Prime
Why free speech activists still have their work cut out
A woman uses a computer in Kampala. PHOTO/FILE
What you need to know:
There is jubilation among free speech proponents following the Constitutional Court’s annulment of the much-feared Section 25 of the Computer Misuse Act, but as Derrick Kiyonga writes, the state still has more weapons it can deploy against online critics.
There was a time Ugandan security agencies were obsessed with apprehending elusive blogger Tom Voltaire Okwalinga (TVO). The obsession ended with the arrest of Mr Robert Shaka, who identifies himself as Maverick Blutaski on Facebook.
On June 8, 2015, after being whisked away by security agencies for a number of days, Mr Shaka was arraigned before the Buganda Road Chief Magistrate’s Court and charged under section 25 of the Computer Misuse Act. The crime? Frequently using a computer to disturb President Museveni’s privacy by posting statements regarding his health condition on Facebook.
A year later, Mr Swaibu Gwojolonga—a member of the Forum of Democratic Change (FDC)—was charged under the same section after being jailed for a number of days.
Mr Gwojolonga posted his eagerness on Facebook to announce Museveni’s death. The post showed Museveni’s purported lifeless body in a casket.
Offensive communication
In 2017, Stella Nyanzi, a virulent critic of the regime, who has since gone to exile in Germany, had her day in the dock when she was charged under the section for calling Museveni “a pair of buttocks” in a Facebook post. This was interpreted by the Office of the Director of Public Prosecutions (ODPP) as offensive communication contrary to section 25 of the Computer Misuse Act.
There was more to come from the ODPP as it invoked section 25 in 2017 to charge two local musicians David Mugema and Jonathan Muwanguzi. The substance of the ODPP’s claim was that the duo had produced and sung a song that supposedly disturbed the peace of Museveni.
Mugema and Muwanguzi had produced and electronically distributed through social media a song entitled Wumula mzee (loosely translated: Take a rest, old man).
When the song gained traction on social media, the ODPP acted swiftly in construing it to disturb the peace of Mr Museveni.
Section 25 of the Computer Misuse Act, which introduced the charge of offensive communication, laid out that any person who willfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet, or right to 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 Shs480,000 or imprisonment not exceeding one year, or both.
Mr Gwojolonga and Unwanted Witness, a civil society organisation, challenged Section 25 of the Act. But it was the petition filed by Mr Shaka and Mr Andrew Karamagi—an activist who gained notoriety after tearing part of former Attorney General Peter Nyombi’s speech—that led to the striking down of the section.
Lack of clarity
The petition characterised the section as nebulous”, “abstruse”, “woolly”, “boundless”, “general” and “confusing” and asked the Constitutional Court to rule that it infringes online or digital freedom of expression and is inconsistent with Article 29 (1) of the 1995 Constitution.
Justice Kenneth Kakuru, who wrote the lead judgement, was unambiguous when he pointed out that the court is obliged not only to avoid an interpretation that clashes with the constitutional values, purposes and principles but also to seek a meaning of the provisions that promote constitutional purposes, values, principles and which advances rule of law, human rights and fundamental freedoms in the Bill of Rights.
“We are obliged to pursue an interpretation that permits the development of the law and contributes to good governance,” Justice Kakuru said, citing the Kenyan case of Apollo Mboya vs Attorney general.
Justice Kakuru agreed with the petitioners that Section 25 is too vague to pass the constitutional benchmarks.
“The ingredients of the offence cannot be properly determined because the act of ‘disturbing the peace, quiet and privacy of anyone’ and ‘with no purpose of legitimate communication’ are not clear and without knowing the ingredients of an offence, one cannot meaningfully prepare his [or] her defence,” Justice Kakuru said adding that laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.
He cited the Ivory Coast sedition case where, among others, it was adjudged that the Constitutional Court has a duty cast upon it of striking down any law which restricts the freedom of speech as guaranteed to the citizens under the Constitution.
“I associate myself with the above reasoning and finding. 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,” Kakuru said citing the European Court of Human Rights case of handyside vs UK in which the court observed that freedom of expression includes the right to say things that “offend, shock or disturb the state or any sector of the population.”
What next?
Unless the Attorney General successfully appeals this judgement at the Supreme Court, Section 25 of the Computer Misuse Act will never be part of Uganda’s statute books.
The state nevertheless still has a lot of tools to put a sock in the mouths of free speech activists. Take Section 24 of the Act. It introduces the cyber-harassment charge.
A person is to be found guilty of cyber harassment if they use the computer for purposes of: 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.
It was under Section 24 that Nyanzi was in 2019 sentenced to 18 months in prison by Gladys Kamasanyu, a magistrate at Buganda Road Court. This was on account that Nyanzi had used social media to abuse Mr Museveni and his dead mother, Esteeri Kokundeka.
The High Court trashed the conviction on appeal before setting aside the sentence on grounds that the prosecution, inter-alia, hadn’t established whether Nyanzi was in Uganda by the time she posted the impugned statements.
Section 24 fate
After their victory when the Constitutional Court nullified Section 25, free speech proponents will turn their attention to how the same court will determine the constitutionality of Section 24.
The court heard the petitions—including that of the Uganda Law Society (ULS), which holds that the section is inconsistent with articles 29(1) (a) and Article 43(2) (c) of the Constitution in so far as they restrict the freedom of speech and of expression and the restrictions in the impugned sections are not demonstrably justifiable in a free and democratic society.
Even if the Constitutional Court struck down Section 24, last year’s amendments to the Computer Misuse Act spearheaded by Muhammad Nsereko—the Kampala Central lawmaker—still stand and can be deployed.
Hate speech
Section 23(A) of the amendment introduced “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, tribe, ethnicity, religion or gender.
The section outlaws the creation of divisions among persons, a tribe, an ethnicity, religion or gender and the 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.
The amendments, which Mr Museveni quickly accented into law, also criminalises what it terms as sharing of “misleading and malicious information about or relating to any person through computer.” The punishment for a convicted person is Shs15 million or seven years in prison or both.
Court battles
The amendments have also been challenged in the Constitutional Court by several petitioners that include activists, lawyers and journalists.
They want the Constitutional Court to strike the changes in the law, contending that it is impracticable for them to practice their trade as digital journalists as it unreasonably controls editorial independence and undermines freedom of speech by imposing limitations.
“Sections 2-7 are in contravention of and inconsistent with Articles 2& 28 (12) of the Constitution as they create offences, which are vague, ambiguous and inconsistent with the constitutional principle of legality,” the petitioners contend.
Long road ahead
The Attorney General filed a defence, reasoning that the amendments were passed after Parliament had done enough consultations.
“In passing the Act, consideration was premised on the need to enhance the enjoyment of the right to privacy, which is being affected by the abuse of online and social media platforms through unauthorised access, sharing of unsolicited, malicious, hateful and unwarranted information,” the Attorney General said in his defence, adding, “The Members of Parliament, in enacting the Act, analysed the regulation of hate speech in various jurisdictions and found that statutory limitation of hate speech is permissible in order to protect the community interest.”
Free speech activists know they won a battle this past week; not a war.
“…we think that this judgement [that nullified Section 25] should give guidance to the Constitutional Court such that they annul all those provisions that violate freedom of speech and expression,” Mr Eron Kiiza, the lawyer who represented Mr Shaka and Mr Karamagi, told this publication.
