Offensive speech law fails court test

Free speech activists have welcomed the Constitutional Court’s annulment of Section 25 of the Computer Misuse Act 2011. 

The unanimous judgment of the court now means the cases of those being tried for offensive communication collapse. 

The police cannot also either arrest or detain anyone on charges of offensive communication.
While protecting the law to annoy, especially those in government, the five Justices listed as one of the grounds for annulment the fact that the section curtails freedom of speech. They also cited the vague, broad and ambiguous description of what constitutes offensive communication.

“I find that the impugned Section is unjustifiable as it curtails the freedom of speech in a free and democratic society,” Justice Kenneth Kakuru, who wrote the lead judgment, ruled.

He conclusively added: “I would allow the petition with costs to the petitioners and make the following declarations and orders … that Section 25 of the Computer Misuse Act No.2 of 2011 is null and void as it is inconsistent with the Constitution.” 

Justice Kakuru also noted that “prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democratic society.” 

He cited a case in the European Court of Human Rights where “it was observed that freedom of expression includes the right to say things that ‘offend, shock or disturb the peace of the state or any sector of the population’.”

Couched in vagueness

Mr Eron Kiiza, one of the lawyers who argued the petition for the petitioners—Mr Andrew Karamagi and Mr Robert Shaka, had submitted that the impugned section created an offence and punishment without precisely defining key terms. He cited vague phrases like “disturbing the peace, quiet and privacy of anyone” and “with no purpose of legitimate communication.”

Mr Kiiza had further argued that the impugned law was disproportionate as it loops all protected speech without any clear boundaries and its criminalisation of speech and communication was the intrusive method of restricting the right and freedom of speech and expression.

“Section 25 of the Computer Misuse Act No. 2 of 2022 does not specify what conduct constitutes offensive communication. To that extent, it does not afford sufficient guidance for legal debate,” Justice Kakuru held as he struck down the law.

The other justices who agreed with the lead decision of Justice Kakuru included: Deputy Chief Justice Richard Buteera; Geoffrey Kiryabwire; Elizabeth Musoke and Monica Mugenyi.

The annulled law

Section 25 of the Computer Misuse Act No. 2 of 2011 had stated that 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 (Shs480,000) or imprisonment not exceeding one year or both.”

In his analysis, Justice Kakuru held that a statute is void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.
He went on to break down how vague laws involve three basic dangers: Potentially harming the innocent by failing to warn of the offence; encouraging arbitrary and discriminatory enforcement; and the law flying in the face of the principle of proportionality.

“The principle requires that such a law must not be drafted too widely so as to net everyone, including even the un-targeted members of society,” Justice Kakuru said.

Red flag

Mr Karamagi, a lawyer, had in his affidavit to support the petition filed in 2016 argued that—like scores of other citizens in Uganda—he was a regular user of the Internet, especially social networking sites such as Facebook and Twitter.

He proceeded to note that the law excessively limited his freedom of speech and expression since it provided the Director of Public Prosecution (DPP) unbridled administrative and prosecutorial discretion, which had resulted in several cases of selective prosecution of Internet users based on certain views deemed objectionable by the government or high ranking politicians and public officers.
Mr Karamagi also told court that the enforcement of the said law had placed him under constant fear of violating it.

The decision of the court comes at the time when several human rights and journalists’ bodies have petitioned the same court challenging the recent enactment of the Computer Misuse (Amendment) Act, 2022 as being a threat to freedom of speech.

Popularly known as the Nsereko law [after Kampala Central MP Muhammad Nsereko, who tabled it], the same law, among others, prescribes a fine of more than Shs9 million or imprisonment of more than 10 years if a person is found culpable of accessing, without authorisation, another person’s information, data, voice or video records.

Further, the law penalises those who invade children’s privacy and share their information without consent of their parents or guardians.

‘Unprogressive legislation’

Close to four petitions have been filed in the Constitutional Court and the East African Court of Justice. They are yet to be determined.

Reacting to yesterday’s decision, Mr Robert Sempala—the executive director of the Human Rights Network for Journalists-Uganda—said at least one bad law is off the law books.

“From the onset, we said this is an unprogressive legislation meant to clamp down on freedoms of speech and expression and court has ably justified our augments,” he said via telephone, adding, “We are very happy as advocates of freedom of speech, at least we are one bad law less to our progressive efforts for a free speech.”

Mr Kiiza described the annulled section of the law as the most notorious affront to free speech, adding that government critics such as Ms Stella Nyanzi and Mr Kakwenza Rukirabashaija can now sigh with relief.

Ms Nyanzi was jailed for 18 months after she was found guilty of insulting the late mother of President Museveni. The same sentence was later quashed on appeal to the High Court.

Similarly, Mr Rukirabashaija, who was allegedly tortured at the hands of the State operatives before fleeing to Germany, is accused of insulting President Museveni and his son, Gen Muhoozi Kainerugaba, on social media. His charges of offensive communication are still pending before Buganda Road Court in Kampala.

“It is bad news for the recently enacted Computer Misuse (Amendment) Act, 2022, which is an even more ambiguous, regressive and repressive legislation,” Mr Kiiza said via telephone, adding, “The court will employ the same reasoning to annul it.”