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Why Museveni, Owiny-Dollo need to read earlier court decisions on insulting public officials

President Museveni and Chief Justice Alfonse Owiny-Dollo last week added fuel to the debate on insulting people in positions of responsibility, which has attracted intense attention in recent weeks.

What are the boundaries of what can be regarded as free speech? What sanctions should be applied to whoever oversteps those boundaries?

A number of people are currently before court battling charges of either insulting Museveni or his family on the internet and the president, when he spoke to judges last week, was clear that he doesn’t tolerate insults.

“According to some cultures, Okurahura [insulting] is free speech; that free speech was just speaking. Speaking by insulting me and my mother?” Museveni wondered. He was speaking on February 4 during the New Law year function at the High Court in Kampala.

Outspoken activist Stella Nyanzi was in 2018 charged with insulting Museveni and his deceased mother, Esteri Kokundeka, in a Facebook post. In the post, Nyanzi, who now says she went into exile in Germany, said she could not let Museveni’s mother rest in peace while her son continued to suffocate Uganda with corruption, lawlessness, and dictatorship. Her writing was colourful and laced with profanities, and the exact words cannot be reproduced here.

In January this year, writer Kakwenza Rukirabashaija was secretly charged with “disturbing the peace” of Museveni and his son, Gen. Muhoozi Kainerugaba, the Commander of the Lands Forces in the Uganda Peoples Defence Forces.

The charge sheet that the Director of Public Prosecutions (DPP) prepared to facilitate the charge states that on December 24, 2021, Kakwenza willfully and repeatedly, used his Twitter handle, @KakwenzaRukira, to disturb the peace of Museveni with no purpose of legitimate communication.

Furthermore, the prosecutor claims that between December 26 and 28 2021, Kakwenza used the same Twitter handle to disturb the peace of Muhoozi, who juggles his command responsibilities with being the president’s senior advisor on security.

Muhoozi, in a break from tradition followed in the military, has had his potential presidential bid played up on social media, with myriad social media accounts created to sing his praises and tout him as the one poised to take over after his father. He once in a while also throws in a tweet loaded with political undertones.

Kakwenza, a lawyer and activist who is an avowed supporter of Dr Kizza Besigye and the Forum for Democratic Change party, is one of the people whose paths have crossed with Muhoozi’s supporters online, with whom he has often traded arguments, even insults. In one of the exchanges on Twitter, Kakwenza described Muhoozi as “obese” among other things.

Kakwenza was eventually picked up from his rented place of abode in Kisaasi, Kampala, with the security personnel who arrested him having to break doors before getting to him. He was held incommunicado and tortured for weeks until he was secretly charged in a magistrate’s court and remanded to civil prison, which only came after his lawyer had got the courts to issue an order for him to be presented before court or released.

Speaking at the New Law Year function, Museveni shed more light on the scope of the people who he thinks must not be targeted for insult. “The Chief Justice was talking about attacking the judiciary. The other thing I must warn you against is attacking the army. The soldiers are people. So, for you to attack them and think things will remain the same, you are lying,” Museveni said.

Before Museveni had taken to the podium, Chief Justice Owiny-Dollo had voiced serious warning to those he said were in the habit of insulting judges. Owiny-Dollo said: “An attack on one of us is an attack on all of us”. “When you undress judges and they remain naked they will run into hiding, and then after, you will remember that when the devil goes on a rampage, you need somewhere you find salvage. The Judiciary is the forest you can hide in.”

The Chief Justice didn’t mention names, but two lawyers – Isaac Ssemakadde and Male Mabirizi – have in the recent past hogged the limelight for taking on judges using social media, accusing them of being “corrupt”, among other things.

Also see: Voyeurs and fragile flowers: Judicial officers must have thicker skins

Mabirizi has been fined Shs300 million by the High Court’s Justice Musa Ssekaana for insulting High Court Judge Phillip Odoki on social media, and the Uganda Judicial Officers Association (UJOA) recently asked the Uganda Law Society (ULS) to sanction the two lawyers.

“The Uganda Judicial Officers Association has learned of the unbecoming utterances attributed to Mr. Isaac Ssemakadde, an advocate, through his Twitter handle @lsaacSsemakadde directed to some Judicial officers,” the letter written by UJOA president Justice Tadeo Asiimwe reads in part. “The same call for action arising out of a decision that found Mr. Male Mabirizi in contempt of Court and recommended sanctions against him. Mr. Male made similar insults via his Twitter handle @MalemabiriziHKK on various dates.”

The judge added: “We urge the Uganda Law Society and the Law Council to take necessary action to tame this irreverent behaviour, which severely impacts on judicial officers in the performance of their official duties,” the letter concluded.

The arguments about insulting public officials as it relates to free speech keep flowing in. And because many cite the law, it is important that we draw from the supreme law. The Constitution, in Article 29(1) (a), says: “Every person shall have the right to freedom of speech and expression, which include freedom of the press and other media.”

The same constitution, however, puts a caveat in Article 43(1): “In the enjoyment of the rights prescribed in this chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.”

From the same constitution, as is clear, those on the opposite sides of the divide can find a way to argue their points. It is therefore instructive to refer to how the courts have interpreted the matter in the past.

Interviewed for this story, a lawyer who preferred anonymity for fear of reprimand said it is the courts that gave Ugandans the greenlight to abuse in the name of free speech.

“They [courts] said you can abuse because we are raised differently,” the lawyer, who works with one of the leading law firms in Kampala, said. “Now that they are abusing them they are complaining.”

The judgment that the lawyer was referencing stemmed from a constitutional petition filed by Andrew Mujuni Mwenda, then a journalist with Daily Monitor, who petitioned the Constitutional Court seeking the nullification of the offenses of sedition and promoting sectarianism, which he had been charged with in a magistrate’s court.

Under section 39 of the Penal Code Act, sedition had been described as: “to bring into hatred or contempt or to excite disaffection against the person of the President, the government as by law established or the constitution; to excite any person to attempt to procure the alternation, otherwise than by lawful means, of any matter in the state as by law established; to bring into hatred or contempt or to excite disaffection against the administration of Justice; to subvert or promote the subversion of the government or administration of a district.”

Under section 40 of the same Act, seditious offences were defined as: “any person who does or attempts to do or makes any preparation to do, or conspires with any person to do, any act with a seditious intention, utters words with a seditious intention; prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; imports any seditious publication, unless he or she has no reason to believe, the proof of which shall lie on him or her, that it is seditious.”

The penalty if found guilty was for a jail term not exceeding five years or a fine not exceeding Shs50,000 or both, and repeat offenders could suffer imprisonment for seven years.

Commenting on the death of then Sudan vice president John Garang in a crash on a helicopter provided by the Uganda government in 2005, Mwenda, who had hosted presidential assistant on political affairs Moses Byaruhanga, took a dig at Museveni. “You see, these African Presidents! This man (Museveni) went to university; why can’t he behave like an educated person? Why does he behave like a villager? … Museveni can never intimidate me; he can only intimidate himself … the president is becoming more of a coward and every day importing cars that are armor-plated and bulletproof and you know moving in tanks and mambas, you know hiding with a mountain of soldiers surrounding him, he thinks that that is security. That is not security. That is cowardice.”

During the same talk show, Mwenda also claimed that Museveni was liable for Garanga’s death. “You mismanaged Garang’s Security. Are you saying it is Monitor that caused the death of Garang or it is your own mismanagement? Garang’s security was put in danger by our own government putting him first of all on a junk helicopter, second at night, third passing through Imatong Hills where Kony is … Are you aware that your Government killed Garang?” Mwenda said in a motor-mouthed tirade that crowded out Byaruhanga’s protests.

In striking out the offense of sedition, based on Mwenda’s petition and pleadings, the five justices of the Constitutional Court agreed that it is the right of Ugandans to fairly or unfairly disparage their leaders.

“The reason is that they have a right to criticise their leaders rightly or wrongly. That is why he suggested, rightly so, that leaders should grow hard skins to bear [the criticism]. We find that the way the impugned sections [of the Penal Code Act] were worded has an endless catchment area, to the extent that it infringes one’s right enshrined in Article 29(1) (a). We answer to issue one in affirmative and in favour of the petitioners,” the judges ruled in 2013. The panel had Justices Leticia Mukasa-Kikonyogo, George Engwau, Constance Byamugisha, Steven Kavuma, and Augustine Nshimye.

The Attorney General did not appeal against this judgment, in which the judges went ahead to state as follows: “Our people express their thoughts differently depending on the environment of their birth, upbringing, and education. While a child brought up in an elite and God-fearing society may know how to address an elder or leader politely, his counterpart brought up in a slum environment may make annoying and impolite comments, honestly believing that that is how to express him/herself. All these different categories of people in our society enjoy equal rights under the Constitution and the law. And they have the equal political power of one vote each.”

Even before striking down the charge of sedition, freedom of speech advocates in Uganda had made strides. In 2004, a lead judgment written by Justice Joseph Mulenga formed the basis upon which the Supreme Court struck down the offense of “publishing false news”, saying that such an offense criminalises conduct that is otherwise legitimate exercise of the constitutionally protected right to freedom of expression.

Turning back the clock

With the offenses of sedition and publishing false news outlawed, in 2011, the state introduced the Computer Misuse Act, which mainly targets those who use “new media” such as Facebook, Twitter and WhatsApp.
For instance, section 25 of the Computer Misuse Act says any person who willfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet, or right to privacy of any person with no purpose of legitimate communication, whether or not a conversation ensues, commits a misdemeanor and is liable on conviction to a fine not Shs480,000 or imprisonment not exceeding one year, or both.

Section 24 of the Computer Misuse Act introduces the cyber harassment charge, which is the use of a computer [which also includes a phone] to make obscene or indecent requests, or threatening to inflict injury to any person or their property.

All these sections have been challenged by several individuals and organisations such as the Uganda Law Society (ULS) before courts of law on grounds that they are vague and scuttle the right to freely express oneself, but the petitions are gathering dust at the Constitutional Court as the state uses the challenged sections to charge and prosecute more people.

Stella Nyanzi was in 2019 sentenced to 18 months in prison by a magistrate who convicted her on cyber harassment charges that arose out the accusations that she abused Museveni and his late mother.

The High Court, however, on appeal trashed the conviction and set aside the sentence, on grounds that the prosecution hadn’t established whether Nyanzi was in Uganda by the time she posted the impugned statements. By the time Nyanzi was acquitted, however, she had already served her term in Luzira prison.

Of course, the acquittal did not address the most important matter of whether the offense of cyber harassment is constitutional, and whether it does not drag us back in time by replacing offenses that had already been struck down. As the debate on insulting continues, this is a matter that perhaps requires more attention.

Also see: Why would court fine a lawyer who insults a judge Shs300m and award a citizen who is kidnapped Shs10m?

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