Parliament is reviving the offence of sedition

This opinion article first appeared in the Tuesday, 4 October 2016 edition of the Daily Monitor.  It is republished with permission from the paper.



I was rather taken aback to learn that Parliament has summoned the editors of several media houses to “clarify” on their publications. This follows an attempt by the Speaker of the House to invoke the provisions in the Rules of Procedure of the House relating to the so-called offence of “Contempt of Parliament.”

Although Parliament claims that its actions against the media are related to the alleged “Contempt of Parliament”, a closer examination of the issue will reveal that this is in fact not the case.

“Contempt of Parliament” was really intended to prevent behaviour that was disruptive of the operations of the legislature.

This includes making sure that witnesses attend committees when summoned, produce documents they are asked to and to enforce other reasonable measures of compliance in order to ensure that Parliament is able to carry out its legislative functions.

In other words, “Contempt of Parliament” is not designed to act as a form of punishment against those with whom Parliament or its members have disagreements. Once it is used in this manner, it obviously offends Article 29 of the 1995 Constitution.

Despite the wise counsel that has already been given by several specialists in the area, Parliament has taken the route of adding insult to injury. In trying to summon newspaper editors, Parliament is in effect re-enacting the offence of sedition.

This is clearly unconstitutional because the offence of sedition was repealed in the case of Andrew Mwenda & anor. v. AG. Readers will recall that under sections 39 and 40 of the Penal Code Act, the offence of sedition provided for criminal sanctions against persons who “…bring into hatred or contempt or [attempt] to excite disaffection against the person of the President, [or] the government as by law established or the Constitution.”

A close reading of that offence will see that while it sought to protect the person of the President, the government (i.e. the Executive), the Judiciary and local administrations, Parliament was explicitly excluded from the ambit of the institutions covered for obvious reasons.

In other words, even if one was to write mean things about Parliament, they were excluded from protection by this old law.

In declaring the law on sedition unconstitutional, the Constitutional Court found that the way sections 39 and 40 were worded had an endless catchment area.

Instead, the court advised that leaders should grow hard skins to bear any criticisms which may be labelled against them. This is even where such criticisms may not necessarily be true.

The spirit of the decision was to protect free speech and to ensure that persons in government do not use punishments in the law in order to suppress vigorous criticism of the actions of our leaders.

Indeed, in the Supreme Court decision of Charles Onyango Obbo & anor v. AG, Justice Mulenga ruled the offence of false news unconstitutional.

Taken together, Parliament does not have any leg of legal action on which it can base its present assault against the media, and it should respectfully retreat from this negative course of action.

Oloka-Onyango is a professor of Law.


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