Kabuleta arrest: The law as a tool of control

On Friday evening, police arrested evangelist Joseph Kabuleta with a colleague, Godwin Matsiko, at Forest Mall, Lugogo, Kampala.
He is now facing charges of offensive communication against the president under Section 25 of the Computer Misuse Act, 2011, and is being held at the Special Investigation Unit (SIU) Kireka.

“This is to inform the public that a team of detectives from the Special Investigation Division has today arrested Joseph Kabuleta, a self-styled pastor and put him under custody. He has been apprehended because of offensive communication against the person of the President,” read a statement from the police spokesperson, Mr Fred Enanga, on Friday.

Police claim, the writer repeatedly posted offensive messages, under ‘Joseph Kabuleta Weekly Rant contrary to the Computer Misuse Act.

The evolving media landscape has granted a safety net on cyberspace beyond the gated community where the state uses a compliant media as a cog in its transactional politics.

This has given rise to those who speak power to the truth.
Kabuleta and the others have adopted the ‘publish and be damned’ adage, and are not ready to play within the ambit of traditional media.

It comes with consequences as Enanga warns: “The joint forces will continue using the acquired capabilities to monitor comments on social media and any offenders will be investigated and punished.”

To the regime, the purveyors of such ‘crass’ and ‘embellished’ commentary that ridicules the President and those close to him must be punished.

Gifted Kabuleta
Mr Kabuleta is a man with many gifts. He was once part of the newsroom furniture where he tormented wayward sports administrators with the pen in his Sunday column.

But he recently traded the pen for the pulpit. For those, who thought the gospel would turn him into a meek lamb, they have been in for a shock.

Eventually his stubborn streak began to emerge. Whereas Mr Kabuleta does not preach fire and brimstone, his ministry for the short span of time it has existed, has challenged the evangelical status quo. He is not a praise singer as expected of other Pentecostal pastors accustomed to paying blind loyalty to the regime.

His association with Mr Elvis Mbonye, a preacher with Legions of Youthful Gatherings keen on predicting future events, elicited suspicion after the ‘prophet’ predicted the ‘chosen one’ to lead the country in future.

Like the conductor of the orchestra, Mr Kabuleta began to command influence among young Pentecostal adherents. With the evangelical constituency numbering millions firmly in the grip of the regime, apprehension began to creep in when Mr Kabuleta began to write about ‘sensitive subjects.’

Scores read his missives on social media platforms. To his adoring fans, his articles were part of his expressions with brutal candour but the view from his critics was starkly different. He had stepped out of the boundaries and had rebelled against the unwritten credo expected of Pentecostal pastors.

“Once again, we want to caution all those who glorify such communication particularly through social media that though it is public space, it is not protected. Therefore, any postings of false fabrications will attract punishment in accordance with the laws,” opines Mr Enanga.

Mr Kabuleta now joins a list including scholar Stella Nyanzi and Timothy Kalyegira, a journalist, to be charged under the Computer Misuse Act.

USL petition
In February, the Uganda Law Society (ULS) petitioned the Constitutional Court seeking the declaration of two sections of the Computer Misuse Act of 2011 null and void.
ULS said sections 24 and 25 of the Computer Misuse Act of 2011 curtail the freedom of expression.

According to the petition, they are seeking “a declaration that sections 24 and 25 of the Computer Misuse Act, 2011 are inconsistent with or in contravention of Article 29 (1) (a) and Article 28 (12) of the Constitution and are null and void.”

Computers Miss Use Act
Section 24 and 25 of the Computer Misuse Act, 2011 creates the offence of cyber harassment (the use of a computer to make obscene requests or threatening to inflict injury to any person or property).

State actors often argue that whereas there is freedom of expression and other rights, there is a general public interest limitation on human rights and freedoms in article 43 of the Constitution.
Uganda has quite a rich jurisprudence on freedom of expression.

It was a subject of debate in the 2004 landmark decision of the Supreme Court in Charles Onyango &
Anor vs the Attorney General.
The plank of the appeal from the Constitutional Court was whether section 50 of the Penal Code Act, which makes publication of false news a criminal offence, contravenes the protection of individual rights of expression.

Justice Joseph Mulenga, who wrote the lead judgement, which struck down section 50 of the Penal Code Act, opined that “subject to the limitation under Article 43, a person’s expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant.”

It read further, “Everyone is free to express his or her views. Indeed, the protection is most relevant and required when a person’s views are opposed or objected to by society or any part thereof, as “false” or “wrong’’.

Earlier on, Constitutional Court Justice J.P Berko in rejecting the petition to strike down the section of false news, argued that: “the democratic interest cannot be seen to require (sic) citizens to make demonstrably untrue and alarming statements under the guise of freedom of speech and expression. The section prohibits illegal and criminal conduct under the cover of speech and expression.”

But quoting an excerpt from an article by Archibald Cox, a law professor, who served as US Solicitor General under President John F Kennedy, Mr Mulenga ruled that: “A democratic society respects and promotes the citizens’ individual right to freedom of expression, because it derives benefit from the exercise of that freedom by its citizens. In order to maintain that benefit, a democratic society chooses to tolerate the exercise of the freedom even in respect of “demonstrably untrue and alarming statements”, rather than to suppress it.”

Rulings elsewhere
Tanzania. On the question of freedom of expression, in the landmark Tanzania decision of Rev Christopher Mtikila vs Attorney General, Justice Lugankingira opined that: “It is the fundamental rights, but not their restrictions, that this Court is enjoined to guard jealously.”

South Africa. In the South African case (The Citizen 1978 (Pty) Ltd and Others vs Mc Bride Justice Edwin Cameron postulated that criticism should be: “protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true.”

This is in tandem with the spirit of article 10 of the International Covenant on Civil and Political Rights as well as the African Commission on Human and Peoples’ Rights, which in its 32nd Ordinary Session in October 2002, adopted the Declaration of Principles on Freedom of Expression in Africa.

International Civil recommendations
Article 10. It recommended to the African States to guarantee the freedom thus: “Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.”

The European Court of Justice, indicates that the only content-based restriction is to deal with the dissemination of ideas promoting racism and the Nazi ideology, denying the Holocaust, and incitement to hatred and racial discrimination.

The Court relied on Article 17 of the Convention and held that freedom of expression may not be used to lead to the destruction of the rights and freedoms granted by the European Convention on Human Rights. Such decisions apply the theory of the paradox of tolerance: “an absolute tolerance may lead to the tolerance of ideas promoting intolerance, and the latter could then destroy the tolerance.”

In order to decide the extent to which a particular form of expression should be protected, the Court examines the type of expression (political, commercial, artistic, etc), the means by which the expression is disseminated (personal, written media, television, etc).

However, the European Court of Justice fundamentally states that: “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.”

States therefore have avenues to counter any narratives that may be misleading or peppered with falsehoods. But arresting those who are critical or write falsehoods is akin to killing a fly with a sledge hammer.