It is just a couple of days since Dr. Stella Nyanzi was charged with offensive communication and cyber harassment in relation to her Facebook posts attacking the government and particularly the first family, calling the President a “pair of buttocks”.
Regrettably, prosecution requested Court that Stella be medically examined to determine the state of her mental health. This is contrary to the Constitution and the law generally.
The Mental Treatment Act is out dated and does not apply to political offences. Any person who seeks to apply it must ensure that it is construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with Article 274 of the 1995 Constitution.
It should be noted that section 44 of the Act provides that, “Nothing in this Act shall apply to criminal lunatics”. Therefore, a restrictive and narrow interpretation must be given to the word “criminal lunatic”. To put it clear, Stella is “lunatic” in the eyes of the state. The state considers her ideas and the mode of expression to be crazy, ridiculous and extremely stupid, just because she holds a divergent political opinion which is extremely disparaging of Museveni’s regime.
What Stella is doing is universally accepted and constitutionally protected. It ought to be respected by all state functionaries including the first family. It is not new in Uganda and it will not be the last. Instead of subjecting Stella to arbitrary detentions, political trials and unlawful medical checkups, the state is required to behave in a democratic manner by choosing to tolerate her preferred mode of speech and expression through “crazy and alarming statements".
Freedom of speech is indivisible, it calls for tolerance from the state in what it regards to be “foolish” and “dangerous”. This cannot be limited beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided for under the Constitution.
The Supreme Court of Uganda in 2002 settled the whole issue of freedom of speech and expression in the celebrated case of Charles Oyango Obbo & Another v. Attorney General. It among others held that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society, that the function of the law, and particularly criminal law, should exclude from the range of individual choice those acts that are incompatible with the maintenance of public peace and the safety and rights of individuals.
Therefore, there should be no constraints on freedom of speech and expression since it has the object revealing the truth to the entire public. This the justification of enacting Article 43 of the Constitution to the effect that a citizen is entitled to express himself freely irrespective of the mode or language used, and against whom such an expression is being made.
The writer is a legal assistant volunteer, Centre for Legal Aid