Ugandan constitutional court strikes down criminalization of ‘offensive communication’

In a unanimous decision by 5 justices of the Constitutional Court , “section 25 of the Computer Misuse Act has been nullified for being “vague or overly broad to define the actual offence committed.” The constitutional Court held that section 25 “curtails inherent freedoms of speech and expression that are guaranteed in the Constitution.”

The justices led by Deputy Chief justice Richard Buteera also ruled that it would be unjustified to maintain this section of the Act in a free and democratic society when Uganda is a signatory to a number of International treaties that guarantee freedom of speech. Other Justices of the Constitutional Court are ,Hon. Mr. Justice Kenneth Kakuru, Hon. Mr. Justice Geoffrey Kiryabwire, Hon. Lady. Justice Elizabeth Musoke Hon. Lady. Justice Monica Mugenyi.

The petitioners argued before court that the impugned Section is an insidious form of censorship which restricts the free flow of opinions and ideas essential to sustain the collective life of the citizenry in the digital age; that it is vague and overly broad, and there is no evidence that Government could not achieve the intended purpose with less drastic measures.

in his lead judgement , Justice Buteera reiterated basing on earlier decision that in determining the constitutionality of a legislation, its purpose and effect must be taken into consideration. “Both purpose and effect are relevant in determining the constitutionality of either an unconstitutional purpose or an unconstitutional effect animated by the object the legislation intends to achieve. Court should consider the purpose and effect of an Act of Parliament to determine its constitutionality,” he stated .

Justice Buteera thus ruled 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.

“Secondly Section 25 of the Computer Misuse Act 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. Therefore, I find that the impugned section is inconsistent with and/or in contravention of Article 29 (1,) of the constitution Article L9(2) of the International Covenant on Civil and Political Rights and Article 9(2) of the African Charter on Human and Peoples’ Rights.

“In conclusion, I would allow the Petition with costs to the petitioners and make the following declarations and orders: Section 25 of the Computer Misuse Act No. 2 of 2011 is null and void as it is inconsistent and/or in contravention with Article 29 (l) of the Constitution.”

The amendment to the Computer Misuse Act, signed into law by President Museveni in October, had been criticized by Amnesty International, which called for the “draconian” legislation to be scrapped.

In response to news reports that Uganda’s constitutional court on Tuesday, January 10, struck down Section 25 of the country’s Computer Misuse Act, which criminalized “offensive communication,” the Committee to Protect Journalists issued the following statement welcoming the decision: 

In his lead judgement , Justice “The Ugandan constitutional court’s decision to nullify provisions of a law criminalizing ‘offensive communication’ is a great relief, as authorities have repeatedly used this legal tool as a cudgel against critical journalism and commentary,” said Muthoki Mumo, CPJ’s sub-Saharan Africa representative. “Authorities must reform other problematic sections of the Computer Misuse Act that could be used to criminalize the work of the press and ensure that all of the country’s laws are compatible with the standards of freedom of speech in a democratic society.”

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