The ongoing arrests of activists and other citizens critical of President Museveni on social media and other internet platforms have triggered concerns over the shrinking space of free speech in the country with suggestions that the State is relying on a controversial law to crackdown on the cherished freedom.
Since October 5, three people, including embattled Makerere University academic Stella Nyanzi, have been arrested and charged under the Computer Misuse Act, 2011, which has since been challenged by activists and lawyers in court.
Dr Nyanzi, a Makerere University research fellow, was again remanded to Luzira Prison on November 9 on charges of cyber harassment and offensive communication relating to harassing President Museveni when she allegedly insulted his late mother on her Facebook page.
The number of those arrested for allegedly offending President Museveni is even bigger, at least 10, since the divisive 2016 general elections. While many more internet users, including activists, journalists and human rights defenders have been arrested and charged under the same law, President Museveni’s vocal opponents have received a lion’s share of indictments with all charged with offensive communication and cyber harassment contrary to section 25 of the Computer Misuse Act, 2011.
Generally, last year, 2017, registered the highest number of Ugandans ever arrested for their online expression according to a report by Unwanted Witness, an independent civil society organisation (CSO) of bloggers, activists, writers and human rights defenders whose vision is “creating platforms that guarantee internet/ online freedoms”.
As the curtain falls on 2018, however, and with the mounting crackdown, 2018 is poised to dwarf 2017 in terms of Internet users arrested, kidnapped or interrogated by police for their online content, especially against President Museveni and the First Family.
Specifically, the State has relied on Section 25 of the Computer Misuse Act 2011 which deals with offensive communication.
“Any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanour and is liable on conviction to a fine not exceeding twenty four currency points or imprisonment not exceeding one year or both,” the act reads in part. Twenty four currency points is an equivalent of Shs480, 000.
Henry Maina, the regional director of ARTICLE 19, an international organisation promoting freedom of speech without fear of discrimination, says the developments have a general impact on freedom of expression.
“It is unfortunate that the government of Uganda continues to arrest and prosecute activists and social media commentators for allegedly insulting the President or any other public official. The Computer Misuse Act as currently formulated does not prevent public officials from using the chilling effect of litigation as it does not raise substantive and procedural barriers to potential abusive claimants,” he said.
“Further, such provisions frustrate any genuine dissenters who would like to hold governments to account and to make fair comments on matters of public interest.”
Journalist and researcher Lydia Namubiru says the Computer Misuse Act, 2011, is being abused by targeting those who take to online platforms, among others, to criticise President Museveni.
“It’s absurd that people keep being prosecuted for insulting [Mr] Museveni. A law that was written to protect ordinary users from online harassment is being abused to suck up to the most powerful citizen. Saying something unflattering about the President isn’t harassment,” she says.
“If he [President Museveni] finds that the way Ugandans engage with him online offends him personally, he has the budget to assign someone else to his social media engagement. That respects both his rights... while also protecting the constitutional right to free expression.”
In an interview, Dorothy Mukasa, the chief executive officer of Unwanted Witness Uganda, said it was ironic that the President has not directly addressed those allegedly insulting him, sued them or even gave testimony in court.
“All of them [the cases] have never been determined to the logical conclusion. It is like taking people to court, to police, inconveniencing or traumatising them and then at the end of the day, they are let free without any judgment. What does that say? It reflects that the charge itself is defunct, it can’t stand,” Ms Mukasa said.
“It is a section that the people around the President, the forces that are protecting the President, are using to silence whoever is coming out to directly demand accountability from the President.”
Sunday Monitor put the different concerns to Information minister Frank Tumwebaze. In a response, he said only those that abuse the available platforms face the wrath of the law.
“Does criticism mean hurling insults and vending hate speech? The law is intended to indeed fight misuse and abuse of platforms and tools of speech,” he said.
“Aren’t we, upon higher reflection, supposed to blame the person, castigate and condemn him as we wish, while keeping his dead mother out of the conversation? Playing victim has limits, and freedom of speech is not supposed to imply infallibility,” a government official, who declined to be quoted, told Sunday Monitor in response to comments Dr Nyanzi allegedly made about President Museveni’s mother.
On April 20, 2017, in constitutional petition number 15 of 2017, Unwanted Witness petitioned the Constitutional Court challenging the constitutionality of Section 25 of the Computer Misuse Act, 2011.
“The process, like any other legal process in Uganda, especially cases that do not have political interest, we petitioned the Constitutional Court in 2017 but up to now, the case has stayed in the Constitutional Court, it hasn’t even reached the conferencing level. It shows how the courts are betraying Ugandans, especially when it comes to their human rights,” Ms Mukasa said.
In comparison to other countries, including in the East African region, freedom of expression among other freedoms is still outstanding but concern is rising. Some of the examples include:
Red pepper journalists
In November last year, five directors and three editors of the Red Pepper publication were charged with seven counts, including offences under the Computer Misuse Act 2011.
The accused were Arinaitwe Rugyendo, Richard Kintu, James Mujuni, Patrick Mugumya, Richard Tusiime, Johnson Musinguzi alias Byarabaha, Ben Byarabaha, and Francis Tumusiime.
In 2016, Dr Nyanzi was arrested after she published a post on her Facebook page describing President Museveni as “a pair of buttocks”.
On November 2, she was arrested again from Wandegeya Police Station where she had gone to make arrangements with the police ahead of her impending protest march to Makerere University over salaries owed to her. In both instances, she is facing charges relating to offensive communication and cyber harassment.
She denied the charges when she appeared in court. As a result, prosecution sought orders to subject her to a mental health check, saying her actions were surprising and inhumane. However, Nyanzi secured a court injunction through her lawyers of Centre for Legal Aid blocking the mental examination.
David Mugema and Jonah Muwanguzi
In December, 2017, music producer Jonah Muhanguzi and artiste David Mugema were arrested and locked up in prison for allegedly insulting President Museveni. The prosecution alleged that Mr Mugema and Mr Muwanguzi repeatedly composed, recorded, produced and distributed a song in which they attacked and disturbed the peace of President Museveni. The offence was allegedly committed between 2015 and 2017 at Salama Road in Makindye, Kampala.
In April, however, the Director of Public Prosecutions (DPP) discontinued charges of offensive communication against the duo.
Muwanguzi was also independently charged with abetment of offensive communication.
Moses Nsubuga, aka Viboyo
On October 4, detectives arrested local musician Moses Nsubuga popularly known as Viboyo for composing a song in which he allegedly used obscene words to attack government leaders including President Museveni and Speaker of Parliament Rebecca Kadaga.
Viboyo was detained at Jinja Road Police Station on charges of offensive communication.
Swaibu Nsamba Gwogyolonga
In December 2016, Swaibu Nsamba Gwogyolonga, the Forum for Democratic Change (FDC) chairperson for Katikamu South constituency in Luweero District, was arrested on charges of offensive communication against President Museveni.
Nsamba was arrested by police detectives from Wobulenzi Town Council before he was transferred to the Criminal Investigations Department headquarters at Kibuli, Kampala.
Trouble for Nsamba stemmed from his Facebook post expressing how he will announce and mourn the death of President Museveni when he dies. The post was accompanied with a Photoshoped photo of Museveni and how he will look after his demise. Nsamba said the charges against him infringe on his freedom of expression.
Mr Nsamba has been using his Facebook account to critique and attack President Museveni, however, we could not locate this specific post.
He is one of the petitioners in the Constitutional Court and his trial has been stayed pending determination by the Constitutional Court in that hearing.
In June 2015, Robert Shaka was arrested and remanded to Luzira Prison after being charged with offensive communication contrary to Section 25 of Computer Misuse Act.
According to the charge sheet, the State alleged that Mr Shaka disguising as Tom Voltaire Okwalinga, between 2011 and 2015, in Kampala, wilfully and repeatedly using a computer with no purpose of legitimate communication, disturbed the right to privacy of President Museveni by posting statements regarding his health condition on Facebook.
Susan Namata and her friend allegedly took a video threatening to hit President Museveni with their genitals if he didn’t release Kyadondo East legislator Robert Kyagulanyi from prison.
Ms Namata, who was consequently arrested, appeared at Buganda Road Court on charges of offensive communication and cyber harassment towards the person of the President. She was remanded but later granted bail.
Ms Namata is alleged to have said in the video, that President Museveni looked like his grandfather’s buttocks. She is said to have threatened to beat him and hit him with her genitals on his teeth.
Mr Mulangira Hope Kaweesa
In July, Mr Mulangira, a Democratic Party supporter, was arrested on charges of offensive communication after he allegedly circulated an audio threatening to harm President Museveni.