The Constitutional Court has unanimously annulled Section 25 of the Computer Misuse Act, 2011 on offensive communication and directed that its enforcement be stopped with immediate effect.
All the five judges of the Constitutional Court concurred that the offensive communication clause in the Act is inconsistent with and or in contravention of Article 29 (L) (a) of the 1995 Constitution.
The judges are Richard Buteera, Kenneth Kakuru, Geoffrey Kiryabwire, Elizabeth Musoke and Monica Mugenyi.
Section 25 of the Computer Misuse Act No, 2 of 201.1 provides 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 or imprisonment not exceeding one year or both.”
However, Article 29(1) (a) of the Constitution provides for protection of freedom of conscience, expression, movement, religion, assembly and association.
The petitioners are Andrew Karamagi and Robert Shaka, who had sued the Attorney General. Mr. Eron Kiiza was the petitioners’ lawyer, whilst Mr. Ojambo Bichachi, a State Attorney, represented the Attorney General.
The petitioners had argued that Section 25 of the Computer Misuse Act threatens or infringes online/digital freedom of expression and is inconsistent with and or contravenes Article 29 (l) of the 1995 Constitution of the Republic of Uganda. Counsel Kiiza had also contended that the impugned provision is disproportionate as it loops all protected speech without any clear boundaries
In his lead judgement issued on Tuesday, 10 January 2023, Justice Kakuru agreed with the petitioners.
“In a democratic and free society, 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 said.
“I find that the impugned Section is unjustifiable as it curtails the freedom of speech in a free and democratic society. Secondly Section 25 of the Computer Misuse Act No. 2 of 20LL does not specify what conduct constitutes offensive communication. To that extent it does not afford sufficient guidance for legal debate. Thirdly it is vague, overly broad and ambiguous,” he added.
Justice Kakuru also said that the impugned section is inconsistent with and/or in contravention of Article 29 (1,) of the Constitution, Article 19(2) of the International Covenant on Civil and Political Rights and Article 9(2) of the African Charter on Human and Peoples’ Rights.
He also awarded costs to the petitioners.
Justice Buteera in his remarks said: “I have had the advantage of reading in draft the Judgment of Kakuru JA/JCC and I agree with it and the orders he has proposed. As all the other members of the Court also agree, the Petition is allowed. The Court declarations and orders shall be as proposed by Kakuru, JA/JCC.”
Justice Kiryabwire also said: “I have had the opportunity of reading the draft Judgment of the Hon. Mr. Justice Kenneth kakuru, JA/JCC. I agree with his Judgment and I have nothing more useful to add.”
The other judges also agreed with Justice Kakuru.
On September 8, Parliament passed the Computer Misuse (Amendment) Bill, which was assented to by President Museveni last week on Thursday, triggering its operationalisation.
The law, among others, penalises a person to a fine of more than Shs9m or imprisonment of more than 10 years if they are found culpable of accessing without authorisation another person’s information, data, voice or video records.
Further, the law penalises those who evade children’s privacy and share their information without consent of their parents or guardians.
But the law drew criticism from a cross section of the public, with many choosing to go to court. Other than, the above mentioned petitioners, other petitioners are Alternative Digitalk Limited, a digital publication, its executive director Norman Tumuhimbise and its nine journalists; Mr Arnold Anthony Mukose, Ms Farida Bikobere, Mr Jerimiah Mukiibi, Mr Tumusiime Kato, Ms Lilian Luwedde, Mr Rogers Tulyahabwe, Ms Teddy Teangel Nabukeera and Mr Nixon Segawa.
Others are lawyers Simon Peter Esomu and Anthony Odur as well as a human rights activist, Ms Angella Namirembe.
Kampala Central MP Mohammed Nsereko (Independent), was the mover of the Bill before it became law.
The Uganda Journalists Association said the law would make their work very difficult because it annihilates the core principle of independent and investigative journalism.
Similarly, Amnesty International, an international non-governmental organisation focused on human rights, in a statement also called upon the Ugandan government to reverse what they called a draconian law that will be used to weaponise against its critics, including political opponents.
The Uganda Law Society last Friday also vowed to petition court to have the same law struck off the law books for being ‘vague’ and ‘unacceptable’ in a democratic society.