Uganda Network of Sex Worker led Organizations (UNESO) continues to celebrate the August 2021 judgement of Uganda’s Constitutional Court that declared key sections of the Anti-Pornography Act 2014 unconstitutional. The Court stated that these provisions constituted a restriction on the right to freedom of expression that is not justifiable. This is a significant milestone realized for the sex worker movement.
Since 2014, Uganda’s anti-pornography laws have been a problem for women. Immediately the new legislation became law, men used it to target and harass women for the clothes they were wearing. The Act, commonly known as the MINI SKIRT LAW, led to protests by women who said it dictated what acceptable dressing was, stifling freedom of expression which is provided for in the constitution. The government introduced the law in 2014 to prohibit the spread of pornography, which it said would help protect women and children.
There were several incidents where men, who objected to the length of a woman’s clothing, forcibly undressed women in public. In general, harassment of women by men over their clothing increased significantly during the time that the law has been in place.
The Act also affected female sex-workers disproportionately and encouraged men and police to violate their rights. The Act did not provide exemptions for women who were victims of revenge porn and arrested women whose nude photos leaked online including model, Judith Heard.
In 2015, police arrested Ugandan musician, Jemimah Kansiime, and charged her with contravening this section. Her arrest was related to a song in which she euphemistically referred to men’s sexual prowess. Jemimah was the first Ugandan to be prosecuted under the Act. Her case was postponed pending the outcome of the petition to the constitutional court.
Eventually, nine petitioners, including several individuals and some civil society groups, brought a petition to the constitutional court that challenged several key sections of the anti-pornography, asking that they be declared null and void.
The petitioners included one of UNESO’s member organizations, Women’s Organization Network for Human Rights Advocacy (WONETHA). They also included; Center for Domestic Violence Prevention, Professor Sylvia Tamale, Sarah Kihika, Lillian Drabo, Strategic Initiative for Women in the Horn of Africa, Uganda Health and Scientific Press Association, Human Rights Network for Journalists – Uganda, and Lina Zedriga.
The petitioners challenged the legality of Sections 2, 11, 13 and 15 of the Anti-Pornography Act of 2014.
Since the passage of the Anti-Pornography Act in 2014, police arrested and charged several people under sections 13(1) and 13(2) of the Act. This section prohibits, among other things, producing, publishing, or broadcasting any form of pornography, or participation in such activities. They carried a maximum fine of UGX 10,000,000 (approx. 2,832 USD) or a maximum prison sentence of 10 years, or both.
Section 2 of the Act defines pornography as: “any representation through publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual excitement. Section 11, which gives the Pornography Control Committee unchecked enforcement and policing powers including inspection, search and seizure without judicial oversight, was also declared unconstitutional.
In Section 15, the act mandated that courts issue seizure and arrest warrants without requiring the satisfaction of any evidentiary threshold, stating that “[w]here information is brought to the attention of the court that there exists in premises, an object or material containing pornography or an act or event of a pornographic nature, the court shall issue a warrant for the seizure of the object or material and for the arrest of the person promoting the material or object.”
In its judgement, the Constitutional Court observed that the prohibition of pornography in the law was a limitation of freedom of expression that did not serve a legitimate aim. While the law was passed to allegedly protect women and children from sexual offences, the Court noted that the legal provisions were not rationally connected to those objectives.
In the ruling, the Constitutional Court stated that the definition of pornography under Section 2 of the Act did not provide for the precise conduct which was prohibited, hence leaving it open to inconsistent application. The court noted that the Act did not define the phrase ‘indecent show,’ hence no threshold was apparent for conduct that would fall under its ambit.
In a unanimous judgment, a panel comprised of Justice Frederick Egonda- Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi, and Irene Mulyagonja has also condemned the government to pay half of the legal costs to the nine petitioners.