Legal issue

(i) Whether limitations on freedom of thought, conscience and the press imposed by the offense of publishing false news under Section 50 of the Penal Code Act. Cap. 120 is justifiable in a free and democratic society within the meaning of Article 43 of the Constitution. (ii) Whether Section 50 of the Penal Code Act Cap.120 clearly defines the offense of publishing false news and its penalty in the meaning of Article 28 (12) of the Constitution.

Ruling

The Court declared that Section 50 fails the test laid down in clause 2 (c) of Article 43 of the Constitution in as far as the limitation it imposes on the right to freedom of speech and expression, as well as freedom of press and other media expression is not justifiable in a free and democratic society and therefore struck down the provision. It also found that the offense and penalty of publishing false news under Section 50 were not clearly defined as required by Article 28(12). The Court held that the freedom of expression guaranteed under Article 29 of the Constitution extended to expression or publication of false news. It rejected the contention that extension of the constitutional protection of freedom of expression to cover false statements is incompatible with ‘upholding truth.’ It instead stated that a scrutiny of the limitation of the enjoyment of the right under Article 43 did not lend any support to the proposition that the protection excludes false expressions. The Court further found that in the circumstance of a conflict in constitutional provisions, wherein there are provisions in the Constitution for both protection and limitation of rights, the Court is under the duty to resolve the conflict having in mind the different objectives of the Constitution; and in doing this, it should take guaranteed rights as the primary objective of the Constitution.

Reasoning of the Court

The Supreme Court reasoned that limiting the enjoyment of freedoms is an exception to their protection, and, therefore, a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary objective. In that eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstance is permissible. The exceptional circumstances set out in clause (1) of Article 43 are the prejudice or violation of protected rights of others and prejudice or breach of social values categorized as public interest.

The appellants, Charles Onyango Obbo and Andrew Mujuni Mwenda, were practising journalists. On 24 October 1997, the two were charged in the Magistrates’ Court with publication of false news, contrary to section 50 of the Penal Code Act. The charges arose from a story that the appellants extracted from a foreign paper known as The Indian Ocean Newsletter, and published in the Sunday Monitor of 21st September 1997, under the headline: “Kabila paid Uganda in Gold, says report”. The appellants petitioned the Constitutional Court, arguing that: (1) the action of the DPP to prosecute them was inconsistent with the provisions of Articles 29 (1) (a) and (e), 40 (2) and 43 (2) (c) of the Constitution; and (2) that Section 50 is inconsistent with the provisions of Articles 29 (1) (a) and (b), 40 (2) and 43 (2) (c) of the Constitution. The Constitutional Court dismissed their petition finding that the impugned provisions were not absolute and therefore could be limited by Section 50. Dissatisfied with the Constitutional Court’s decision, the petitioners sought relief from the Supreme Court contending that the Constitutional Court: (1) did not pronounce itself on whether the limitation imposed by Section 50 was demonstrably justifiable in a free and democratic society within the meaning of Article 43 (2) (c) of the Constitution and it did not address its mind on the requirement of Article 28 (12) of the Constitution that requires criminal laws to be clear and their penalties well defined .

The appellants were charged with publishing false news. They challenged before the Constitutional Court the action of the Director of Public Prosecutions (DPP) to prosecute them. The Constitutional Court postponed consideration of the petition pending conclusion of the criminal case. The Trial Court acquitted the appellants of the criminal charges. Subsequently, the Constitutional Court considered the petition and found that the DPP’s action was lawful and accordingly dismissed the petition. The appellants sought the intervention of the Supreme Court, not to challenge the failure to consider the constitutionality of other matters relating to their prosecution.

Laws restricting freedom of expression should be demonstrably justifiable in a free and democratic society. 2. Criminal offenses and their penalties must be clearly defined. 3. The offense of publishing false news does not serve any purpose and has no legitimate objective.