The Ugandan Parliament quietly passed what is commonly known as the “Phone Tapping Bill” three days after the bomb attacks that killed at least 74 people in Kampala on July 11.
The Regulation of Interception of Communications Bill (2007) had been introduced three years earlier, but it had been withdrawn for “further consultations” after resistance from Members of Parliament. They were especially uncomfortable with the powers the proposed law granted to the Security Minister.
Since its introduction, the Security Minister, Amama Mbabazi, has argued that with the threat of terrorism and sophisticated crime, government needs a system of monitoring communication to avert terrorism and other forms of high crimes.
The bomb attacks of July 11 provided fresh impetus for proponents of the Bill, with
Minister Mbabazi implying that the terrorist attacks could have been averted had the proposed law been in place. Two days later the Bill was passed, and now awaits presidential assent to become law.
The Bill was thus able to circumvent the scrutiny that had surrounded it, and the objections that came from different stakeholders. But many of the concerns raised when the Bill was first tabled before Parliament remain.
The original provision empowering the Minister of Security to order interception of communications was amended and such powers vested in a “Designate Judge”, amidst protestations from Amama Mbabazi who argued that a judge was not the appropriate person to approve such checks given the nature of the threats the country is faced with.
Although the idea of a “designate judge” was a compromise, designating a judge who specifically works on issuing warrants of interception may have its own problems. Ideally, it should have been any judge of the High Court so that any inclinations to partiality are eliminated, given the fact that interception of communication greatly infringes on the right to privacy and should only be done with a pressing need that serves the public interest.
The industry regulator, the Uganda Communications Commission (UCC), had objected to the Bill, arguing that it contradicted the UCC Act, which makes it a crime to intercept communications without a court order, and affirms the right to privacy.
These contradictions needed to be addressed before passing the Bill. This case is well articulated in a Minority Report written my MPs Oceng Alex Penytoo and Otto Ishaa Amiza, who called for urgent harmonization of the laws in order to avoid a situation of having two conflicting statutes.
Another controversial provision in the Bill gives “service providers” (telephone companies) a duty to procure communication interception technology at their cost. In fact, it is an offence for a service provider not to have this technical capacity. The companies had argued that installing such capacity would mean an extra US$10 million – US$15 million investment, which would make the cost of communication prohibitive.
This therefore means that that law does not only infringe on the fundamental rights of individuals, but it also infringes on their economic capacity, since the final cost of installing the technical capacity to intercept communications will be loaded onto the consumer. As MP Patrick Oboi argued during the final debate, the cost of communication is already a burden to consumers, and the law will only serve to worsen it. The law therefore imposes an economic burden to citizens.
The law had also been opposed on grounds that it had the capacity to interfere with social relations as well. Women activists led by the Uganda Women Network (UWONET) had argued that the law would increase domestic violence, especially against women. Without stringent safeguards against abuse of the law, they argued unwarranted interception would lead to suspicion between men and women, with the latter suffering the most because of gender inequality in Uganda.
The Human Rights Network (HURINET) and the Uganda Law Society (ULS) argued against the Bill on the grounds that it violated fundamental freedoms enshrined in the Constitution.
Journalists could in particular face new challenges as a result of the new law. During a consultative meeting for journalists on the Bill organized by Uganda Media Development Foundation (UMDF), participants argued that proposed law threatened the confidential relationship between reporters and their sources, and lacked any protection mechanisms for this cardinal journalistic value. They argued that with the threat of exposure under legal interception of communication, sources would have less confidence to pass on information to journalists, and this would curtail the investigative role of the media.
The terrorist attacks catapulted the passing of the law without exhaustive scrutiny.
About the Author: John Bosco Mayiga is the National Coordinator of the Uganda Media Development Foundation.