Annulment Of Section 25 Of The Computer Misuse Act No.2 Of 2011
The Constitutional Court of Uganda at Kampala on 10th January, 2023 annulled Section 25 of the Computer Misuse Act No. 2 of 2011 in Andrew Karamaji and Robert Shaka V Attorney General (Constitutional Petition No. 5 of 2016). Justice Kenneth Kakuru who wrote the lead Judgement found that the impugned section is inconsistent with and/or in contravention of Article 29(1) of the Constitution of Uganda, 1995 as amended, Article 19(2) of the International Covenant on Civil and Political Rights and Article 9(2) of the African Charter on Human and People’s Rights.
The annulled law:
Section 25 of the Computer Misuse Act No. 2 of 2011 constitutes a charge of “Offensive communication” and provides as follows;
“Any person who willfully 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 misdemeanor and is liable on conviction to a fine not exceeding twenty-four currency points or imprisonment not exceeding one year or both.”
The aforementioned provision was stayed and declared null and void for not only being vague but also overly broad to define the actual offence committed.
The petitioners averred that the aforementioned provision criminalizes communication yet it is vague, overly broad and ambiguous as it does not give proper notice of the conduct it seeks to remedy and terms such as “disturb or attempt to disturb the peace, quiet or right of privacy” are not defined in the Act and cannot be conclusively defined by a regular user of the internet.
Basing on the doctrine of vagueness which is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement; that is, the law must not be devoid of precision in its content that a conviction will automatically flow from the decision to prosecute. Justice Kenneth Kakuru summed this up in one proposition: “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate, that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.”
The most important point at issue is/was whether Section 25 of the Computer Misuse Act No.2 of 2011 gives sufficient guidance for legal debate? Pertinent to note is that the purpose of the Computer Misuse Act as contained in the preamble [An Act to make provision for the safety and security of electronic transactions and information systems; to prevent unlawful access, abuse or misuse of information systems including computers and to make provision for securing the conduct of electronic transactions in a trustworthy electronic environment and to provide for other related matters] and the Interpretation Section (Section 2) of the Act do not offer much help since all the terms used under the impugned section are not defined or given any meaning. The ingredients of the offence cannot be properly determined because “the act of disturbing the peace, quiet and privacy of anyone” and “with no purpose of legitimate communication” are not clear and without knowing the ingredients of an offence, one cannot meaningfully prepare his/her defence. Laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.
In addition to the above, a law is void for vagueness if, after setting some requirement or punishment, the law does not specify what is required or what conduct is punishable, or if the prohibitions are not clearly defined. Article 28 (12) that establishes the principle of no punishment without law is very clear; “Except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.” Justice Kenneth Kakuru notes that “the definition must be clear enough to enable a citizen to distinguish between the prohibited conduct and the permissible one.” Any vague interpretation will not satisfy the requirement of Article 28(12), as well elaborated in Charles Onyango Obbo and Another Vs attorney General Constitutional Petition No.15 of 1997. In relation to the impugned section, the punishment prescribed therein is “commits a misdemeanor and is liable on conviction to a fine not exceeding twenty-four currency points or imprisonment not exceeding on year or both” which does not satisfy the standard set by Article 28(12).
A statute is also 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. Section 25 gives the law enforcers unfettered discretion to punish unpopular or critical protected expression. The Director of public Prosecution (DPP) has unbridled administrative and prosecutorial discretion which has resulted in the several cases of selective prosecution of internet users based on certain views deemed objectionable by the government or high-ranking politicians and public officers. Some of the arbitrary prosecutions include:
- Former Makerere University researcher, Dr. Stella Nyanzi was arrested in November, 2019 on accusations of insulting President Museveni and his mother through a vulgar Facebook post and spent eight months on remand and was later convicted of cyber harassment and sentenced to three years in prison. Though on appeal, the High Court quashed the decision and she was released.
- In June 2019, Andrew Mukasa the proprietor of Bajjo Events and Marketing agency, was arrested and charged with offensive communication and incitement of violence against the person of President Museveni.
- In July, 2019, former journalist and presidential candidate Joseph Kiiza Kabuleta was arrested and also charged with offensive communication contrary to Section 25 of the Computer Misuse Act, 2011. (The case is still pending).
- In December, 2021, Ugandan novelist Kakwenza Rukirabashaija was arrested and allegedly tortured at the hands of state operatives before fleeing to Germany and was also charged with offensive communication, on allegations that he willfully and repeatedly used his Twitter handle to commit cases of offensive communication against President Museveni and the first son Lt. Gen. Muhoozi Kainerugaba with no purpose of legitimate communication and the charges are still pending before Buganda Road Court in Kampala.
- In February, 2022, the Criminal Investigations Directorate (CID) quizzed city Lawyer Isaac Ssemakade over alleged offensive communications towards High Court judge Musa Sekaana.
Court identified three basic dangers involved in the enforcement of vague laws, namely: potentially harming the innocent by failing to warn of the offence, encouraging arbitrary and discriminatory enforcement and law flying in the face of the principle of proportionality. It was therefore the conclusion of court that the words used under Section 25 are vague, overly broad and ambiguous. What constitutes an offence is unpredictable and gives the law enforcers the discretion to pick and choose what qualifies as offensive.
Unjustifiable limitation to the freedom of expression:
It was further argued that the impugned section serves no legitimate purpose and constitutes an unjustifiable limitation to the freedom of expression as provided under Article 29(1)(a) of the Constitution which provides as follows: -
‘Protection of freedom of conscience, expression, movement, religion, assembly and association.
- Every person shall have a right to:
- Freedom of speech and expression which shall include freedom of the press and other media
Important to note is that, the right and freedom in Article 29(1)(a) is among the freedoms guaranteed under Article 20 of the constitution which provides for fundamental and other human rights and freedoms. However, these are not absolute, they are restricted in accordance with the provisions of Article 43 of the Constitution which provides that:
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
Public interest under this Article shall not permit
- Political prosecution
- Detention without trial
- Any other 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.
Any act or provision of the law which restricts the fundamental rights and freedoms can only be allowed to stand if it passes the test set up by Article 43 of the Constitution.
The meaning of the phrase ‘what is acceptable and justifiable in a free and democratic society’’ as used in Article 43(2)(c) of the Constitution was discussed in depth in Charles Onyango Obbo and Another Vs Attorney General Constitutional Petition No.15 of 1997. The standard for what is usually referred to as “a limitation upon a limitation’’ is that, the limitation under the law in question must be acceptable and demonstrably justifiable in a free and democratic society. The primary goal of the state is to protect the right to freedom of expression and the secondary goal is limiting the enjoyment of the right in question. Although the constitution provides for both, the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary goal. The exceptional circumstances set out in clause (1) of Article 43 are the prejudice or violation of protected rights of others and prejudice or breach of social values categorized as public interest.
Justice Kenneth Kakuru also notes that “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 makes reference to the European Court of Human Rights case of Handyside v UK references: 5493/72, (1976)1 EHRR 737, (1976) ECHR 5, where it was observed that the freedom of expression includes the right to say things that “offend, shock or disturb the state or any sector of the population”.
The United Human Rights Committee in its General Comment No.34, also states that any limitation on freedom of expression must be absolutely necessary, ‘According to the United Nations special Rapporteur on Freedom of Expression, states are only permitted to prohibit this through criminal section. Under International law only four types of expression are allowed and these include; child pornography, direct public incitement to genocide, advocacy of national, racial, religious hatred that constitutes incitement to discrimination, hostility or violence and incitement to terrorism.
Effect of the ruling:
This is one bad law less to the progressive efforts to the realisation of free speech in a free and democratic Uganda. The enforcement of Section 25 of the Computer Misuse act No.2 of 2011 was stayed meaning all pending cases of those being tried for offensive communication collapse, the police cannot arrest or detain anyone for offensive communication and anyone convicted on such a charge can have the conviction set aside or revised.
The decision also comes out at a time when several human rights and journalists’ bodies have petitioned the same court challenging the recently enacted Computer Misuse (Amendment) Act, 2022 which has been labelled as a more ambiguous, regressive and repressive piece of legislation meant to clamp down on the freedoms of speech and expression. The annulment is therefore bad news for aforementioned Act as some amendments it introduces such as those criminalizing “unsolicited information” will be annulled by court on the same reasoning of being vague, ambiguous and overly broad. Adding on the list of other laws that have been nullified;
In December, 2022 the Constitutional Court in Francis Tumwesige Vs AG, Constitutional Petition No.36 of 2018 nullified Section 168(1)(c) and (d) of the Penal Code Act that provided for the offence of idle and disorderly on grounds that it contravenes the Constitution.
In March, 2020, the Constitutional Court in Human Rights Network Uganda & 6 Others vs Attorney General Constitutional Petition No. 56 of 2013 declared Section 8 of the Public Order and Management Act 2013 illegal and unconstitutional on grounds that it gave powers to the Inspector General of Police (IGP) or any other police officer above the rank of Inspector to stop or prevent the holding of a public meeting where the public meeting is held contrary to the Act. This was in consideration of Constitution Petition No. 9 of 2005, Muwanga Kivimbi v Attorney General where the Constitutional Court nullified Section 32(2) of the Police Act which also empowered the IGP to prohibit the convening of an assembly on any public road, street, or any place of the public if the IGP has reasonable ground to believe the assembly or procession was likely to cause a breach of peace.
The Constitutional Court re-emphasized the primary objective of the Constitution, which is the protection of the guarantees of freedom of expression in a democratic society. It is therefore upon parliament as the law-making body of government to stop overreacting and misusing its privileged legislative position to legislate their disagreement on how people use social media and to limit criticism, offensive speech and controversy since such “disturbing” and unhindered speech is the foundation of the democracy they swore to protect.