Uganda's Internet closure during elections challenged at East African Court of Justice

19 March 2021 · Carmel Rickard

Uganda’s government, which closed down social media and Internet access during the country’s January 2021 elections, is far from the only state to take such action over the time of national polls. In fact, research indicates that Senegal recently became the 63 rd country to restrict social media access since 2015. But in the case of Uganda, the East Africa Law Society has decided to take action, launching a challenge in the East African Court of Justice.

Read founding papers of the East Africa Law Society

Like the East African Community (EAC) itself, the East Africa Law Society (EALS) aims to promote regional integration. In particular, it aims to support the East African Community and its organs and institutions in the promotion of good governance, human rights and the rule of law.

It’s hardly surprising, then, that the shutdown of social media and access to the Internet during the January 2021 elections in Uganda – curbs which have still not been completely lifted – prompted the law society to challenge the Museveni government's strategy.

But it is not just Uganda, as a member of the EAC, that is challenged by the EALS action. The organisation is also taking aim at the secretary general of the EAC itself. This is because it allegedly failed in its duty to investigate Uganda’s violations of the Treaty that established the EAC in the first place.

Investigate

The law society claims that the secretary general was aware of the ‘unlawful restrictions’ imposed on the people of Uganda, curbing their access to the Internet and to Internet-based communications platforms, but took no action to investigate the situation and present its findings to Uganda.

In their official documents launching an application to the East African Court, the law society reproduced letters – they will be fascinating to read for anyone interested in media freedom and unfettered access to the Internet and social media – from the Uganda government’s Uganda Communications Commission (UCC). Dated 12 January, the letters instruct all Uganda’s Internet Service Providers to ‘block access to Internet-based social media platforms and online messaging applications including Facebook, Twitter, WhatsApp, Instagram and others.’

Censorship

Also shut down by the Ugandan government were the online mobile application stores, Google Play Store and App Store, while more than 100 Virtual Private Networks were also blocked, in order to prevent attempts to ‘circumvent … [the government’s] Internet censorship.’

The EALS notes the progress of the shutdown, and the government’s instruction of 13 January 2021 that all Internet Service Providers in Uganda were to block all access to the Internet. This resulted in a total Internet shutdown lasting five days, from 13 to 18 January 2021, across the actual January 14 polling day. During that time no Internet platforms of any kind were accessible.

Although general access to the Internet was restored on 18 January, the block on social media continued for several more days. And, according to the EALS, access to Facebook ‘remains restricted to date’.

Banking services

According to the EALS, this means that, during the period of the elections, the people of Uganda were ‘unable to communicate, receive and disseminate information and opinions, closely monitor the conduct of their elections, [or] have access to the Press.’

During that time, the ordinary people of Uganda were also disconnected from, among others, the means to access payment systems and most banking services, online food suppliers and travel or transport service that are Internet-based. They were also prevented from accessing health services supported by Internet-based communications.

Further, the restrictions and closures ‘also affected the livelihoods of persons whose employment and businesses rely on the Internet, thereby causing extensive financial loss and hardships.’

Freedom of speech

The EALS then lists the rights that the organisation alleges were infringed by the Internet closure.

The complete closure of Internet access amounted to ‘an unlawful infringement on the rights of the Ugandan people to freedom of access to information, freedom of speech and expression, freedom of the press, the right to Internet access, the right to freely participate in the affairs of one’s government, freedom of association, freedom of assembly, the right to self-determination and economic rights, among others.’

In violating these rights, the government of Uganda also violated several articles enshrined in the Treaty, the EALS claims. These articles enjoined member states to ‘recognise, promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights, and to abstain from measures likely to jeopardise the implementation [of these rights and responsibilities].

Transparency

According to the EALS, the shutdown ordered by the government of Uganda further amounted to a breach of the principles of good governance, democracy, the rule of law, public accountability and transparency and social justice – all contrary to key articles in the East African Treaty.

As far as the secretary general is concerned, the EALS says it had a duty, in terms of the Treaty to investigate the Treaty violations in Uganda and submit its finding to Uganda. This would have opened the way for a possible referral of the matter to the council of the EAC or perhaps to the East African Court.

But despite knowing ‘the exceedingly notorious facts’ of the shutdown in Uganda, the secretary general did not act, and abdication of duty that was a further violation of the Treaty, according to the EALS.

Egregious

Kalali Steven, an advocate who signed an affidavit supporting the application to the court, said that he was aware that a similar strategy was adopted during Uganda’s 2016 elections. The repetition during these polls, on an even ‘grander scale’, showed a pattern of ‘slow entrenchment of egregious violation of the Treaty’ which should be halted at once.

He said he was aware that other East African Community member states, among them Tanzania and Burundi, had also imposed Internet restrictions on their people in the context of general elections. ‘This is therefore also indicative of a growing pattern of violation across the East Africa Community.’

Unless the acts of the government of Uganda were ‘adjudicated upon and checked by [the court]’, it will ‘continue with impunity and in fact grow, thereby jeopardizing the objectives of the East African Community and the progress of integration.’

Abdicated

The relief sought by the EALS includes a declaration that the government of Uganda acted in violation of Treaty articles, and that the secretary general ‘abdicated’ its duty by not investigating the situation in Uganda. The law society wants Uganda to be ordered to lift any restrictions on Internet access that are still in place and to be ordered not to do so again. Further, it should be ordered to pay damages to everyone ‘adversely affected’ by the shutdown and the court should order Uganda to implement reforms to ensure that ‘unlawful Internet restrictions’ are not imposed again.

The papers were lodged with the East African Court of Justice on 12 March, thus initiating a process under which the court will have to consider whether to accept to adjudicate the case.]

* The EALS is the umbrella regional association of the respective national law societies in East Africa (Burundi Bar Association, the Law Society of Kenya, Rwanda Bar Association, South Sudan Bar Association, Tanganyika Law Society, Uganda Law Society and the Zanziba Law Society), together with their individual members.

Carmel Rickard

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