Computer Misuse Act: What the Constitutional Court Judgement means for those being sought or tried for offensive communication

Justice Kenneth Kakuru (PHOTO/Courtesy).

KAMPALA — Constitutional Court has annulled Section 25 of the controversial Computer Misuse Act of 201, describing it a vegue with no space in a free and a democratic society.

The unanimous court Judgement delivered Tuesday, January 2023 that human rights defenders, critics, lawyers and journalists into jubilation also means that the cases of those being tried for offensive communication collapse and also police cannot arrest or detain anyone on charges of offensive communication.

The Ugandan government had continued curtailing press and online freedoms over the past years, resulting in increasing self-censorship among both online journalists and ordinary users.

The five justices of the Constitutional Court unanimously agreed that the law ought to be struck out in a free and democratic society because it curtails freedom of speech, does not specify what constitutes offensive communication, its vague and overly broad and ambiguous and it does not afford sufficient guidance for legal debate.

“I find that the impugned Section is unjustifiable as it curtails the freedom of speech in a free and democratic society. In conclusion, I would allow the petition with costs to the petitioners and make the following declarations and orders… that Section 25 of the Computer Misuse Act no.2 of 2011 is null and void as it’s inconsistent with the Constitution,” ruled Justice Kenneth Kakuru, who wrote the lead judgment, adding 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. In the European Court of Human Rights case …it was observed that freedom of expression includes the right to say things that ‘offend, shock or disturb the peace of the state or any sector of the population’. The Court concluded that prosecution in such cases would not be appropriate,”

Justice Kakuru further agreed with the arguments of the duo petitioners, Mr Andrew Karamagi and Mr Robert Shaka that the said law was overly vague as it did not spell out what ingredients constitute the same offense.

Mr. Eron Kiiza, one of the lawyers who argued the petition, had submitted that the impugned Section created an offence and punishment without precisely defining key terms and phrases like “disturbing the peace, quiet and privacy of anyone” and “with no purpose of legitimate communication”.

He had further argued that the impugned law was disproportionate as it loops all protected speech without any clear boundaries and its criminalization of speech and communication was the intrusive method of restricting the right and freedom of speech and expression.

“Secondly Section 25 of the Computer Misuse Act No. 2 of 2022 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,” Justice Kakuru held as he struck down the law.

The other justices who agreed with the lead decision of Justice Kakuru included; Deputy Chief Justice Richard Buteera, Geoffrey Kiryabwire, Elizabeth Musoke and Monica Mugenyi.

The annulled law, Section 25 of the Computer Misuse Act No, 2 of 2011; had stated that 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 (Shs500, 000) or imprisonment not exceeding one year or both.

In his analysis, Justice Kakuru held 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.

“I find that the words used under Section 25 are vague, overly broad and ambiguous. What constitutes an offence is ‘unpredictable’ and gives the law enforcer the discretion to pick and choose what qualifies as offensive. It gives the law enforcement unfettered discretion to punish unpopular or critical protected expression,” observed Justice Kakuru.

Adding: “…the limitation imposed by such a law must not be more than is reasonably necessary to achieve the legitimate objective. This is what is also known as the principle of proportionality. The principle requires that such a law must not be drafted too widely so as to net everyone including even the untargeted members of society,”

Mr Karamagi, a lawyer, had in his affidavit to support the petition filed in 2016, and argued that like scores of other citizens in Uganda, he was a regular user of the internet, especially social networking sites such as Facebook and Twitter.

He further argued that he found the said law to be in excessive restriction on his freedom of speech and expression since it provided the Director of Public Prosecution (DPP); unbridled administrative and prosecutorial discretion which had resulted in several cases of selective prosecution of Internet users based on certain views deemed objectionable by the government or high ranking politicians and public officers.

Mr Karamagi also told court that the enforcement of the said law had placed him under constant fear of violating it.

The decision of the court comes at the time when several human rights bodies and journalists’ bodies have petitioned the same court, challenging the recent enactment of Computer Misuse (Amendment) Act, 2022 as being a threat to freedom of speech.

Popularly known as the Nsereko law, the same 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 invade children’s privacy and share their information without consent of their parents or guardians.

The Constitutional Court and the East African Court of Justice were these petitions about four in number have since been filed, are yet to be determined.

Human Rights defender react to the judgement

Mr Robert Sempala, the Executive Director of the Human Rights Network for Journalists-Uganda described the ruling as one that has ‘justified our augments’.

said at least one bad law is off the law books.

“From the onset, we said this is an unprogressive legislation meant to clamp down on freedoms of speech and expression and court has ably justified our augments. We are very happy as advocates of freedom of speech, at least we are one bad law less to our progressive efforts for a free speech,” Mr Sempala said.

Likewise, lawyer Kiiza, said the annulled section of the law was the most notorious one and that this is a win to freedom of speech.

He further said the decision of the court is now a relief to government critics like Dr Stella Nyanzi and book writer Rukirabashaija Kakwenza, who have both, since fled the country after being charged with the same law of offensive communication.

“It is a sigh of relief for activists, government critics and human rights defenders who are either charged under or threatened by charges of offensive communication. It is bad news for the recently enacted Computer Misuse (Amendment) Act, 2022 which is an even more ambiguous, regressive and repressive legislation. The court will employ the same reasoning to annul it,” Mr Kiiza said by telephone.

Adding: “It is a win for freedom of expression. And we are saying bye to one of the most dangerous pieces of legislation that government has used to repress, stifle and ultimately lead to the exiling of Kakwenza Rukirabashaija and Stella Nyanzi; and used to silence others,”
Dr Nyanzi was jailed for 18 months after she was found guilty of insulting the late mother of President Museveni. The same sentence was later quashed on appeal to the High Court.

Similarly, Mr Kakwenza who was allegedly tortured at the hands of the State operatives before fleeing to Germany, is accused of insulting President Museveni and his son, Gen Muhoozi Kainerugaba on social media. His charges of offensive communication are still pending before Buganda Road Court in Kampala.

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