Free speech gets a huge boost in Uganda

13 January 2023 · Carmel Rickard

A key freedom of expression law, used in Uganda to arrest, detain and hamper the work of journalists, along with other writers and political activists, has been declared unconstitutional by that country’s constitutional court. Five judges held that the law, dealing with ‘computer misuse’, imposed curbs that were incompatible with the constitution. The court said that prosecuting people for the content of their communication amounted to a violation of what ‘falls within guarantees of freedom of expression in a democratic society’.

Read judgment

In a decision likely to have an enormous impact on freedom of expression in Uganda as well as on constitutionalism in that country more generally, five judges have held a key section of a pervasive law on ‘computer misuse’ to be invalid.

The petition, heard by the country’s constitutional court, concerns the Computer Misuse Act. Section 25 of that law says it is an offence for any person to ‘willfully and repeatedly use electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication.’

According to the petitioners, section 25 amounts to an ‘insidious form of censorship’. They said it restricted the free flow of opinions and ideas ‘essential to sustain the collective life of the citizenry in the digital age.’

Less drastic

Part of the problem, they argued, was that the section was ‘vague and overly broad’, and there was also no evidence that the government couldn’t achieve the purpose behind the law by using ‘less drastic measures’.

Included in the list of relief sought by the petitioners, was an order directing that all prosecutions brought in terms of section 25 be stayed.

The attorney general had other ideas, however, and argued that the petition did not raise any questions for constitutional interpretation and that the disputed section was not inconsistent with the constitution.

Threaten

The court found there were three main issues for it to decide: did the petition in fact raise questions of constitutional interpretation; did the section threaten online/digital freedom of expression, thus contravening the constitution; and should the relief sought, be granted?

The court stressed that the fundamental rights and freedoms of the constitution had to be given purposive and generous interpretation so that there could be ‘maximum enjoyment’ of these guarantees. Based on earlier decisions of the supreme court, it was satisfied that the questions raised in the case were a matter for constitutional interpretation. ‘The petition is not frivolous, nor is it vexatious.’

But it was the second question on which the court spent most time: was the section in fact unconstitutional? According to counsel for the petitioners, the section was vague, overly broad, ambiguous and failed to give fair warning about what would be deemed illegal. Key issues weren’t defined.

Unreasonable

Where no clear guidance was given to law-abiding citizens or to the authorities and courts, then a law had to be struck down as arbitrary and unreasonable. Further, the disputed section was disproportionate since it ‘loops all protected speech, without any clear boundaries.’ There were less intrusive measures that could have been taken to achieve the intended purpose.

The doctrine of vagueness was founded on the rule of law, said the court. It rested on the principles of fair notice to citizens and limitation of enforcement discretion. It could be summed up in one proposition: a law will be found unconstitutionally vague if it ‘so lacks in precision as not to give sufficient guidance for legal debate, that is, for reaching a conclusion as to its meaning by reasoned analysis, applying legal criteria.

Did section 25 give ‘sufficient guidance for legal debate’? To understand the conduct it prohibited, one had to understand the key phrases on which the section was constructed, like ‘disturbing the peace, quiet and privacy of anyone’. The interpretation part of the law did not help since it failed to define or give meaning to the terms in the impugned section. Without definition of important terms, the ‘ingredients’ of the offence couldn’t be properly determined.

‘Without knowing the ingredients of an offence one cannot meaning prepare his/her defence. Laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.’

Untargeted

Further, the principle of proportionality required that laws must not be drafted too widely. If everyone, ‘including even the untargeted members of society’ were caught in the net, a law would be null and void.

The court added, ‘In a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democratic society’.

In finding the section unconstitutional, the court wrote that it was unjustifiable as it curtailed freedom of speech in a free and democratic society. Further, it did not specify what conduct constituted offensive communication. It was also vague, overly broad and ambiguous. The section was thus inconsistent with the constitution of Uganda, the international covenant on civil and political rights and the African charter on human and peoples’ rights.

Bad law

Among those who reacted to the new judgment is Robert Sempala, executive director of the human rights network for journalists, Uganda. He is quoted in local media as saying, ‘at least one bad law is off the law books’.

The disputed section has been used in the past to arrest and detain a number of people including political activists, journalists and writers. An international organisation dealing with the rights of journalists, the committee to protect journalists (CPJ), said the new decision was a great relief: the authorities had used it repeatedly as a ‘cudgel’ against critical journalism and commentary.

The CPJ urged that other ‘problematic sections’ of the Computer Misuse Act that criminalise the work of the press should be reformed. The authorities should further ensure that all of Uganda’s laws ‘are compatible with the standards of freedom of speech in a democratic society.’

The judgment was written by Justice Kenneth Kakuru, with the unanimous agreement of the deputy chief justice, Justice Richard Buteera, along with Justices Geoffrey Kiryabwire, Elizabeth Musoke and Monica Mugenyi.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.