Legal issue

Whether the criminal defamation laws in Sections 179 and 180 of the Penal Code Act, Cap.120 amount to a violation of Articles 6(d), 7(2), 8(1)(a) & (c) of the Treaty for the Establishment of the East African Community.

Ruling

The Court dismissed the application because it was filed in contravention of the Article 30(2) of the Treaty for the Establishment of the East African Community which provides that the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of the Treaty can only be instituted within two months for enactment of the law complained of. This Reference was brought on 2 December, 2014 yet the Penal Code was enacted in 1950. Thus, according to the Court it was time-barred.

Reasoning of the Court

The Court reasoned that there was no enabling provision in the Treaty to disregard the time limit set under Article 30(2). It further declined to consider the doctrine of continuous breach or violation of human rights outside the two months. In the Court’s wisdom, the language of Article 30(2) on time limitations, does not allow the interpretation of this provision together with other provisions of the Treaty.

Mr. Ronald Ssembuusi was employed as a journalist with the Central Broadcasting Service Ltd in Uganda. He was convicted of criminal defamation and fined 500,000 Shillings. The conviction resulted from a story he aired on radio in which he alleged that government officials in Kalangala District were involved in the theft of solar panels meant to pump clean water to Kalangala Town Council. Aggrieved, the applicant contended before the East African Court of Justice that his conviction, punishment and the continued enforcement of the criminal defamation provisions under sections 179 and 180 of the Penal Code Act, Cap. 120 violate Articles 6(d), 7(2), 8(1)(a) & (c) of the Treaty for the Establishment of the East African Community. The applicant further claimed that the provisions on criminal defamation have a chilling effect on the enjoyment of the right to freedom of expression, the press and right to access information in the context of Articles 6,7 and 8 of the Treaty for the Establishment of the East African Community.

This reference was brought on 2nd December, 2014 under Articles 6(d), 7(2), 8(1)(a) and (c) and 30(1) of the Treaty for the Establishment of the East African Community; Rules 24 of the East African Court of Justice Rules of Procedures. The applicant passed away on the 2nd January, 2015 after the Reference had been filed. As a result of the death of the applicant, an amended reference was filed as Application No. 2 of 2015 (arising from Reference No. 16 of 2014-MLDI&19 others v Ronald Ssembuusi-deceased & AG of Uganda. The Reference was heard by the Court on 30th July, 2016. The UN and the AU Special Rapporteurs on freedom of expression and a group of different national, regional and international organisations led by the Medial Legal Defence Initiative in London (Including Centre for Public Interest Law) being interested in the matter applied for leave of Court to file amicus briefs. They were admitted as friends of the Court. The Attorney General of Uganda appealed against the decision to allow the various interested groups as friends of the Court giving rise to several other applications. On appeal to the Appeal Division of the East African Court of Justice, the Medial Legal Defence Initiative was struck off from the application.

Applications for enforcement of human rights and fundamental freedoms including civic freedoms can only be entertained by the East African Court of Justice where they are brought within the time limits prescribed under Article 30(2) of the Treaty.