By Kenneth Ntende
Uganda’s Constitutional Court on 10 January 2023 declared section 25 of the Computer Misuse Act of 2011 to be null and void as it was inconsistent with and in contravention of article 29(1) of the constitution.
In the judgment of Justice Kenneth Kakuru, court noted that a statute is void for vagueness if the legislature’s delegation of authority is so extensive that it would lead to arbitrary prosecutions.
The decision in Andrew Karamagi and another v Attorney General in Constitutional Petition No. 5 of 2016 does not introduce anything new. But rather it reinforces the position arrived at by the same court in its earlier decision of Charles Onyango-Obbo and another v Attorney General in Constitutional Appeal No. 2 of 2002.
Dangers of vague legislation
Uganda’s legislature has been at the forefront of making laws limiting freedom of speech and the press that infringe on the constitution. These vague laws create untold levels of injustice. Vague legislation by its nature is so wide that it captures both targeted and innocent citizens.
Closely tied to the public’s right to know are free media, newspapers, radio and television networks that can investigate the workings of government and report on them without fear of prosecution. In a country like Uganda, the individual citizen may not be able to leave work to go watch trials, sit in on legislative debates, or investigate how a government programme works.
The press is the surrogate of the citizen, reporting back through print, digital and broadcast media what it has found so that the citizenry can act on that knowledge. In a democracy, the people rely on the press to ferret out corruption, to expose the maladministration of justice or the inefficient and ineffective workings of a government body.
No country can be free without a free press, and one sign of any dictatorship is the silencing of the media.
Freedom of expression is not an absolute right but a very important one and largely described as the bedrock of all other rights. This is very clear in the constitution of Uganda and in this decision. The challenge has always been in drafting laws that do not pass the test of a limitation that is constitutional in nature. The limitations to freedom of expression must pass the normative standards for limiting speech.
Limiting the limitations on free speech
The process of limiting freedom of expression (or any other human right) is not a blank cheque for poor parliamentary draftsmanship and invoking of dictatorship. It is not sufficient for a government simply to invoke “national security” or one of the other possible limitations and then violate human rights.
There is a well-established process for determining whether the right to freedom of expression (or any other human right) may be limited. The court referred to the process as “a limitation upon a limitation.” “The limitation on the enjoyment of a protected right in defense of public interest is in turn limited to the measure of that yardstick.”
The process takes the form of a three-part test.
Step 1: Any restriction on a right must be prescribed by law. This is simply a statement of the principle of legality under article 28 of the constitution, which underlies the concept of the rule of law. The law should be clear and non-retrospective. The citizens should be able to read the law and know the prohibited conduct before committing the crime. A proper limitation to freedom of expression cannot grant unfettered discretion to the state to determine, from time to time, what constitutes a criminal offence. The law should have sufficient precision to give guidance on what is and what is not safe to publish. A limitation to freedom of expression cannot be a moving target.
Step 2: The restriction must be necessary to achieve the prescribed purpose.
Step 3: The restriction must be demonstrably justified in a free and democratic society.
Parliament’s betrayal of citizens
Section 25 of the Computer Misuse Act is another example of parliament’s poor understanding of freedom of expression and its limitations. Taxpayers and citizens pay the price of facilitating a bloated parliament. The poor legislation is a betrayal of the citizenry. The Constitutional Court is simply reminding parliament of obvious parameters well-documented the world over.
Stifling free speech has very many ramifications like promoting corruption, impunity, lack of accountability, bad governance and the general decline in the quality of life of a Ugandan citizen.
The poor parliamentary draftsmanship that is by design or omission extends to very many laws enacted to limit/and or guide freedom of expression. They are in principle moving targets that determine who is a criminal. There is need to reflect on Ugandans in detention facilities on charges of offensive communication. The time lost, resources to defend such cases and so many untold levels of injustice.
There is need to call for parliamentary accountability over the increasing laws that infringe on people’s rights. There is need to carefully evaluate the competency of individuals entrusted with the responsibility of managing freedom of expression and freedom of the press because of its unique and delicate importance to the country as a whole.
The media has a role to play in documenting and publishing injustices suffered by citizens arising from these laws.
About the author: Kenneth Ntende is an advocate of the high court in Uganda and a media law practitioner.