Computer law written by a sad man just out of dark damp cave

There are primarily two things wrong with the Computer Misuse Bill recently passed by Parliament. The first is that it is written poorly. Good legislative drafting identifies a problem or set of problems in society, examines the texts of existing laws to see that there is nothing to deal with those problems, then proposes amendments or a whole new piece of legislation to address them.

 The Computer Misuse Bill reads like something written by someone with a bad headache who had just been released into the sunlight after a long time in solitary confinement in a dark, damp cave. It completely ignores existing laws, such as those on personal data privacy, defamation and libel, and instead approaches what it sees as a new social problem, clothed in a grass skirt and armed only with a stone tool.

 As an exercise in “being seen to be doing something”, the law – to stretch legislative lexicon to its threadbare limits – achieves its aim. However, as an effort to clamp down on what its drafters see as abuse and mischief manufactured and circulated by the use of computers, it is tedium ad nauseum.

 Thanks to Supreme Court Justice Joseph Mulenga in his landmark ruling that struck down the offence of publication of false news, it is settled jurisprudence in Uganda that the constitutional provisions guaranteeing the freedom of expression are there to protect the people who say the things we would otherwise not wish to hear, not those who sing our praises.

 This ruling is available, has been severally quoted, and could have saved the drafters of this Bill a lot of time if they had applied their minds to it, instead of carving images of wild animals in cave walls.

 This is not to say that the freedom of expression is absolute. Laws against libel and defamation exist primarily to give those whose reputations have been lowered, in the estimation of their peers, an opportunity for redress.

 There are important provisos and hurdles to overcome, including that you must have a reputation to begin with, and the words must be untrue. It might be defamatory to call someone a crook; it is probably not for one to say that someone is, in their estimation, foolish.

 In such cases, the Supreme Court, marching behind the wise words of Justice Mulenga once again, pointed out that the Constitution imposes a limitation upon those who seek to limit the freedom of expression – the famous limitation upon the limitation. Any such limitations, he wrote, “must be demonstrably justifiable in a free and democratic society”.

 It is hard to see how any self-respecting court or judge who swears fidelity to the law, the truth, to the Constitution, and to the rule of law, would, having read both the Mulenga ruling and the Computer Misuse Bill, hold the view that the limitations the new Bill imposes on the citizenry are demonstrably justifiable in a free and democratic society. Announcing the premature death of someone is crass; I am not sure that it is or should be a criminal offence.

 The second problem is that the law is detached from reality and society. It seeks to criminalise criticism and abuse where the people’s representatives should, instead, be seeking to find out why young people are so angry and unhappy.

 There are at least two generations of young Ugandans today who feel unseen, undervalued, unappreciated, and unwanted by society. Many feel that they were mis-sold an education that has turned out to be worthless or handed empty promises of being the leaders of a tomorrow that has since passed from the future, into the present, before disappearing into a long-forgotten past.

 These are the young men and women to be found lurking in the dark alleyways of the internet, defecating on keyboards, and urinating on the reputations of individuals and institutions. Some of them are simply mannerless; they grew up but were not raised. Defiance is a shield for their deficiencies; abuse is their antidote to ignorance.

 But many are just frustrated. Give them honest work to do and they will keep their heads low and work hard to improve their lot. Give them public spaces in which to exercise their talents and they will burn off their steam. When assented to the law – before it is challenged on constitutional grounds – might nail a few here and there, but it cannot silence their angst.

 Rather than silence them, MPs should listen to – and hear – what the young people are saying. They aren’t worried about the law; they know we can’t arrest them all!

Mr Kalinaki is a journalist and poor man’s freedom fighter.

[email protected]; @Kalinaki

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