Constitutional Court annuls anti-pornography law

Tuesday August 17 2021
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Skimpily dressed ladies getting into a nightclub in Kampala recently. Photo | File

By Betty Ndagire
By Juliet Kigongo

The Constitutional Court has annulled four sections of the Anti-Pornography Act 2014 unconstitutional for being vague and uncertain.

The court decision means that no person can be indicted for the offence of pornography in Uganda under the Anti-Pornography Act.
It also means that all persons who were  being prosecuted for crimes under the Act  including Pandol wabasajja, have to be freed or their prosecutions and cases terminated.

Last week, a panel of five Judges; Frederick Egonda- Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi and Irene Mulyagonja unanimously declared unconstitutional Sections 2 which defines and creates the offence of pornography, 11, 13 and 15 Anti-Pornography Act.

They directed the Attorney General (AG) to pay half of the legal costs incurred by the nine petitioners.

Other Sections declared unconstitutional; 11 which confers wide discretionary powers upon the Anti-Pornography Committee in the enforcement and monitoring of the compliance of the Act, 13 which criminalizes the production, publication, broadcasting, procurement, importation and exportation, sale or abetment, sets out prohibited acts of pornography.

As well as 15 which confers wide enforcement and policing powers in authorising entry upon premises and is likely to interfere in activities pursued in private; occasion the seizure of personal property and arrest of persons engaged in personal pursuits and is inconsistent and in contravention of the right to privacy among others.

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Justice Egonda-Ntende ruled that the Anti-Pornography Act does not provide what amounts to indecent show and that the threshold over which an action can be measured to determine whether it falls within the ambit of indecent show.

He added that an imprecise statement of the prohibited conduct may lead to inconsistent enforcement of the law, uncertain application of the law or failure to impede conduct that it was intended to prohibit.

Justice Ntende also overruled the argument that the words ‘stimulated explicit sexual activities, ‘sexual parts’, ‘primary sexual excitement’ to define pornography under Section 2 are not vague, ambiguous, uncertain and subjective.

The judge held that he was unable to determine either from the provision defining the crime of pornography or from any other portion of the Act, the legislative objective for the criminalization of pornography.

“What harm would result to society, if publication, exhibition or other representation of images of sexual parts of the human body or sexual activities primarily for sexual excitement, is not prohibited? None has been put forward by the respondent (Attorney General) except the bar where it is intimated implicitly as harm to women and children,” held Justice Egonda-Ntende adding that no proof of harm has been provided by the state.
The judgment now renders the entire Act virtually useless/ unconstitutional as the definition of Pornography was central to it's operational.
The judges said that even if one were to accept that the legislative objective of the impugned provisions and the Act was to protect women and children, it was not demonstrated that the criminalization of pornography is rationally connected to that legislative objective.

According to the court, sections 2 and 13 of the Act damage the fundamental freedom of expression and such impairment is not justified by Article 43 of the Constitution.  

The Court held that the powers granted to the Pornography Control Committee and the courts of law are inconsistent with the rights to personal liberty, privacy and property.

In 2014, a group of four individuals and five charity organisations petitioned the court challenging the legality of Sections 2, 11, 13 and 15 Anti-Pornography Act of 2014.

Court heard that the definition of Pornography under Section 2 of the Anti-Pornography Act of 2014 contravenes the principle of legality under Articles 2, 28, 44 of the Constitution.

They successfully argued that the sections of the Act define and create the offence of pornography in an overly broad, vague, and subjective manner and conferring wide discretionary enforcement add policing powers on state authorities in contravention of the obligations with regards to human rights guaranteed under international human rights instruments ratified by Uganda.

The petitioners are Center for Domestic Violence Prevention, Women organization Network for Human Rights Advocacy, Prof Sylvia Tamale, Sarah Kihika, Lilian Drabo, Strategic Initiative for Women in the Horn of Africa, Uganda Health and Scientific Press Association, Human Rights Network for Journalists and Lina Zedriga.
They were successfully represented by Onyango Owor from Onyango & Company Advocates who have been at the forefront of successfully defending constitutional rights.
In 2014 when President Museveni signed the Anti Pornography Bill into law which at the time was commonly known as the mini-skirt law, there was an uproar especially by the women rights groups who were against the same.
This saw over 200 aggrieved women gather at the National Theatre to hold a protest March though the police foiled it.
 
The Anti Pornography law 2014 had among others, criminalized the production, publication, broadcasting, importation of and sale of pornography material.
This had occasioned to harassment and mistreatment of women who were found dressed in clothes above the knees and those that seemed revealing.
Then Ethics minister Simon Lokodo had warned that it was forbidden to wear any clothing that could be lead to arose of sexual desires.


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