Govt team stuck in pornography fight

Mr Nicholas Abola, the commissioner for Information and Communication at the Directorate of Ethics and Integrity, said the nullification by the Constitutional Court of sections of the Anti-Pornography Act paralysed the activities of the Pornography Control Committee.

Quashing sections 2, 11, 13 and 15 of the law, he noted, took the sting out of the committee’s legal bite, rendering it tame and able to conduct public education and sensitisation on pornography.

“The court pronouncement affected the work of the committee because it challenged the definition of pornography, saying it is vague, and that we should go back and make a precise definition,” Mr Abola said.

The implication of court decision, the commissioner explained, was that the Pornography Control Committee could not arrest or prosecute perpetrators of pornography under the Anti-pornography Act, 2014.

“It can’t even allow us to go and arrest, enforce; actually most of the important parts have been removed, especially the definition. So, if I came to you and said I am arresting you, you will say under which law are you arresting me and what is the definition of pornography,” he added.

The government through the Attorney General, its principal legal advisor, appealed the judgment and a determination is pending. 

Commissioner Abola revealed that the Pornography Control Committee only receives Shs500m out of the Shs2b budget, hamstringing its operations even without the additional responsibility of enforcement.

“As we speak now, we are in the third quarter and we should have got 75 percent of the money that we need, but we have only 33 percent of the budget that has been released,” he said, adding: “Whatever comes we first pay salaries and transport [for committee members], but the remaining law doesn’t give us power to go and bite as you may want.”

As a result, the team only conducts radio talk shows.

Asked about the porn detector machine the former Minister for State for Ethics and Integrity Fr Simon Lukoodo (RIP) had asked for, Mr Abola noted that the machine was never bought although Parliament approved the money.

The machine was to monitor, intercept downloading, watching or sharing and transmission of electronic pornographic materials.

Mr Abola noted that the money intended to buy the machine was channeled to do other committee functions such as educating and sensitising the public about pornography.

“Parliament granted us money but when we went into the technicalities of the machine, we worked with Uganda Communication Commission (UCC), we found out that the machine to detect and control pornography is not there,” Mr Abola said.

He added: “The nearest we got was in China, but how China controls it requires control of the whole system but here we have different service providers, China runs their own system. So practically, we haven’t bought any machine.”

Efforts to get a comment from Dr Annet Kezaabu, the chairperson of the Anti-Pornography Control Committee, were futile as our calls to her went unanswered.

But a former member of the Anti-Pornography Control Committee, Pastor Martin Ssempa, said when contacted that the funds for the pornography detection machine was “eaten” by a cartel in the Ethics ministry and the  Anti-Pornography Control Committee secretariat.

“The committee had been turned into a place for eating money. I complained about what was going on because I didn’t want my name to be tainted with corruption. They all ganged up against me. They said I was a bad man,” Pastor Ssempa said yesterday.

He said he still talks to some of the committee members and they confided in him that they are doing nothing as of now, but they still get paid.

“There is total inefficiency at the Anti-Pornography Control Committee secretariat. There is a lot of tribalism and corruption. I reported to the Inspectorate of Government to investigate the allegations and their investigators found out that it was true, but they couldn’t proceed with holding the suspects accountable because the Ethics Ministry was their mother ministry,” he said.

We could not independently verify these claims.
 Mr Abola noted that it is impossible to stop pornography since the country utilises various Internet systems.

He, however, noted that they are working with UCC to suppress some sites promoting pornography.

Mr Abola said the committee is also working with the Ministry of Education and Sports to ensure that pornography material are not sneaked in to schools by ensuring that reading materials are approved and authorised by the ministry.

He expressed concern of the need for Parliament to pass the Anti-homosexuality Bill.

“We need a biting hand, the pornography committee has been disarmed but we are now glad that if this Parliament passes the law of Anti-homosexuality, we shall now bite again because homosexuality is related to pornography,” Mr Abola said.

Background 

In 2014, a group of nine petitioners, including the Centre for Domestic Violence Prevention, the Women’s Organisation Network for Human Rights Advocacy, and the Human Rights Network for Journalists, challenged the constitutionality of the Anti-pornography Act before the Constitutional Court, particularly Sections 2, 11, 13 and 15 Anti-Pornography Act of 2014.

One of the claims contended that the definition of the term pornography in Section 2 of the Act violated the principle of legality.

In 2021,a panel of five judges in the Constitutional Court unanimously declared unconstitutional Sections 2 which defines and creates the offence of pornography, 11, 13 and 15 Anti-Pornography Act.

Section 11 confers wide discretionary powers upon the Anti-Pornography Committee in the enforcement and monitoring of the compliance of the Act and 13 which criminalises the production, publication, broadcasting, procurement, importation and exportation, sale or abetment, sets out prohibited acts of pornography.

As well as 15, which confers wide enforcement and policing powers in authorising entry upon premises and is likely to interfere in activities pursued in private; occasion the seizure of personal property and arrest of persons engaged in personal pursuits and is inconsistent and in contravention of the right to privacy, among others.

The Constitutional Court ruled that the Anti-Pornography Act does not provide what amounts to indecent show and that the threshold over which an action can be measured to determine whether it falls within the ambit of indecent show.

The judges ruled that an imprecise statement of the prohibited conduct may lead to inconsistent enforcement of the law, uncertain application of the law or failure to impede conduct that it was intended to prohibit.

They also overruled the argument that the words ‘stimulated explicit sexual activities, ‘sexual parts’, ‘primary sexual excitement’ to define pornography under Section 2 are not vague, ambiguous, uncertain and subjective.

The judge held that he was unable to determine either from the provision defining the crime of pornography or from any other portion of the Act, the legislative objective for the criminalisation of pornography.

The judgment rendered the entire Act unconstitutional as the definition of Pornography was central to its operation which means the committee was to remain dormant.

According to the court, sections 2 and 13 of the Act damage the fundamental freedom of expression and such impairment is not justified by Article 43 of the Constitution.