Legal issue

Whether Sections 7(1) and (2), 9(3), 11(2)(3) and (4), 13, 14(5), 16(4)(d)(iii), 29(a), 61(b), 63(2), 67(1)(f) and (2), 72(1) and (2) of the Uganda Communications Act, 2013 are inconsistent with Article 29(1)(a) of the 1995 Constitution of the Republic of Uganda.

Ruling

Court stated that the protection of the freedom of the press is aimed at preventing the State from doing any act which may interfere with the transmission of ideas and opinions by the press. It also found that the State is prevented from carrying out such acts such as censorship and any other that may directly prevent the press from publishing particular content. However, the Court rejected the petitioners’ contention that the oversight role of the Minister of Information Communications Technology and National Guidance under the Communications Act, had a likelihood of making political decisions with regards to exerting direct or indirect pressure to achieve those political decisions. The Court further held that the contention by the petitioners that freedom of the press envisages an independent regulatory body for the communication sector was not backed with any binding international human rights instruments and that the concept is similarly not defined under Article 29(1)(a) of the Constitution of Uganda.

Reasoning of the Court

The Court reasoned that the allegation by the petitioners that the Minister would make political decisions were cynical and that were not supported with any evidence. It opined that the Minister plays an oversight role over the Uganda Communications Commission, its board and the UCT. Under Section 4 of the Communications Act, the Uganda Communications Commission is a body corporate and Section 8 allows it to exercise its mandate independently subject to the oversight role of the Minister. These provisions qualify the Uganda Communications Commission as an independent regulatory body for the communications sector envisaged in the international standards and norms. While the Court admitted that the Minister may exert pressure and thus perpetuate illegal pressure on the Uganda Communications Commission and its Board or the Executive Director and this may lead to arbitrary acts that could result into the violation of freedom of the press, such indiscretions when committed are not sanctioned by the Act and are liable to be challenged in the courts of law.

The Uganda Communications Act, 2013 contained provisions that relate to the regulation of the entire communication structure in Uganda. In this regard, it regulated the media sector. The petitioners are human rights organisations that advocate for the promotion of media rights. They were concerned with provisions of the Communications Act, in particular Sections 7(1) and (2), 9(3), 11(2)(3) and (4), 13, 14(5), 16(4)(d)(iii), 29(a), 61(b), 63(2), 67(1)(f) and (2), 72(1) and (2) and the relationship of these provisions with the enjoyment of freedom of expression that is encapsulated under Article 29(1)(a) of the Constitution. Thus, they petitioned the Constitutional Court arguing that the impugned provisions of the Communications Act, unreasonably limit the enjoyment of freedom of the press therefore contravene Article 29(1)(a).

This petition was filed under Article 137(1) and (3) of the 1995 Constitution of Uganda and Rule 2 of the Constitutional Court (Petitions and References) Rules, 2005.

The fact of that a Minister is a political appointee who oversees the work of a statutory independent body responsible for the regulation of freedom of the press does not amount to the violation of Article 29(1)(a) of the Constitution. Where the Minister acts arbitrarily or illegally, such acts are liable to legal scrutiny.