Why court maintained cyber harassment offence in Computer Misuse Act

When the Constitutional Court deleted Section 25 from the Computer Misuse Act, there was hope among freedom of speech activists that the same fate would befall Section 24 of the same law.

All the petitioners who have gone to the Constitutional Court over the Computer Misuse Act have tagged the two Sections – 25 and 24 – together saying their intention is stifling dissent and freedom of speech which is guaranteed under Article 29 of the Constitution.

Matters were not helped by the decision by the Director of Public Prosecutions to continue using both sections against accused people on the same charge sheet.

For instance, for using social media to abuse Esteeri Kokundeka, President Museveni’s dead mother, renowned researcher Stella Nyanzi was charged under both sections. 

Section 25 of the Computer Misuse Act introduced the charge of offensive communication, laid out that any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet, or right to 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 Shs480,000 or imprisonment not exceeding one year, or both.

Justice Kakuru ruling

Besides Nyanzi, a number of people were charged with offensive communication, but in January there was a relief when the Constitutional Court, led by Justice Kenneth Kakuru who has since passed on, eliminated the offence. 

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“The ingredients of the offence cannot be properly determined because the act of ‘disturbing the peace, quiet and privacy of anyone’ and ‘with no purpose of legitimate communication’ is not clear and without knowing the ingredients of an offence, one cannot meaningfully prepare his [or] her defence,” Justice Kakuru said, explaining that laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.

He cited the Ivory Coast sedition case where, among others, it was adjudged that the Constitutional Court has a duty cast upon it of striking down any law which restricts the freedom of speech as guaranteed to the citizens under the Constitution.

“I associate myself with the above reasoning and finding. In a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democratic society,” Kakuru said, citing the European Court of Human Rights case of Handyside vs the UK in which the court observed that freedom of expression includes the right to say things that “offend, shock or disturb the state or any sector of the population”.

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Striking down Section 25 was celebrated, but Justice Kakuru had given hope to activists that perhaps even other sections are bound to be nullified when he questioned the spirit under which the entire Computer Misuse Act was crafted in 2010.

The purpose of the Computer Misuse Act, Justice Kakuru said, as contained in the preamble of the Act, is to make provision for the safety and security of electronic transactions and information systems; to prevent unlawful access, abuse or misuse of information systems including computers and to make provision for securing the conduct of electronic transactions in a trustworthy electronic environment and to provide for other related matters.

“Section 2, which is the interpretation section, does not help much since all the terms used under the impugned section are not defined or given any meaning. The ingredients of the offence cannot be properly determined because the act of ‘disturbing the peace, quiet and privacy of anyone with no purpose of legitimate communication are not clear and without knowing the ingredients of an offence’, one cannot meaningfully prepare his/her defence. Laws which do not state explicitly and definitely what conduct is punishable are void for vagueness,” Justice Kakuru said.

A statute is also void for vagueness, Justice Kakuru said, if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.

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“Vague laws involve three basic dangers: First, they may harm the innocent by failing to warn of the offence. Second, they encourage arbitrary and discriminatory enforcement because vague laws delegate enforcement and statutory interpretation to individual government officials. Laws are usually found void for vagueness if after setting some requirement or punishment, the law does not specify what is required or what conduct is punishable also an enactment is void for vagueness if its prohibitions are not clearly defined,” Justice Kakuru said in a petition that was led by Robert Shaka, who the government accused of being controversial blogger Tom Voltaire Okwalinga (TVO), and activist Andrew Karamagi.

Cyber harassment charge

What remained on the legal statute was Section 24 of the Computer Misuse Act which introduces the cyber harassment charge.

A person is to be found guilty of cyber harassment if they use the computer for purposes of making any request; suggestion or proposal which is obscene, lewd, lascivious or indecent; threatening to inflict injury or physical harm to the person or property of any person.

Uganda Law Society (ULS) challenged both Sections 25 and 24 of the Computer Misuse Act. They said that both sections use the blatantly vague and subjective terms of “cyber harassment” and “offensive communication” and they are inconsistent with Article 28 (12) of the Constitution, in so far as the language in the provisions is incapable of defining with sufficient particularity the penal offences therein intended.

Among other things, ULS contended that Sections 24 and 25 are inconsistent with Articles 29 (1,) (a) and Article 43 (2l,(c) of the Constitution in so far as they restrict the freedom of speech and expression and the restrictions sections are not demonstrably justifiable in a free and democratic society since rights to artistic and political freedom of speech and expression are unduly restricted as they demand the use of polite language in all discourse and publication done through electronic media.

This consolidated petition was given a panel that had justices Cheborion Barishaki, Stephen Musota, Muzamiru Kibeedi, Irene Mulyagonja and Monica Mugenyi.

In determining the legality of Section 25, Justice Mulyagonja, who wrote the lead judgment, said she had no reason to depart from Justice Kakuru’s findings.

“In conclusion, there is no need for this court to render another interpretation of Section 25 of the Computer Misuse Act visa-vie Articles 29 (l) (a), 28 (12)and 43 (2) (c) of the Constitution, since it was already concluded in the case of Andrew Karamagi,” said Justice Mulyagonja, the former Inspector General of Government (IGG).

During submissions, the ULS’s legal team had attacked Sections 24 and 25 together, but Justice Mulyagonja said the crimes that the two provisions were meant to target can clearly be distinguished from each other.

While Section 24 provides for the offence of cyber harassment, Justice Mulyagonja said, Section 25 attempted to limit the dissemination of “ offensive  communication” online.

“It’s my view that cyber harassment may be viewed as only a sub-set of offensive communication, and, therefore, not its equivalent,” Justice Mulyagonja said.

The offence of “cyber harassment” then becomes more distinct than the offence that had been proscribed in Uganda as ‘offensive communication’ and which this court has declared to be overbroad and vague,” Justice Mulyagonja said.

ULS’s legal team during the final arguments had specifically attacked Section 24 (2) (a) of the Act which describes cyber harassment as “making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent” saying the provision leaves it open for diverse interpretations by any prosecutors, judicial officers or the public.

They prove the ambiguity and vagueness of the cyber offence charge the ULS put to the judges which standard would be used for ascertaining what it means to “make any request or suggestion” or what constitutes a “proposal that is obscene, lewd, lascivious or indecent”.

Justice Mulyagonja, in her judgment, said she had no Ugandan cases to relate to since the Computer Misuse Act has not been the subject of interpretation before and criminal prosecutions with regard to harassment brought in the lower courts have been few and far between, except those that are related to the civil and political rights of individuals. 

Consequently, Justice Mulyagonja said she was left with no option but to borrow from the United Kingdom where they have the Protection from Harassment Act (1997) and the Protection of Freedoms Act (2012) which she said are used to prosecute perpetrators of cyber harassment.

In both statutes, she said harassment of another or others is generally prohibited, and the incidence of such harassment is defined.

She said 37 states in the United States of America have laws governing cyber harassment in various ways, while 41 states have laws governing cyberstalking. Cyberstalking laws, she said, generally, require that the victim fear for his or her personal safety, the safety of a family member, or the destruction of property.

Cyber harassment laws, on the other hand, she said are generally broader in scope and cover a range of behaviour, which does not necessarily include a credible threat against another person. To determine what constitutes a “proposal that is obscene, lewd, lascivious or indecent”, Justice Mulyagonja used foreign law drawing from the US state of Virginia code which has sections that break down computer crimes.

“I observed that the descriptive words used in the Virginia provision are similar to those used in Section 24 of the impugned Computer Misuse Act, though extended,” Justice Mulyagonja said.  Justice Mulyagonja’s decision to solely rely on foreign laws and authorities has triggered criticism from freedom of expression activists. 

“The court once again got itself tied into knots with the usual embarrassing plagiarism of copying and pasting indiscriminately from the West, without following the test approved by own Supreme Court in the landmark 2004 decision of [Charles] Obbo Vs AG [Attorney General] and this inevitably transposed on us an incorrect interpretation of Section 24 of the Computer Misuse Act that’s entirely drawn from an old California state law on indecency as interpreted by the US Supreme  Court in 1973,” says Isaac Ssemakadde, the executive director of Legal Brains Trust.

Simply stated, “cyber harassment,” Justice Mulyagonja said, means harassment of an individual or a group of persons that is perpetrated using the internet. 

‘Well elucidated’

According to the judge, cyber harassment is well elucidated within the Computer Misuse Act when it explains that the offence is constituted where one knowingly permits any electronic communications device to be used for any of the purposes mentioned in Section 24 of the Act.

“It would be a sad day if this court found that the repeated harassment of any person, whether online or offline, is a lawful form of expression,” Justice Mulyagonja said. “Therefore, I would hand that Section 24 (2) (a) of the Computer Misuse Act is not in contravention of Article 28(12) of the Constitution. It provides sufficient explanation of what is prohibited and so does not go against the principle of legality guaranteed by the Constitution.”

This finding hasn’t been welcomed by some within the legal fraternity who insist that it has not clarified many things.

“The words ‘indecent’, ‘lewd’ or ‘lascivious’ should have been nullified from the section because they create more problems than solutions from an interpretation and law enforcement perspective,”  Ssemakadde says.

“From the Constitutional Court’s own analysis, the focus is only one word obscene. The implication is clear: There is no judicial precedent favouring the retention of such vague words as ‘indecent, lewd or lascivious’ in statute regulating digital communications,” he concludes.