A Look into the Constitutional Court Ruling of the Anti-Pornographic Law and Relevance in Uganda.

The Constitutional Court earlier this month on (13th August, 2021) in the case of Lillian Drabo & 8 Ors V Attorney General Constitutional Petition No.13 of 2014. Ruled on whether the offence of Pornography is properly defined in the law,

The panel of five Justices; Frederick Egonda- Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi and Irene Mulyagonja unanimously declared unconstitutional Sections 2 which defines and creates the offence of pornography, 11, 13 and 15 Anti-Pornography Act. And ruled that sections of the law that defined pornographic offences, including a ban on "indecent" clothing, were unconstitutional.

A look into the lead judgement of Justice of the Constitutional Court Fredrick Egona-Ntende on page 16, where he held that

To that extent, the learned Justice ruled that, Section 2 of the Anti-Pornographic Act 2014 is inconsistent with the constitution and must be declared null and void in that limited context.

The other issue raised was whether Sections 2 and 13 of the Anti-Pornography Act is inconsistent with the fundamental freedom of expression?

The court held that it is not possible to discern from both the impugned provisions or rest of the Act what is the legislative objective of the Act. It is not therefore possible to determine the objective was sufficiently important to override the freedom of expression.

Secondly, it was not demonstrated that the criminalization of pornography was rationally to the legislative objective of the impugned provisions and the Act were to protect women and children, it has not been demonstrated that the criminalization of pornography is rationally connected to that legislative objective. Neither am I able to determine if this measure is no more than necessary to achieve the legislative objective.

In the result, court was constrained to find that the Sections 2 and 13 of the Anti-Pornography Act impair the fundamental freedom of expression and such impairment is not justified by Article 43 of the Constitution.

Issue 2, 4

Whether the powers granted to the pornography control committee and the courts under the Act are inconsistent with the rights to personal liberty, privacy and property?

It was held that the powers granted to the pornography control committee and the courts are premised upon section 2 of the Anti-Pornography Act which has been already been found unconstitutional it would follow the activities of the Pornography committee and the courts in relation to section 11 and 15 of the Anti-Pornography Act would equally not pass constitutional master.

As seen below,

The other Issue of whether the impugned provisions are inconsistent with the obligations Uganda has assumed under International Human Rights Instruments?

The petitioners contended that the impugned provisions of the Anti-Pornography Act 2014 are in contravention and inconsistent with obligations regarding the rights guaranteed under international human rights instruments that Uganda ratified. The petitioners did not specify any provision of the international human rights instruments that the Act is inconsistent with or in contravention of. Therefore, the issue lacks merit.

Decision

As Musoke, Chaborian Barishaki, Mutunga Kibeedi & Mulyagonja, JJCC agree this petition succeeds in part and the following orders are made;

(a) Sections 2 and 13 of the anti Pornography Act 2014 are inconsistent or in contravention with Articles 2(1) & 2, 28(12) and 29(1)a of the Constitution of the Republic of Uganda.

(b) Section 11(1) and 15 of the Anti-Pornography Act are inconsistent with Articles 23, 26 and 27 of the Constitution of the Republic of Uganda. Section 2, 11, 13 and 15 of the Anti-Pornography Act are hereby declared null and void for inconsistency with the Constitution.

(c) This petition is allowed in part and the petitioners are granted one half of their costs.

The background of the petition was,

In 2014, the government through the ministry of Ethics and Integrity introduced a legislation to prohibit the spread of pornography, which it said would help protect women and children.

The Act among other objectives set out to criminalize the production, publication, broadcasting, importation of and sale of pornography material.

Then Ethics minister Simon Lokodo had warned that it was forbidden to wear any clothing that could be lead to arose of sexual desires.[1]

Several women's rights organisations and human rights lawyers urged the government to review the law and later presented a petition to the constitutional court.

Sourced from BBC News website[2], The organization Uganda Women's Network said at the time that the legislation was in conflict with the country's constitution, which guarantees equal rights for both sexes.

Under the law, song lyrics and music videos could also be categorised as pornographic, with artists facing arrest and jail.

In 2015, female musician Jemimah Kansiime - also known as Panadol Wa'basajja (medicine for men) - became the first person to be prosecuted under the law.

She faced up to 10 years in prison for a song which euphemistically referred to men's sexual prowess.

The Impact of the Anti- Pornographic Act.

On the website of SIHA Network that was one of the lead activists in the fight against the Anti Ponorgraphic Act titled Anti-Pornography Act – Human Rights Activists and Civil Society Organisations Challenge the Legality of the Act in Constitutional Court – Uganda

“This Act embodies a set of values and justifies the involvement of the state in personal morality, thereby infringing on personal freedom,” said Prof Sylvia Tamale.

“It presents a significant challenge to the gains made on the legal front around ensuring freedom over one’s body and sexuality and must be seen as a dangerous step towards further infringement on civil rights and freedom of expression”.

Beyond the challenges associated with legal interpretation, the Anti-Pornography Act also leads to polarization of society by implicitly attributing specific roles and behaviours to men and women and encouraging people to position themselves in relation to a set of values guiding what is morally acceptable.

As a symptom of this phenomenon, about 44 cases have been reported of mobs using the law as an excuse to target and unclothe women that they consider to be improperly dressed. “I never thought this would happen to me, but now I know it can happen to anyone”, said one of the victims. “I am now afraid because I am not sure if I will not follow victim because of what I wear as I step out of my house”. These cases clearly show how the passing of the Act legitimated violence against women in the eyes of certain segments of the population. As outlined in the current petition, “the Act is likely to deny women control over their own bodies and access to public spaces, in contravention of the right to equal dignity and freedom from discrimination, right to personal liberty and security of the person, freedom from cruel, inhuman or degrading treatment and the freedoms of movement and association.”https://sihanet.org/anti-pornography-act-human-rights-activists-and-civil-society-organisations-challenge-the-legality-of-the-act-in-constitutional-court-uganda/

The academia wasn't spared and the most vocal of them all was women rights activists and Makerere Law Don Professor Sylvia Tamale in a well-reasoned article, titled ‘Keep Your Eyes off My Thighs’: A Feminist Analysis of Uganda’s ‘Miniskirt Law’ narrated that, ‘Infuriated women’s rights activists, most clad in miniskirts, protested against such actions, their indignation expressed in placards with messages such as: “Don’t sexualize my body,” “Give us maternal health care; don’t undress us on the street!”, “Keep your eyes off my thighs and fix the economy”, “Thou shall not touch my mini-skirt”, “My body, my closet, my money, my rules.”[3]

The other importance of this decision is that the learned Justices restated the principles that should be followed while interpreting the constitution,

JCC Egona-Ntende held as follows;

Mwondah ,JSC has succinctly summarized that this court must bear in mind in interpreting the constitution in

Follow the link below to read full case https://www.linkedin.com/feed/update/urn:li:activity:6836989030148669440

The implications of the latest court case is

It should be noted that most of our legislations that were intended to curb moral vices had an element to deal with the Anti pornographic Act

Case in point is Section 24 (1&2) (a) of the Computer Misuse Act 2011 which is to the effect that,

(1) A person who commits cyber harassment is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or both.

(2) For purposes of this section cyber harassment is the use of a computer for any of the following purposes—

(a) Making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent;

It’s not clear how court is now going to circumvent these provisions now that constitutional court has ruled that Section 2 together with Sections 11, 13 and 15 Anti-Pornography Act is inconsistent with the constitution and must be declared null and void in that limited context.

By

Waboga David

[1] https://www.bbc.com/news/world-africa-58235637 [2] Uganda anti-pornography law dropped after backlash Published 16 August https://www.bbc.com/news/world-africa-58235637 [3] https://www.scribd.com/document/329489341/Prof-Sylvia-Tamale-inaugral-lecture-on-nudity-protests-and-the-law