Strike two for civil rights but it’s no time to rest
Saturday January 14 2023
In Uganda, the struggle for freedom of expression and other civil liberties, can be long and arduous. In August 2010, five years after journalist Andrew Mwenda and the Eastern Africa Media Institute filed a consolidated petition against the offence of criminal sedition, the Constitutional Court ruled in favour of the petitioners.
This week, after seven years of rolling through the slow mills of justice, the Constitutional Court once again struck a blow for freedom of expression, when it struck the offence of offensive communication from the Penal Code. Contained in the Computer Misuse Act that was enacted by the Ugandan parliament in 2011, the offence was found to be in contravention of protected speech.
Coming far in between, the latest victory was justifiably celebrated beyond the usual cast of media and civil society activists. Although it has been selectively used to muzzle regime critics, Section 25 of the Computer Misuse Act has been the weapon of choice against a public increasingly empowered by digital communications.
The dramatic arrest, detention and prosecution of a one Robert Shaka in June 2015 on allegations that he was the elusive Tom Voltaire Okwalinga, who had become both a spectre and thorn in the flesh of the state, sent chills down the spines of many. Mr Shaka’s ordeal brought home, in layman’s language, the insidious effects of an offence whose framing was so broad and vague that thousands were potentially afoul of it on a daily basis. But it is also Shaka’s legal challenge to the offence that has clawed back another inch of freedom for Ugandans.
“I find that the words used under Section 25 are vague, overly broad and ambiguous. What constitutes an offence is ‘unpredictable’ and gives the law enforcement the discretion to pick and choose what qualifies as offensive. It gives the law enforcement unfettered discretion to punish unpopular or critical protected expression,” Justice Kenneth Kakuru, said in his lead judgment.
The judge further observed that “prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democratic society.” Yet the court’s decision is just one victory in a long and nasty war.
The courts still have to pronounce themselves on a separate case in which the Computer Misuse (Amendment) Act 2022, signed into law by President Museveni last September, is being challenged. The amendment criminalises and prescribes stiff penalties for sending or sharing false, malicious and unsolicited information online.
Technically, a recipient of an online message could sue the sender, with a convicted offender liable to a seven-year stint in jail or a fine of Ush15 million ($4,087) or both.
Critics of the law have warned that it could be weaponised to silence critical expression and divergent opinion, especially online.
As Ugandans and freedom advocates celebrate the court ruling, however, it should not be lost that these two cases are only the tip of the iceberg of repressive legislation. Other laws on criminal defamation and promoting sectarianism are still alive and well in the statute books.
These recent gains should be reason to redouble the push against bad legislation.