Legal issue

(i) Whether Sections 5(1)(d), 6(a), 8, 10(2), 11, 16(2) and (3), 26, 27(1) and (2), 28(b); 29(2), 34(3), 40(3), 42(2)(d) and paragraphs 1 and 2 of the Fourth Schedule of the Press and Journalist Act Cap. 105 (as amended) are inconsistent with and / or in contravention of Articles 28(12), 29(1)(a) and (e), and 40(2) of the Constitution; (ii) Whether sections 5(1)(d)), 6(a), 8, 10(2), 11, 16(2) and (3), 26, 27(1) and (2), 28(b), 29(2), 34(3), 40(3), 42(2)(d) and paragraphs 1 and 2 of the Fourth Schedule of the Press and Journalist Act Cap 105 (as amended) are acceptable and demonstrably justifiable under Article 43(2)(c) of the Constitution.

Ruling

The Court held that the impugned provisions of the Press and Journalist Act that require media publications or broadcasts to abide basic tenets of public morality have their origin in international human rights instruments which Uganda is legally bound to uphold. The disciplinary measures reflected in Section 34(3) are conventional and thus serve the legitimate purpose of achieving compliance with the mass media regulatory regime prescribed in the Act. Indeed, the Court found that the limitations in both statutory provisions do not erode or otherwise render the right to freedom of expression illusory.

Reasoning of the Court

The Court reasoned that the objective of the law was to ensure freedom of expression, by instrusting a regulatory body with the responsbility of regulating mass media in Uganda. According to the Court, the vitality of a free press to a free and democratic society, would inevitably be realised from the regulatory framework.

The petitioners challenged Sections 5(1)(d), 6(a), 8, 9, 10(2), 11, 16(2) and (3), 26, 27(1) and (2), 28(b), 29(2), 34(3), 40(3), 42(2)(d) and paragraphs 1 and 2 of the Fourth Schedule of the Press and Journalist (Act Cap 105) as amended, on the grounds that they were inconsistent with the right to a fair hearing; freedom of conscience, expression, assembly and association, and right to practice one’s profession or trade as enshrined in Articles 28, 29(1) and 40(2) of the Constitution. According to the petitioners, freedom of expression enshrined in Article 29(1)(a) was unduly restricted by Section 6(a) in so far as it vaguely required proprietors and editors of mass media organizations to ensure that the publications they issue, are not contrary to public morality. Sections 8 and 11 read with sections 9, 10(2) and 40(3) granted the Minister wide powers to intervene in the Media Council and Disciplinary Committee. To the petitioners, the Minister as well as the Media Council and Disciplinary powers, curtailed the freedom of the press that is inherent in Article 29(1)(a). Related, the petitioners argued that sections 16, 26, 27(1) and (2), 28(b), 29(2) and 42, all of which sought to regulate the qualifications of journalism through, licensing and accreditation, among other requirements, were inconsistent with the freedoms of expression, conscience and association as protected in Article 29(1)(a) and (e). Clauses 1 and 2 of the Professional Code of Ethics in the Fourth Schedule to the Act, similarly denied journalists their right to freedom of expression.

In 2014, the petitioners filed a petition in the Constitutional Court contending that Sections of the Press & Journalists Act, Cap. 105 were inconsistent with the Constitution.

The judgment affirms the regulatory mandate of the Council, but more importantly the role such an organ plays in a democratic society as espoused in Uganda’s laws and indeed by international laws. In this context, media personnel have a duty to ensure the statutory role of the Council and other related bodies is affected fairly and in accordance with the laws.