The Constitutional Court on the 10th of January 2023 in Andrew Karamagi and Robert Shaka (Petitioners) versus Attorney General (Respondent) Constitutional Petition No.5 of 2016 ruled in favour of the Petitioners against the government for the violation of fundamental human rights in this case being people’s rights in freedom of speech and expression challenging Section 25 of the computer Misuse Act No.2 of 2011
Background of case
Andrew Karamagi and Robert Shaka filed this petition brought under Article 137 of the Constitution alleging that section 25 of the Computer Misuse Act No.2 of 2011 was inconsistent with and or in the contravention of Article 29(1) of the Constitution and went ahead to seek a declaration in that regard in addition to seeking a grant for redress through order of the DPP to stay of any prosecution of all and any citizens currently on trial for violating the impugned rule, and order staying the enforcement of Section 25 the Computer Misuse Act No.2 of 2011 or similar provisions of the law which disappropriately curtail enjoyment of speech and expression by citizens , and an order directing the respondent to pay the costs of the petition. The section states under offensive communication that;
‘Any person who willfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of 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 exceeding twenty four currency points or imprisonment not exceeding one year or both.’
The petition was accompanied with a sworn affidavit of Andrew Karamagi where he swore that the impugned section is vague and overly broadly as it fails to give proper notice of conduct that it seeks to proscribe and that terms such as ‘disturb’ ‘attempt to disturb the peace, quiet or right of privacy’ are not defined in the Computer misuse Act nor can they be conclusively defined by a regular user of the internet. As a result, it will lead to arrests and prosecution of confused citizens in an arbitrary and whimsical manner.
In reply, the Respondent replied in contention to the affidavit and petition alleging that it was misconceived and that the petition does not raise any questions for constitutional interpretation. In a sworn affidavit in reply to the petition, State Attorney Bafirawala Elisha contended that the petition was devoid of any merit and prayed that it is dismissed with costs.
Consideration of Petition
The petition was before a Coram of Justices, Richard Buteera, Geoffrey Kiryabwire, Elizabeth Musoke, Monica Mugenyi, JJCC. Justice Kenneth Kakuru wrote the lead Judgement. This petition was represented by learned Counsel Mr Eron Kiiza for the Petitioners and State Attorney Mr Ojambo Bichachi. From the affidavits of both parties, the following issues were raised for determination, ‘whether the petition raises any questions for constitutional interpretation,’ ‘whether section 25 of the Computer Misuse Act No.2 of 2011 threatens or infringes online/digital Freedom of expression and is inconsistent with and or contravenes Article 29(1) of the 1995 Constitution of the Republic of Uganda.’
Justice Kenneth Kakuru resolved the first issue with authority from AG vs Major General Tinyefuza Supreme Court Constitutional Appeal No. 1 of 1997 and Apollo Mboya Vs AG of 2011, therefore Provisions relating to the fundamental human rights and freedoms should be given purposive and generous interpretation in such a way as to secure maximum enjoyment of the rights and freedoms guaranteed.
On the second issue, the Learned Judge stated that “I find that the impugned section is unjustifiable as it curtails the freedom of speech and democratic society. Secondly section 25 of the Computer Misuse Act No.2 of 2011does not specify what conduct constitutes offensive communication. To that extent, it does not afford sufficient guidance for legal debate. Thirdly it is vague, overly broad and ambiguous. Therefore, I find that the impugned section is inconsistent with and/or in contravention of Article 29(1) of the constitution, Article 19(2) of the International Convenant on Civil and Political Rights and Article 9(2) of the African Charter on Human and Peoples’ Rights”
Additionally, the learned Judge referred to the authority in the case of AG Vs Salvatori Abuki Constitutional Appeal No.1 of 1998, which held that ‘A statutory provision can be declared unconstitutional where its purpose and or effect violates a right guaranteed by an Article of the Constitution’. On the final issue on the relief sought, the Learned Justice stated and held that; the costs of the petition on the petitioners.
The Constitutional Court of Uganda upheld this Petition, in the lead Judgment, Justice Kakuru Kenneth allowed the Petition on the following terms; that Section 25 of the Computer Misuse Act No.2 of 2011 is null and void as it is inconsistent and/or in contravention with Article 29(1) of the Constitution, that the enforcement of Section 25 of the Computer Misuse Act No.2 of 2011 be stayed and each party bears its own costs.