A win for digital freedoms: Highlights of the Andrew Karamagi and Robert Shaka v. AG Petition:

Godfrey Lutaaya Jan. 16, 2023

On January 10, 2023, the Ugandan Constitutional Court issued a decision on Section 25 of the Computer Misuse Act, 2011, as amended, declaring the section null and void for being inconsistent with the Constitution of the Republic of Uganda, 1995, as amended, and for being vague. This section does not specify what constitutes an offense, making it unjustifiable because it restricts free speech in a free and democratic society. The purpose of this blog is to help you understand the court's ruling.


Who filed the Petition?

Andrew Karamagi and Robert Shaka filed this petition in accordance with Article 137 of the Republic of Uganda's Constitution of 1995, as amended. This provision of the law gives power to the constitutional court to determine questions that require constitutional interpretation. Questions of constitutional interpretation may arise when an act of parliament, any law, or any act or omission is inconsistent with the provisions of the constitution.

What orders can the court issue?

Following a decision on the petition, the court can issue orders declaring that an Act of Parliament or specific section(s) of it is in conflict with the provisions of the constitution. The court can as well refer the matter to the High Court to investigate and determine the appropriate redress.

What were petitioners seeking in this petition .

The petitioners alleged that section 25 of the Computer Misuse Act, N0.2 of 2011, which declares it an offence for any person to "willfully and repeatedly use electronic communications to disturb or attempt to disturb the peace, quiet, or right to privacy of any person with no purpose of legitimate communication," is inconsistent with and in contravention of Article 29(1)(a) of the Constitution, which provides for freedom of speech and expression. Freedom of expression is the right to express one's opinion by word of mouth, writing, printing, drawing, or in any other manner.

Why were the petitioners relying on these grounds?

First, the petitioners asserted that Section 25's ulterior motive is to restrict the free flow of opinions and ideas, which is essential for all internet users in the digital age.

Second, the petitioners assert that the provision is imprecise and overbroad.

Thirdly, the petitioners argued that there is no proof that the government could not achieve its goal of restricting electronic communications with less drastic measures.

Did the court agree with them?

Yes, the lead judgment was given by Honourable Justice Kenneth Kakuru, with whom the other four judges on the bench agreed.

The honorable judge declared the said section null and void for three vital reasons:

The section is unjustifiable as it curtails the freedom of speech in a free and democratic society.

Secondly, the section does not specify what constitutes offensive communication, and lastly, it is vague, overly broad, and ambiguous.

The court noted that a provision of an offense is vague if it does not state explicitly and definitively what conduct is punishable or if the legislature's delegation of authority to judges or administrators (like state prosecutors) is so extensive that it would lead to arbitrary prosecution. As a result, state prosecutors have unrestricted discretion in determining what constitutes a criminal offense.

Then, what dangers are likely to arise if the law is ambiguous?

In response, the Honorable Justice highlighted three dangers: first, they may harm the innocent by failing to warn of the offense; second, they promote arbitrary and discriminatory enforcement; and third, their prohibitions are not clearly defined.

Such defects are inconsistent with Article 29(1) of the Constitution and other international instruments to which Uganda is a party, such as the International Covenant on Civil and Political Rights and the African Charter on Human and People's Rights. Therefore, Uganda has a duty to respect and observe universally recognized international human rights like freedom of speech.

What does this judgment mean for users of electronic communications, especially social media platforms?

In a democractic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democractic society,” Justice Kakuru.

The Ugandan Constitution guarantees everyone the right to express themselves, receive and transmit ideas and information, and use social media platforms.

The Computer Misuse Act of 2011, as changed, still has parts that can be used against you in court. While enjoying your constitutional rights, be cognizant of the fact that there are permissible restrictions under Article 43 of the Constitution; You should make sure that your enjoyment does not cause harm to others, affect the public interest, or breach social values. For example, direct public incitement to genocide, child pornography, among others, are highly condemned.