational basis for discriminatory legislation while proposing evidence-based legal reforms. The research addresses four primary objectives: examining the historical pathologisation of LGBTQ+ individuals based on alleged inclinations toward child sexual abuse; appraising whether current legal frameworks uphold or violate constitutional non- discrimination protections under Article 21; evaluating recorded cases to determine whether they provide evidential support for links between homosexuality and heightened risks of sexually abusive behaviours; and contextualising the legal analysis against international human rights frameworks on equality and non-discrimination protections. The study employs mixed methodological approaches, including doctrinal legal analysis, historical examination, empirical investigation of crime statistics spanning 29 years (1995-2024), and comparative constitutional analysis. Theoretical frameworks include a Rational Basis Theory of Discrimination, constitutional interpretation principles, and social construction theories of deviance. Key findings demonstrate that discriminatory narratives against LGBTQ+ individuals lack historical legitimacy, empirical foundation, constitutional validity, and international legal support. The historical analysis reveals that current anti-LGBTQ+ sentiment represents colonial impositions rather than traditional Ugandan values. Constitutional examination shows systematic violations of Article 21's equality guarantees and democratic participation requirements in lawmaking processes. Empirical analysis of police reports, court cases, and health data conclusively refutes claims linking LGBTQ+ identity to child sexual abuse, with 'unnatural offences' constituting less than 1.2% of sexual crimes against children annually. The study establishes that Uganda's Anti-Homosexuality Act fails fundamental rational basis requirements due to reliance on demonstrably false empirical claims. The legislation violates constitutional participation principles, lacks evidentiary support, and contradicts international human rights obligations. The research reveals troubling judicial inconsistencies in applying constitutional protections, with courts providing stronger safeguards for general constitutional matters while accepting minimal standards for legislation affecting marginalised groups. The dissertation concludes with comprehensive recommendations for legal reform, including implementing evidence-based rational basis requirements for all legislation affecting minority groups, repealing discriminatory provisions, strengthening constitutional interpretation, developing comprehensive anti-discrimination legislation, and reforming child protection frameworks based on empirical evidence. These recommendations extend beyond LGBTQ+ issues to establish broader principles protecting all vulnerable populations from discriminatory legislation lacking factual foundation, thereby strengthening Uganda's constitutional democracy and human rights protections for all citizens.