Judiciary committed to jealously guarding the right to freedom of speech – Chief Justice Bart Katureebe

This is the speech by the honourable Chief Justice of Uganda, His Lordship Bart Katureebe, made at the Uganda National Journalism Awards gala held on 8 April 2015 in Kampala.

 

The Chairperson Board of Directors African Centre for Media Excellence,

The Executive Director African Centre for Media Excellence,

The Chief Judge Uganda National Journalism Award,

Distinguished Participants,

Invited Guests,

Ladies and Gentlemen.

It is indeed an honour and privilege for me this evening to officiate at this Second Edition of the Uganda National Journalism Awards. They are aimed at improving the quality of journalism in Uganda by inspiring and recognizing excellence in reporting on public affairs.

Journalists and the media as a whole, in any democratic society, play a critical role in holding, receiving and imparting all forms of opinions, ideas and information. Therefore, the importance of recognizing and inspiring those gallant men and women who devote their time, energy and effort to excel in this profession cannot be overemphasized.

It is because of this critical role played by the media that any democratic society must uphold freedom of speech and expression. Indeed, a democracy cannot exist without freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions.

Uganda, like any other democratic society, is committed to uphold, protect and promote the right to freedom of speech and expression. It is for that reason that the right is entrenched in the most binding instrument on the land, the constitution. The constitution guarantees to every Ugandan the right of freedom to hold opinions, receive and impart ideas and inform without interference.

This commitment is not only found in the constitution but also in other legislation like, The Press and Journalism Act, The Access to Information Act, and The Uganda Communications Act. In addition, Uganda is signatory to international conventions such as, the Universal Declaration for Human Rights, the International Convention on Civil and Political Rights, The International Convention on Economic, Social and Cultural Rights and the African Charter on Human and Peoples rights, which guarantee freedom of speech and expression.

The Uganda constitution provides in Article 29(1)(a) that;

“Every person shall have the right to freedom of speech and expression which include freedom of the press and other media”.

Article 41 (1) states that;

“Every citizen has a right of access to information in the possession of the  State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to privacy of any other person”.

Article 20(1) of the some constitution acknowledges that;

“Fundamental rights and freedoms of the individual are inherent and not granted by the State”.

In addition, Article 20(2) enjoins all organs and agencies of Government and all persons to respect, uphold and promote the rights and freedoms of the individuals and groups enshrined in the constitution.

It is however worth noting that the right to freedom of speech and expression is not absolute. They may be restricted. However, any such restriction or limitation must be within strictly and narrowly defined parameters.

Article 43 of the constitution provides general limitations on fundamental and other human rights and freedoms which include freedom of speech and expression. It states that;

“(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2) Public interest under

(a) political persecution

(b) detention without trial;

(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.” (Emphasis is added).

The co-existence in the same constitution, of protection and limitation of the rights, necessarily generates two competing interests. On the one hand, there is the interest to uphold and protect the rights guaranteed by the Constitution. On the other hand, there is the interest to keep the enjoyment of the individual rights in check, on social considerations, which are also set out in the Constitution. Where there is conflict between the two interests, the courts have and will continue to come up to resolve it having regard to the different objectives of the Constitution.

You will recall that in 2004, the Supreme Court, in the case of Charles Onyango Obbo and Anor versus the Attorney General (Constitutional Appeal No. 2 of 2002), declared section 50 of the Penal Code Act which criminalized publication of a false statement, rumour or report which is likely to cause fear and alarm to the  public or to disturb the public peace as being inconsistent with article 29(1)(a) of the constitution.

In the lead judgment of Justice Joseph Mulenga, with which all the other justices of the Supreme Court concurred, he went at great length to explain the above constitutional provision in 5 critical area, that is, freedom of expression in a democracy, falsity and freedom of expression, limitation on freedom of expression, the standard of limitation and prejudice to the public interest. On freedom of expression in a democracy, he stated;

“… the right to freedom of expression is of great significance to democracy.  It is the bedrock of democratic governance. Meaningful participation of the governed in their governance, which is the hallmark of democracy, is only assured through optimal exercise of the freedom of expression. This is as true in the new democracies as it is in the old ones”.

On falsity and freedom of expression, he had this to say;

“Subject to the limitation under Article 43, a person’s expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant. Everyone is free to express his or her views. Indeed, the protection is most relevant and required when a person’s views are opposed or objected to by society or any part thereof, as “false” or “wrong”.”

On limitation on freedom of speech and the standard of the limitation stipulated in article 43 of the constitution he stated that;

“In other words, by virtue of the provision in clause (1), the constitutional protection of one’s enjoyment of rights and freedoms does not extend to two scenarios, namely: (a) where the exercise of one’s right or freedom “prejudices” the human right of another person; and (b) where such exercise “prejudice” the public interest. It follows therefore, that subject to clause (2), any law that derogates from any human right in order to prevent prejudice to the rights or freedoms of others or the public interest, is not inconsistent with the Constitution. However, the limitation provided for in clause (1) is qualified by clause (2), which in effect introduces “a limitation upon the limitation”.

It is apparent from the wording of clause (2) that the framers of the Constitution were concerned about a probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest. For avoidance of that danger, they enacted clause (2), which expressly prohibit the use of political persecution and detention without trial, as means of preventing, or measures to remove, prejudice to the public interest. In addition, they provided in that clause a yardstick, by which to gauge any limitation imposed on the rights in defence of public interest. The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. This is what I have referred to as “a limitation upon the limitation”.

The limitation on the enjoyment of a protected right in defence of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalised, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society.”

As regards prejudice to public interest he held that the prejudice must be real and not speculative or conjectural mischief. He stated;

“Clause (1) of Article 43 allows for derogation of rights, or limitation of their enjoyment, in respect of two exceptional circumstances or scenarios, namely, where the enjoyment, of one’s right “prejudices” either the personal rights of others or the public interest.

Those are grave circumstances presenting actual mischief or danger to “the rights of others” or to “the public interest”. In those exceptional circumstances, the Constitution allows for derogation or limitation in order to avert or remove real mischief or danger. The clause does not expressly or implicitly extend to a third scenario, where the enjoyment of one’s right is “likely to cause prejudice”.

I do not understand the clause to permit derogation of guaranteed rights or limitation of their enjoyment, in order to avert speculative or conjectural mischief or danger to public interest.”

He held that Section 50, however, relates precisely to that third scenario and was therefore inconsistent with Article 29(1) of the constitution.

In 2007, the constitutional court also nullified Section 32 of the police Act that gave police powers to control public assemblies and demonstrations. In the lead judgment of justice Byamugisha, JA, she stated that;

“A society especially a democratic one should be able to tolerate a good deal of annoyance or disorder so as to encourage the greatest possible freedom of expression, particularly political expression”.

In 2010, the same court annulled section 39,40,41,42 43 and 197 of the Penal Code Act that created the offence of sedition.

The court relied on the case of Charles Onyango Obbo, supra, and held that those sections of the penal code Act were in conflict with Article 29 of the constitution. In their words they said;

“Our people express their thoughts differently depending on the environment of their birth, upbringing and education. While a child brought up in an elite and God fearing society may know how to address an elder or leader politely, his counterpart brought up in a slum environment may make annoying and impolite comments, honestly believing that, that is how to express him/herself. All these different categories of people in our society enjoy equal rights under the Constitution and the law. And they have equal political power of one vote each. That explains counsel Kakuru’s observation that during elections voters make very annoying and character assassinating remarks and yet in most cases false, and yet no prosecutions are preferred against them.

The reason is because they have a right to criticize their leaders rightly or wrongly. That is why he suggested, rightly so that leaders should grow hard skins to bear. We find that, the way impugned sections were worded have an endless catchment area, to the extent that it infringes one’s right enshrined in Article 29(1) (a). We answer issue one in affirmative and in favour of the petitioners.”

Therefore, all these court pronouncements go to show that the courts have come out clearly to defend freedom of speech and expression. With the press becoming more and more vibrant, more of such cases are likely to come to the courts for interpretation.

As the head of the judiciary, I wish to reassure the public and especially members of press and other media that the judiciary is committed, and will continue to guard jealously, the right to freedom of speech and expression in addition to other rights enshrined in our constitution.

This of course: is not to say the press/media if free to write whatever they please. There are for instance some serious concerns in regard to the manner in which the media has and continue to conduct itself.

What is the duty of the press to society? There IS need to protect other individuals who may be injured by the media.

Sometimes, one’s freedom of expression and press clashes with other individual’s rights.

This gives rise to actions for defamation, libel or slander. Here the court must play a balancing act-the need to promote freedom of expression, while at the same time protecting the right of others this is what the constitution demands, i.e. that the enjoyment of one’s rights must not prejudice the rights of others.

Vices such as sensationalism, distortion and inaccuracies, being insensitive to people’s lives, lack of fairness (not giving all sides opportunity to be heard), partisanship, extortion and blackmail, accepting money to publish or kill stories, lack of sufficient rigor and analytical depth, insufficient investigation and research, inadequate knowledge of the subject being covered, invasion of privacy and attention to profit at the expense of public interest have been singled out.

As we approach election period and given the charged nature of our competitive electoral politics, there will inevitably arise questions of accuracy in reporting, access by politicians from all sides to both private and public media, hate speech, etc. No matter the side you are on, you must not lose sight of your proper journalistic standards. Responsible reporting will promote healthy debate of national issues. Petty and narrow reporting, in my view, distorts the debate.

We know Radio Mille Colline did in Rwanda and we should learn from that tragedy.

Why would a responsible media house refuse a politician of a different view point from airing his/her views on that radio, TV or Press? True professionals should encourage not stifle debate.

All these call for high level professionalism and impeccable moral conduct. The Media Council and Uganda Communication Commission should encourage self regulation.

Awards like these are important element of self regulation. I am told the entries in the competition are judged against the following criteria; reporting accuracy and comprehensiveness; writing style, language and storytelling technique; originality and enterprise in reporting; reporting rigor, depth and breadth of discussion and engagement; skill in use of journalism tools for original reporting; insight, analysis and examination of the context of story, relevance and public impact or benefit. These are the kind of things for which every journalist should want their work to be judged.

I congratulate all the winners of the Uganda National Journalism Awards.

Thank you.

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