Reinvent to remain relevant, CJ tells Monitor

The Supreme Court made ground-breaking findings and pronouncements [in the case of Charles Onyango Obbo vs The Attorney General - Supreme Court Constitutional Appeal No. 2 of 2002].  It held that the  freedom of expression guaranteed under Article 29 of the Constitution extended to expression or publication of false news. The Court rejected the contention that extension of the constitutional protection of freedom of expression to cover false statements is incompatible with ‘upholding truth.’  It instead stated that a scrutiny of the limitation of the enjoyment of the right under Art 43 did not lend any support to the proposition that the protection excludes false expressions. Mulenga, JSC stated thus: “Extending protection of the freedom of expression to false statements does not necessarily defeat the objective of upholding the truth, because while truth and falsity are mutually exclusive, the purposes for protecting both are not. ..

It is not confined to categories, such as correct opinions, sound ideas or truthful information. 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. 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”.”

Indeed certain publicly held doctrines could be false and dangerous. The Court referred to the following excerpt from an article by Archibald Cox in Society Vol. 24 p.8 No. 1 Nov./Dec. 1986: “Some propositions seem true or false beyond rational debate. Some false and harmful political and religious doctrines gain wide public acceptance. Adolf Hitler’s brutal theory of a “master race” is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true, but because freedom of speech is indivisible. The liberty cannot be denied to some ideas and saved for others. The reason is plain enough, no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false.” (Emphasis mine).

The Court held that in the circumstance of a conflict in constitutional provisions, wherein there are provisions in the Constitution for both protection and limitation of rights, Court is under duty to resolve the conflict having in mind the different objectives of the Constitution; and in doing this, it should take guaranteed rights as the primary objective of the Constitution. Mulenga JSC held as follows:

“Limiting their enjoyment is an exception to their protection, and is, therefore, a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary objective. In that eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstance is permissible. The exceptional circumstances set out in clause (1) of Article 43 are the prejudice or violation of protected rights of others and prejudice or breach of social values categorised as public interest.”

The Court then struck down section 50 of the Penal Code Act, for failing to meet the standard set out in Article 43 of the Constitution. These reasons included the fact that section 50 shifted the burden of proof onto the accused person; the offence was subjective in nature; and lastly, this finding was consonant with constitutional interpretation principle of ‘’object and effect’’. First, regarding the burden of proof, the offence required the accused to prove that he tried to verify the truth in what was published. Second, regarding its subjective nature, the offence penalised those who published what would be ‘likely to cause prejudice’, which went far beyond the requirement of Art 43 (2).

On this, the learned Mulenga JSC said: “The clause does not expressly or implicitly extend to a third scenario, where the enjoyment of one’s right is “likely to cause prejudice”. I do not understand the clause to permit derogation of guaranteed rights or limitation of their enjoyment, in order to avert speculative or conjectural mischief or danger to public interest. Section 50, however, relates precisely to that third scenario. It is directed to a danger, if it is a danger at all, which is remote, and even uncertain. At most, section 50 aims at pre-empting danger to the public interest.”

Third, as to the  principle of object and effect, the Court also found that considering its object, the law on false news did not serve its original purpose anymore and served no legitimate objective. The learned Mulenga JSC noted thus:

“I think it is reasonable to infer from the wording of section 50, that at the time, when political agitation for self governance was in early stages, the colonial legislature in Uganda would have wanted to provide a legal safeguard against the spreading of news, rumours or reports that could destabilise the populace, with probable effect of undermining the authority of the colonial regime. As for the retention of that law subsequent to the colonial administration, the probable reason is that the process of law reform has not been vigorous or extensive enough to review the relevance of laws, such as section 50, in the changed circumstances since their enactment. In the circumstances, one cannot with certainty, point to the purpose for which section 50 is retained in the Penal Code today.”

  With regard to the effect of section 50 of the Act, the Court considered it alongside or regarding its nexus with the prejudice to public interest. It found that the law was unjustifiable because the definition of false news under section 50 could not fit within the two scenarios envisaged in clause (1) of Article 43.

The Court seized the occasion to clarify on the import and meaning of Article 43 of the Constitution, which provides for permissible restriction on Human Rights. It imposes this restriction to prevent prejudice to the fundamental or other human rights and freedoms of others, or the public interest. The Supreme Court held that section 50 of the Act was not an end in itself; hence it had to be considered in light of the provision under Article 43 (2)(c) of the Constitution for what is acceptable in a free and democratic society - in what has been famously referred to as a ‘limitation within a limitation.’ The learned Mulenga JSC observed that:

“… [by] virtue of the provision in clause (1), the constitutional protection of one’s enjoyment of rights and freedoms does not extend to two scenarios, namely: (a) where the exercise of one’s right or freedom “prejudices” the human right of another person; and (b) where such exercise “prejudice” the public interest. It follows therefore, that subject to clause (2), any law that derogates from any human right in order to prevent prejudice to the rights or freedoms of others or the public interest, is not inconsistent with the Constitution.

However, the limitation provided for in clause (1) is qualified by clause (2), which in effect introduces “a limitation upon the limitation”. It is apparent from the wording of clause (2) that the framers of the Constitution were concerned about a probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest. For avoidance of that danger, they enacted clause (2), which expressly prohibit the use of political persecution and detention without trial, as means of preventing, or measures to remove, prejudice to the public interest.

In addition, they provided in that clause a yardstick, by which to gauge any limitation imposed on the rights in defence of public interest. The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. This is what I have referred to as “a limitation upon the limitation”.  The limitation on the enjoyment of a protected [right] in defence of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalised, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society.”

From that case, we know therefore that the limitation imposed by Art 43 (1) is not an end in itself; it has to be considered in light of what is acceptable in a free and democratic society.

The Supreme Court also held that the standard involved in construing the limitation in Art 43 is an objective one and does not vary from democracy to democracy. It has to be in accord with the universal democratic values and principles to which every free and democratic society adheres. It would be catastrophic to construe ‘democracy’ using partisan lenses. This case set forth that, it is vital that Uganda aspires to be better following the ideal standard in promoting freedom of the press.

The Court also noted that freedoms and rights can be limited only in the clearest of cases. It pointed out that under Article 43(2) of the Constitution, democratic values and principles are the criteria for justification of any limitation on the enjoyment of rights and freedoms guaranteed by the Constitution. These criteria are that:

(i) the legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right;

(ii) the measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations; and

(iii) the means used to impair the right or freedom must be no more than necessary to accomplish the objective.

In Andrew Mwenda & The Eastern African Media Institute v Attorney General – Constitutional Petitions No. 12 of 2005 & No. 3 of 2006, the Constitutional Court delivered ground breaking decision in which it repealed the sections of the Penal Code Act providing for the offence of sedition. Andrew Mujuni Mwenda was a Political Editor of Monitor Newspaper and a host of a program known as “Tonight with Andrew Mwenda Live” in 93.3 KFM Radio Station, a subsidiary of The Monitor, which debated topical national issues current in the country. He was charged with the offence of sedition contrary to sections 39 (1) (a) and 40 (i) (a) of the Penal Code Act for having hosted a debate by prominent Politicians on his aforesaid program entitled: “Tonight is a Public Holiday. What justifies a Public Holiday?” He petitioned the Constitutional Court alleging that the prosecution was inconsistent with the Constitution. 

The Constitutional Court allowed the petition; upon finding that the wording of the provision creating the offence of sedition was so vague that one may not know the boundary to stop at, when exercising one’s right under Article 29 (1) (a) of the Constitution. The Court made findings in this regard as follows: “It is so wide and it catches every body to the extent that it incriminates a person in the enjoyment of one’s right of expression of thought. Our people express their thoughts differently depending on the environment of their birth, upbringing and education. While a child brought up in an elite and God fearing society  may know how to address an elder or leader politely, his counterpart brought up in a slum environment may make annoying and impolite comments, honestly believing that, that is how to express him/herself. All these different categories of people in our society enjoy equal rights under the Constitution and the law. And they have equal political power of one vote each.”

The Court then declared that (i) Sections 39 and 40 of the Penal Code were inconsistent with provisions of the Articles 29(1) (a) and 43(2) (c) of the Constitution; hence it declared them null and void, and struck them off the Penal Code Act. Sections 42, 43 & 44 of the Penal Code Act, which also related to sedition, were declared redundant.

This decision, and others, are considered as locus classicus, and are relied upon in Courts and tribunals in other countries as leading authorities in expounding the meaning of freedom of expression. The other authorities on this subject include the Kenyan High Court decision in the case of Robert Alai vs DPP & Attorney General AND Article 19 (Interested Party)  and Cyprian Andama vs DPP & Attorney General AND Article 19 (Interested Party) ; and the East African Court of Justice decision in Media Council of Tanzania & 2 others vs Attorney General of the United Republic of Tanzania .

3.0 The Role of The Judiciary in the promotion of media freedom.

As we have seen above, The Monitor has by its publications caused its journalists to advance the cause of Media Freedom. All these milestones have been covered because the Ugandan Courts of Justice have always exercised their duty to administer justice with courage and conviction. They have invariably stood up to be counted on matters of protection, defence, and enforcement of rights guaranteed under the Bill of Rights and other provisions of the Constitution; and to uphold the rule of law at all times. 

Dream for Judiciary

As the head of the Judiciary, I do guarantee to the Monitor and the Media fraternity in general that the Judiciary as an institution is committed to executing our adjudicatory mandate strictly in accordance with our obligation as mandated by the Constitution. We shall remain steadfast in the pursuit and defence of the Constitution, and of the law, by ensuring the enforcement of rights.  We are pursuing a robust transformation agenda which will at the end markedly change the judiciary landscape by providing ease in access to quality justice.

This we shall achieve through provisions of hardware, which is characterised by increase of the number of judicial officers from the lowest to the High est Court in the land, and expansion of Court circuits to the various regions of the country.

The expansion of the Court of Appeal from 15 to 56 Justices operating in Kampala and eight regional circuits will ensure that in furtherance of the protection and enforcement of rights, the Constitutional Court shall effectively hear and determine a constitutional matter almost immediately it is brought before Court.  There is then the software such as embracing information technology and enforcement of discipline and ethics, as well as capacity building to afford the people access to affordable access to quality justice. We have widened the space for public interest litigation by creating rules for better adjudication and just determination of disputes. Some of the rules include:

(i) The Judicature (Amicus Curae) Rules, 2022. These rules  will enable the growth pf our jurisprudence by enabling the Courts to be helped by experts.

(ii) The Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019. These rules have simplified access to Courts to enable enforcement of Human Rights.

We shall not be deterred in our determination to uphold the rule of law at all times to enable the full realization of rights and freedoms by all Ugandans.

4.0 Looking ahead

As we face the future, globally, journalism faces many challenges emanating from various quarters. The pressure exacted on The Monitor and the media houses in general is not peculiar to Uganda. I consider the greatest threat to mainstream journalism to be social media. With the advent of social media, virtually everyone has become a reporter. This product of the Fourth Industrial Revolution, easily accessible online, cheaper and faster to procure, poses a monumental challenge to the traditional or mainstream print media. According to the Reuters Institute Digital News Report 2021, the use of social media remains strong especially with younger people and those with lower levels of education. Social media applications like WhatsApp, Telegram, Tiktok and Twitter, among others, have become especially popular in the Global South, creating most concern when it comes to misinformation. The situation is exacerbated by the poor reading culture that characterizes today’s younger generation who prefer snippets of information in headlines or a paragraph, to detailed news.   

Social media is here to stay. It cannot be wished away! It is thus incumbent on the traditional print media to do all that needs to be done to remain relevant. This calls for innovations to match the increasing revolution in this industry. The Monitor should continue to search for relevant content. The New York Times (NYT) now boasts more than 10 million paid subscribers; a target they have achieved before their projection of 2025. One of the reasons for this growth is attributed to the newspaper’s roll out of content beyond its core news product. Products such as NYT Cooking games, spelling bee, cross word etc have kept varied readers tuned to their core interest. The major lesson from this reform is that The Monitor can ensure they meet the needs of their readership. The Government must, without breach of provisions of the Constitution on the protection and guarantee of freedom of expression, also generate laws to regulate social media.

You may find the model pursued by the Guardian Newspaper, of seeking financial assistance from its readers by asking them to part with as little as $1 with the option of monthly, or a one-off contribution quite instructive. Through this initiative, the Guardian newspaper has built a robust reader-funded project with over 1.5 million supporters across 180 countries. This business model has enabled them to provide free online news to readers. They have, from the financial resources realised, been able to invest in innovation and promoting high quality journalism because they are freed from shareholder and advertiser pressure. The next 50 years will be possible if The Monitor and other media houses think outside the box and pursue innovation that will open up opportunities to thrive in a very competitive world.

Conclusion

Allow me conclude my address by assuring all Ugandans that the Judiciary commits to remain steadfast in its mandate as an effective arbiter with an open door policy. The Judiciary is vested  in the promotion of human rights and  good governance. In execution of its mandate there have been and there will continue to be times when the Monitor Publication and other print media houses will come up with unpalatable publication. The honourable thing to do is to readily and promptly make amends when they have erred; but also stand their ground when being unjustifiably accused. The Monitor has to continue reinventing itself to remain current, relevant, and viable enough to deliver outstanding journalism. This far, it has delivered on its promise to render quality service.

I once again commend the Monitor Publications Ltd for the unrelenting spirit exhibited in the fight for media freedom and upon this successful journey of  30 years , which indeed is worth celebrating. I urge you not to allow the vice of complacency or of triumphalism to set in. You may wish to pick a leaf from my secondary school whose “motto”, arguably the most instructive of all school “mottos”, is a classic catch phrase, which simply says: “Gakyali Mabaga”!

I thank you for graciously affording me the opportunity to engage with the distinguished audience; and equally thank the graceful audience for your keen attention!

Keynote Address by Chief Justice Alfonse Chigamoy Owiny – Dollo, at A Public Dialogue in Commemoration of the 30th Anniversary of Monitor Publications Ltd., Publisher of the The Monitor newspaper, held at Serena Kampala Hotel.

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