Stop using ‘incitement to violence’ charge to frustrate freedoms

It has become commonplace for the Uganda Police Force to charge activists, journalists and Members of Parliament with the offence of incitement to violence.

The most recent case features two NTV Uganda journalists Herbert Zziwa and Ronald Muwanga, who were arrested while broadcasting a live transmission of developments in Arua Town during the Arua Municipality by-election.

Dr Kizza Besigye, a prominent opposition leader, has also been charged with the offence on several occasions, often as a result of his attendance and expression at political rallies and when he led or took part in assemblies like the Walk-to-Work protests.

In 2016, Samson Tusiime, was charged with the offence for possession of T-shirts that bore a portrait of the likeness of Dr Besigye. Comments on Twitter under the hashtag #FreeSamwyiri expressed dismay as to what T-shirts have to do with violence.

Fred Nyanzi Sentamu, former Kamwokya LC1 chairman, was also charged alongside two others with the same offence after they took part in a protest against the Mobile Money and social media taxes.

In almost all these cases, it is hard to make the connection between the actions of the suspect and the idea of incitement of violence. In fact, many times there is no violence to speak of at all.

The oft-cited section of the Penal Code Act, which provides for the offence, includes an element that is usually left out of the discussion.

The offence is only committed if the inciter causes another person to commit an act of violence by reason of race, place of origin, political opinions, colour, creed or sex or office. Put simply, merely exciting a crowd or leading a protest is not inciting violence.

The police would be right to prefer such a charge against a person if they made, by way of example, racially charged comments and caused members of their audience to harm people who belong to the race spoken against.

In jurisdictions like India whose Penal Code Act is similar to Uganda’s, the offence is linked to sedition and hate-speech. In Britain, from which Uganda received the law, the offence has evolved into specific offences, including incitement to racial hatred and incitement to religious hatred, among others.

Unfortunately, Uganda’s 1950 Penal Code Act has not been subject to scrutiny in contemporary times, but the section would reflect a bar from inciting violence on the basis of tribe, political party, and the like.

The conversation that follows is whether we need such a section in the law, anyway. Courts in the United States have consistently chosen to protect free speech, even when the words spoken denigrate people on the basis of their race, gender or sexual orientation. The only exception made is if the speech calls for imminent lawless action, and such words must be very specific to be deemed to incite violence.

In Uganda, the tension would be between freedom of expression as guaranteed by the Constitution and its restriction in the public interest.

In my opinion, the State must take responsibility to prevent people from making disparaging remarks against others on the basis of their race, tribe, creed, sex, among others. This has not been the case, especially for marginalised groups. The law must be used to protect all persons - even the ones at the fringes of society.

In practice, the offence appears to be used only as a trumped-up charge placed on those who dare to speak out against injustices in our society or express dissent. The law is being used as a stick to beat everybody into submission and to severely restrict the constitutionally guaranteed freedom of assembly.

In fact, the Director of Public Prosecutions (DPP), has routinely dropped the charge against activists, including Dr Besigye and Kampala Lord Mayor Erias Lukwago, a proof that the cases were unsustainable in the first place. In several other cases, the activists are charged then released on police bond and are never prosecuted.

The police have in the recent past boasted of being a professional Force steeped in knowledge of the law and human rights. Yet, the Uganda Human Rights Commission’s most recent report cites the force as the top violator of human rights. The new police leadership has an opportunity to correct this by ensuring that the Force enables citizens to enjoy their rights regardless of their side of the political divide.

The police can provide direction and security at protests and rallies as they did during the Women’s March on June 30 rather than breaking them up and struggling to find charges for those who have been arrested. The DPP’s office should work with police to discourage charging people with no intent to prosecute as it is a wastage of the resources of the criminal justice system and a flagrant violation of personal liberty.

A State whose organs and agencies respect, uphold, and promote the rights and freedoms of all Ugandans, is what the framers of the Constitution envisioned. We must never lose sight of that standard - and the way we make use of the law is a good place to start.

Ms Kemigisha is a lawyer currently working with
Chapter Four Uganda. [email protected]