Legal issue

Whether section 25 of the Computer Misuse Act No. 2 of 2011 threatens or infringes online/digital freedom of expression and is inconsistent with and or contravenes Article 29 (1) of the 1995 Constitution.

Ruling

The Court held that Section 25 of the Computer Misuse Act, is unjustifiable as it curtails the freedom of speech in a free and democratic society. It was also found that Section 25 of the Computer Misuse Act No. 2 of 2011 did not specify what conduct constitutes offensive communication. To that extent it does not afford sufficient guidance for legal debate. Furthermore, the court found that the said Section was vague, overly broad and ambiguous. Court concluded that the impugned Section was inconsistent with and/or in contravention of Article 29 (1)(a) of the Constitution.

Reasoning of the Court

The Court reasoned that in a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression. In other words, the yardstick is that, the limitation under the impugned Section must be acceptable and demonstrably justifiable in a free and democratic society. The Court referred to 43 of the Constitution as “a limitation upon the limitation” meaning that a limitation on the enjoyment of a protected right in defence of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalised, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society.

The petitioners alleged that Section 25 of the Computer Misuse Act, No. 2 which declares it an offence for any person to “wilfully and repeatedly use electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication” is inconsistent with and in contravention of Article 29(1)(a) of the Constitution. In 2016, Andrew Karamagi and Robert Shaka filed a petition before the Constitutional Court invoking Article 137 of the Constitution, and asked the Court to declare that Section 25 of the Computer Misuse Act, is inconsistent with and or in contravention of Article 29(1)(a) of the Constitution. The Petitioners argued that this provision was vague, lacked clarity and the legislature had failed to define certain terms used in the law in the interpretation section of the law. They further alleged that: (a) the impugned section is an insidious form of censorship which restricts the free flow of opinions and ideas essential to sustain the collective life of the citizenry in the digital age, and (b) there is no evidence that Government could not achieve the intended purpose with less drastic measures

This Petition was brought under Article 137 of the 1995 Constitution of Uganda and the Constitutional Court (Petitions and References) Rules 2005 Statutory Instrument No. 91 of 2005. The petitioners alleged that Section 25 of the Computer Misuse Act, No. 2 of 2011 which declares it an offence for any person to “willfully and repeatedly use electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication” is inconsistent with and in contravention of Article 29(1)(a) of the Constitution. It should be recalled that in 2011, Uganda enacted the Computer Misuse Act. This legislation was intended to regulate online communication. In 2016, the petitioners invoked Article 137 of the Constitution of Uganda to test the constitutionality of Section 25 of the Computer Misuse Act, No. 02 as amended. On 10 January 2023, the Court gave its judgement in the matter.

Penal laws that limit the enjoyment of digital or online freedom of speech and expression should be clear, proportionate and must serve a legitimate aim.