Uganda's human-rights record was the focus of a ruling in Ireland last week when the High Court in Dublin declined to order Facebook to reveal the identity of a subscriber, one Tom Voltaire Okwalinga (TVO).

The plaintiff, Ugandan lawyer Fred Muwema wanted the details of a Facebook user who he said had defamed him.

Early last year, Okwalinga alleged on Facebook that Muwema accepted a Ush900 million ($248,300) bribe from state operatives, in exchange for allowing a break-in into his office and access to critical evidence on former presidential candidate Amama Mbabazi who was challenging President Yoweri Museveni’s victory. Mr Muwema was Mbabazi’s lead lawyer.

In an earlier order, Muwema had achieved partial success when Justice Donald Binchy allowed Facebook to share TVO’s basic subscriber information with him but the social media company protested, arguing that unmasking TVO would, “put his/her life in jeopardy.”

“It is somewhat difficult for the court to make an assessment as to the extent of the danger that would be posed to TVO if his identity is revealed. It is fair to say however that there is consistency in the reports of Freedom House and the US Department of State Human Rights Report on Uganda as well as Amnesty International, all of which express concern about freedom of expression and assembly,” ruled Justice Binchy.

Global jurisprudence

In a development likely to shape jurisprudence globally on Facebook’s handling of defamatory content by its subscribers, the judge placed stringent conditions, giving a 14-day ultimatum to have the content pulled down, failing which he will order revelation of TVO’s identity.

In the past, governments have attempted to persuade Facebook to reveal identities of its subscribers to no avail. This judgment now sets a precedent that given the peculiar circumstances of the case, courts can order Facebook to lift the veil.

The judge, citing the precedent set by Kelly J in the Foley vs Sunday Newspapers case noted, “The right to freedom of expression would have to give way to the right to life in the event of a conflict. I think it must be correct to say that a person’s right to his good name must take second place to the right to life and bodily integrity of another where the threat to bodily integrity is sufficiently serious, as I believe it is to be here.”

For the courts, the catch is: At what point do the scales tilt in favour of victims of abusive Facebook users?

Jack Gilbert, appearing for Facebook in an August 19 affidavit asserted, “In my role I receive hundreds of legal claims each year. Because Facebook is not a publisher, its general position is that any complaints regarding content should be directed to the relevant user that posted the content.”

In this case, however, the judge noted, Facebook did not oppose the order to have its subscriber’s identity revealed only to turnaround and raise the issue of TVO’s safety later.

Trumped up charges

Mr Muwema had told the court that whereas Uganda has challenges with human rights, “it is alarmist to paint a picture of unmitigated violations of human rights and lawlessness in Uganda.”

Mr Muwema also listed cases where Uganda’s security agencies have respected the right to bail granted to applicants by the courts, and President Museveni’s critics received justice.

But human-rights lawyer and former secretary general of the Uganda Law Society Nicholas Opiyo criticised the defence.

“I know that Uganda police have been looking for TVO for a very long time and when they arrest anyone on suspicion of being TVO, they are subjected to extreme abuse of rights and violation of court orders.”

He added, “I have observed the use of trumped up charges to intimidate those critical of the person of the president. Kizza Besigye, his biggest political rival, has been charged over 100 times on trumped up charges. He spends most of his time traversing the country answering a litany of charges.” 

TVO boasts of 80,051 followers and has been the subject of a fruitless hunt by state security agents.

Ebele Okobi, Facebook’s head of public policy for Africa, revealed the government and its officials had on several occasions asked her to hand in TVO. In one phone conversation with her, she claimed, “Uganda Communications Commission executive director Godfrey Mutabazi stated that TVO was a threat to the Ugandan state and must be turned over and stopped.”

These claims Mr Mutabazi dismissed as “outrageous.”

Facebook’s case against Uganda

As of September 2015 there were 172 complaints of human rights violations against police officers registered with the Uganda Police Force Professional Standards Unit.

Freedom House in its 2015 report ranked Uganda “not free” and pointed at increasing suppression of freedom of the press. A 2015 US Department of State Human Rights Report on Uganda that paints a grim picture of respect for integrity of the person, unlawful killings and torture was also cited.

Asked about his next possible step, Mr Muwema told The EastAfrican, “I am waiting to have a full brief from my lawyers in Ireland but from the onset you see a partial grant of my request to the extent that the identity of TVO will be revealed if he doesn’t delete that content in 14 days so it is a 50-50. Initially, the court had refused to grant an order for the removal of the content but now it has been granted, so I shall discuss all those issues with my lawyers in Ireland.”