The High Court in Kampala has quashed the Media Council of Uganda’s directive to accredit journalists to cover the 2021 general elections and other state events “for being illegal, irrational and procedurally irregular.”
The court also issued an “order of permanent injunction… restraining the (government’s) security agencies from implementing the illegal and irrational directives of the Media Council of Uganda”.
Although the delayed ruling by Justice Esta Nambayo — her plan to deliver it by email on 14 January, the same day presidential and parliamentary elections were held, was upended when the internet was shut down — is moot regarding last week’s elections, she noted that the local government elections to be held on 20 January were part of the general elections.
Most important, perhaps, the court declared that “the registration of journalists by the Media Council of Uganda without an operational National Institute of Journalists of Uganda (NIJU) to enrol journalists in accordance with the Press and Journalist Act is illegal, irrational and procedurally irregular”.
NIJU was established by the Press and Journalist Act, which also created the Media Council to regulate journalists and the print media. The institute has been moribund for more than 15 years.
The court declared that the government’s failure to operationalise NIJU is “illegal and irrational”.
The court’s ruling was on an application for judicial review filed by the Uganda Editors’ Guild and the Centre for Public Interest Law (CEPIL). The attorney general, who represents the government, was the respondent.
According to Ugandan law, judicial review is “the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties”.
Judge Nambayo said, “The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he or she has been subjected…”
The case relied mainly upon two affidavits sworn by Daniel Kalinaki, the interim chairman of the Editors’ Guild, and Francis Alphonse Obonyo, the acting chairman of CEPIL.
In their affidavits, the two argued that the Media Council’s registration guidelines had not stated the “requisite procedure documents and requirements for registration” and were “contrary to the requirements under Press and Journalist Act on registration of journalists”.
The regulator’s directives had been widely condemned by journalists’ and human rights groups who said they appeared to have the intent of curtailing the rights to press freedom and freedom of expression as well as media independence ahead of the elections.
ACME said in a statement on 11 December that “coming at a time when both local and foreign journalists covering the election campaigns have documented several cases of illegalities and excesses by police and state functionaries as they go about regulating public meetings and rallies by opposition candidates, the new directive on accreditation easily comes off as a move to stifle media scrutiny of this conduct as well as critical and independent journalism generally in the run-up to the 2021 elections”.
Apart from ACME, the Editors’ Guild, Human Rights Network for Journalists-Uganda and others also questioned the legality of registering journalists without following the procedures prescribed in the law.
In an opinion in the New Vision, ACME Executive Director Peter G. Mwesige, who was also the first elected president of NIJU, argued that the regulator’s directive was not “legally tenable”. It was one of the supporting documents attached to the affidavits, although the government’s lawyers successfully challenged its admissibility in court.
According to the Press and Journalist Act, the Media Council is supposed to issue practising certificates to journalists who have presented certificates of enrolment issued by NIJU.
In their supporting affidavits, the Editors’ Guild and CEPIL said the Media Council’s directive would have “the effect of fuelling the brutality of security forces and malicious prosecutions against journalists in the guise of enforcing and implementing the impugned directive, further curtailing and unreasonably restricting constitutionally guaranteed freedoms and rights”.
The court noted that on 30 December 2020, the Deputy Inspector General of Police had “made a statement on the enforcement of the Media Council guidelines for the 2021 general elections and other state events, stating that the Police and sister Security agencies would block journalists without Press cards from the Media Council from covering the 2021 general elections”.
It’s not yet clear whether journalists who were not accredited by the Media Council were stopped from covering the last lap of the campaigns, which ended on 12 January.
Government lawyers submitted to court that the Editors’ Guild and CEPIL had no “locus standi” to file the application challenging the Media Council’s directive.
But the judge said under the law, “any person who has a direct or sufficient interest in a matter may apply for judicial review”.
She added: “By the nature of the Applicants’ businesses as stated in the affidavits of Mr. Kalinaki and Mr. Francis Obonyo, it is my view that the Applicants have sufficient interest in this matter and can therefore file for judicial review.”
On the substantive issues, the court agreed that the law “does not mandate the Media Council to accredit journalists”.
“The Media Council can only register and issue practising certificates to journalists who have enrolled with the NIJU and paid fees for practising certificates under the Act,” Judge Nambayo wrote. “Without the functioning of the National Institute of Journalists of Uganda the Media Council would be acting outside its mandate to register and issue practising certificates to journalists in Uganda.”
She ruled that “it was illegal and irregular for the Media Council to embark on the process of registering and accrediting journalists (both local and international) for the purposes of participating in the 2021 general elections”.
The applicant’s lawyers had also argued that the Media Council’s guidelines and directives had “the effect of violating the constitutionally guaranteed freedom of expression, media rights and freedoms, right to access information and the right to practice one’s profession”.
However, the court determined that the issue of “illegality of guidelines for violation of constitutionally guaranteed rights and freedoms” was outside the remit of what is acceptable under judicial review.
“My view is that the constitutional articles and cases relied on by Counsel raise human rights issues that do not fall under judicial review remedies sought in this application,” wrote the judge. “The constitutional articles relied on by Counsel would require a proper and specific application on violation of human rights under Art.50 of the Constitution. They cannot be brought as an issue under judicial review.”
The Editors’ Guild and CEPIL were represented by Senior Counsel Francis Gimara, together with lawyers Laston Gulume and Catherine Anite. The attorney general was represented by Senior State Attorney Geoffrey Madete together with states attorney Mugisha Twinomugisha and Brian Musota.
Mr Gimara, who is a former president of the Uganda Law Society, told ACME that the court’s ruling went beyond the elections.
“As you know the [Media Council directive] included state functions as well,” he said.
Basically, the ruling “prohibits the Media Council from anything to do with accreditation of journalists,” he added. “The Media Council is dead as we speak. They can’t do anything until they constitute NIJU.”
Mr Gimara said the issue of media freedom, which the High Court steered clear of, should be pursued in the Constitutional Court.
“It is possible the law can be amended,” he said. “The Constitutional Court needs to pronounce itself on the entire law and its effect on the right to press freedom and freedom of expression.”
- An order of certiorari is hereby issued quashing the directives of the Media Council of Uganda issued in the press statements made on the 10th and 20th December 2020 directing journalists to register and be accredited in order to cover the 2021 general elections and other State events for being illegal (ultra vires) and irrational.
- An order of certiorari is issued quashing the illegal registration and accreditation of journalists to cover the 2021 general elections and other State events by the Media Council of Uganda for being illegal, irrational and procedurally irregular.
- An order of prohibition is issued restraining the Media Council of Uganda and any other regulatory agents of Government and Security Organs from illegally and irrationally curtailing the media and the press to cover the 2021 general elections and other State events.
- An Order of permanent injunction is hereby issued restraining the Respondent’s Security agencies from implementing the illegal and irrational directives of the Media Council of Uganda restraining journalists from covering the 2021 General Election and other State events.
- It is declared that the registration of journalists by the Media Council of Uganda without an operational National Institute of Journalists of Uganda to enrol journalists in accordance with the Press and Journalists Act is illegal, irrational and procedurally irregular.
- It is declared that the Respondents failure to operationalize the National Institute of Journalists of Uganda established under the Press and Journalists Act is illegal and irrational.
- The Respondent pays the costs of this application.
You can find a copy of the full ruling here.