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.’
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.
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.
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.’
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.
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.