IS THE LEGAL RIGHT TO FREEDOM OF EXPRESSION IN UGANDA AN ATTAINABLE FACT OR AN ILLUSION...

The Legal Right to Freedom of expression in Uganda has been subject to a number of restrictions since the colonial period to date. However, it has been an area of development since the promulgation of the new constitution that is “The Constitution of the Republic of Uganda 1995 as amended”. in Article 29(1)(a) that;

“Every person shall have the right to freedom of speech and expression which include freedom of the press and other media”.

The said Constitution guaranteed the right to freedom of expression and a right to access information in the possession of the state. One could possibly argue that the domestication of these provisions was due to the ratification of International Covenants.

However for years these freedoms have been restricted especially when the media, both electronic or in print have engaged government in political debate, dialogue or criticism.

For instance, a report by the U.S Embassy in Uganda made a Joint Local statement on restrictions to freedom of expression and assembly in Uganda dated (3, May,2019).

The report was condemning the decision of the Uganda Communications Commission made on 30th April to suspend senior staff members of 13 radio and television stations on allegations of breaching minimum broadcasting standards.

Even though our Judicial system has tried to intervene in observing that the constitutional guarantees are upheld, exercising fully without fear their basic democratic rights enshrined in the Constitution. Court emphasized Article 43(2) Paragraph(c) in the case of Charles Onyango and Anor v Attorney General (Constitutional Appeal 2002/2) [2004] that a limitation on a enjoyment of a constitutional right, on the ground of public interest, is valid only if it is acceptable and demonstrably justifiable in a free and democratic society.

The Lordships in the known case of Zundel Vs the Queen; Attorney General of Canada(211), observed that,

“a free and democratic society is a society based on the recognition of the fundamental rights, including tolerance of expression which does not conform to he major views of the majority.”

It's cognizant to note that, the 1995 Constitution under Article 20(1) directively states that,

“Fundamental rights and freedoms of the individual are inherent and not granted by the State”.

This reinforces my view that Freedom of expression is not just a legal myth or an illusion but a fact which should be observed by all state actors.

In addition, Article 20(2) enjoins all organs and agencies of Government and all persons to respect, uphold and promote the rights and freedoms of the individuals and groups enshrined in the constitution.

It states that,

"The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons."

The case scenario of tolerating expression which does not conform to the major views of the majority has been dealt with in the landmark case of Andrew Mwenda and Anor v Attorney General ( Constitutional Petition 2005/12)[2010].

whose facts are that; Andrew Mwenda a Ugandan Journalist and a host of a radio talk show was charged with the crime of crime of sedition under sections 39(1)(a) and 40(1)(a) of the Penal Code Cap 120.

During the talk show Mwenda was critical of the head of state and the Ugandan government was partly to blame for the death of the Sudan’s former first vice-president, John Garang that was killed in a helicopter crash after his visit to Uganda.

The government alleged that the remarks made by Mwenda were intended to bring into hatred and contempt or to excite disaffection against the President, the government and the Constitution.

Mwenda and the Eastern African Media Institute (EAMI) challenged the constitutionality of Sections 39 and 40 of the Penal Code as they are contrary to Articles 29 and 43 of the Constitution which guarantee the right to freedom of expression.

Likewise the EAMI also petitioned the constitutional court to declare unconstitutional sections 41, that criminalises the promotion of sectarianism, 42-44 sedition related provisions and 179 of the Penal code for being vague and and contrary to the constitution.

The Deputy Chief Justice Leticia Mukasa Kikonyogo delivered the unanimous decision of the constitutional court. Court held that section 39 and 40 of the penal code which provides for sedition as a crime are too vague and inhibit the enjoyment off the right to freedom of expression under Article 29.

Since the state failed to prove that that section 39 and 40 were a justifiable limit to the right of freedom of expression under the free and democratic society, court concluded that the provision pertaining to sedition crimes, sections 39 and 40 were null and void. The other sedition provisions that is sections 42-44 were declared redundant and also were ordered by court to be removed.

However court did not deem unconstitutional section 41 of the Penal Code that criminalises the promotion of sectarianism. Court argued that the EAMI failed to prove that the crime of promoting sectarianism was in contravention with the Constitution.

The significance of this case is that the decision establishes a binding or persuasive precedent within its jurisdiction.

Therefore if court didn't deem Section 41 unconstitutional does it still imply that the right to free speech is Factually attainable in Uganda?

To try and answer this question one would consider revising the 2004, Supreme Court, case appeal of Charles Onyango Obbo and Anor Vs the Attorney General (Constitutional Appeal No. 2 of 2002), where where court declared section 50 of the Penal Code Act which criminalized publication of a false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace as being inconsistent with article 29(1)(a) of the constitution.

Specifically referring to the lead judgment of Justice Joseph Mulenga, with which all the other justices of the Supreme Court unanimously concurred,

He explained that the above constitutional provision in 5 critical area, that is,

freedom of expression in a democracy,

falsity and freedom of expression,

limitation on freedom of expression,

the standard of limitation and,

prejudice to the public interest.

On freedom of expression in a democracy, he stated;

“… the right to freedom of expression is of great significance to democracy. It is the bedrock of democratic governance. Meaningful participation of the governed in their governance, which is the hallmark of democracy, is only assured through optimal exercise of the freedom of expression. This is as true in the new democracies as it is in the old ones”.

On falsity and freedom of expression, he observed that,

“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”.

And on the limitation of freedom of expression and the standard of the limitation stipulated in article 43 of the constitution he stated that;

“In other words, 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”.

Therefore, with the above considerations, it is quite clear that the right to Freedom of expression is not entirely an absolute fact. Because these rights may be restricted. However, any such restriction or limitation must be within strictly and narrowly defined parameters.

Article 43 of the constitution provides general limitations on fundamental and other human rights and freedoms which include freedom of speech and expression.

It states that;

“(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2) Public interest under

(a) political persecution

(b) detention without trial;

(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.”

Conclusively, on whether the Legal right to freedom of expression in Uganda is an attainable fact, I opine that yes! this right is attainable

on whether its an illusion, besides the politics of the day that make this legal mandate to all state actors attainable, Their constant inclination towards Article 43 of The Constitution makes it an illusion.

Even though one of the rules to constitutional interpretation as stated in another landmark case of Maj. Gen .David Tinyefuza v A.G (Constitutional Petition No.1), where court held that the entire constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of supremacy of the written constitution.

following the principles stated by Manyindo D.C.J, he observed that,

“The entire constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony completeness and exhaustiveness and the rule of paramountcy of the constitution.

On appeal Oder J.S.C expressed the same view in this way. Another important principle governing interpretation of the Constitution concerning an issue should be considered all together. The constitution must be looked at as a whole. Therefore” …the constitution being a logical whole, each of the provisions is an integral part thereof and it is therefore logically proper and indeed imperative, to construe one part in the light of the provisions of the other part” Gopalan v State of Madras (1950) SCR 88 at 109

Indeed all the provisions of the constitution concerning an issue should be considered together. In doing so, sight must not be lost of the spirit of our constitution which is the establishment and promotion of a just and free society.

Therefore as state actors rush to enforce article 43 of the constitution, they should place Article 20(1&2) at the forefront of everything.

This article was written by

Rebecca Mutesi

UCU LLB 3

@n_umutesi

With contributions from

Waboga David.