Legal issue

(i) Whether Sections 39(1)(a) and 40(1)(a) of the Penal Code Act Cap.120, contravene Article 29 (1) (a) of the Constitution in as far as they limit the enjoyment of the right to freedom of expression prescribed in the Constitution; (ii) Whether the limitations imposed by Sections 39 (1) (a) and 40 (1) (a) are demonstrably justifiable in a free and democratic society in the meaning of Article 43(2) (c) of the Constitution.

Ruling

The Court found that the sedition crimes, embodied in Sections 39 and 40 of the Penal Code Act Cap.120, were inconsistent with Article 29 (1) (a) of the Constitution that guarantees freedom of expression. It further declared that the burden of proof was on the State to show that the remarks made by the petitioner unduly affected the public interest. The Court found that the State did not provide evidence to prove prejudices to the public interest. According to the Court, the sedition provisions were too vague and inhibited the enjoyment of the right to freedom of expression under the Constitution. It concluded that the wording of the impugned Sections had an endless catchment area that created an infringement on the rights enshrined in Article 29(1) (a).

Reasoning of the Court

The Court opined that the wording of Sections 39 and 40 created the offense of sedition that was so vague that one may not know its boundaries, in order to avoid committing the crime, while exercising the right guaranteed under 29(I) (a). It further expressed concern that the provisions of the offense were so wide that they have the effect of criminalizing persons in enjoying their freedom of expression.

Mwenda, a veteran journalist, while hosting a live talk show, he alleged that the government of Uganda, was partly responsible for the death of the former first Vice-President of Sudan, John Garang, who was killed in a helicopter crash after his visit to Uganda. He was charged with sedition under Sections 39(1)(a) and 40(1)(a) of the Penal Code (Chapter 120). It was alleged that his remarks were intended to bring into hatred and contempt as well as to excite disaffection against the President, the government and the Constitution. Aggrieved by the prosecution, Mwenda and the Eastern African Media Institute (EAMI), a media training college, challenged the constitutionality of the sections of the Penal Code Act Cap.120 that created the offense of sedition, on the grounds that they are contrary to Articles 29 (1) (a) and 43 of the Constitution that guarantee the right to freedom of expression and prescribe permissible limitation to fundamental rights, respectively. The petitioners further averred that the impugned provisions were vague contrary to Article 28(12) of the Constitution which requires criminal offenses and their penalties to be clearly defined and prescribed by law.

Andrew Mwenda, a veteran journalist was charged with sedition under Sections 39(1)(a) and 40(1)(a) of the Penal Code Act, Cap. 120 for comments he made while hosting a live talk show. It was alleged that his utterances were intended to bring into hatred and contempt as well as to excite disaffection against the President, the government and the Constitution. Aggrieved by the said prosecution, Mwenda and the Eastern African Media Institute (EAMI), a media training college, challenged his prosecution, arguing that it was unconstitutional as the said provisions of the Penal Code unjustifiably limited his right to freedom of expression under Article 29 (1).

This decision is significant in that it confirms that the burden of proof is on the State to prove that the comments made unduly affected the public interest in order for it to impose a justifiable limitation on the freedom of expression. This judgment also requires States to ensure that criminal laws that have an effect of limiting the enjoyment of rights, are clearly defined and their penalties prescribed.