Kampala Central Member of Parliament Muhammad Nsereko. PHOTO/ FILE
|People & Power
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How Nsereko’s Computer Misuse Bill violates previous court rulings
What you need to know:
- Even before Kampala Central Member of Parliament Muhammad Nsereko crafted amendments which now await the signature of the President, several sections of the Computer Misuse Act were already controversial as activists insisted that they were being used to clampdown on dissenting voices online.
- But the introduction of Nsereko’s amendments would mean going against previous court judgments, writes Derrick Kiyonga.
The ruling National Resistance Movement (NRM) has already come up with defence to the accusation that it’s in support of the amendments in the Computer Misuse Act which have alarmed freedom of expression activists who insist that amendments are aimed at further stifling freedoms, more so online.
The defence is in form of disowning the amendments, insisting that they are a brainchild of Independent Kampala Central Member of Parliament (MP) Muhammad Nsereko who in the past hobnobbed with the Opposition.
“Social media is good, but there are also elements that abuse it. For instance, someone goes on his computer or phone and announces that I’m dead when I’m still alive doing my duties,” says Chris Baryomunsi, the minister of Information and National Guidance.
While appearing on NBS TV recently, Nobert Mao, the minister for Justice and Constitutional Affairs, said: “I’m glad that the law [Computer Misuse Bill as amended] came from a private member. In this case, you will not say the government concocted the law. The person who brought the law is a member of the Opposition.”
For years, Uganda has been in the spotlight for stifling online freedoms and this was showcased during the 2021 general election when the internet was shut down hours before Ugandans could go to the polls.
Before the internet could be shut down, President Museveni ordered the ban of social media giant Facebook – a ban which still stands up today.
“That social channel you are talking about, if it is going to operate in Uganda, it should be used equitably by everybody who has to use it,” Museveni said in January 2021. “We cannot tolerate this arrogance of anybody coming to decide for us who is good and who is bad.”
Though government denies having a hand in the Computer Misuse Act amendments in February, it was Speaker of Parliament Anita Among, who belongs to NRM, who gave Nsereko the greenlight to draft the Bill.
“Tomorrow will be too late. Let us enact a law to regulate the freedom of speech to stop harassment of others,” Nsereko said.
When the law was passed last month – thanks to the backing of NRM MPs who are the majority in Parliament – Among scoffed at Opposition MPs who were opposed to the Bill but were outnumbered.
“Honourable members, I can hear some of you say we are going to court. If you want to go to court please do. Let’s create work for the court,” Among said.
The objective of introducing the amendments, according to Nsereko, is to “enhance the provisions on unauthorised access to information or data; to prohibit the sharing of any information relating to a child without authorisation from a parent or guardian; [and] to prohibit the sending or sharing of information that promotes hate speech.”
The amendment that could imperil freedom of speech the most is one Section 23(A) that introduces “hate speech” on Uganda’s legal books. The section says a person shall not write, send or share any information through computer, which is likely to ridicule, degrade or demean another person, group of persons, a tribe, an ethnicity, a religion or gender.
The section outlaws creation of divisions among persons, a tribe, an ethnicity, a religion or gender and promotion of hostility against a person, group of persons, a tribe, an ethnicity, a religion or gender and person who contravenes those sections will be fined 750 currency points or imprisonment not exceeding seven years.
If Museveni signs the Bill into law in its current state, it would be in violation of the Constitutional Court judgment of Andrew Mwenda and East African Media Institute Vs Attorney General which essentially allowed Ugandans to use foul language.
Veteran journalist Mwenda ran to the Constitutional Court after he was charged with sedition following a verbal attack on Museveni on KFM in the aftermath of the death of South Sudan vice president John Garang, who died in a helicopter provided by the Ugandan government.
Under Section 40 of the Penal Code Act, which Mwenda challenged, seditious offences were defined as: “Any person who does or attempts to do or makes any preparation to do, or conspires with any person to do, any act with a seditious intention, utters words with a seditious intention; prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; imports any seditious publication, unless he or she has no reason to believe, the proof of which shall lie on him or her, that it is seditious.”
The penalty if found guilty was for a jail term not exceeding five years or a fine not exceeding Shs50,000 or both, and repeat offenders could suffer imprisonment for seven years.
In the petition in which Mwenda combined efforts with the East African Media Institute, a non-governmental organisation, the charge of sectarianism survived but sedition which during its early days was casually slumped on people who are critical of government didn’t.
“The reason is that they [citizens] have a right to criticise their leaders rightly or wrongly. That is why he suggested, rightly so, that leaders should grow hard skins to bear [the criticism]. We find that the way the impugned sections [of the Penal Code Act] were worded has an endless catchment area, to the extent that it infringes one’s right enshrined in Article 29(1) (a). We answer to issue one in affirmative and in favour of the petitioners,” the panel that had justices Leticia Mukasa-Kikonyogo, George Engwau, Constance Byamugisha, Steven Kavuma, and Augustine Nshimye ruled in 2013.
“Our people express their thoughts differently depending on the environment of their birth, upbringing and education. While a child brought up in an elite and God-fearing society may know how to address an elder or leader politely, his counterpart brought up in a slum environment may make annoying and impolite comments, honestly believing that that is how to express him/herself. All these different categories of people in our society enjoy equal rights under the Constitution and the law. And they have the equal political power of one vote each.”
Publication of false news
The Bill also criminalises what they term as sharing of “misleading and malicious information about or relating to any person through computer” and the punishment for the convicted person being Shs15m or seven years in prison if not both.
If the Bill becomes law it will be seen to go against the Supreme Court judgment that decriminalised publication of false news.
“The courts have already determined issues of freedom of speech and freedom of expression. What NRM is doing to waste more of our time in court but we shall go to court to fight these laws once Museveni signs the Bill into law,” says Isaac Kimaze Ssemakadde, the executive director of Legal Brains Trust, a democracy and human rights watchdog.
Section 50 of the Penal Code Act (Cap. 106) for years had allowed prosecution of any person who publishes a false statement, rumour or report which is likely to cause fear and alarm to the public, or to disturb the public peace.
In 1997, Monitor journalists Mwenda and Charles Onyango-Obbo were charged at Buganda Road Magistrates’ Court on two counts of the criminal offence of “publication of false news” contrary to Section 50.
The charges stemmed from an article Sunday Monitor ran in September 1997, under the title ‘Kabila paid Uganda in Gold’.
The Monitor story said: “President Laurent Kabila of the newly named Democratic Republic of the Congo (formerly Zaire) has given a large consignment of gold to the Government of Uganda as payment for ‘services rendered’ by the latter during the struggle against the former military dictator, the late Mobutu Sese Seko.”
Though the duo was acquitted in 1999, they had filed a constitutional petition contending that Section 50 of the Panel Code violates Articles 29 and 43 of the Constitution and it can’t be applied in a free and democratic country.
In July 2000, the Constitutional Court by a majority judgment of 4-1 dismissed the petition on grounds that the charges by the Director of Public Prosecution (DPP) were legal, prompting the journalists to take the battle to the Supreme Court.
The highest court in the country agreed with Obbo and Mwenda that Section 50 of the Penal Code wasn’t justifiable in a free and democratic society.
The court in particular dismissed the equivocator submission by the State what is “acceptable and justifiable” fluctuates from one democratic society to another.
“The provision in clause (2) (c) clearly presupposes the existence of universal democratic values and principles, to which every democratic society adheres. It also underscores the fact that by her Constitution, Uganda is a democratic state committed to adhere to those values and principles and, therefore, to that set standard,” Justice Joseph Mulenga, who passed on in 2012, wrote in the lead judgment.
“While there may be variations in application, the democratic values and principles remain the same. Legislation in Uganda that seeks to limit the enjoyment of the right to freedom of expression is not valid under the Constitution, unless it is in accord with the universal democratic values and principles that every free and democratic society adheres to.”
The spirit of enacting the Computer Misuse Act, in 2011, was “to make provision for the safety and security of electronic transactions and information systems; to prevent unlawful access, abuse or misuse of information systems including computers; to make provision for securing the conduct of electronic transactions in a trustworthy electronic environment and to provide for other related matters”.
READ ARTICLE: On the Computer Misuse Bill 2022
The Act, furthermore, has penal sanctions on computer misuse and also deals with the use of computer programmes, references to programmes, data content modification, authorised access, investigative measures and procedures.
It thus has good intentions, and if applied correctly, could adequately deal with cybercrime. For instance, Section 23, which tackles child pornography with a person found guilty of the offence liable to a fine not exceeding 360 currency points or imprisonment not exceeding 15 years or both, and Section 19, which outlaws and sets out penalties for electronic fraud with a person found guilty liable to a fine not exceeding 360 currency points or imprisonment not exceeding 15 years or both.
However, 11 years after the Act was instituted it has become apparent that the State has been quick to use two sections to curtail freedom of expression.
Section 24, which details cyber harassment as the use of a computer for any of the following purposes—making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent; threatening to inflict injury or physical harm to the person or property of any person, and Section 25 which penalises offensive communication saying any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanour and is liable on conviction to a fine not exceeding 24 currency points or imprisonment not exceeding one year or both.
The State has been eager to charge its real and imaginary critics using those two sections and this was demonstrated on June 8, 2015, when Robert Shaka was kidnapped by security apparatus for a number of days and later arraigned before the Buganda Road Chief Magistrate’s Court and charged with regularly using a computer to disrupt Museveni’s privacy.
The State, which was convinced that Shaka was the same person as Tom Voltaire Okwalinga (TVO), a popular blogger who had eluded security agencies, accused him of violating Museveni’s privacy by posting statements regarding the President’s health condition on Facebook, a charge he rejected.
The prosecution didn’t go ahead as planned as he dashed to the Constitutional Court challenging the constitutionality of Section 25 of the Computer Misuse Act, insisting its contravention of Article 29 of the Constitution.
The section has also been challenged in the same court by Swaibu Nsamba Gwojolonga’s petition who in the fall of 2016 had spent a number of days in jail for posting on Facebook how he would be enthusiastic to publicise Museveni’s death. This was interpreted by DPP as offensive communication contrary to Section 25.
In 2017, the profile of the those accused under the offensive communication charge was expanded when artists David Mugema, 31, and Jonathan Muwanguzi, 23, were charged for outing a song entitled Wumula mzee (take a rest old man) – which gained traction on social media triggering curiosity of the State which concluded that that it disturbs the peace of the President who has been in power for last three decades. The DPP would, months later, drop charges without producing a single witness.
Most of the charges brought under Section 24 and 25 of the Computer Misuse Act have either been dropped or have stalled but not cases involving Stella Nyanzi, a researcher, who is now exiled in Germany.
In 2017, Nyanzi, then employed as a researcher at Makerere University, was charged at the Magistrate’s Court in Kampala with cyber harassment for firing off a Facebook post therein calling Museveni a “pair of buttocks”.
The State wanted Nyanzi to be committed to mental asylum for a check-up but the case stalled when she challenged the 1938 Mental Treatment Act which the State had invoked.
With that case frozen, in 2018, Nyanzi would get into trouble when she was charged with and later sentenced by a magistrate to 18 months in prison on cyber harassment charges that arose out of accusations that she had once again used Facebook to abuse Museveni and, Esteeri Kokundeka, his dead mother.
A few months later, the High Court, upon appeal, reversed the decision of the lower court, setting Nyanzi free.
There are a number of unheard constitutional petitions filed by various litigants, including the Uganda Law Society, challenging the constitutionality of the Sections 24 and 25 of the Act and activists are warming up to challenge the new amendments once Museveni signs them into law.
“We accept that in democracy we must tolerate certain things, on social media our threshold to tolerate must increase because of the very nature of the digital space,” Ssemakadde says.
“We are going to assert, and the court will affirm, a constitutional right to annoy without going to jail, this I guarantee you.”
About Sections 24 and 25 Computer Misuse Act
Section 24: Details cyber harassment as the use of a computer for any of the following purposes—making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent; threatening to inflict injury or physical harm to the person or property of any person,
Section 25: Penalises offensive communication saying any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanour and is liable on conviction to a fine not exceeding 24 currency points or imprisonment not exceeding one year or both.
