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On 10 January 2023, a five-judge panel of the Constitutional Court in Uganda unanimously nullified Section 25 of the Computer Misuse Act of 2011 (the Act) and accordingly stayed its enforcement. This decision ended the controversy that had shrouded online freedom of expression in Uganda since the passing of the Act in 2011, with some citizens being prosecuted and punished under the Act.
Civil society activists – Andrew Karamagi and Robert Shaka – petitioned the court, seeking nullification of section 25 of the Act which created the crime of offensive communication: the wilful and repeated use of electronic communication to disturb or attempt to disturb the peace, quiet or privacy of any person with no purpose of legitimate communication (whether or not a conversation ensues). The offence makes a person liable upon conviction to a fine of up to twenty-four currency points (about 130 USD) and/or imprisonment up to one year.
The petitioners argued that this provision was inconsistent with freedom of speech and expression under Article 28(1)(a) of the Constitution by unnecessarily criminalising online communication. The Act thus created an offence and authorised punishment without precisely defining key terms such as “disturb or attempt to disturb the peace”, “quiet or right of privacy of anyone” and “with no purpose of legitimate communication”(the impugned phrases). In turn, police and government authorities were given wide powers to arrest and prosecute citizens in an arbitrary and unreasonable manner, creating an insidious form of censorship which restricted the free flow of opinions and ideas which sustain the collective life of citizens in the digital age. Moreover its vagueness and ambiguity gave no fair warning of the illegal conduct. This therefore constituted an unnecessary, unjustified and disproportionate restriction of freedom of expression and speech (paragraphs 15, 20, 25-30).
The Attorney General responded to the petition dismissing it as frivolous and vexatious and raising no question for constitutional interpretation. He claimed that section 25 was not inconsistent with freedom of speech and expression and that the prosecution of any person for a criminal offence was a matter entirely within the prosecutorial discretion of the Director of Public Prosecution. Also that freedom of speech and expression under Article 29 were not absolute rights and could be derogated from in special circumstances (paragraphs 30-35).
Recognizing that freedom of speech and expression are inherent and protected under Article 20 of the Constitution, the Court agreed with the Attorney General that these rights are not absolute and can be restricted under Article 43 which requires that no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest in the enjoyment of their own rights. Court then drew on section 43(2) for what does not constitute public interest to curtail the enjoyment of freedom of speech and expression. These exceptions, which section 25 did not meet, include political persecution, detention without trial and any limitation of the enjoyment of the rights and freedoms prescribed in the constitution beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in the constitution.(paragraphs 5-25).
Having established that an Act can be void for being vague and ambiguous, Justice Kakuru found that section 25 of the Act did not provide sufficient legal clarity with regards to the impugned phrases. The preamble and interpretation clauses in section 2 did not define these phrases adequately or enable defendants to meaningfully contest charges against them. The court also explained 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 (paragraph 5-25). The Court emphasised the dangers of statutory vagueness as having the possibility to harm innocent citizens by failing to warn them of the offence and by encouraging arbitrary and discriminatory enforcement (through the delegation of interpretation to individual government officials).
Ultimately the Court held that section 25 of the Act was inconsistent with freedom of speech and expression under Article 29(1) of the Constitution, Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), and Article 9(2) of the African Charter. It thus declared the Act null and void, ending its enforcement and awarded costs to the petitioners. The judgement is a welcome reinstatement of freedom of speech and expression within Ugandan society. Ugandans are now able to freely communicate online without the fear of being unduly charged with offensive communication.
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