By Evelyn Lirri
“I’m glad to be released. But why was I in prison for more than one year? I want to know why the lower courts in Uganda are abusing rights and freedoms that are constitutionally provided for. The right to a fair hearing is a constitutional right.”
These were the words of Ugandan feminist scholar and writer, Ms Stella Nyanzi, shortly after the High Court in Kampala quashed her 18-month conviction and sentence for cyber harassment on Thursday 20 February, 2020.
On one of the grounds for overturning the sentence, Justice Peter Henry Adonyo ruled that Nyanzi was not granted a fair hearing when the lower court (Buganda Road Chief Magistrates’ Court) failed to allow adequate time for the defence to summon and hear from witnesses.
The right to a fair trial, the judge noted, is non-derogable under Article 28(3) of the Constitution. He said it was therefore the responsibility of the lower court to compel Nyanzi’s expert witnesses to appear through the use of arrest warrants.
Some of the witnesses Nyanzi had intended to summon included President Museveni, who according to prosecution was the complainant in the case.
Nyanzi had been in jail since November 2018 after she was arrested and charged with the offence of cyber harassment and offensive communication under the Computer Misuse Act, 2011.
The case resulted from a poem that she wrote on her Facebook page for President Museveni’s 74th birthday, in which she uses graphic language to describe the genitalia of the President’s mother and expressed regret at his birth. She stated that Uganda would have been a better place if President Museveni had died at birth.
The State, in prosecuting Nyanzi under the Computer Misuse Act, noted that the language that she used was vulgar and aimed to ridicule the President and his late mother, and that it violated the Presidents’ right to privacy. Specifically, Nyanzi was accused of violating sections 24(1) and 24(2)(a) of the Computer Misuse Act. These sections define cyber harassment as the use of a computer for purposes of making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent.
She was subsequently tried at the magistrates’ court which, in August 2019, found her guilty of cyber harassment and sentenced her to 18 months in prison. In the same case, she was cleared on charges of offensive communication.
Nyanzi appealed the sentence on grounds that the lower court erred and entertained the case against her yet it had no jurisdiction, and that “it acted illegally and irregularly when it closed the accused person’s case without affording her the mandatory or necessary facilities to call witnesses.” She further noted that the trial magistrate failed to properly evaluate the evidence on record and thus arrived at a wrong decision when it convicted her.
On top of agreeing with Nyanzi that the lower court did not grant her a fair hearing, Justice Adonyo noted that prosecution failed to prove that Nyanzi’s actions added up to cyber harassment, and that she was using a computer or was in Uganda at the time the alleged offence was committed.
“In today’s world, there are many devices that can be used to access the internet including laptops, desktops and mobile phones. Facebook cannot only be accessed through a computer,” the judge ruled.
The judge also observed that the first prosecution witness did not provide a forensic report on his findings indicating which mobile data was used after he asserted that Dr Nyanzi might have used a phone to publish the poem.
Reacting to Thursday’s ruling, PEN America called it a victory for free expression. A statement from Karin Deutsch Karlekar, the director of Free Expression at Risk Programmes at PEN America noted: “Dr Stella Nyanzi’s successful appeal of her conviction and release from prison is long overdue, but a welcome decision and victory for free expression. In the face of job loss, imprisonment and dangerous conditions in custody, Dr Nyanzi stuck to her conviction that her right to express herself freely and to have a fair trial should be upheld.”
She added: “Her fearless commitment to continue to write, even from behind bars, is a reminder that even prison cannot silence a voice that is determined to speak truth to power.”
Nyanzi used her time behind bars to write a book—a collection of poems titled “No Roses from My Mouth”, which was released a few weeks ago. The poems speak on different subjects including prison life, feminism, human rights and governance.
Nyanzi’s activism has largely focused on using social media, particularly Facebook to critique the government of President Museveni. Her Facebook page is followed by hundreds of followers who regularly comment on and share her posts through Facebook and other social media platforms.
Bwesigye Bwa Mwesigire, a Uganda lawyer and writer noted that overturning of Nyanzi’s conviction restores a little hope for those, who, locked out of other platforms of expression, use social media to criticize President Museveni’s rule.
“But the hope isn’t much because the Computer Misuse Act remains on the law books,” he observed.
Nyanzi still faces a separate charge under the same law, when in another Facebook post in 2017, she described President Museveni as a “pair of buttocks” for failing to deliver on a campaign promise to provide free sanitary pads for school going female students. For this case, she spent 33 days in Luzira Women’s Prison and is currently on a non-cash bail of UShs 10 million. The trial was halted after Nyanzi challenged the State’s request to have her undergo a psychiatric test.
Despite this pending case, Nyanzi has said she will not bow to censorship and has vowed to continue using Facebook as a platform to fight for freedom of expression.
In fact, in the first Facebook post since regaining her freedom, Nyanzi wrote:
“It is amazing to hold a keyboard again; to boldly re-enter the internet streets. Today, I will be slowly resuming my Facebooking and resurrecting my active participation in these e-corridors.”
Image by succo from Pixabay.