Treading thin line between cyber regulation and free speech

Former Makerere University research fellow Stella Nyanzi in the dock at Buganda Road Court in Kampala where she was convicted of cyber harassment on August 1, 2019. PHOTO/ABUBAKER LUBOWA 

What you need to know:

  • Article 29 of the Constitutions guarantees freedom of speech and expression. But as government pushes its latest attempt to tighten the grip on cyber space, the vaguely defined proposals have experts worried that the new legislation may be abused, and grossly affect freedom of speech and expression, writes Elizabeth Kamurungi.

In 2019, soon-to-be presidential candidate Joseph Kabuleta was picked up by plain-clothed men, bundled into a car boot and whisked off to a detention centre in Kireka near Kampala. 
After being roughed up, he was reportedly ordered to make a vow to always respect army generals. His arrest followed a social media post about First Son and commander of the Lands Forces, Lt Gen Muhoozi Kainerugaba, that translated into a charge of disturbing the peace of the President.
A year earlier, then Makerere University research fellow Stella Nyanzi had been sentenced to 18 months in jail for harassment and offensive communication against the President. 
Ms Nyanzi’s Facebook posts about President Museveni’s late mother effectively left her in a spot of bother.
Four years later, satirical novelist Kakwenza Rukirabashaija fled to exile after he was brutalised in custody. 

Mr Rukirabashaija was arrested on account of abusing both President Museveni and Gen Muhoozi in a series of tweets. A charge of offensive communication was promptly preferred against him.
Weeks later, Mityana Municipality MP Francis Zaake found himself in the crosshairs, with his lucrative position as a commissioner of Parliament on the line. This was after he used what was termed as unparliamentary language in a tweet about Deputy Speaker Anita Among.
In all these instances, the accusers argue that the unfavourable mentions amount to abuse; while the “accused” base their defence on the basis of freedom of expression. 

Internet policing
To Kampala Central MP Mohammad Nsereko, the solution is in tightening Internet policing, hefty fines and longer jail sentences. 
In a draft Bill, he proposes a raft of amendments to the Computer Misuse Act, 2011. The Act, which, among others, introduces offences of cyber harassment, cyber stalking, offensive communication and child pornography, is in its current state repulsive to free speech advocates.

Now amendments introducing a Shs15m fine and seven-year jail term for a person who “send(s), share(s) or transmit(s) any misleading or malicious information about or relating to any person through a computer, or share(s) unsolicited information, are already ruffling feathers.
The proposals also include a 10-year sentence or Shs15m fine for voice or video recording an individual without authorisation. 
The amendment also bars anyone convicted of any offence from occupying public office for 10 years, while those in public office will be forced to vacate or be dismissed.
In the Principal Act sections due for amendments, cyber harassment has been punishable by a Shs1.5m fine and, or a three-year jail term. 

Elsewhere, offensive communication attracted a fine of Shs480,000 and, or one year in prison.
Mr Nsereko says harsh punishments are necessitated by the increasing cases cyberbullying and abuses.
“Without strengthening the existing legislation with stringent measures to address the gaps, the technological abuse, with its grave impact on health, human relations and society at large, will continue to escalate the violation of the right to privacy,” he says.
These proposals have yet again raised fiery debate after the law was in 2019 challenged in court for curtailing freedom of expression. 

Back then, Uganda Law Society president Simon Peter Kinobe, in his affidavit supporting the petition, argued that the enforcement of the law unjustifiably deprived the victims of their freedom of expression. He cautioned government against using such laws to prosecute people with opposing views.
Article 29 of the Constitutions guarantees freedom of speech and expression. As the government pushes its latest attempt to tighten the grip on cyber space, the vaguely defined proposals have experts worried that the new legislation may be abused, and grossly affect freedom of speech and expression.
Technology, media and telecommunications lawyer Ivan Ojakol says the amendment is unnecessary and “is being pushed for by some politicians only interested in self-preservation.”

Satirical novelist Kakwenza Rukirabashaija fled to exile after he was brutalised in custody. He was facing charges of offensive communication. 

Righting a wrong
African Centre for Media Excellence (Acme) executive director Peter Mwesige says there is a big chance the proposed amendments will end up stifling legitimate communication.
“The Bill should be taken as an opportunity to review the Computer Misuse Act, especially the sections on offensive communication and cyberbullying,” he states, adding, “Hopefully, the restrictions introduced will be clearly and narrowly defined and not left open to multiple interpretation or abuse. There is a real danger we could end up with a law that adversely impairs the right to freedom of expression.”
He adds: “We should also remember the most dangerous provisions of the Computer Misuse Act were sneaked into the Bill without any scrutiny. This time, the civil society, the Uganda Human Rights Commission, the media and all citizens should pay attention and influence the direction of the debate.”

Mr Micheal Aboneka, a lawyer who has successfully secured convictions against errant social media users basing on the Act, believes that once interpretation issues are addressed, the legislation will be good and necessary.
He says: “We need to have a definition of ‘malicious and misleading information’. It is ambiguous. And in whose eyes is it left to determine what is ‘malicious’?  The information needs to be qualified ... if you take a picture of me and my wife having a good time, that is a breach of privacy. But if you take a picture of a policeman taking a bribe or someone stealing a phone, that is going to help.”
Mr Aboneka, however, says many of the offences created can be addressed by other laws, including libel, data protection, privacy, which may render the Bill redundant.

Ms Patience Ahumuza, a communications expert and social media influencer, who has been a victim of cyberbullying, says she has become “insane” and thus sees the idea of a law to curtail the vice as a step in the right direction.
She, however, worries that it may become one of those pieces of legislation that are not or are selectively implemented.
“I appreciate having the law in place, especially protecting the children because there are many perverts online, but you have to make the laws work for the people. The laws kind of only work for those in power, and it may not work for me. In most cases these people are making laws to protect themselves,” she said.

Mr Ojakol says the Bill may not pass the Constitutional test of what is “acceptable and demonstrably justifiable” under Article 43 of the Constitution as it is. 
“We must never forget the powerful dicta in the seminal Charles Onyango Obbo Supreme Court decision which has unfortunately many a time been ignored when passing some of these laws contrary to Article 92 of the Constitution, which bars retrospective legislation that alters a court judgment. In that case, the court stated that even those who publish falsehoods deserve constitutional protection,” he says.
 
Genesis of the Bill
On February 12, Ms Anita Among said cyberbullying is affecting the work of MPs and ministers, adding that the only way to address it is through a law that penalises culprits.
“I read a ruling yesterday which was made by Justice [Musa] Ssekana saying they would not tolerate anybody writing about and bullying judges on social media. I think that ruling should apply to legislators too,” she said.
She had earlier reprimanded social media users, who were reportedly circulating false messages about the health of Speaker Jacob Oulanyah. 
It is from the Deputy Speaker’s submissions that MP Nsereko ran with the idea to introduce the Bill.

Proposed Amendments to the Computer Misuse Act


Unauthorised access 
A person who, without authorisation, accesses or intercepts another person’s data or information; or  voice or video records another person; shares any information about or that relates to another person, commits on offence and is liable, on conviction, to a fine not exceeding 750 currency points (Shs15m) or imprisonment not exceeding 10 years, or both. 
Unauthorised sharing of information about children
A person shall not send, share or transmit any information about or relating to a child through a computer unless the person obtains consent of the child’s parent, guardian, or any other person having authority to make decisions on behalf of the child.
 
A person who contravenes sub-section (l) commits an offence and is liable, on conviction, to a fine not exceeding 750 currency points (Shs15m) or imprisonment not exceeding seven years, or both.
Unsolicited information
A person shall not send to or share with another person unsolicited information through a computer.
A person who contravenes sub-section (l) commits on offence and is liable, on conviction, to a fine not exceeding 750 currency points (Shs15m) or imprisonment not exceeding seven years, or both.
Misleading or malicious information
A person shall not send, share or transmit any misleading or malicious information about or relating to any person through a computer.

A person who contravenes sub-section (l) commits an offence and is liable, on conviction, to a fine not exceeding 750 currency points (Shs15m) or imprisonment not exceeding seven years, or both.
Restriction on holding office
A person who is convicted under this Act [the Computer Misuse Amendment Act] shall not be eligible to hold a public office for a period of 10 year.
Where a person convicted under this Act is a leader or public officer, he or she shall, in addition to the prescribed punishment, be dismissed from or vacate office.
 

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