By Grace Natabaalo
Court reporters and media freedom advocates have applauded a ruling by a High Court judge that overturned a lower court’s decision to ban journalists from covering a case involving a police officer accused of leaking police secrets.
In a statement issued after the ruling, the journalists welcomed the judge’s decision. They said in a statement: “This ruling cements our watchdog position in all courts and other hearings. It is an end to the bastardization we have been going through as journalists who cover court proceedings involving family, security and other high profile matters where government and other influential people in society have interest.”
Access to information activist Gilbert Sendugwa from Africa Freedom of Information Centre said that media coverage of proceedings “gives courts the legitimacy and ensures that the judiciary is accountable to the people”.
This is the first time journalists have asked court to pronounce itself on the application of provisions in the Constitution that provide for barring of journalists from covering certain court proceedings.
Section 2 of Article 43 in the Constitution says a court can exclude the press or public from all or any proceedings before it “for reasons of morality, public order or national security, as may be necessary in a free and democratic society.”
Deputy Assistant Inspector of Police Mr Ronald Poteri, is accused of wrongful communication and leaking of information contrary to the Official Secrets Act. Media activists say the Official Secrets Act limits freedom of information.
At the commencement of the case against Mr Poteri in June, the prosecutor asked that the case be heard in-camera arguing that the evidence would include classified information, secrets of police investigative tactics and would expose informants in the process. He also argued that the information might cause a discord between the police and the executive.
The Buganda Road Chief Magistrate Lillian Bucyana then issued an order stopping journalists or any person with recording equipment to appear at all the court sessions.
Under their umbrella organisation, the Uganda Court Reporters Association (UCRA), the journalists protested the magistrate’s decision and sought judicial review in the High Court.
In her September 17 ruling, High Court Judge Lydia Mugambe stated that the magistrate had not provided evidence that the information would be a threat to national security.
“If the State objects to the release of the information, it must show that the release of that information is likely to prejudice the security of the State. This can only be established by evidence to show the prejudice the security of the State would suffer. It is not enough to raise state security without more,” the judge said.
She added, “By virtue of Article 41 and 43, the Trial Magistrate was duty bound to evaluate whether the limitation being sought by the State was sufficient in a free and democratic society. Unfortunately, there is no scintilla of such considerations by the Trial Magistrate.”
The judge also said that the magistrate did not hear out the journalists before she issued the order, did not warn herself of the dangers of in-camera proceedings and thus acted unreasonably and unfairly in the process of making her ruling.
“For this, she committed an illegality, was irrational and her decision is clothed in procedural impropriety,” Judge Mugambe noted.
The journalists’ lawyers had argued that the information Mr Poteri had was already in the public domain and hence there was no reason for the case to be heard in-camera to which the defence replied that “the chain of leakage is likely to be adduced in the course of hearing. The interests of justice will best be served if whoever is involved in the chain is protected from the public eye until they have at least been heard”.
In April, audio recordings of police investigations into allegations that the former Prime Minister Amama Mbabazi and his wife were rallying youth against President Museveni’s re-election appeared on social media networks.
It is alleged that Mr Poteri, attached to the police’s electoral and political crimes department, stole the tapes and leaked them. He was thus arrested and prosecuted.
There have been incidents where journalists have been thrown out of court proceedings by judges and magistrates without due process.
Mr Alex Bukumunhe, a senior court reporter for the Red Pepper and member of UCRA, said the decision is fundamental as it now “recognises us as stakeholders in the dispensation of justice”.
In 2012, a magistrate in Masaka District arrested and detained a journalist on grounds that she had not given her permission to record court proceedings.
In the same year, Justice Faith Mwondha, a High Court judge, asked journalists to leave the courtroom during open court cases in Entebbe and Kampala without giving reasons.
Mr Bukumunhe also said that in May this year, a commercial court judge ordered journalists out of the courtroom during a case involving two Kampala property moguls. The judge allegedly asked the journalists to delete what they had recorded.
Ms Catherine Anite, one of the journalists’ lawyers, said that this ruling is a major win because in future, “any judicial officer would be cautious” and would have to produce evidence if he or she wants to bar journalists from covering court proceedings.
Media law professor Frederick Jjuuko said that while a court has the power to exclude the public and the media from proceedings, the right to have a fair hearing is basic rather that an exception.
“The whole idea about a fair hearing is that it is conducted in the open and that way kangaroo procedures are minimised,” he said.
He added: “Such decisions by court are used to protect public officials from embarrassment. [The barring] must be demonstrated and not mere conjecture. The boldness of the court is very welcome.”
Uganda Journalists Union’s Stephen Ouma Bwire said that it was time for journalists to take on the government and demand access to more restricted areas.
Ms Anite said the ruling opens doors for journalists and there is a now a possibility of courts having press sections to ease journalists’ work. “We have added landmark jurisprudence in Uganda media law.”