Legal issue

Whether Section 179 of the Penal Code Act, Cap. 120 is inconsistent with Article 29(1)(a) of the Constitution. Whether the limitations imposed by section 179 are permissible under Article 43 as demonstrably justifiable in a free and democratic society.

Ruling

The Court unanimously upheld Section 179 as constitutional. According to the Justices of the Constitutional Court, to find otherwise, would mean that the right of freedom of expression was unlimited and this would contravene Article 43 of the Constitution. The Court, therefore, dismissed the petition in its entirety and ordered the continuation of the criminal proceedings.

Reasoning of the Court

The Court opined that reputation has two embedded rights, “the right of an individual to have his reputation protected by law, and secondly, the public interest embedded in the individual’s reputation by virtue of the fact that the individual is a member of the public and renders service to the public.” Additionally, the Court reiterated that although the Constitution does not make an explicit reference to reputation, its importance is implied by necessity under Article 45 of the Constitution. It reasoned that criminal sanctions were justified because those who deliberately publish lies intending to damage a person’s reputation commit an egregious act, comparable to acts of assault, fraud, even murder and manslaughter and should be punished.

Joachim Buwembo, Bernard Tabaire, Emmanuel Davies Gyezaho, and Mukasa Robert (Applicants) were professional journalists with the Daily Monitor Newspaper. In August 2007, they co-published two articles about a scandal involving the Inspector General of Government, Faith Mwondha. Following her complaint to the police, the applicants were arrested and charged with unlawful publication of defamatory matter, under Sections 179 and 22 of the Penal Code Act. During the criminal proceedings, the applicants petitioned the Constitutional Court challenging the constitutionality of Section 179, contending that the criminalization of libel is inconsistent with Article 29(1)(a) of the Constitution, which recognizes freedom of expression, including a free press, as a fundamental right. They also argued that the impugned criminal provision could not be considered as a lawful means of restricting free speech under Article 43 of the Constitution because the criminalization of a defamatory writing does not protect any known freedom of any person other than the reputation of the complainant, nor does it concern public interest because defamation is a tort and it affects the complainant individually – an action in defamation dies with the person defamed.

This Constitutional Reference arose out of Criminal Case No. 41 of 2008, instituted at Nakawa Magistrates Court, wherein the four applicants, namely Joachim Buwembo, Bernard Tabaire, Emmanuel Davies Gyezaho and Mukasa Robert, were jointly charged with libel, contrary to Sections 179 and 22 of the Penal Code Act. Following an article published by the applicants in the Daily Monitor, a print media, in August 2007, in which they alleged that the Inspector General of Government, Faith Mwondha was involved in the mismanagement of public funds, the IGG lodged a complaint before police and the applicants were arrested. They were charged with libel contrary to Section 179 of the Penal Code Act, Cap. 120. The Applicants petitioned the Constitutional Court under Article 137 seeking the constitutionality of their prosecution for libel. The Court handed down its decisions on 4th June 2009.

Criminal sanctions are demonstrably justifiable limitation to the enjoyment of freedom of expression within the meaning of Article 43(2)(c) of the Constitution. Persons who deliberately publish lies intending to damage another’s reputation should be punished.