Authored by

DORAH EGESA MUHANUUZI IVAN

KAMATSIKO LAURA MARTHA ALEXANDRIA TUMWESIGYE

KALEMA PAUL

SSERUWAGI MARTIN GEORGE

Illustration and layout by EGESSA DERVIN Contents Introduction 13 work 27 Background of the Regional framework study 13 28 Historical back- National framework ground of freedom 29 of expression 17

25 31 THE LEGAL CONTEXTUAL FRAMEWORK ANALYSIS OF AND LEGAL FREEDOM OF OBLIGATION EXPRESSION RELATING TO THE FREEDOM OF EXPRESSION IN 32 UGANDA CONTEXTUAL ANALYSIS OF International frame- FREEDOM OF EXPRESSION Why is the right to Freedom of expres- sion important? 33 Freedom of expres- sion and the enjoy- The courts of law in ment of other rights Uganda 47 35 The Uganda Human Freedom of expres- Rights commissions. sion and democracy (UHRC) 49 37 Interregional and Re- Freedom of expres- gional avenues. 50 sion, the press and media freedom 41 Freedom of expres- 52 THE sion and self - realiza- LEGAL EXTENT OF tion. 44 THE ENJOYMENT OF FREEDOM OF Freedom of expres- sion and the search EXPRESSION for truth. 45 Restrictions to free- Redress available to dom of expression in victims of violation of Uganda 53 Freedom of Expres- But what constitutes a sion in Uganda 46 restriction? 56 Criteria for Imposing Restrictions on Free- dom of Expression 58 Permissible Restric- tions on Freedom of Expression 62 82 ACADEMIC Freedom of Expression FREEDOM AND and National Security UNIVERSITY 62 AUTONOMY Rights and Reputations Introduction 83 of Others 65 Defining Academic Hate Speech, Racism Freedom and Univer- and Incitement of Vio- sity Autonomy 85 lence. 68 Laws governing aca- Freedom of Expression demic freedom 87 and Public Morals 71 International Cove- nant on Economic, Protection of Minors Social and Cultural 74 Rights (ICESCR) 88 Public Order 77 General Comment No 13 on the Right to Academy Freedom (Article 13) (CESCR) 89 97 THE ROLE OF GOVERNMENT, COURTS OF JUDICATURE AND CIVIL SOCIETY ORGANISATIONS IN PROMOTING FREEDOM OF EXPRESSION IN UGANDA The government 98 Regional Laws 92 The courts 101 National Laws 93 Civil society organiza- The Constitution of the tions 107 Republic of Uganda (1995) 93 Various laws that threat- en Article 29 which Instances of violations guarantees the right to of the right to academ- freedom of expression ic freedom in Uganda 111 93 117 VIOLATIONS 139 AGAINST FREEDOM OF FREEDOM OF EXPRESSION EXPRESSION AND IN TIMES OF AVAILABLE LEGAL EMERGENCIES REDRESS (COVID 19) Instances where free- dom of expression has been violated in Recommendations Uganda 118 150 Redress available to Conclusion 152 victims of violation of Freedom of Expres- sion in Uganda 133 Bibliography 154 The courts of law in Uganda 134 The Uganda Human Rights commissions. (UHRC) 136 Interregional and Regional avenues. 137

LIST OF ACRONYMS

ACHPR African Charter of Human Rights

ATA Anti Terrorism Act

ECHR Europe Court of Human Rights

FDC Forum for Democratic Change.

ICCPR International Convention on Civil & Political Rights

ICT Information Communication Technology

KACITA Kampala City Traders’ Association

LDU Local Defense Unit

LGBTI Lesbians, Gays, Bisexuals, Transgender & Intersex.

MISR Makerere Institute of Social Research MTN Mobile Telecom Network

MUASA Makerere University Academic Staff Association

RBAD Rights Based Approach to Development.

RDC Resident District Commissioner

UCC Uganda Communications Commission

UDHR Universal Declaration of Human Rights

UHRC Uganda Human Rights Commission

UN United Nations.

UPDF Uganda People’s Defense Forces

1.1 Introduction 1.2 Background of the study Freedom of expression is one of the ancient and most important of rights, it is the cornerstone of every free and democratic society. That notwithstanding this right is also one of the most violated and its full realization is a continuous struggle for many states.

The state is usually at the center of the violation of this right through the use of its legislative organs and security agencies and this is mostly done to restrict voices of dissent.

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In Uganda’s case, freedom of expression is and has always been under threat by the state. A classic quote attributed to former Ugandan president Idi Amin Dada who said there is freedom of speech in Uganda, but I cannot guarantee freedom after speech,” describes Uganda’s position on this freedom. This statement paints a clear picture that anyone can express whatever they want to express but they should be sure that the state will always punish them for expressions deemed to be of dissent. Idi Amin is long gone but the mythical statement still rings a bell in the modern times.

The state has enacted laws that trample on freedom of expression and has continued to ensure that all platforms of communication are under its constricting grip. For example a social media tax1 and stringent license requirements have been imposed all in the name of regulating the communication sector and social media platforms. 1 Exercise duty Act.

14 FREEDOM OF EXPRESSION IN UGANDA Chapter one

Basic scrutiny of such laws makes it clear that the underlying aim is silencing any views or ideas that threaten the status quo. The arrest and detention of people on the basis of their expression through writings, music or speech has become notorious and the brutal confrontation of any protestors or demonstrators by security agencies is the prevalent state policy.

Uganda’s past is one of struggle against forces of tyranny, oppression, political and constitutional instability as acknowledged in the preamble to the Constitution of the land. The current violations of the freedom of expression and the state’s firm grip on the various platforms of free speech warrants education of the public about the inherent nature and broad scope of the freedom of expression. This, it is hoped, will help cultivate civic responsiveness among

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citizens, empowering academic freedom is them to call out and expounded upon in hold any violators one of the segments; of the freedom to the handbook takes account, and in so a keen interest in the doing continue striving numerous laws that to achieve a truly restrict the freedom free and democratic of expression, their society. enforcement and the instances where the This pocket handbook right has been violated explains the origins of by state actors and freedom of expression points out the avenues internationally and for seeking redress. nationally. It outlays Finally, the handbook the importance of this points out gaps in the freedom portraying laws connected with the instruments that freedom of expression protect and guarantee and general this freedom. The recommendations on handbook showcases how to promote and the international, guarantee this right regional and national are given. legal framework governing freedom of expression. The interrelated right of 1.3

16 FREEDOM OF EXPRESSION IN UGANDA Chapter one

Historical not enjoy freedom of background speech. One of the of freedom of earliest manifestations expression of this right was in Freedom of expression 1215 when the barons has its origin in in England revolted ancient Greece, and forced King John around the end of the to grant a set of rights fifth century BC, when which culminated the Greeks developed into the signing of a democratic principle the Magna Carta called “parrhesia” (the great charter).3 which means to “to Although the Magna speak candidly”.2 Carta did not explicitly Although this principle guarantee freedom had developed in of speech for all, it Greece as early set a precedent that as the fifth century, people can speak up many parts of the on matters concerning world were still under their governance despotism and did and welfare. The Magna Carta formed 2 https://www. the foundation of history.com/unit- ed-states-constitution/ 3 https://chert- freedom-0f-speech(- seymusuem.org/mag- accessed on:28th June na-carta (accessedon: 2020, 10:43pm) June 28th 2020 11:30)

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the 1694 bill of universally protected. rights in England Article 19 of the which restricted the UDHR guarantees the despotism of King freedom of expression, James II and granted the freedom of the people of England opinion and the an elaborate bundle freedom to seek and of rights that had impart information never been granted in others. The UDHR before including was adopted by the freedom of the United Nations expression.4 general assembly (on 10thDecember, 1948 Internationally, the by United Nations Universal Declaration resolution 217 A) with of Human Rights an agenda of setting (UDHR) was the first the international legal document to benchmark of human set out fundamental rights protection.5 human rights The adoption of the of people to be UDHR by the United 5 https://www. 4 https://www. un.org/en/univer- legislation.gov.uk/aep/ sal-declaration-hu- willandmarsess2/112/ man-rights (accessed introduction (June on:29th June, 2020, 29th 2020, 12:01am) 12:40am)

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Nations (UN) means guaranteed a set of that all member political rights that states of the UN have included the freedom a duty to respect of expression.7 This and uphold the set of rights was to rights enlisted in the supplement the rights UDHR and all other protected by the instruments adopted UDHR and particularly by the UN. Uganda ensure that people has been a member freely fulfill the duties of the UN since 25th in society and to October, 19626 and fellow human beings.8 therefore bears the The ICCPR mainly duty to uphold the sets standards for the UDHR among other conduct of political UN human rights and civil activities in instrument like the the world to avoid ICCPR. In 1996, violation human the UN general rights. assembly adopted the International 7 Interna- Covenant on Civil and Political Rights which tional Covenant on Civil and Political 6 https://www. un.org/en/mem- Rights, Article 19 ber-states (accessed on: 8 Ibid, Pre- 1st July, 2020, 9:21pm) amble

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The European Court of expression. While of Human Rights in dismissing the case, the case of Handyside the court held that V United Kingdom freedom of expression set the international constitutes one of standard for the the basic conditions enforcement of for the progress freedom of expression of any society and that still stands to the development of date. In this case, the every man subject to applicant (Handyside) legitimate restrictions. bought rights to a The court further book called “the little ruled that freedom red book” which of expression is contained explicit applicable not only to content for teenagers. information or ideas The United Kingdom that are favorably charged Handyside for received or regarded possession of immoral as inoffensive but also material for personal to those that offend, gain and banned shock or disturb the the book. Upon state or any sect conviction Handyside of the population. applied to the ECHR Although Handyside’s arguing that the application did United Kingdom had not succeed, the violated his freedom court highlighted

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the importance of expression. of the freedom of expression to society In Uganda, freedom and acknowledged of expression was first the importance of guaranteed under legitimate restrictions article 26 of the on the freedom. 1962 independence constitution,10 which In Africa, the African protected the right to Charter on Human freely express, seek and Peoples’ rights and impart ideas. (ACHPR) was adopted Clause two of article by the Organization 26 gave the state of African Unity on powers to restrict the June 1st, 1981 and freedom of expression entered into force in protection of on October 21st, public security, safety, 1986.9 The African morality and public Charter provides for health. Following the the protection of a abrogation of the wide range of rights 10 Schedule including the freedom to the independence order in council, 9 https://au.int/ accessed on https:// en/treaties/african-charter- www.worldstatesmen. human-and-peoples- org>uganda-order-in- rights(accessed on: 1st, July council (accessed on: 1st 2020, 9:56pm) July 2020, 12:10pm)

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1962 constitution, constitution also the 1966 interim protects the freedom constitution was of expression under made and later the article 29 in elaborate national assembly terms including altered it creating the freedom of speech, 1967 constitution expression, and of Uganda. Article freedom of the press, 8(2) (b) of the 1967 freedom of thought, constitution in very conscience and belief brief terms guaranteed including academic freedom of expression, freedom.13 This conscience and article brings together of assembly and all other rights that association.11 This constitute the freedom constitution stayed in of expression and force until the 1995 gives a broader constitution took protection of the right effect on 8th October, better than any of the 1995.12 The 1995 previous constitutions. The 1995 constitution 11 1967 Uganda constitution is quite unique accessed on : https:// because it makes it www.worldstatesmen. the 1995 Constitution of org>uganda-constitution- Uganda. 1967(accessed on: 2nd 13 1995 July,2020, 10:14am) constitution of Uganda, 12 Preamble of article 29

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clear that the rights laid down in chapter four of the constitution are inherent and not granted by the state.14

14 1995 Constitution of Uganda, article 20

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24 FREEDOM OF EXPRESSION IN UGANDA Chapter two

THE LEGAL FRAMEWORK AND LEGAL OBLIGATION RELATING TO THE FREEDOM OF EXPRESSION IN UGANDA

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Freedom of expression is a fundamental universal right that encompasses numerous aspects which include freedom to hold opinions without interference, to seek, receive and impart information and ideas through any media regardless of frontiers15.

15 Universal declaration of human rights, article 19

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2.1 International framework Freedom of expression is a civil and political right provided for by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The freedom of expression is not an absolute right.16 As described in Article 19 of the ICCPR, it can be limited only in circumstances provided for by the law. However, the Siracusa principles (which explain the limitations and derogation of provisions in the ICCPR) elaborate that the rights in the ICCPR can only be limited according to the standard set by the ICCPR and such derogation must be justifiable in a democratic society which is a society that respects human rights as set forth in the UDHR.17

16 International covenant on civil and political rights, Article 19 17 Siracusa Principles on the limitation and derogation of provisions in the international covenant on civil and political rights, principle 12

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2.2 Regional framework In Africa, freedom of expression is guaranteed under article 9 of the African Charter on Human and Peoples Rights. The freedom to express includes other rights like the freedom to hold opinions, freedom of the press, freedom of association and the freedom to speak and impact information. The true meaning of the right cannot be obtained unless every aspect of the aforementioned rights above are respected by all state parties to the African Charter on Human and Peoples Rights.18 In regard to the state responsibility to the African charter, the African Commission on Human and Peoples’ Rights held, 19that when a state ratifies the ACHPR, it is obligated to uphold the fundamental human rights contained therein.20 Pursuant 18 Declarations of principles on freedom of expression in Africa, part 16. 19 Purohit and Moore v The Gambia. Communication No.241/2001,Sixteenth Activity report 2002-2003,Annex VII 20 African Human Rights Law Report (2003)101

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to this judgment, Uganda thought, press, religion has a duty to protect the and movement. It is freedom of expression as important to note that laid down in the ACHPR the constitution22 lays because it is a part to the down the non derogable charter.21 rights which are freedom from torture, slavery, the right to a fair hearing and the right to an 2.3 order of habeas corpus. It is clear from the National framework above that freedom of expression is not one of In Uganda, freedom of the non derogable rights expression is guaranteed implying that this right under article 29 of the can be limited in certain 1995 constitution. The circumstances. The article gives a broad limitation of rights under protection of the right the constitution must be which is combined with either provided for by the other interrelated rights constitution demonstrably like freedom of assembly, justifiable in a free and association, freedom of democratic society.23 21 Uganda ratified the African charter in 1986, see: https://www.achpr.org/ 22 1995 constitution of statepartiestotheafricancharter Uganda Article 44 (accessed on2nd July, 2020) 23 Ibid, article 43 1c

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30 FREEDOM OF EXPRESSION IN UGANDA Chapter three

CONTEXTUAL ANALYSIS OF FREEDOM OF EXPRESSION

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3.0 CONTEXTUAL ANALYSIS OF FREEDOM OF EXPRESSION

In summary, this chapter points out that the fundamental right to express ideas and opinion without arbitral interference is inherent and not granted by the state and that;

• It is one of the most important freedoms that underpin almost all the other fundamental rights.

• It is important in aiding individual self-realization by enabling all forms of expression.

• It is essential for the proper functioning of a free and democratic society.

• It guarantees the proper functioning of the press and other media and also aids in the search for truth and suitable ideas.

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commentary on one’s 3.1 own and on public Why is the right affairs, canvassing, to Freedom and discussion of expression of human rights, important? journalism, cultural Freedom of and artistic expression, expression or free teaching, and speech is commonly religious discourse. understood as the This right includes the right of all people expression and receipt and organizations to of communications freely communicate of every form of idea their ideas or opinions and opinion capable without restraint or of transmission to censorship.24 The others.25 scope of this freedom can be found in a The United Nations number of decisions General Assembly by the United Nations recognized the Human Rights Committee which 25 For more on this look at Foundation for has held that the Human Rights Initiative right encompasses report, STIFLING VOICES: political discourse, PREVENTIVE DETENTION, A THREAT TO FREE SPEECH 24 Oxford English IN UGANDA 2018 at pg. Dictionary, p134. 14.

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importance of In Uganda, the freedom of expression Constitution and information, at guarantees this its first session where freedom under it declared: “Freedom Article 29(1), (a) of expression is a which provides for fundamental human freedom of expression right and ... the including freedom of touchstone of all of the press and other the freedoms to which media. the United Nations is consecrated”26. This It should be noted freedom in turn has that this freedom is been recognized, not absolute and guaranteed and can be subjected to protected by almost all international, regional Nations Universal Declaration of Human and national legal Rights (1948) and Article 9 27 instruments. of the African Charter on 26 G.A. Resolution Human and Peoples Rights 59(I), 14 Dec. 1946. and African Commission on 27 Article 29 (1), Human and Peoples’ Rights, (a) of the Constitution of the Declaration of Principles on republic of Uganda, Article Freedom of Expression in 19 of the International Africa, 23 October 2002, Covenant on Civil and ACHPR/Res 62(XXXII) 02. Political Rights, Article 19 of the Universal Declaration of Human Rights United

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lawful and justifiable prescribed beyond limitations to what is acceptable safeguard the rights of and demonstrably others, public safety, justifiable in a free public morals and and democratic national security as society, or what is provided for under provided for in the Article 43 (1) of the Constitution. 1995 Constitution of Uganda which states Observing freedom of that in the enjoyment of the rights and expression is vital in a freedoms, no person shall prejudice the number of ways as dis- fundamental or cussed below; other human rights and freedoms of others or the public interest. However, clause (2) provides 3.2 that public interest Freedom of excludes (a) political expression and persecution; (b) the enjoyment of other rights detention without trial; (c) any limitation of Freedom of expression the enjoyment of the is important because rights and freedoms it is a freedom upon

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which all other freedoms depend. From the get-go, it must be stressed that it does not exist in isolation. It is linked with the right to peaceful assembly and association, freedom of thought, conscience, and religion, and the right to privacy, as well as other rights. It is essential to the entire working of the human rights system and this is partly because all other rights are developed, defined and defended through expression.28 It is at times described as a multiplier because of its role in enabling enjoyment of other rights.29

Cultural rights are to a large extent enjoyed through expression,30 so are the 28 Boyle, ‘Thought, Expression, Association, and Assembly’, in Moeckli, Shah and Sivakumaran (eds), International Human Rights Law (Oxford: Oxford University Press, 2010) at 266. 29 O’Flaherty, ‘Article 19 UDHR: Contemporary Challenges and Opportunities for Freedom of Expression, Lecture at the Carr Centre for Human Rights Policy, Kennedy School of Government, Harvard University’, 4 March 2009. 30 Committee on Economic, Social and Cultural Rights, General Comment No 21: Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic,

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rights to assembly and association which would mean little if they didn’t include entitlement to engage with others.31

3.3 Freedom of expression and democracy Freedom of expression is a cornerstone upon which the very existence of any democratic society rests. It is necessary for formation of public opinion, it is a condition for development of political parties, trade unions, cultural and scientific societies and it is the means that enables the community when exercising its options to be sufficiently informed.32

Further affirmations of these views are to

Social and Cultural Rights), 21December 2009, E/C.12/GC/21; 17 IHRR 608 (2010). 31 Boyle, supra n5 at 257-8. 32 Inter -American Court of Human Rights Advisory Opinion No. 5, OC-5/85, opinion of 13 November 1985.

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be found in General commission echoing comment 34,33which the above instruments emphasizes that stated that freedom freedom of expression of expression is is the foundation the cornerstone of stone for a free and democracy and a democratic society means of ensuring and a necessary respect for all human condition for the rights and freedoms; promotion and therefore the speech protection of human of Mr. Suleimani that rights. the government had alleged to threaten In Ghazi Suleiman v national security and Sudan,34the African public order was rather of “special 33 UN Human Rights Committee value and deserving of (HRC), General comment special protection.” no. 34, Article 19, Freedoms of opinion It is a crucial right to and expression, 12 September 2011, CCPR/C/ the proper functioning GC/34, available at of a democracy and https://www.refworld. functioning of good org/docid/4ed34b562. governance as a html [accessed 3 July 2020] 34 African Communication No.228/99 Commission on Human sixteenth activity report and Peoples Rights, 2002-2003, Annex VII.

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whole, ensuring open to be erroneous, flow of ideas and controversial, or holding authorities unpleasant. to account. In the case of Charles In addition, freedom Onyango Obbo, of expression Andrew Mwenda vs. enables free flow of AG,35 the Ugandan information and ideas constitutional court which contributes noted that in countries to better decision- transitioning to a making processes democracy such as of individuals, Uganda, the right corporations and the to free expression is state. It enables free essential in promoting debate and open political participation. discussion ensuring The court also citizen participation affirmed that a in the democratic person’s expression process, consideration is not excluded of diverse interests from constitutional and perspectives protection simply allowing for all types because it is of views with only thought by others lawful and reasonable limitations. Closely 35 Constitutional Appeal No. 2 of 2002 related are the recent [2004] UGCA. theories of the rights-

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based approach to the 2021 national development (RBAD). election amidst the Free expression is Covid-19 pandemic. considered critical to The Uganda Electoral the implementation Commission is of core RBAD insisting on holding principles, including the election with accountability, modifications, chief transparency and among them is empowerment.36 by restricting the candidates and voters The importance of this from participating, freedom is buoyed interacting by the ongoing ,exchanging ideas and national discussions expressing themselves surrounding the as has been the norm mystery of holding through mass rallies, holding consultations 36 United Nations Educational, Scientific and and meetings rather Cultural Organization, mandating them to ‘World Press Freedom Day use media platforms like radios, televisions 2008 Concept Paper: and online platforms Freedom of Expression, like social media sites Access and Empowerment’ (Twitter and Facebook) among others; Many observers and citizens

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are worried that this proposed “scientific 3.4 mode of election “ will Freedom of violate their right to expression, the freedom of expression press and media since it will deny them freedom full access to express The right to freedom their ideas. It will also of expression is vital deny the electorate the for proper functioning opportunity to receive of a free press in those ideas due to order for individuals the limited public to receive information media houses, lack of and ideas. It has radios and television been recognized that by the majority of freedom of expression the citizenry and goes further than limited and expensive protecting the right of internet access. These someone to express concerns have led to their ideas but also a lawsuit challenging protects the right of the new mode of others to hear those campaigning.37 ideas38. 37 Nile Post, co.ug/2020/06/19/ 2020 Electoral Commission electoral-commission- Dragged To Court Over dragged-to-court-over- ‘Scientific’ 2021 Elections - scientific-2021-elections/> Nile Post. [online] Available [Accessed 3 July 2020]. at:

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The East African Court by individuals and of Justice has held the press is also seen that “the principles as a check against of democracy must government overreach of necessity include and abuse. It counters adherence to press the risk of government freedom”.39 Mass involvement in matters media is therefore of speech as well as central in allowing the importance of freedom of expression creating space for to contribute fully speech that is critical to democracy, of government actors. transparency and accountability. The freedom of expression guarantees Freedom of expression the press and media’s court: compulsory ability to comment membership in an on public issues and association prescribed ensure powerful by law for the practice of interests held to journalism. Series A No 5(1986) account. A free 39 East African and unconstrained Court of Justice: Burundian press can hold Journalist Union V Attorney powerful interests like General of the Republic of corporations, people Burundi, reference No. 7 of 2013 (2015) at paras 82 wielding power like -88. ministers to account.

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This is more so when good governance. the press reports on issues like corruption, The right is essential misuse of public for journalists to funds and abuse of seek out and share power. A case in information, it enables point is the National journalists to interview Broadcasting Service citizens or request (NBS) television information from documentary on public officials. A the theft of national free press that is not drugs through the censored by the state procurement chain and allowed to do of National Drug its job ensures that Authority.40 This all voices are heard ability of the press even the voices of to air controversial the dissidents and and damning the minority even content contributes marginalized groups to transparency and are given platform. 40 Independent This can lead to the T., 2020. VIDEO: Stealing exposure of human from the Sick. [online] The rights abuses and Independent Uganda: violations and shine Available at: plight of groups like [Accessed 3 July 2020]. the LGBTI community,

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indigenous tribes and Some renown the elderly scholars argue that the freedom of expression is a gateway to individual 3.5 self-realization since it guarantees a Freedom of expression person’s right to form and self - opinions, beliefs and realization. to express them freely, It should be noted these scholars posit that a major aim of all that when speech is these guarantees of freely chosen by the the right to freedom speaker to persuade of expression is the others, it defines and desire to protect the expresses the speakers cornerstone of a free self and promotes 41 society where all his liberty and self - citizens must be able realization by enabling to pursue their own him to develop his paths, set their own powers and abilities goals and think for and to make and themselves. This is the influence decisions notion of individual 41 C. Edwin Baker, The Process of Change liberty and self- and the Liberty Theory of determination. the First Amendment ,55 S. CAL. L. REV .293 (1982)

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regarding his destiny.42 receive and impart information and ideas. He argues that freedom of expression 3.6 is vital to attainment and advancement Freedom of expression and of knowledge and the search for search for truth. truth. He further argues Another importance that the peculiar of this right is evil of silencing the based on the theory expression of an that freedom of opinion is that it is expression enables robbing the human people to search race; posterity as for truth. This idea well as the existing was grandfathered generation; those by philosopher and who dissent from the scholar John Stuart opinion, still more Mill, who helped than those who hold shape the modern it. If the opinion understanding of the is right, the future entitlement to seek, generation is deprived of the opportunity of 42 Martin H. exchanging error for Redish Value of Free truth: if wrong, they Speech, 130 U. Pa. L. Rev. 591 (1982). lose, what is almost

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as great a benefit, the Redress clearer perception and available livelier impression of to victims of violation of truth, produced by its Freedom of collision with error. Expression in Uganda In simple terms, it’s According to a the notion that when number of reports you allow all persons written on the status of to express their ideas freedom of expression whether they are in Uganda it is prima facie wrong, highlighted as one immoral or offensive of the most violated the veracity of their rights in the country. truths or suitability will A 2018 report by be tested against other the United States ideas and in the end Department of State the truthful, desirable highlights the status and suitable ideas will of this freedom.44 In 43 prevail. the report, some of the violations of the 44 Section 2 of Country Reports on Human Rights Practices for 2018 3.7 United States Department 43 Mill, On Liberty of State • Bureau of (London: Watts & Co., Democracy, Human Rights 1929) at 92-115 and Labor.

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right to freedom of expression included, 3.7.1 the government The courts of law restricting citizens’ in Uganda ability to criticize In Uganda, the main its actions. It also avenue for victims of used its organs to violations of freedom restrict some political of expression to seek symbols, musical redress is the courts lyrics, and theatrical of law. performances. It interfered with press Article 50 (1) of freedom by using the constitution of security forces to Uganda provides for threaten and harass recourse to the courts hosts and journalist of judicature by any who gave platform to person or organization dissenting voices. to seek orders for redress when their However, people or human rights are organizations whose violated which may right to freedom include compensation. of expression has been violated can In addition, The seek redress in the Human Rights following avenues; (Enforcement)Act,

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2019 gives effect appropriate and to article 50 (4) proportional to the providing procedure gravity of the violation for enforcing human and the circumstances rights and in case of of each case which violations the court shall be a civil debt shall issue orders it owed to the victim considers appropriate of a human rights including an order for violation. An order compensation. These under this law has orders may include, to be complied with within six months, 1) Rehabilitation unless there is an of the person appeal pending. including medical or psychological care. Other types of redress sought can be in 2) Public apology form of challenges to the constitutionality 3) Restitution, of the laws under compensation or which the victim’s payment ordered by rights to expression is the court inform of challenged. monetary damages for the assessable In the case of Andrew damage, as Mujuni Mwenda &

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Anor vs. AG,45where the petitioner was 3.7.2 charged with the crime The Uganda of sedition, pursuant Human Rights to sections 39 and commissions. 40 of the Penal Code (UHRC) because his remarks Another avenue that were made with the can be utilized to seek intention to incite redress is the human hatred and contempt rights commission set against the person up by the Ugandan of the President constitution with its and Government. mandate as per Article The Constitutional 51 (1) (a) which Court declared the includes investigation, provisions of the Penal at its own initiative Code that provided or on a complaint for the crime of made by any person sedition null and void or group of persons because they were against the violation in contravention with of any human right the enjoyment of the including the right to right to freedom of freedom of expression. expression. Under Article 53 (2) 45 Consolidate The UHRC may, if Constitutional Petitions satisfied that there has No.12/2005 and No.3/ been an infringement 2006.

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of a human right or of expression.46 This freedom, order: shows that majority of Ugandans are a) The release of a probably unaware detained or restricted of the commissions person. power to offer them redress. b) Payment of compensation; or

c) Any other legal 3.7.3 remedy or redress. Interregional and Regional avenues. The Human rights commission in its If it is not possible to annual report of 2018 achieve justice at the noted that it received local level, a victim three complaints at of a violation of their its Central Region right to freedom office relating to of expression can alleged harassment seek redress from of journalists which interregional courts were regarding like the East African deprivation of their Court of justice as right to freedom from 46 Uganda Human torture and freedom Rights Commission 21st Annual Report at pg. 27

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was sought by the Burundian Journalists Association,47 or even seek redress from the African Court of Human and Peoples Rights,48 or the African Commission on Human and Peoples Rights as was done in the case of Ghazi Suleimani v Sudan.49 47 East African Court of Justice: Burundian Journalist Union V Attorney General of the Republic of Burundi, reference No. 7 of 2013 (2015). 48 African-court. org. 2020. African Court on Human and Peoples’ Rights. [online] Available at: [Accessed 3 July 2020]. 49 African Commission on Human and Peoples Rights Communication No.228/99 Sixteenth Activity Report

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THE LEGAL EXTENT OF THE ENJOYMENT OF FREEDOM OF EXPRESSION

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4.1 Restrictions to freedom of expression in Uganda As has been discussed in the previous chapters, the over-riding importance of freedom of expression including the right to seek, receive and impart information as a human right has been widely recognized both on its own and as an essential aspect of democracy and means of safeguarding other human rights.50 Be that as may be, the freedom is not absolute and is subject to restrictions.

Article 43 of the Ugandan Constitution on general limitations provides that in the

2002-2003, Annex VII.

50 Toby Mendel, Article 19 of the International Center against Censorship, False news as a restriction on freedom of expression.

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enjoyment of the rights and freedoms enshrined in the constitution, no person shall prejudice the fundamental rights and freedoms of others or the public interest. It further provides that public interest shall not permit political persecution, detention without trial and any limitation of the enjoyment of the rights and freedoms prescribed by the chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society or acceptable in the constitution. See (Article 43(2) (c).

Therefore, any act or provision of law which restricts freedom of expression can be allowed to stand if it passes the test set up in the provision above. To this end, the Constitution is a two sided coin guaranteeing the rights and at the same time setting the restrictions. Where there is a conflict between the two interests, the courts have and will continue to intervene to resolve it, having regard to the different objectives of the Constitution.51

On the International scene, Article 19(3) of 51 Chief Justice Bart katurebe, The Observer 2015, Accessed at (http://observer.ug/viewpoint/37279-judiciary- will-jealously-guard-freedom-of-speech) on 12/04/2020

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the ICCPR and the the oversight body for Siracusa Principles,52 the implementation provide guidelines on of the ICCPR within when limitations on member states freedom of expression adopted General may be justified. Comment No. 34.53 Freedom of expression It provides that may be limited as the exercise of this provided by law and right carries with it when necessary in a special duties and democratic society to responsibilities; and protect the rights or so for this reason, reputation of others, certain restrictions national security, on the right may public health, public be permitted which order or morals may relate either to the interests of other The Human Rights persons or to those Committee which is of the community as a whole. Where 52 United Nations Economic and 53 General Social Council, Siracusa comment No. 34 on Article Principles on Limitation and 19 Freedom of Expression, Derogation Provisions in the Human Rights Committee International Convention on 102nd Session Civil and Political Rights, UN Doc E/CN.4/1985/4,Annex (28 September 1984)

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these restrictions are for example, defines imposed by a state a limitation as party, they must fall any “formalities, within the very narrow conditions, restrictions criteria defined in the or penalties” imposed 3-part test in Article on the exercise of 19(3) of the ICCPR the right. In many and these restrictions cases, it is usually very must not put in obvious that there jeopardy the right has been interference itself. for instance where someone has been sanctioned for uttering a statement 4.2 or prevented from establishing a media But what constitutes a outlet. restriction? The scope of what International courts constitutes an have also generally interference with held that any action freedom of expression by a public body is very wide. The Rights, 1953, available at European Convention https://www.echr.coe.int/ 54 on Human Rights, Documents/Convention_ 54 European ENG.pdf accessed on Convention on Human 24/04/2020

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or official that has an actual effect on people’s rights or freedom constitutes a restriction or limitation. For instance, the UN Human Rights Committee held that removing a teacher from a classroom for racist statements made outside of the classroom, while keeping him employed on conditions that continued public discussions of his views could lead to further action including dismissal was an interference with his right to freedom of expression.55

It is however only where a public actor is involved that the question of interference with freedom of expression is raised. A private shop owner for instance has a right to prohibit persons from campaigning in her store whereas such a prohibition in a public place must be justified.

4.3

55 Ross V Canada, 1 May 1996, Communication No. 736/1997

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Criteria for and (3) necessary to Imposing protect on or more Restrictions of the legitimate on Freedom of Expression aims . In 1984, a panel of thirty-one Internationally, distinguished experts enforcement of these met at Siracusa, restrictions to the Sicily, in order to enjoyment of the adopt a uniform set right must comply of interpretations of with a strict three-part the limitation clauses test.56 Article 19 of contained in the the ICCPR provides ICCPR. The Siracusa that the freedom of principles provide expression may be authoritative meaning limited if the restriction to the phrases used in is: (1) provided by the limitation clauses law (2) to protect the and provide some rights or reputations general interpretative of others, national guidelines for the security, public limitations of the said order or morals rights. (legitimate aims) 56 WomahMukong The Human Rights V Cameroon, Committee has further Communication No. 458/1991,U.N.Doc. laid down the criteria CCPR/C/51/D/458/1991 for the imposition

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of restrictions. Its The requirement that General Comment any restriction to No.34, Paragraph freedom of expression 3 lays down specific is provided for by the conditions and it law is an important is only subject to guarantee for the rule these conditions of law. It provides a that restrictions may formal requirement be imposed. The of legality; that is, restrictions must the requirement be provided by must be backed by law; necessary and law. The law must proportional and for a not be arbitrary permissible purpose. or unreasonable Restrictions must be and must be clear applied only for those and accessible to purposes for which everyone so that they were prescribed citizens can foresee and must be directly the consequences related to the specific of their actions. This need on which they is also important so are predicated.57 that restrictions to this freedom are not • Provided by at the “whims” of the law government or its 57 Human Rights actors. Committee General Comment No. 34 para 22.

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• Restrictions General Comment must be 34 has stated that the necessary for necessity requirement a permissible imposed under Article purpose. 19 of the ICCPR imposes a substantial There must be a obligation on state permissible aim to parties to ensure the restriction of the that the restrictions freedom. Article 19(3) imposed are necessary just like the Ugandan and conform to Constitution provides the principle of for national security, proportionality. public morals, public Therefore, any health and respect for limitations to the rights and reputation right must be truly of others. To this end, necessary and any restriction can proportionate to only be made for achieving one of the one or more of the goals outlined as a enumerated legitimate legitimate ground for aims. restriction. This means that the restriction • Necessity must be no less than absolutely required The Human Rights to achieve that aim, Committee in and proportional to

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that goal. Necessary, is necessary for the here, means that protection of that there are no other legitimate aim. options to achieve the stated goal apart The above standards from restricting or have been reaffirmed limiting freedom of by the highest court of expression. Within the land in Uganda. “necessary” is the fact The Supreme Court that the restriction or argued that;58 limitation is based on one of the grounds The yardstick is outlined in Article that the limitation 19(3) of the ICCPR, must be acceptable and should “address and demonstrably a pressing public or justifiable in a free social need” that has and democratic to be met “in order to society. The limitation prevent the violation on the enjoyment of a legal right that is of a protected right protected to an even in defense of public greater extent. Even interest is in turn where the restriction is backed by a legitimate 58 Charles law and serves a OnyangoObbo and legitimate aim, it will Another v Attorney General Constitutional Petition No. 2 only pass the test if it of 2002

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limited to the measure Security of that yardstick. In National security other words, such is one of the limitation, however permissible grounds otherwise rationalized, for limitation of the is not valid unless right to freedom of its restriction on expression and would a protected right justify prohibitions is acceptable and on transmission of demonstrably information including justifiable in a free official state secrets and democratic which would adversely society. affect the security of the state provided that that prohibition passes the three threshold 4.4 test discussed above. Permissible The Ugandan Restrictions Constitution provides on Freedom of for this limitation Expression under Article 41 and 43. In addition, other 4.4.1 Freedom of Expression and National

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subsidiary laws limit on the Limitations and this right in favor of Derogation Provisions the national security in the International of the state. A case Covenant on Civil in point is Section 9 and Political Rights of the Terrorism Act of (ICCPR), require 2002 which directly that the scope of a affects the practice limitation referred to of media in Uganda. in the Covenant shall This section provides not be interpreted that; in such a way as to jeopardize the essence “Any person, who of the right concerned. establishes runs It defines a legitimate or supports any national security institution for … interest as one that publishing and aims disseminating news “to protect the or materials that existence of the nation promote terrorism ... or its territorial commits an offence integrity or political and shall be liable on independence against conviction, to suffer force or threat of death.” force.”59 59 United The Siracusa Principles Nations Economic and

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In addition, Principle In terms of the 15 prohibits the Johannesburg punishment of a principles, restrictions person on grounds on freedom of of national security expression on the for disclosure of basis of national information if; security should meet the strict tests (1) The disclosure of legitimacy;60 its does not actually genuine purpose harm and is not likely should be the to harm a legitimate protection of a national security country’s existence or interest its territorial integrity against the use or or threat of force.

(2) the public This justification was interest in knowing considered by the the information High Court in 2014 outweighs the harm in Uganda Court from disclosure. Reporters Association

Social Council, Siracusa 60 Johannesburg principles on limitations and Principles on National derogation provisions in the Security, Freedom of international covenant on Expression and Access to civil and political rights. Information, Principle 1

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LTD V Attorney acted unreasonably, General,61 where it unfairly, irrationally overturned a decision and committed an by the Magistrates illegality. The Court Court in Kampala. particularly ruled that The decision had been the limitation imposed barring journalists on the media fraternity and the general by the Magistrate public for reasons was not objectively of national security verified, neither from attending a trial justified nor necessary. in which a police officer was accused by then Inspector General of Police Kale 4.4.2 Kayihura of leaking Rights and security sensitive audio Reputations of recordings regarding Others the fallout between the Protecting the President of Uganda “reputation and and then Prime rights of others” is Minister. The High by far the “legitimate Court in overturning aim” most frequently this decision ruled that used in Uganda to the Trial Magistrate restrict freedom of 61 Miscellaneous expression. It has Cause No. 87 of 2014

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often been invoked to important to note that protect politicians and the United Nations civil servants against Special Rapporteur criticism. This usually cautions against occurs in the form the criminalization of defamation suits of defamation: especially libel. “criminalization can be counter-effective As enshrined under and the threat of the Penal Code harsh sanctions Act Section 179, a exert a significant person commits libel chilling effect on when he publishes the right to freedom defamatory material of expression62.The concerning another “chilling effect” refers person, with intent to a situation where to defame that other the exercise of a right person. It may be in is discouraged. In form of print, writing, this case, criminal painting, or effigy. In 62 Frank La Rue, Uganda, there’s both Report of the Special criminal and civil libel. Rapporteur on the The latter enables Promotion and Protection a person to sue a of the Right to Freedom of publisher for libel and Opinion and Expression, UNGA, 66th Sess, recover damages. A/66/290, 10 August 2011. However, it is [UNSR 2011]

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penalties of the libel is far from the exercise of free core values of the expression may lead freedom of expression, to self-censorship and press and other the ultimate non- media. It would performance of this trivialize and demean right the magnificence of the rights guaranteed In justifying this by the constitution if limitation, the individual members of Constitutional Court the public are exposed in Joachim Buwembo and Ors V Attorney to hatred, ridicule and General,63 held contempt without any that the freedom of protection. In fact, the expression should be press would be doing enjoyed within the a disservice to the restrictions imposed public by publishing by Section 179 of the defamatory libel” Penal Code Act. The court in paragraph 20 The import of this of its judgment stated: decision is that defamatory libel “Most certainly stays in the statute therefore defamatory books of Uganda 63 Constitutional since it passes the Reference No. 1/2008

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constitutional test of of national, racial or protecting the rights religious hatred that and freedoms of constitutes incitement citizens. to discrimination, hostility or violence shall be prohibited by 4.4.3 law. Hate Speech, Both forms of Racism and incitement to violence Incitement of are linked to the Violence. existence of “hatred” Under international and as such fall human rights law, usually within the incitement to some sociological category forms of violence may of so-called “hate be prohibited not only speech”, which is under article 20 of the also prohibited ICCPR but also under by Article 4 of the the 1948 Genocide 1965 International Convention. Article 20 Convention on the of the ICCPR provides Elimination of All that any propaganda Forms of Racial for war shall be Discrimination and prohibited by law and by Article 19 of the in that any advocacy ICCPR. It is pertinent to point out that any

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restrictions made incites other person to under Article 20 of the do an act of violence ICCPR must comply against any person by with the 3 part test reason of his or her enumerated under race, place of origin, Article 19. political opinions, color, creed, office In 2005, the UN or sex commits an Security Council offence and liable adopted United on conviction to Nations Security Council Resolution imprisonment for a 1624 (2005), which term not exceeding requires states parties fourteen years.” to prohibit incitement to commit a terrorist Related to this act (Article1). provision is Noteworthy under the Section 41of the domestic law is the Penal Code which law on incitement of creates an offence violence. This criminal of sectarianism offence as provided that prohibits any for under section publication that 83(1) of the Penal promotes or exposes Code Act states that; to hatred or contempt or hostility or ill will “any person who against any group or

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body of persons on of the view that account of religion, there was nothing tribe or ethnic or unconstitutional about regional origin. The the section. sentence is set at a prison term not Politicians including exceeding five years. Hon. Robert Kyagulanyi (Bobi This particular section wine), Hon. Betty has been a subject Nambooze, and of much contention Hon. Olara Otunu in Uganda in media have been victims of and political circles. this law. In 2006, Prominent journalist David Ntege, a Andrew Mwenda in prominent politician 2002 petitioned court who complained over this provision.64 before the president The court held that the that “herdsmen” had Section was enacted taken over his district, in 1988 before the was sentenced to new Constitution and five years in prison. was thus saved by the The term “herdsmen” 1995 constitutional. was interpreted as a The Court was derogatory statement against a particular 64 Constitutional Appeal No. 2 of 2002

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tribe.65 However, this philosophical and decision was later religious traditions; set aside by the High consequently, Court. limitations for the purpose of protecting morals must be based on principles not 4.4.4 deriving exclusively from a single Freedom of Expression and tradition”. Any such Public Morals limitations must be understood in the Respect for light of universality “public morals” of human rights and is a permissible the principle of non- justification for discrimination. restricting the right to freedom of expression and information. Within the Ugandan The Human Rights laws is a law on Committee has Obscenity and observed in General Pornography, under Comment No. 22, Section 166 of the that “the concept Penal Code Act which of morals derives controls pornography from many social, and publication of 65 Uganda v David pornographic content. Ntenge (2006) UGHC 59

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In 2014, parliament years. Similarly under passed the Anti- Section 16, the pornography Act Pornography Control which aimed to Committee, the court create the offence or a police officer of pornography not below the rank and provide for of superintendent of its prohibition. police may, in writing, Pornography direct any newspaper, means written, publisher, broadcaster, graphic (pictorial) and proprietor or any other form of any business of communication dealing in leisure intended to excite or entertainment, sexual feeling.66 In bookshop owner…to its Section 13, the desist from dealing in Act makes it illegal to pornography. Similar “produce, traffic in, provisions can be publish, broadcast, found in the Press procure, import, and Journalism Act and sell of any form Chapter 105 (Section of pornography.” 6). Offenders are liable to a prison sentence In 2012, Nabagesera not exceeding 10 and three others 66 Section 2 of the challenged the actions Anti-Pornography Act, 2014 of Rev. Fr. Simon

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Lokodo, the Minister or wrong speech of Ethics and Integrity does not extend for closing a workshop to protecting the organized by the expression that organizations that promotes illegal advocate for rights of acts which in itself the LGBTI community are prohibited like in Uganda. Court homosexuality. held,67 that the exercise of individual Another case in point rights can be validly where this justification restricted in the has been used to limit interest of the wider freedom of expression public and in the is in the banning of a promotion of morals. stage play written by It was further held American scriptwriter that the protection Eve Ensler. Vagina of unpleasant or Monologues was controversial, false banned by Uganda Media Council on 67 Nabagesera&3 Ors V Attorney General grounds that the and Another Miscellaneous play glorified and Cause No. 033 of 2012, promoted acts such High Court Division as homosexuality, accessed at http://www. lesbianism and ulii.org/ug/judgment/ high-court/2014/85 on masturbation all 25/04/2020 which are against

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the public morals of the basis of promoting Uganda as a society. morals. However the The organizers of danger is in giving a the play argued that body like the Media its purpose was to Council which is not explore women’s free from political sexuality and bring to interference the the fore issues relating discretion to decide to women sexual what amounts to abuse. The Media immorality. Council however ruled that the play glorified unnatural sex in direct contravention 4.4.5 of the morals, culture Protection of and laws of Uganda Minors and the play was cancelled.68 Article 2 of the Convention on the Rights of the Child It is undisputed that (CRC) provides that; freedom of expression can be restricted on State parties 68 Vagina undertake to ensure Monologue Ruling of the the child such Media Council accessed protection and care on (www.mediacouncil.ug/ cases.php ) as is necessary for

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his or her well-being, for the protection taking into account of the child from the rights and duties information and of his or her parents, material injurious legal guardians, or to his or her well- being, bearing in other individuals mind the provisions of legally responsible articles 13 [freedom for him or her, and, of information and to this end shall expression] and take all appropriate 18 [recognition of legislative and responsibilities of administrative family]. measures. Restrictions on the In this regard, Article right to freedom 17 of the CRC, of expression and which recognizes information may be the importance for justifiable having children of access regard to the rights to information and of children to special material through protection under the mass media, the Convention requires States parties on the Rights of to encourage the the Child (CRC) to development of which Uganda is appropriate guidelines a signatory. In his

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2011 UN Special for others.” In the Rapporteur Report on first category that the promotion and requires states to protection of the right strictly prohibit at to freedom of opinion the domestic level, and expression, Frank he highlighted such La Rue distinguished expression as child between three levels pornography. of harmful expression. These being “(a) Domestically, Section expression that 23(2) of the Computer constitutes an offence Misuse Act of 2011 under international makes it an offence law and can be for any person to prosecuted criminally; avail pornographic (b) expression that materials to a child. is not criminally A case in point is the punishable but may scandal involving local justify a restriction artiste Winnie Nwangi and a civil suit; and in early 2019 where (c) expression that a video showing the does not give rise artiste and her queen to criminal or civil dancers dancing sanctions, but still suggestively with the raises concerns in male students at St. terms of tolerance, Mary’s College Kisubi civility and respect went viral and quickly

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4.4.6 Public Order Among the legitimate became a topic of grounds for restricting discussion in the freedom of expression country generating is the protection of enormous public public order. Public outcry from parents, Order is understood religious leaders and to mean the rules the public at large.69 which ensure the The artiste was later peaceful and effective summoned by the functioning of society. Pornography Control Article 21 of the Committee and asked ICCPR that provides to issue a public that the right of apology and pledge peaceful assembly to refrain from any shall be recognized. further “pornographic” It further provides shows. that no restrictions 69 The Observer may be placed on Newspaper, 2019 Accessed the exercise of this at https://observer.ug/ right other than those news/headlines/61423- imposed in conformity singer-winnie-nwagi- apologizes-for-erotic- with the law and show-at-boys-school on which are necessary 30/04/2020

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in a democratic measures for safe society in the interests guarding public order of national security and related matters. or public safety, The biggest concern public order, the about POMA was that protection of public it sought to return the health or morals or ghost of the past; the the protection of the extensive powers of rights and freedoms of the police to prohibit others. the contravening of assemblies. These The Public Order powers legalized by Management Act then Section 32(2) (POMA) was enacted of the Police case in 2013 despite had been previously fierce criticism from annulled by the the public and rights constitutional court in groups as an Act Mawanga Kivumbi v to provide for the AG.70 regulation of public meetings; to provide According to the for the duties and POMA, one must seek responsibilities of the police permission police, organizers to hold a political and participants in gathering of more relation to public 70 Constitutional meetings; to prescribe Petition No. 9 of 2005

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than three people, opposition Forum for demonstration or Democratic Change political meeting.71 (FDC) Rukungiri The Act gives mobilization was discretionary powers blocked because the to police to veto party had not met all gatherings of as few the requirements of as three people in the POMA.72 Late last a public place to year, the Makerere discuss political issues. University students’ Police must receive a protest against tuition written note of public increments was meetings seven days blocked by police on in advance. similar grounds.

The application of However earlier this Act in restricting this year, the freedom of expression Constitutional court especially on members in Human Rights of opposition has Network and 4 Ors been very rampant. v Attorney General, Constitutional Petition For instance in October 2015, the 72 Andante Okanya and UmaruKaskaka, Besigye 71 Section 5 and FDC leaders Arrested, The 13 of the Public Order New Vision, 10th October Management Act 2015

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No.56 of 2013 clearance from the nullified Section 8 of police provided the the POMA which gave protest or public discretionary powers gathering is peaceful. to the Inspector Thirdly, he noted that General of Police to all the police needs in turn delegate or to do is to deploy authorize any other its personnel to police officer to stop supervise the public or prevent holding gathering or protest of public meetings. and guard against In relation to this, the same becoming Justice Barishaki violent. This is an made three important important decision pronouncements. First, in the protection of he wholly rejected the freedom of expression notion that the police and assembly as have supernatural it means that the powers to determine police no longer have that a particular public power to stop public gathering or protest gatherings and to should not be allowed disperse people under because it will result the Public Order in breach of peace. Management Act Secondly, he dismissed the requirement Another notable for permission or application of the

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public order restriction is in contempt of court proceedings. The Human Rights Committee in its General Comment No.34 has pointed out that in order to comply with Article 19(3), an individual can be held in contempt of court only when such is necessary for the orderly functioning of court proceedings.

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ACADEMIC FREEDOM AND UNIVERSITY AUTONOMY

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5.1 Introduction When one speaks about freedom of expression, there is always a tendency to ignore the concept/right of academic freedom. The nexus between freedom of expression and academic freedom is drawn basing on the Human Rights principles of indivisibility, interdependence and interrelatedness. The principle of interdependence and interrelatedness is to the effect that the fulfillment of one right often depends wholly or partially upon the fulfillment of others, whereas the principle of indivisibility suggests that denial of one right invariably impedes enjoyment of other rights.73 The implication of this is that the denial of freedom of expression and its other related freedoms like freedom of thought, speech, opinion,

73 UNFPA, Human Rights Principles, 2005

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conscience and belief, she published a book the right to education, making an analysis leads to the denial of of Uganda’s law. Her academic freedom. book was banned This is because for from the market and academic freedom charges of treason to actually manifest, were pressed against scholars, teachers and her. As a result professors must be of her inability to free to express their express her views, the thoughts and opinions academic community in any way they in Makerere University wish for academic and Uganda as a purposes. whole are not able to learn from her Scenario One: Jane because she is not (not real name), a free to disseminate University Professor knowledge and as of Constitutional such, academic History at Makerere freedom is denied. University is not allowed to speak and air her views on the Constitution of the Republic of Uganda in any conference or seminar. Additionally,

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5.2 Defining Academic Freedom and University Autonomy Academic freedom has been defined by Fuchs as that freedom of members of the academic community, assembled in colleges and universities which underlie the effective performance of their functions of teaching, learning, practice of the arts and research.74 He adds that the right to academic freedom is recognized in order to enable faculty members and students to carry on their role. Justice Stephen Mubiru in Dr. Kitara David Lagoro V Gulu University75speaks about academic freedom as thus: Academic Freedom is the freedom of teachers and students to teach, study and pursue knowledge and research without unreasonable interference or restriction from law, institutional regulations or public pressure. Academic freedom is

74 Fuchs R. F., Academic Freedom- its Basic Philosophy, Function and History, Law and Contemporary Problems, XXVIII, 3 (Summer,1963) 75 Miscellaneous Cause No. 10 of 2017, para 25

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an indispensable prerequisite for unfettered teaching and research in institutions of higher learning like universities. An attempt by government or courts to influence university and public tertiary institution decisions, especially decisions regarding academic progress would violate the concept of minimal state intervention and enhance the possibility of breaches of academic freedom hence the traditional deterrence to internal controls.

One of the best definitions of University Autonomy is given by the administrative board of the International Association of Universities.76 It is defined by the following; the University having the right to elect its own staff whatever the formalities of the appointment may be, the responsibility of the university to select its own students, the responsibility of the university to form curricula for each degree and to set academic standards, each university

76 Report of the Fourth General Conference of the International Association of Universities (Paris: International Association of Universities, 1965), Chapter 2, “University Autonomy- Its meaning Today.”

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having the final decision as to the 5.3 research programs Laws governing carried on within academic its walls and the freedom responsibility of the International university, within wide Covenant on Civil limits to allocate the and Political Rights financial resources (ICCPR) available among its various activities. Article 19 of the ICCPR provides that Academic freedom everyone shall have really ought to be the right to hold regarded as part opinions without of and derived interference. It also from university provides for the autonomy although right to freedom of it is important to expression which emphasize that includes freedom to the terms are not seek, receive and 77 synonymous. impart ideas of all 77 W. K. Chagula, kinds, regardless of The East African Academy: Academic Freedom and frontiers, either orally, University Autonomy in or in writing, or in the Economic, Social and Africa, Minerva Volume 6, Political Context of East No. 3 (Spring 1968)

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print, in the form of art and direct education or through any media institutions subject of his choice. The to the principles article goes ahead to of promoting state that the existence understanding, of these rights carries tolerance and with it special duties friendship among all and responsibilities, nations, racial and and restrictions ethnic groups and religious groups. International Covenant on binds Economic, Social Article 14 and Cultural member states, Rights (ICESCR) which at the time of becoming a of the Article 13 party, has not been ICESCR provides for able to secure in its compulsory primary metropolitan territory education, availability or other territories of secondary under its jurisdiction, education in its compulsory primary different forms and education, free of accessibility of higher charge, to undertake education. It also within two years to provides for liberty work out a plan and of individuals and adopt a detailed bodies to establish plan of action

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for progressive General implementation, Comment No within a reasonable 13 on the Right number of years, to to Academy be fixed in the plan, Freedom (Article of the principle of 13) (CESCR) compulsory education In light of its free of charge for all. examination of numerous state By providing for parties’ reports, education at the the Committee has different levels, the formed the view that ICESCR makes a step the right to education towards academic can only be enjoyed freedom because the if accompanied right to academic by the academic freedom is not freedom of staff and independent of the students. Accordingly, right to education. even though the issue is not explicitly mentioned in article 13, it is appropriate and necessary for the Committee to make some observations about academic

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freedom. The individually or following remarks give collectively, are free to particular attention to pursue, develop and institutions of higher transmit knowledge education because, and ideas, through in the Committee’s research, teaching, experience, staff study, discussion, and students in documentation, higher education are production, creation especially vulnerable or writing. Academic to political and other freedom includes the pressures which liberty of individuals to undermine education express freely opinions freedom. The about the institution Committee wishes to or system in which emphasize however they work, to fulfill that stuff and students their functions without throughout the discrimination or fear education sector are of repression by the entitled to academic state or any other freedom and many actor, to participate of the following in professional observations have or representative general application. academic bodies, and to enjoy all Members of the the internationally academic community, recognized human

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rights applicable to education in relation other individuals in to their academic the same jurisdiction. work, standards, The enjoyment of management and academic freedom related activities. Self- carries with it governance, however, obligations, such as must be consistent the duty to respect the with systems of academic freedom public accountability of others, to ensure especially in respect the fair discussion of of funding providing contrary views, and by the State. Given to treat all without the substantial public discrimination on investments made in any of the prohibited higher education, an grounds appropriate balance has to be struck The enjoyment of between institutional academic freedom autonomy and requires the autonomy accountability. While of institutions of higher there is no single education. Autonomy model, institutional is that degree of arrangements self-governance should be fair, just necessary for effective and equitable and decision making by as transparent and institutions of higher participatory as

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possible. The African Charter does not expressly Regional Laws provide for academic The African Region freedom but the does not have a African Court on binding law on Human and People’s academic freedom. Rights in the case of However, the Kenneth Good Kampala Declaration V The Republic of 79 upheld on Intellectual Botswana academic freedom Freedom and Social as a distinct right Responsibility is a and since then, the persuasive document Commission has for African states. It reminded states that was adopted on 29th academic freedom is November 1990 to be a form of protected a standard bearer for speech in any the African Intellectual democratic society Community to and should not be assert its autonomy and undertake its muzzled at the whim of the executive. responsibility to the people of the African continent.78 Responsibility(1990); preamble 78 The Kampala 79 Communication Declaration on Intellectual No. 313/05 [2010] ACHPR Freedom and Social 106; (26th May 2010)

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National Laws The Constitution 5.4 of the Republic of Instances of Uganda (1995) violations of the right to academic Article 29(1) (b) freedom in states that every Uganda person shall have the Whereas academic right to freedom of freedom in Uganda thought, conscience especially institutions of and belief which higher learning has been shall include upheld in various ways academic freedom (for example university in institutions of rankings are based on learning. the research done by the university on different Article 30 provides topic, among other for the right to factors) there have also education for all been instances of gross persons, a right violation of academic necessary for freedom. Below are a few academic freedom of them: to exist. • One of the instances is where the Ugandan government

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seized copies of the book “Controlling Consent” by Centre for Basic Researchers for what it called false declaration. The authors are accused of having falsely declared that the book was an education book when it is a political book. The book edited by Makerere Law Professor J. Oloka Onyango and Dr. Josephine Ahikire from the School of Women and Gender Studies was published in the aftermath of a controversial 2016 general election won by President Yoweri Museveni. In the book, the academicians said cracks were developing in President Museveni’s ties with the West, citing growing forcefulness in criticism from the donors and from Museveni’s equally forceful response to them. They also held the view that removal of presidential age limit is certain to jeopardize Uganda’s democratic process.80

80 Agatha Atuhaire, Customs seizes copies of “Controlling Consent” book about 2016 elections, March 15th 2017

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• Another instance is where Yusuf Sserunkuma Kajura,81 a PhD student at the Makerere Institute of Social Research was forced to take on a supervisor for his thesis who he said was believed to have been biased against him.

• The termination of Makerere institute of social research lecturer, Stella Nyanzi, following charges of cyber harassment following her posts on social media regarding the first family is a violation of academic freedom. This assertion is true especially when one considers the fact as said by Isaac Ssemakade, Stella Nyanzi’s lawyer, that the decision was politically motivated and intended to appease the First Family, as Nyanzi was 17 years of retiring. Her academic freedom to disseminate information as a lecturer and an academic and social activist was curtailed. The University’s autonomy to employ staff it wishes was also curtailed.

81 Miscellaneous cause No. 194 of 2018

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• The threats by Makerere Vice Chancellor, Professor Barnabas Nawangwe to close the School of Law because of the school’s decision to back MUASA to push for the mounting of pressure on Management to unconditionally reinstate Dr. Deus Kamunyu.

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THE ROLE OF GOVERNMENT, COURTS OF JUDICATURE AND CIVIL SOCIETY ORGANISATIONS IN PROMOTING FREEDOM OF EXPRESSION IN UGANDA

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6.1 The government Uganda acceded to the ICCPR on June 21, 1995 without making any reservations. Article 19 of the ICCPR obligates States to protect and promote freedom of expression. The Ugandan government is under the obligation to respect and protect the internationally recognized human rights contained therein. Through upholding its obligation Uganda has done the following to promote the enjoyment of the freedom.

The Ugandan government has enabled all Ugandans to have the opportunity to express their freedom of expression through enabling citizens form professional, business and special interest associations which bring together politicians, musicians, persons with disabilities, women and men. These associations are able to host participatory meetings, press conferences and workshops on different topics relating to the purpose of the association and always ensure all members participate and give

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their views and feel their opinions matter.82 This has promoted freedom of expression and association. The associations include Uganda National Students Association, Uganda Law Society, Uganda Tea Association, KACITA and Uganda Media Women’s Association. All these have greatly come out to voice the opinions of their members promoting freedom of expression.

There has been an increase in the number of radio stations as a result of government’s liberalization of the private sector to allow private individuals to own radio stations.83 These radio stations broadcast programs in various languages which enable people have access to information and enable dissemination of information. Members of the society have been given an opportunity to participate in the various programs that are political, 82 The professional association strengthening project: functions of a professional association module 4. 83 Presentation by the Minister of ICT and national guidance to parliament on the census of FM radio stations in Uganda, 12th May 2020.

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business and cultural. Ibrahim Bbosa the spokesperson of UCC noted that there is an increase in the volume of programming in the indigenous languages across the broadcast spectrum because the government acknowledged the relevance to local audiences. The use of local languages plays a pivotal role in bridging the communication gap between the government and rural communities.84

84 The Impact of FM radio Broadcast in local Dialect on rural community development in Ghana. In journal of advanced applied scientific research. May 2017.

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The government established partnerships with MTN, AIRTEL to promote the use of social media platforms such as twitter, Facebook, whatsapp to enable people to express themselves and be able to communicate. The number of internet users is now at 12 million people and 2.5 million of these use social media.85 Through increased access to the internet and social media platform numerous Ugandans are able to express their views and opinions, for example women facing sexual harassment have been able to use twitter to champion the fight against sexual harassment.

6.2 The courts The courts have the power to interpret and enforce the law;86 however the most important role of court is the ability to nullify a law that impermissibly restricts freedom of expression. All citizens are equal before the courts of law and have the obligation to report matters

85 Digital report 2020. 86 1995 Constitution of the republic of Uganda

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relating to violations relating to violations against the freedom of against freedom of expression.87 Uganda expression especially over the years has freedom of the press. moved from a period This has created a of instability to a lasting impact on relatively peaceful era how people trust the being experienced courts.89 today and the courts have contributed to The court affirmed this situation.88 the relevance of the right to freedom of The courts have expression in Andrew continuously Mwenda v AG, where pronounced it nullified provisions themselves on matters of the penal code that 87 Uganda’s curtailed freedom of compliance with its expression. Andrew legal obligations with Mwenda made regard to freedom comments on a radio of expression and expression: challenges talk show that were and prospects. Faculty 89 Uganda’s of law university of compliance with its Oslo. legal obligations with 88 . Freedom regard to freedom of Expression and of expression and Information Situation expression: challenges in Uganda, supra and prospects, supra

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critical to the president sedition,90 because the and the government sections contravened of Uganda. He said articles 29 and 43 the government was of the constitution partly to blame for and also limited the the death of South enjoyment of the Sudan’s former first right to freedom of vice president John expression enshrined Garanga who was in article 29(1)a of killed in a helicopter the constitution.91 crash after his visit The then Deputy chief to Uganda. The justice Leticia Mukasa state alleged that Kikonyongo agreed the remarks made with the petitioners by Mwenda had the that the crime of intention of bringing sedition embodied hatred and contempt in section 39 and 40 against the president of the penal code and the government curtailed the right to of Uganda. Mwenda freedom of expression and another and was declared null challenged sections 39 and 40 of the 90 Uganda penal code under Penal Code Act which they had cap(120). been charged for 91 1995 Constitution of the Republic of Uganda.

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and void.92 Section 8 of the act was intended to The constitutional keep peace, order court in Human and tranquility in the Rights Network and country and to ensure four others v Attorney public assemblies General declared do not disrupt section 8 of the Public business, traders Order Management and commerce. It’s Act (POMA) important to note that unconstitutional.93 Section 8 of POMA POMA was enacted in was a replacement 2013 and provided a by the legislature regulatory framework of section 32 of the of public assemblies, Police Act, section 8 of the duties and POMA was found to responsibilities of the be in pari materia with police, organizers the nullified section and participants in 32 of Police Act which public assemblies. had been declared unconstitutional in 92 Andrew Mwenda Mujuni and the case of Muwanga 94 another v Attorney General Kivumbu v AG, (constitutional petition No. 2 court held that the of 2005). 93 94 Constitutional petition Constitutional petition no. 56 of 2013. no. 9 of 2005.

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impugned provision have a reason to was prohibitive base on not to grant and not regulatory permission an act and therefore not that infringed on the acceptable and freedom of expression demonstrably and association. The justifiable in a free judgment comes and democratic as a great relief to society and declared Ugandans against the it unconstitutional. brutality of police in The section granted limiting the freedom the inspector general of expression, it of police absolute is yet to be tested discretion and broad after the COVID 19 authority to stop or lockdown and when prevent the holding of the ban against public a public meeting. gatherings is lifted.

The police had on The court has been several occasions able to compensate used this section to individuals who have disperse and not suffered at the hands grant permission to of government security especially opposition forces as a way of leaders to hold addressing complains gatherings, the of violations against police would always human rights and

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condoning such acts. Individuals who The chief magistrate break the law. For court at Buganda instance, Dr. Stella road found Joram Nyanzi was charged Mwesigye guilty of and convicted with assaulting a WBS TV cyber harassment journalist, Andrew and offensive Lwanga. The police communication under officer was fined one the Computer Misuse million shillings and Act on the basis of a five million shillings poem she had posted compensation to the on Facebook.96 The assaulted journalist.95 prosecution and conviction of Dr. Stella Courts on some Naynzi by the court occasions have under the Computer pronounced Misuse Act was a judgments that limit contravention of her the enjoyment of right to freedom of freedom of expression. expression,97 this The court judgments because according are always penalties 96 Stella Nyanzi that restrict the v Uganda ( criminal enjoyment of freedom appeal no 79 0f of expression of 2019) 95 Free expression 97 Trial observa- and the law by HRNJ-UG. tion report; Uganda v

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to the ICCPR, the judgments curtail limitations should other individuals be prescribed by of the society to the law, serve a openly come out and legitimate objective criticize government and be necessary officials for fear of and proportionate to being arrested and that objective. The detained.98 proceedings against Stella Nyanzi were geared towards safeguarding the 6.3 rights and reputation Civil society of the president organizations and his family, it’s important to note Civil society that the president is organizations a public figure and provide a critical Dr. Stella’s poem was foundation for political commentary holding government’s situated within the accountable, ensuring large public debate good governance on the presidential and promoting policies. Such all human rights, including economic, Stella Nyanzi by Amer- social and cultural ican Bar Association, February 17, 2020. 98 Ibid

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rights. Governments representation to should recognize and journalists who publicly defend the were facing criminal role of civil society in prosecution arising the promotion and from the expression of protection of human their rights. rights. Chapter Four Uganda Civil society must be applauded organizations have for defending online championed in the freedoms. They litigation against laws have provided rapid that restrict freedom of legal response in expression, organized strategic cases to conferences and several prisoners carried out advocacy. of conscience after Human Rights their arrest because Network for Journalists of expressions made –Uganda has online.100 They have provided legal and been instrumental advocacy support to in Uganda, supra the victims of freedom of expression.99 It has provided legal 100 Chapter four 99 The Freedom Uganda is defending of Expression and freedom of expression Information Situation in Uganda. By

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in promoting online Chapter Four has activism that had been very vocal in for some time been creating awareness of ignored. Chapter freedom of expression Four provided legal through publishing representation to reports, and urging Robert Shaka who the government to was arrested for and uphold the freedoms charged for offensive of people. In its communication reports about police contrary to section brutality, Chapter 25 of the Computer Four, for example misuse act. He highlighted the was accused of incident on 18 August posting offensive 2018 where by NBS communication about journalists were president Museveni on attacked by security Facebook. Chapter officers in Arua town Four has filed a while preparing for petition in court a live transmission challenging section to report about the 25 of the computer situation in Arua misuse act.101 town. Men in security uniform marched prudence Nyamishana on July 15, 2016. Shaka v Attorney 101 Andrew General (Constitution Karamagi and Robert petition no 5 of 2016).

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towards them, pushed helped the police them and threatened identify its officers to beat them up if they and punish some of did not stop covering them and protect its the area.102 image. UHRC noted that the government In its 2018 report, the had tightened its Uganda Human Rights control over the work Commission identified of journalists and government’s security media houses often agencies as the through threats by the greatest violators UCC, its regulatory of human rights, body for the media. the highest number The commission has of human rights taken measures to complaints were condemn these acts submitted against by the state that limit the Uganda police the enjoyment of the force.103 This has freedom of expression.

102 UGANDA: End attacks on The Uganda Human journalist, hold Rights Commission perpetrators to conducted refresher account. Nicholas courses for police Opiyo. officers to enable 103 Uganda Human Rights Commission the first them realize the 21st annual report 2018. importance of

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people’s freedom and pioneered a pocketbook for police on basic human rights standards that was published in 2012.104 104 Pocketbook for 6.4 Various laws that threaten Article 29 which guarantees the right to freedom of expression Uganda has over the years enacted a number of laws that criminalize freedom of expression. Several of these national laws possess retrogressive provisions that are inconsistent with its obligations under International law and the Constitution. The government often exploits the vagueness in these provisions to suppress critical appraisals especially from the opposition. This chapter summarizes the gaps within some of the national laws of Uganda that threaten the freedom of expression.

Police on Basic Human Rights Standards: 2012.

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• Penal Code freedom of speech Act, Cap 120 and ultimately bars the public from This is the primary questioning economic criminal law in and social imbalances Uganda.105 It provides in society. In addition, a wide array of Section 53 and 159 criminal offences that criminalize defamation undermine freedom in contravention of of expression. the international One such offence approach that is the prevention defamation should be of sectarianism a civil wrong. Section under Section 41 33, 34, 35 and 36 which prohibits the grant the minister print, publication absolute powers to of utterance of any stop importation of statement that is likely publications that are to expose hatred or deemed unfit for contempt any group public consumption or body of persons on and whoever account of religion, imports, sells, offers tribe or ethnic or to sell or distributes regional origin. This them is liable to provision criminalizes imprisonment. Sections 49, 51 and 105 Penal Code cap (120). 52 unduly restrict

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and stifle free debate on matters of public interest by creating offences of wrongly inducing a boycott, incitement to violence and incitement to refuse or delay payment of tax respectively.

• Pubic Order Management of 2013(POMA)

POMA was enacted to provide for the regulation of public meetings. It gives wide discretionary powers to the Uganda Police Force to deny and disperse any assemblies where the organizers have not sought permission especially that disrupt business. The members of opposition have been affected mostly by this law. It controls rather than regulates assemblies and goes beyond to control the content of the meeting or gathering- discussions on politics or examining the performance of the elected government, not least its failures.106

106 Human Rights Network for Journalists, Media Freedom in Uganda- Analysis of Inequitable limitations, March 2014 Accessed at https:// hrnjuganda.org/?wpfb_dl=37 on 3/07/2020

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• The Computer Misuse Act, 2011

The Computer Misuse Act ensures safety and security of electronic transactions and information systems. The Act contains numerous vague provisions that infringe on the fundamental right to freedom of expression. For instance, Section 24 and 25 provide for cyber harassment and offensive communication that have been used to curtail freedom of expression. These provisions are in contravention with International laws and Article 43 of the constitution. Limitations of the enjoyment of freedom of expression shall not go beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in the Constitution.

• Anti- Terrorism Act, 2002

Section 8 of this Act on aiding and abetting terrorism is vague and too broad to meet the requirements under Article 19(3) of the ICCPR. Under Section 9 of this Act, any person who establishes runs or supports any institution for publishing

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and disseminating news or material that promotes terrorism commits an offence and shall be liable on conviction to suffer. Terrorism in itself is not defined in the Act leaving its parameters so elastic that the provisions can be exploited to prefer any sort of charges against individuals or groups of individuals.

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VIOLATIONS AGAINST FREEDOM OF EXPRESSION AND AVAILABLE LEGAL REDRESS

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7.1 Instances where freedom of expression has been violated in Uganda Despite the presence of constitutional provisions that guarantee the right to freedom of expression, the government continues its crackdown on public meetings and civil society groups using legislations and other forceful means by law enforcement mechanisms to stiffle free speech and other means of free expression.

Government increasingly has used repressive legislation like the Anti-Terrorism Act (ATA) from 2002, Interception of Communications Act, Computer Misuse Act, and Public Order Management Act (POMA) amongst many other directives and regulations. These amongst other means like arbitrary arrests, power cuts and sudden media blockades have resulted into grave violations to different groups of people like pressure groups, women activists and journalists as will be illustrated in this chapter.

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The Anti-Terrorist Act The act authorizes provides means for an authorized officer the president to call to intercept the out a group as a communications terrorist organization of any purposes without any form of for purposes of judicial procedure. safeguarding public interest and preventing The definition of terrorism. It also terrorist organization authorizes interception in this act is wide of telephone calls, and could be faxes, emails and applied on numerous other communications organizations. The ATA to be intercepted doesn’t define what on suspicion of exactly constitutes terrorism.108 terrorism in the law and thus giving the The threat of interpretation a wide unchecked arbitrary scope of surveillance thus interpretation and is looms over all who difficult for media and attempt to engage individuals to know in digital activism in which type of material is seen as promoting Act, 2002, Sec 7, accessed 107 on https://ulii.org, Sunday, terrorism. 19 July. 107 Anti-Terrorism 108 Ibid, sec 7,sec19

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Uganda on suspicion was being held under of terrorism.109 of the anti-terrorism act on suspicion The penalty for of involvement in publishing and subversive activities.110 disseminating material promoting terrorism International law can also result in bars under any an individual being circumstance an convicted to the death attack on a person penalty which is very because of the disproportionate and exercise of his or her a tactic to suppress freedom of opinion or freedom of expression expression, including amongst people. torture, threats to life and killing, and thus The Act was invoked the disproportionate in the arrest of penalties on journalist Augustine publishing and Okello based in Lira disseminating who disappeared information that and it was later is likely to be a discovered that he contravention of freedom of expression 109 Digital Activism and free expression in 110 http://www.rsf. Uganda, African Human org/uganda-anti -terrorist- Rights Law Journal unit

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as it is in the ATA.111It ban any open-air is thus likely to broadcasting like the occasion unnecessary popular “bimeeza” restriction on such in the country on any a vital freedom and topic.113 many rights there under.112 Another instance was in July 2015 The broadcasting where Basoga Baino council, currently Radio based in Jinja the Uganda and Baba FM, was Communication switched off at the Commission (UCC) main transmitter while pressured radio Besigye was a guest stations to suspend on a program. specific journalists who the council The station managers deemed had incited claimed publicly that it violence. The council was a technical glitch also went ahead to and the UCC denied 111 Art involvement. The 19,InternationalConvenant station management on Civil and Political suspended three Rights(ICCPR),accessed on https://www.ohchr.org,24th 113 Media Minefield, July 2020. Increased Threats to 112 Analyzed Cyber freedom of expression in Laws of Uganda, 2016. Uganda,02/05/2010

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journalists from their signed into law in 2013. jobs for over a month as a result of Besigye’s The act requires groups appearance.114 and organizations to register with the local These moves by the police before any broadcasting council gathering that provides and the different a political platform and legislations have left it further extends power a huge information to the police by granting gap and curtailed them the authority to participation in local permit or prohibit any political discussions. public meeting.

The right to hold This act has been used by public meetings and government to undermine peaceful gatherings any attempts to voice has also been severely opposition against restricted by the the administration. POMA,115 which was Political parties of the 114 Human Rights opposition have been Watch, Uganda; Ensure affected by the POMA as Free and Fair Elections, demonstrations against UnimpededMedia, government policies, are PoliceAccountability Critical to Campaigns, Accessed on and Management Act, No.9 of Sunday, 19, July 2020. 2013, accessed on https://ulii. 115 Public Order org,Sunday,19,July.

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regularly blocked or delayed due to procedural technicalities.

Peaceful protests held by students and youths have ended in mass arrests and detentions by police who have deemed the gatherings unlawful under the POMA.

Digital and cyberspaces have also largely been regulated to advertently repress freedom of expression by digital activists who have come out to challenge or question government institutions and the ruling parties. The arrest of various political activists on different cyber platforms for expressing opposing views or critiquing the government is a common instance where freedom of speech has been curtailed.

In 2016, Swaibu Nsamba Gwogyolonga, a political activist, was arrested and charged with defamation. The charge was brought because he had posted a picture of president Museveni lying dead in a coffin.116 116 Michael Odeng, Constitutional Court sought in Museveni defamation case, New Vision Uganda28th February 2017, New vision.co.ug.

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In 2017, David communication Mugema and to post offensive Jonah Muwanguzi messages about the were arrested and president Yoweri charged with offensive Kaguta Museveni’s communication for mother in a Facebook posting a song on communication as their social media well as criticizing the platforms calling minister of education, for the resignation who happens to of President Yoweri be the president’s Museveni.117 wife, for failing to provide schoolgirls The most notorious with easier access use of these to hygiene products. legislations was the The communication recent conviction was found to be in of Stella Nyanzi contravention of under the Computer section 24(1) (2) of Misuse Act, for the Computer Misuse using electronic Act whose provisions are to the effect that 117 Juliet Kigongo, Artist remanded for a person who uses a annoying Museveni, Daily computer to make any Monitor Uganda, Tuesday request, suggestion December, 5, 2017. or proposal which Accessed on 19th July, 2020 on monitor.co.ug. is obscene, lewd,

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lascivious or indecent attacks because of commits cyber their activities. harassment. When a state party International laws to an international include the right law invokes a of individuals to legitimate ground for criticize openly and to restriction of freedom publicly evaluate their of expression, it governments without must demonstrate fear of interference or in specific and punishment. individualized fashion the precise nature It follows therefore of the threat, and that under any the necessity and circumstances that proportionality of governments can’t the specific action attack a person taken, in particular because of the by establishing a exercise of his or her direct and immediate freedom of opinion or connection between expression, including the expression and the such forms of attack threat118. as arbitrary arrest, 118 International torture, threats, Covenant on Civil and intimidation and Political Rights, General Comment No.34, Article:

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The Uganda service for which one Communications Act requires authorization is also problematic from the commission as it has been used and all persons by the government offering online data in expanding its communication enforcement of services. the regulation, levying the fee on Ibrahim Bbossa, news organizations UCC’s head of and social media public relations, influencers with large cited the requirement followings including as necessary for some journalists, publishers as they celebrities, musicians are expected to and athletes. abide by the terms and conditions, to The UCC in be mindful of public exercise of its power morality and avoid under the Uganda promoting the culture Communications Act of violence among 2013, classified online the public.119The data communication services as a 119 Apollo communication Makubuya, UCC registers online publishers and Freedom of opinion and influencers, New Vision,5th expression August 2019

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government in the regulations, levying run up to presidential the fee on news elections used the organizations provisions of the and social media act which are to influencers with large monitor, inspect, followings including license, supervise, some journalists, control and regulate celebrities, musicians communications and athletes. services-to block access to Radio Katwe Another very because the online repressive regulation station was critical of is the Regulation the president. of Interception of Communication Act The Uganda (RICA)120.The act in its Communications long title provides for Commission, a state lawful interception and regulator, has required monitoring of certain online publishers to communications in register and pay a fee the course of their of $20 per year. transmission through 120 Regulation The government of Interception of Communication Act (RICA), expanded its 2010 accessed on https:// enforcement of ulii.org,Friday 24th, July 2020.

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a telecommunication, an attack on the right postal or any other to free expression. related service or The UN special system in Uganda rapporteur on the right and provision of an to freedom of opinion establishment of a and expression monitoring center. underscores the fact that states cannot The RICA has at guarantee people’s least one serious free expression without shortcoming: it respecting, protecting has a very low and promoting their burden of proof to right to privacy. establish necessity for Privacy and freedom surveillance to result of expression are into investigation so intertwined and thus posing a risk dependent. Therefore, of human rights an infringement on violations and one ultimately affects invasion of the right to the other. Without privacy. adequate legal standards to ensure This law generally privacy, security exacts a direct attack and anonymity of on people’s right to communicators, privacy which in turn is journalists and human rights defenders as

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well as whistleblowers Whatsapp, twitter and that their other over the top communications are media which if not free from interception paid led to blockage and government of access to social scrutiny then there is media. likely to be violations of freedom of The tax was clearly expression.121 unwelcome and protested by many Further violations have including students of been evidenced on Makerere University social media spaces. and popular activist The government of and parliamentarian Uganda in 2018 Robert Kyagulanyi as introduced a daily fee being repressive of the of shs.200($0.05) freedom of opinion to access popular and expression of social media platforms many Ugandans.122 including Facebook, Both parties were met 121 UN Human with extreme force by Rights Council, Report of the 122 Molly Schwartz, special rapporteur on the Ugandas Social Media Tax promotion and protection Is Causing a Youth Revolt, of the right to freedom of New York Magazine, Oct, 2, expression and expression, 2018, accessed on https:// (A/HRC/41/35/Add.2), nymag.com,Sunday 19th June 2012. July,2020.

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police to disperse the The tax has impacted demonstrators. on low income Ugandans and President Museveni affected accessibility had cited the use of to the social media the tax as important platforms. Reports to curtail gossip and indicated that, upon insults on social media the introduction of platforms. this tax, three million Ugandans lost access In Uganda, the to social media estimated number of platforms because of internet users is 43% the tax, this expressly which is loosely 19 renders accessible to million Ugandans social media platforms a challenge to many out of 45 million. 124 Of all people who Ugandans. accessed the internet, 92.0% of internet Students’ freedom users have used it for of expression, social networks thus especially through illustrating how much demonstration, has social media has been used by Ugandans Information Technology Survey,2017/18 Report, as a communication March 2018 123 channel. 124 Analyzed Cyber 123 National Laws of Uganda, 2016.

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also been targeted a included the use of number of times by live bullets.125 security operatives working for the These occurrences government. disregard the principles of The refusal by security proportionality and forces for student necessity as has been leadership to present discussed before. their grievances to The same principles the press and the mandate law deliberate barring of enforcement officers media access to such to exercise restraint information is nothing and avoid using lethal short of a breach of force if the harm freedom of expression inflicted outweighs the gains to be obtained. Several journalists reported being Ugandan artistes blocked or attacked recently took to by security forces twitter to decry the during their attempts 2020 Media Rules to cover the protests. and Regulations The brutality meted 125 Uganda: Security out on the students Forces Attack Students, by the security forces, Journalists, Uganda Human Rights November 4,2019.

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citing them as aimed to suppress their freedom of expression and opinion aimed at ruling out their participation in political activism through music and drama. The UCC recently put out these regulations that require artistes to acquire permits to perform their art and also to explicitly state the art they are doing as well as getting their performances and their song lyrics vetted by the commission.

Source: https://twitter. com/nxtradioug/

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status/1286167565111373824 Further the act of subduing students’ freedom of expression and right to assemble using violent means such as firing tear gas and breaking into their halls of residence are unlawful objectives. Police or any law enforcement officers to exercise restraint and avoid using force including lethal force as firearms should only be used to avert a threat to life, or serious injury and only where such threat is imminent and criminalization of peaceful protests is never a solution to managing divergent views.

7.2 Redress available to victims of violation of Freedom of Expression in Uganda

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2019 gives effect 7.2.1 to article 50 (4) The courts of law providing procedure in Uganda for enforcing human In Uganda, the main rights and in case of avenue for victims of violations the court violations of freedom shall issue orders it of expression to seek considers appropriate redress is the courts including an order for of law. compensation. These orders may include,

Article 50 (1) of • 1) the constitution of Rehabilitation Uganda provides for of the person recourse to the courts including of judicature by any medical or person or organization psychological to seek orders for care. redress when their • 2) Public human rights are apology violated which may include compensation. • 3) Restitution, compensation In addition, The or payment Human Rights ordered by (Enforcement)Act, the court inform

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of monetary damages for the assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case which shall be a civil debt owed to the victim of a human rights violation. An order under this law has to be complied with within six months, unless there is an appeal pending.

Other types of redress sought can be in form of challenges to the constitutionality of the laws under which the victim’s rights to expression is challenged.

In the case of Andrew Mujuni Mwenda & Anor vs. AG,126where the petitioner was charged with the crime of sedition, pursuant to sections 39 and 40 of the Penal Code because his remarks were made with the intention to incite hatred and contempt against the person of the President and Government. The Constitutional Court declared the provisions of the Penal Code that provided 126 Consolidate Constitutional Petitions No.12/2005 and No.3/ 2006.

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for the crime of sedition null and void because they were in contravention with the enjoyment of the right to freedom of expression. 7.2.2 The Uganda Human Rights commissions. (UHRC) Another avenue that can be utilized to seek redress is the human rights commission set up by the Ugandan constitution with its mandate as per Article 51 (1), (a) which includes investigation, at its own initiative or on a complaint made by any person or group of persons against the violation of any human right including the right to freedom of expression.

Under Article 53 (2), the UHRC may, if satisfied that there has been an infringement of a human right or freedom, order:

a) The release of a detained or restricted person. b) Payment of compensation; or

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c) Any other and Peoples Rights,128 legal remedy or the African or redress. Commission on Human and Peoples Rights as was done in the case of Ghazi 7.2.3 Suleimani v Sudan129. Interregional and Regional avenues. If it is not possible to achieve justice at the 128 African-court. org. 2020. African local level, a victim of a Court On Human violation of their right to And Peoples’ Rights. freedom of expression [online] Available can seek redress from at: [Accessed 3 July the East African Court of 2020]. justice as was sought by the Burundian Journalists Association127, or even 129 African seek redress from the Commission on Human African Court of Human and Peoples Rights Communication No.228/99 127 East African Court Sixteenth Activity Report of Justice: Burundian Journalist 2002-2003, Annex VII. Union V Attorney General of the Republic of Burundi, reference No. 7 of 2013 (2015).

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FREEDOM OF EXPRESSION IN TIMES OF EMERGENCIES (COVID 19)

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In the wake of covid-19 pandemic, the whole world was brought to a standstill. Uganda was not spared either. In order to slow down the spread of the virus, the government through the president enacted a number of measures.

In Uganda alone, as of September 8th 2020 the total cases of infected persons were 3288 with 1532 recoveries and 33 deaths,130 September 7 worldwide total cases were 26.6 million with 17.7 million recoveries and 875,000 deaths.131 These statistics paint a grim but clear picture of the devastation the pandemic has had on the world population.

After the pandemic was declared to be of a global nature by the World Health Organization,132 most state governments 130 “Covid-19”. 2020. Covid19.Gou. Go.Ug. https://covid19.gou.go.ug/statistics.html. 131 “COVID-19 Situation Update Worldwide, As of 7 September 2020”. 2020. European Centre for Disease Prevention and Control. https://www. ecdc.europa.eu/en/geographical-distribution-2019- ncov-cases. 132 “The WHO Just Declared Corona

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took measures to curb the spread of the virus all in the name of protecting the public health of the persons within their borders. It is almost certain that in times of crisis where there is a threat to public health of this magnitude, governments suspend certain fundamental liberties or put in place restrictive measures than they would in normal times and understandably so. That notwithstanding, many governments seem to be using the Corona virus outbreak as an opportunity to further entrench repressive measures violating the limits in place under international law and their own domestic laws. There has been increased surveillance, restrictions on free expression and access to information, and limits on public participation in various activities especially public gatherings are becoming increasingly common.

In Uganda, covid-19 control legal measures were and are still getting announced by the president and then virus COVID-19 a Pandemic”. 2020. Time. https:// time.com/5791661/who-coronavirus-pandemic- declaration/.

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published as legal Even though most of instruments by the these controls and ministry of health legal measures are under the Public necessary responses to Health Act and the pandemic, they have regulations. These also impacted albeit include the Public negatively on a variety Health (Prohibition of of fundamental rights Entry into Uganda) including but not limited Order, 2020, Public to freedom of assembly Health (Prevention and association and the of COVID - 19) freedom of expression (Requirements and which is the focus of this Conditions of Entry chapter. into Uganda) Order, 2020, Public Health The constitution of (Notification of Uganda of 1995 as COVID – 19) Order, amended and quite a 2020.133 number of international 133 “COVID-19 legal instruments Legal and Policy Response Resource Guide for guarantee that all Uganda | Uganda Legal persons have a right to Information Institute”. freedom of expression 2020. Ulii.Org. https:// and Article 29(1) of the ulii.org/blogs/admin/28- constitution provides that march-2020/covid-19- legal-and-policy-response- every person shall have resource-guide-uganda. the right to freedom of

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speech and expression to achieve the stated which shall include aim and demonstrably freedom of the press and justifiable in a democratic other media. society as provided for under Article 43. Though the right is guaranteed, it is not The covid-19 pandemic absolute and can be has created an limited. However, any opportunity for the state limitation must be to place unjustified prescribed by law, serve a restrictions on freedom of legitimate aim, it must be expression of Ugandan necessary, least restrictive citizens in the following and proportionate means ways:

• The pandemic has provided an excuse for law enforcement officers to settle scores by harassing, arresting and intimidating dissident writers and government critics; this has in essence violated their right to express themselves freely about all matters eventually leading to self-censorship. A case in point is the arrest of journalist Kakwenza Rukira Bashaija who was picked from his home on Monday 13th April 2020 and charged 7 days later under

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section 171 of the Penal Code Act cap 120 of “doing an act likely to spread the infection of disease.” He was accused of unlawfully / negligently posting messages on his Facebook account mobilizing the public against complying with public health guidelines and directives issued to prevent spread of COVID -19.134

• The pandemic has had an impact on freedom of expression in such a way that accesses to information and avenues for expression have been restricted to social media, television and radio which are not accessed by some of Ugandans. Print media has been affected extensively as many news companies have suspended workers and downsized operations135. The use of social media and television attracts a fee that poor population is burdened with in order to have access to 134 2020. https://pen-international.org/news/ uganda-release-kakwenza-rukirabashaija. 135 2020. Kas.De. https://www.kas.de/ documents/280229/8800435/COVID-

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information. This has inadvertently led to shrinking of the spaces for freedom of expression.

Freedom of expression and speech has also been greatly impacted by the decision of the Electoral Commission in Uganda to change the way elections are to be conducted during the crisis. The Electoral commission made a decision to ban mass political rallies in all elections happening during the pandemic reasoning that reaching out to voters and gathering crowds for campaigns violates the standard operating procedures put in place by the Ministry of Health and thus calling for ‘scientific campaigns.136 Many people were riled by the decision and in their opinions saw it as a measure aimed at gagging the free expression of political candidates as provided for under section 20 of the Parliamentary Elections Act and section 3 and 21 of the Presidential 136 Anthony Wesaka Electoral Commission Scientific Campaigns challenged in court, Friday June 19 2020 accessed on 4/09/2020 https:// www.monitor.co.ug/News/National/EC-scientific- campaigns-court-Byabakama-Kabuleta

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Elections Act among other laws by setting arbitrary and unjustifiable standards which are neither enshrined in the Constitution nor the laws of Uganda. This has also culminated into commercialization of freedom of expression where by politicians have to buy air time on media houses to communicate to the electorate. This has put the opposition who are at a disadvantage because they don’t own media houses compared to their NRM counter parts, most challenging is the fees being charged by the media house which some politicians can’t afford.

• Social media has been adopted by Ugandans as a measure of sending political messages across their audience. Social media has gained momentum because the traditional means of passing on information like assemblies, physical campaigns and interactions were banned thus many Ugandans resorted to using social media platforms to send across various political messages. This has led to harsh government

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crackdown and surveillance of people who talk about various issues online.

• The state in its efforts to fight disinformation and misinformation has certainly overstepped and curtailed the freedom of expression of its citizens by relying on vague regulations and presidential directives to prohibit persons from talking about COVID 19 or expose conditions in quarantine centers, cast doubt about the official statements by the state are intimidated, harassed and some arrested. A Prominent Journalist Kazibwe Bashir was arrested for taking a phone call on live radio from persons inside COVID 19 quarantine centers who were describing the despicable conditions therein137 and a prominent pastor in Kampala known as pastor Augustine Yiga 137 “NBS TV Journalist Kazibwe Bashir Arrested Over ‘False’ COVID-19 Comments | Ekyooto Uganda”. 2020. Ekyooto Uganda. https://ekyooto. co.uk/2020/05/29/nbs-tv-journalist-kazibwe-bashir- arrested-over-false-covid-19-comments/.

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was also arrested and detained for releasing a video where he likened COVID 19 to simple flu therefore misleading the public.138 The pandemic has in essence provided the state with power to be the arbiters of the truthfulness or falsity of the COVID 19 related content undermining the constitutional right to free expression of their citizens whether the views are opposed or objected to as false or wrong.

Most of these actions taken by the state are demonstrably unjustifiable, in that the state has less restrictive means at its disposal to serve their legitimate aim of protecting public health without violating human rights;

• The state could counter misinformation and disinformation by collaborating with media 138 “Pastor Yiga Arrested for Misleading Public On COVID-19”. 2020. Daily Monitor. https://www. monitor.co.ug/News/National/Pastor-Yiga-arrested- misleading-public-COVID19/688334-5507644- 1380ounz/index.html.

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companies and telecom companies to provide timely and reliable information through official channels.

• Campaign rallies could be allowed in places that have facilities for observing standard operating procedures to curb the spread of COVID 19 and law enforcement role is to be on hand to ensure persons have masks, are maintaining social distancing and sanitizing or washing hands instead of an outright ban on protests and campaign rallies

• The press and its members should be designated as essential given the crucial role they play in ensuring people’s freedom of expression is guaranteed, the social media and online space should not be suffocated since it is the safest way for persons to express themselves virtually without necessarily putting others at risk.

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Recommendations

• There is need for a binding express regional law on academic freedom and university autonomy. The Kampala Declaration on Intellectual Freedom and Social Responsibility was made to be a standard bearer for the African Intellectual community. Now that a standard was set, a law needs to be established that binds state parties to their responsibilities regarding academic freedom as a distinctive right. This would make the right more operational.

• The existing statutes in Uganda that have barred the enjoyment of academic freedom need to be properly streamlined to fit into the academic arena. The legislature has the task to amend several provisions of the laws that limit the enjoyment of the right to freedom of expression. This can be done through legislative advocacy.

• The crimes reported against the police for violation of the freedom of expression and other human rights should be properly, impartially and effectively investigated for

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full accountability to end impunity for human rights violations in Uganda.139 The courts of law should stand out to condemn the increasing violations of human rights and expeditiously handle cases relating to human rights violations. The police should empower its officers to respect human rights as this will in the long run reduce on the violations.

• Government should implement the constitutional court decisions in the case of Mwenda overturning the sedition provision and should immediately dismiss all sedition charges against journalists and politicians.140 This provision has continuously been used even after the court annulling it, the court should compel the government to honor its judgments.

• Lastly the parliament should carry out an assessment of all laws passed and harmonize them with article 29 of the constitution and international laws and those that don’t conform to the standard should be repealed.

139 Chapter Four; UGANDA: End attacks on journalist, hold perpetrators to account. Nicholas Opiyo. 140 Human rights network for journalists-Uganda –UPR Report.

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Conclusion In summary, this handbook points out that the fundamental right to express ideas and opinion without arbitrary interference is inherent and not granted by the state. It is one of the most important freedoms that underpin almost all the other fundamental rights. It is critical in aiding individual self-realization by enabling all forms of expression.141It is essential for the proper functioning of a free and democratic society, guarantees a proper functioning press and other media and also aids in the search for truth and advancement of knowledge.142

The manual further has an analysis on understanding the scope of permissible restrictions on freedom of expression both under the domestic and International legal framework. From the discussions, it is clear that the Constitution of Uganda under Chapter 4 specifically provides for freedom of expression. It is also clear that the same law limits this right

141 Chapter Four; UGANDA: End attacks on journalist, hold perpetrators to account. Nicholas Opiyo 142 Human rights network for journalists-Uganda supra

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by introducing into the picture the issue of public interest and rights of others. The importance of freedom of expression cannot be overstated. A country that cannot freely engage in discussions about issues affecting its people especially on governance matters suffocates growth and development. The legislature has used this limitation to draft laws that limit freedom of expression in the country. It is therefore in everyone’s interests that all laws enacted for purposes of limiting the freedom of expression do not attack Article 29 of the Constitution directly and fall within the permissible limitations under International law and Article 43 of the Ugandan Constitution.

The government through its agencies like police has continuously violated freedom of expression and the manual seeks to offer where an individual can get redress, whose right to freedom of expression like the courts of law, the Uganda Human Rights Commission and also the inter -regional and Regional Tribunals. It’s important to note that the government has also been able to come up with platforms that promote freedom of expression.

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