ARTICLE 29 THREATENED: A CRITICAL DISSECTION OF VARIOUS LAWS

PASSED THAT UNDERMINE FUNDAMENTAL FREEDOMS OF SPEECH,

EXPRESSION & ASSEMBLY

Denis Kwizera & Hilary Asasira*1

“I disapprove of what you say, but l will defend to the death your right to say it”2
– Evelyn Beatrice Hall –

I. Introduction

Under national, regional and international laws, Uganda is obligated to respect the right to
freedom of speech, expression and assembly of all persons. Article 29 of the Constitution of the
Republic of Uganda 1995, guarantees protection of these individual rights—which include
freedom of the press, media practitioners, civil society organizations (CSOs) and all political
groupings.3 The article also contains freedom of religion—which has over the years been
observed relatively consistently, with minimal interferences from state agencies.4 However, this
paper shall only concentrate on the rights of freedom of speech, conscience, expression and
assembly.

The overriding importance of the freedom of expression—including the right to seek, receive and
impart information, as a human right has been widely recognized, both on its own and as an
essential underpinning of democracy and means of safeguarding other human rights.5 In
essence, the enjoyment of other fundamental human rights are adversely affected if the masses

1
Dennis Kwizera is an advocate of the Courts of Law in Uganda. He works with Ayigihugu and Company
Advocates and Solicitors. He has 10 years’ experience in trial practice and also a former lecturer at the Law
Development Centre. Hillary Asasira is an advocate with F Mpanga and Company Advocates.
2
Evelyn Beatrice Hall, ‘The Life of Voltaire’ (1903).
3
Constitution of Uganda, 1995, art. 29, Protection of freedom of conscience, expression, movement, religion,
assembly and association. (1) Every person shall have the right to— (a) freedom of speech and expression which
shall include freedom of the press and other media; (b) freedom of thought, conscience and belief which shall
include academic freedom in institutions of learning; (c) freedom to practise any religion and manifest such practice
which shall include the right to belong to and participate in the practices of any religious body or organisation in a
manner consistent with this Constitution; (d) freedom to assemble and to demonstrate together with others
peacefully and unarmed and to petition; and (e) freedom of association which shall include the freedom to form and
join associations or unions, including trade unions and political and other civic organisations.
4
US State Department, International Religious Freedom Report, http://www.state.gov/j/drl/rls/irf/2009/127261.htm.
5
Toby Mendel, Article 19, The International Centre Against Censorship, ‘False News as a Restriction on Freedom
of Expression,’

1
are denied the right to freely express their opinion—even if theirs, are divergent views to what
the majority or the government accepts. It is therefore pertinent to appreciate that “the free flow
of information and ideas lies at the heart of the very notion of democracy and is crucial to
effective respect for human rights.”6

This notwithstanding, it is important to note that the enjoyment of this right is not absolute and is
subject to restrictions or limitations. This paper will revisit the legally sanctioned limitations and
restrictions at a later stage.

II. Regional and International Legal Provisions

Freedom of expression with its underlying tenets is universally guaranteed in various regional
and international instruments to which Uganda is a party. Article 19 of the Universal Declaration
of Human Rights proclaims that “everyone has the right to freedom of opinion and expression
and that, the right includes freedom to hold opinions without interference and to seek, to receive
and impart information and ideas through any media regardless of frontiers.”7 Article 19 of the
International Covenant on Civil and Political Rights reflects the same provision and adds that
this may either be orally, in writing or in print, in the form of art, or through any other media of
his [or her] choice.8 The article further imposes legal obligations on states to protect freedom of
expression and information.

Similarly, Article 9 of the African Charter on Human and Peoples Rights (ACHPR) guarantees
freedom of expression. The article provides that “every individual shall have the right to receive
information [and the] right to express and disseminate his opinions within the law.”9

The importance of protecting these fundamental freedoms cannot be overemphasized. Promotion

and protection of this freedom of speech and expression is as old as the general human rights
discourse. In the first session of the United Nations General Assembly in 1946, it was declared
that “freedom of information is a fundamental human right and …the touchstone of all the

6
Foreword by Abdul Waheed Khan Assistant Director-General for Communication and Information UNESCO
7
Article 19, Universal Declaration of Human Rights.
8
Article 19, International Covenant on Civil and Political Rights
9
African Charter on Human and Peoples’ Rights, adopted June 27, 1981, entered into force October 21 1986,
ratified by Uganda May 10, 1986, art.9.

2
freedoms to which the United Nations is consecrated.” On the same note, the ACHPR has
reiterated that “article 9 [of the ACHPR] reflects the fact that freedom of expression is a basic
human right, vital to an individual’s personal development, his political consciousness, and
participation in the conduct of the public affairs of his country.”10 Similarly, the African
Commission on Human and People’s Rights has also reaffirmed that “the fundamental
importance of freedom of expression as an individual human right, as a cornerstone of
democracy and as a means of ensuring respect for all human rights and freedoms.”11 It is
imperative to note that these protections are not only for information that is more pleasing and
acceptable to the general public or the government—but more relevant for those ideas and
opinions that may appear harsh or offensive to the main stream majority or the government.

In fact, the European Court of Human Rights weighed in on the subject in the case of Lingens
and noted that

Freedom of expression constitutes one of the essential foundations of a

democratic society, one of the basic conditions for its progress and for the
development of every man….it is applicable not only to information or ideas
that are favorably received… but also to those which offend, shock or disturb
the state or any other sector of the population. Such are the demands of
pluralism, tolerance and broadmindedness without which there is no
democratic society.12

On the domestic stage, in a landmark ruling, the Supreme Court of Uganda in the Onyango
Obbo case held that

It is evident that the right to freedom of expression extends to holding,

receiving and imparting all forms of opinions, ideas and information. It is
not confined to categories, such as correct opinions, sound ideas or truthful
information. Subject to the limitation under article 43, a person's expression
or statement is not precluded from the constitutional protection simply
because it is thought by another or others to be false, erroneous,
controversial or unpleasant. Everyone is free to express his or her views.

10
Ibid.
11
Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples'
Rights, 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia,
https://www1.umn.edu/humanrts/achpr/expressionfreedomdec.html. (accessed December 02, 2015)
12
European Court of Human Rights, Lingens v Austria, judgment of July 8, 1986, application No. 9815/82, accessed
at http://www.oas.org/en/iachr/expression/docs/jurisprudence/european/CASE_OF_LINGENS_v._AUSTRIA.doc.

3
 Indeed, the protection is most relevant and required when a person's views
are opposed or objected to by society or any part thereof, as 'false' or
'wrong'.13

All in all, the notion that the expression of false, dissent, erroneous or unpleasant views should
be tolerated is not a new phenomenon. Areopagitica, published in 1644 was John Milton’s
response to the Parliament of England’s re-introduction of government licensing of printers.
Church authorities had previously ensured that Milton’s essay on the right to divorce was refused
a license for publication.14 In Areopagitica, Milton made an impassioned plea for freedom of
expression and toleration of falsehood, arguing that “give me the liberty to know, to utter, and to
argue freely according to conscience, above all liberties.”15 It is therefore pertinent to protect
these fundamental freedoms enshrined in Article 29, for they impart greatly to the enjoyment of
all other freedoms. A population devoid of access to and exchange of information, is heavily
inept on innovation and developmental undertaking.

III. Article 43 on Limitations/Restrictions

As noted above, the right to freedom of expression is not absolute—in its enjoyment, it is subject
to certain restrictions. Both international and domestic legal frameworks have weaved “carefully
drawn and limited restrictions on freedom of expression to take into account the values of
individual dignity and democracy.”16 Article 43 of the Ugandan Constitution lays out the
prescribed limitations to the enjoyment of the right. It provides that

In the enjoyment of the rights and freedoms prescribed in this Chapter, no

person shall prejudice the fundamental or other human rights and freedoms of
others or the public interest. (2) Public interest under this article shall not
permit— (a) political persecution; (b) detention without trial; (c) any limitation
of the enjoyment of the rights and freedoms prescribed by this Chapter beyond

13
Charles Onyango Obbo & Andrew Mujuni Mwenda v. Attorney General, Supreme Court of Uganda,
Constitutional Appeal No.2 of 2002, pg. 10.
14
Sarah Bireete, Centre for Constitutional Governance, ‘Freedom of Speech, Assembly, Association and Expression
in Uganda - Which Way Forward?’ http://ccgea.blogspot.ug/2014/10/freedom-of-speech-assembly-association.html.
15
John Milton, Areopagitica, 1644, quoted in ‘An Analysis of Freedom of Speech,’ https://www.kibin.com/essay-
examples/an-analysis-of-freedom-of-speech-4dDxw3Wc. Also in Sarah Bireete, Ibid.
16
Toby Mendel, Article 19, supra note 4.

4
 what is acceptable and demonstrably justifiable in a free and democratic
society, or what is provided in this Constitution.17

Similarly, the ICCPR also permits governments to impose certain limitations on freedom of
expression, if such restriction is provided by law and is necessary: (a) for respect of the rights or
reputations of others; (b) for the protection of national security or of public order, or of public
health or morals.18

Internationally, enforcement of these restrictions to the enjoyment of the right must meet a strict
three-part test.19 Firstly, the interference must be provided for by law which must be accessible
and “formulated with sufficient precision to enable the citizen to regulate his conduct.”20
Secondly, the interference must pursue one of the legitimate aims listed in Article 19(3), and
thirdly, the interference must be necessary to secure that aim, in the sense that it serves a
pressing social need, that the reasons given to justify it are relevant and sufficient and that the
interference is proportionate to the legitimate aim pursued.21

This test is very important and dates as far back as 1986, when the Canadian Supreme Court set
out what has come to be known as the “Oakes Test”, the accepted standard since that time: To
establish that a limit is reasonable and demonstrably justified in a free and democratic society,
two central criteria must be satisfied. First, the objective, which the measures responsible for a
limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to
warrant overriding a constitutionally protected right or freedom”22

In essence, “the right to freedom of expression cannot be limited at the whim of a public
official.”23 It must follow a clear legitimate and uniform legal provision. The masses to which
the law is intended to apply must fully be able to appreciate its provisions and understand its

17
Ibid., art.43.
18
Ibid., art.19 (3).
19
Womah Mukong v. Cameroon, Communication No. 458/1991, U.N.Doc. CCPR/C/51/D/458/1991 (1994, quoted
in Toby Mendel, Article 19, The International Centre Against Censorship, ‘False News as a Restriction on Freedom
of Expression,’ accessed at https://www.article19.org/data/files/pdfs/cases/uganda-onyango-obbo-v.-
uganda.%20Uganda.
20
Ibid.
21
Ibid.
22
R. v. Big M Drug Mart Ltd., at p. 352
23
Catherine Anite, James Nkuubi, Human Rights Network for Journalists, Media Freedom in Uganda: Analysis of
Inequitable Legal Limitations, March 2014.

5
application and consequences of their actions in breach. Secondly, the limitation must be
necessary. It should be appreciated that “even if a limitation is in accordance with a clear law and
serves a legitimate aim, it will only pass the test if it is truly necessary for the protection of that
legitimate aim.”24

These standard have been well enunciated by the highest court of the land in Ugandan—the
Supreme Court, arguing that,

The yardstick is that the limitation must be acceptable and demonstrably

justifiable in a free and democratic society. The limitation on the enjoyment of
a protected right in defence of public interest is in turn limited to the measure
of that yardstick. In other words, such limitation, however otherwise
rationalised, is not valid unless its restriction on a protected right is acceptable
and demonstrably justifiable in a free and democratic society.25

Various international human rights bodies and courts around the world have also noted that
protection of freedom of expression must include pluralism, tolerance and broadmindedness
from public officials regarding open criticism.26 The limitation on the right has often been
enforced in relation to speeches and expressions made against public officials and the
government. In Uganda, cases of restraint and prosecution have always stemmed from
expressions made in conflict with the government or the presidency. This in a way is mostly
triggered by the failure to separate institutions and systems from personalities holding various
offices. There is always attachment of the person to the office. The African Commission has
stated that, “It should be assumed that criticism of the government does not constitute an attack
on the personal reputation of the head of state. People who assume highly visible public roles
must necessarily face a higher degree of criticism than private citizens; otherwise public debate
may be stifled altogether.”27

24
Ibid.
25
Charles Onyango Obbo & Andrew Mujuni Mwenda v. Attorney General, Supreme Court of Uganda,
Constitutional Appeal No.2 of 2002, pg. 13.
26
European Court of Human Rights, Lingens v Austria, judgment of July 8, 1986, application No. 9815/82, accessed
at http://www.oas.org/en/iachr/expression/docs/jurisprudence/european/CASE_OF_LINGENS_v._AUSTRIA.doc.
27
Media Rights Agenda & others v, Nigeria, African Commission on Human and Peoples' Rights, Comm. Nos.
105/93, 128/94, 130/94 and 152/96 (1998), accessed at http://www1.umn.edu/humanrts/africa/comcases/105-
93_128-94_130-94_152-96.html.

6
The UN Human Rights Committee, which monitors state compliance with the ICCPR, has stated
that

While a State party can restrict freedom of expression where provided for by
law, it must still be determined whether the measures taken against the author
[of any statements are] necessary for the safeguard of national security and/or
public order….. The legitimate objective of safeguarding and indeed
strengthening national unity under difficult political circumstances cannot be
achieved by attempting to muzzle advocacy of multi-party democracy,
democratic tenets and human rights.28

IV. Various Laws that Threaten Article 29

Over the years, a number of laws have been debated and passed to address prevailing gaps in the
peaceful management of gatherings and meetings in the country—especially around civic
participation of the citizenry in the democratic governance of the country. This has seen the
resolute ban of open air radio broadcasts known as bimeeza, which were a famous mode of
media engagement with the public on matters of public interest, especially around service
delivery, accountability and governance. This ban was followed by further stringent measures to
stifle freedom of speech and expression. This witnessed the coming into force of several laws
especially the criminal laws, a step backward on some fundamental constitutional protections—
including Article 29 on freedoms of expression, speech and assembly. These enacted laws are
contrary to domestic, regional and international legal provisions as they are intended to oust the
supremacy of the constitution in total disregard of the constitutional provision “that any other
law that is inconsistent with the constitution is null and void to extent of its inconsistency.29

The African Commission has emphasized that governments should not enact provisions which
limit freedom of expression “in a manner that override constitutional provisions or undermine

28
Womah Mukong v. Cameroon, Communication No. 458/1991, U.N.Doc. CCPR/C/51/D/458/1991 (1994), para.
9.7.
29
1995 Ugandan Constitution, Article 2.

7
fundamental rights guaranteed by the [Charter] and other international human rights
documents.”30

Nevertheless, this has been evidenced in a number of laws that have been passed in Uganda.
Some of these include the Computer Misuse Act 2011, The Non-Government Organizations Act
2015, and The Public Order Management Act. There are also some provisions within the Penal
Code Act that criminalize certain conduct and operations by journalists and media
practitioners.31 It is from these provisions that threats and intimidation of sanction criminal
charges against journalists and media houses are mostly used in order to censor media content
and restrict their fundamental freedoms. Most of these laws contain provisions that are
inconsistent with domestic and international obligations.

a. The Computer Misuse Act 2011:

In February 2011, the Ugandan Parliament passed the Computer Misuse Act, intended to ensure
safety and security of electronic transactions and information systems. It had broad objectives to
prevent unlawful access, abuse or misuse of information systems including computers and to
make provisions for securing the conduct of electronic transactions in a trustworthy electronic
environment. However, the Act contains numerous vague provisions that infringe on
fundamental constitutional provisions of individuals—including free access to information, right
to privacy and freedom of expression.

On June 8, 2015, Robert Shaka, an information and security analyst with USAID in Kampala
was arrested by police officers from the Special Investigation Unit (SIU) and taken to their
headquarters in Kireka where in the course of interrogation and recording of a statement, he was
informed that while using computers and other electronic devices, he issued offensive
communications against the sovereign state of Uganda, bringing it into hatred and contempt and
accordingly committing the offence of promotion of sectarianism contrary to Section 41 of

30
Constitutional Rights Project and Civil Liberties Organization v. Nigeria, African Commission on Human and
Peoples Rights, Comm. No. 102/93, (1998), para. 57-58, http://www1.umn.edu/humanrts/africa/comcases/102-
93.html. (accessed December 02, 2015)
31
Penal Code Act, 1950, Sec.41 (sectarianism), Sec. 51 (inciting violence) and Sec. 179 (libel).

8
the Penal Code Act.32 [And that] …..he issued offensive communication against President
Yoweri Museveni, Janet Museveni, Kale Kayihura, a one "Mbabazi" and a one "Kelen" thereby
committing the offence of offensive communication contrary to Section 25 of the Computer
Misuse Act.33

Section 25 of the Computer Misuse Act 2011 provides 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.”34

According to Mr Nicholas Opiyo, Shaka’s lawyer, criminalizing offensive communication as

described in section 25 is unconstitutional, and that his clients’ unceremonious arrest and
detention represents an affront to the freedom of expression for all Ugandans especially those
using new media platforms to express their views and opinions.”35 He further argued that
Shaka’s arrest was an unjustified restriction of freedom of expression.36

The Shaka case represents a specific curtailment of the freedom of expression—especially when
it is directed to people in power. It is such laws that contravene fundamental human rights that
are protected by the Constitution. Whereas this right is not absolute, curtailments should be those
demonstratively justifiable in a democratic society. We cannot always be comfortable with only
speech on opinions about ourselves that we agree with. As noted people in power and
government must be broadminded and accept that all that is said about them is not going to be
praises—in fact they should be tolerant to speech that sometimes may be false. It is from this that

32
Sec.41(1) A person who prints, publishes, makes or utters any statement or does any act which is likely to—
degrade, revile or expose to hatred or contempt; create alienation or despondency of; raise discontent or disaffection
among; or promote, in any other way, feelings of ill will or hostility among or against, any group or body of persons
on account of religion, tribe or ethnic or regional origin commits an offence and is liable on conviction to
imprisonment for a term not exceeding five years.
33
Chapter Four, ‘UPDATED: Further Statement on the Status of Mr. Robert Shaka,’
http://chapterfouruganda.com/articles/2015/06/10/updated-further-statement-status-mr-robert-shaka. (accessed on
December 9,2015).
34
The Computer Misuse Act 2011, section 25.
35
Social Media Critic Arrested in Uganda, supra note 6.
36
Douglas Mpuga, ‘Social Media Critic Arrested in Uganda,’ VOA, July 13, 2015,
http://www.voanews.com/content/social-media-critic-arrested-in-uganda-/2820626.html. (accessed on December 09,
2015.)

9
political maturity can be enjoyed. A true taste of the democratic maturity of a government is how
it addresses minority views or divergent views. A democratically mature government should not
suffocate minority or divergent views through threats, intimidation and arrests. The UN Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
made an appeal to governments all over the world “to adopt laws and regulations that allow
people to communicate freely over the Internet.”

b. The Public Order Management Act 2013

The Public Order Management Act (POMA), which came into force in November 2013, has
been used to impose wide-ranging restrictions on public meetings—especially those by
opposition politicians and civil society organization dealing with matters of governance and
democracy. The law has been misinterpreted to give police powers police powers to prohibit and
disperse any meeting or public gathering of a political nature which it has not permitted. It has
generally been implemented selectively to undermine fundamental constitutional rights to
assembly and association—especially of those members creating awareness of governments’
failures and demanding accountability. It is important to appreciate that protecting public order
is a legitimate concern, but it must be within those limitations permitted by law. The POMA in
its current scope goes far beyond what both domestic and international restrictions prove.
Similarly, it appears driven to overthrow a decision of the Constitutional Court.

Some of the criticisms to the POMA have been largely due to its reintroduction of s.32 (2) of the
Police Act which the Constitutional Court struck out in 2005 for being unconstitutional.37 The
subsection authorized police to prohibit assemblies including public rallies and demonstrations
which are protected under article 29 of the constitution. The court held that the subsection gave
police powers to impose conditions which inconsistent with article 29 (1) (d) of the 1995
Ugandan Constitution.

The brief facts of the case were that Muwanga Kivumbi, a member and coordinator of the
Popular Resistance Against Life Presidency (PRALP), had on numerous occasions informed
police of the organisations intention to hold rallies and demonstration in Masaka, Lugazi and

37
Muwanga Kivumbi v. Attorney General, Constitutional Petition No. 9 of 2005.

10
Seeta among others. In all these cases the police advised him to hold indoor consultations and
meetings and warned him that if he went ahead with the demonstrations, they would come in and
disperse the crowd—a threat that they enforced in all the cases he went ahead with the
demonstrations. Kivumbi, aggrieved by the conduct of police, filed the constitutional petition to
have Section 32 of the Police Act declared unconstitutional. In 2008, the Constitutional Court
indeed found merit in the petition and nullified sub-Section 2 of Section 32 of the Police Act.
Section 32 (2) provided that

If it comes to the knowledge of the Inspector General that it is intended to

convene any assembly or form any procession on any public road or street or at
any place of public resort, and the Inspector General has reasonable grounds
for believing that, the assembly or procession is likely to cause a breach of the
peace, the Inspector General may, by notice in writing to the person
responsible for convening the assembly or forming the procession, prohibit the
convening of the assembly or forming of the procession.

The Court held that subsection (2), which empowered the Inspector General of Police to prohibit
the convening of an assembly or forming of a procession in any public place, on subjective
reasons contravened the fundamental right to freedom of assembly and to demonstrate together
with others peacefully, and did not fall within the limitation clause. A critical assessment of the
POMA shows a clear connection to the nullified provision within the Police Act. Police
continues to stop and disperse public meetings and rallies citing POMA, under the same
narrative as was in enforcement of s.32 (2) of the police Act.38 While blocking the FDC
Rukungiri Mobilization on 9th October 2015, Assistant Inspector General of Police Abbas
Byakagaba argued that the FDC did not meet all the conditions prescribed in the POMA.39

Important to note is that a petition challenging the POMA’s constitutionality was filed with the
Constitutional Court in December 2013, but to date, it has never been determined.

All in all the POMA is structured to reinvent the law that was nullified by the Constitutional
Court. It has been selectively applied to suffocate opposition rights to freely express and
assemble. The role of the police and other military agencies ought to be to protect and facilitate

38
Amnesty International, Uganda Report, accessed at https://www.amnesty.org/en/countries/africa/uganda/report-
uganda/.
39
Andante Okanya and Umaru Kaskaka, ‘Besigye, FDC Leaders Arrested,’ The New Vision, 10th October 2015.

11
the enjoyment of fundamental human rights including the freedom of expression and assembly. It
should not be to perpetuate and involve themselves in partisan politics of stifling any form of
dissent against the government. It is these democratic tenets that an impartial police force is
supposed to respect and protect.

c. The Non-Governmental Organizations Bill 2015

On November 27, 2015 the Parliament of the Republic of Uganda passed into law, The Non-
Governmental Organisations (NGO) Bill, 2015. The Bill was introduced to address the gaps in
the existing law—including the arguments that there has been a rapid growth of NGOs some of
which are engaged in subversive activities and thus the sector needs stringent regulations and
monitoring. According to Human Rights Watch,

The minister of internal affairs proposed amending the current

nongovernmental organization (NGO) law to further constrict civil society
operating space.” The government has accused organizations of engaging in
“political activism,” and in one case suspended an NGO working on sexual
rights, arguing that it was “promoting homosexuality.” Four NGO offices in
Kampala were burgled and computers and servers stolen, raising concerns
among civil society that the incidents were an orchestrated attempt to curtail
NGO operations.40

Whereas most of the Committees suggestions and recommendations were considered and
adopted in the final Bill as passed, there remains some issues that will ultimately affect some
groups and organizations working with marginalized groups.

In its current state, the most critical area is under Clause 40(d) and (f) which provides for
‘Special Obligations’ and is to the effect that organisations are prohibited from engaging in any
activities that are prejudicial to the security interests and laws of Uganda, as well as the dignity
of the people of Uganda. This provision is vague and very problematic—as what amounts to
‘dignity of the people of Uganda’ cannot be defined. In a joint statement by Chapter Four,
Human Rights Watch and HRAPF, they noted that “[groups] should be able to criticize
government action without fear of facing criminal charges, jail time, or harassment for the
undefined violation of “the dignity of all Ugandans” or working in ways that are deemed

40
World Report 2015: Uganda, accessed at https://www.hrw.org/world-report/2015/country-chapters/uganda.

12
prejudicial to national interests.”41 In fact organisations doing research and advocacy on rights of
minorities especially sexual minorities may find themselves most affected as it is a subject that
may easily be deemed to be against the dignity of the people of Uganda. Similarly, “Government
officials have alleged that some organizations are “economic saboteurs” and “anti-government”
for their legitimate criticism of government actions.”42

Maria Burnett, a senior Africa researcher at Human Rights Watch argues that “the vague
wording of this bill means that it’s impossible to know when someone’s conduct may run afoul
of the government’s views.”43 She further adds that “groups should have the ability to organize
and push for change in critical areas – including good governance, oil transparency, land rights,
and human rights, without fear of ending up behind bars.”44 Similarly, Adrian Juuko, Executive
Director of Human Rights Awareness and Promotion Platform (HRAPF) has noted that “any law
regulating the nonprofit sector should have a presumption in favor of free, informal and peaceful
association of citizens without requiring a permit, as the bedrock of freedom of association.” He
adds that the general government presumption that civic organizations are ill-intentioned is
without basis and the criminalization of free and informal organizing unjustifiably violates
association rights.” 45

d. The Anti-Terrorism Act 2002

The war on terror has in the last decade or so become a global phenomenon, and all countries
have a concerted effort to weave terror off the face of the earth. Uganda has as a country suffered
terror attacks—most notably in July 2010.46 The Anti-Terrorism Act 2002 was amended in
2015, expanding the definition of an ‘act of terrorism’ to accommodate international
organisations, penalizing indirect involvement in acts of terrorism, creating the offense of
terrorist financing and to prescribe appropriate penalties; and providing for the freezing, seizure

41
Human Rights Watch, Uganda: Reject Vague Crimes in Proposed Law: Proposed Act Violates Free Association
Rights, December 13, 2015, accessed at https://www.hrw.org/news/2015/12/13/uganda-reject-vague-crimes-
proposed-law.
42
Ibid.
43
Ibid.
44
Ibid.
45
Ibid.
46
Xan Rice, ‘Uganda bomb blasts kill at least 74,’ The Guardian, July 12, 2010, accessed at
http://www.theguardian.com/world/2010/jul/12/uganda-kampala-bombs-explosions-attacks.

13
and forfeiture of funds or property reasonably lined or intended to be used for terrorist activities,
among others.

Whereas this law should ideally be applauded in the face of the current global terror and its
sophiscated way of operation, Section 9 of the act directly affects the practice of media in
Uganda. This section provides that “Any person, who establishes, runs or supports any
institution for … publishing and disseminating news or materials that promote terrorism …
commits an offence and shall be liable on conviction, to suffer death.”47 The biggest problem
with this section is that the offence of terrorism has been so broadly defined. The law as it is, is
susceptible for abuse by state operatives who often use it to threaten and attack political
opponents or specific individuals that are very critical of the government. Journalists who report
on governance and rule of law matters can be intimidated and threatened into self-censorship for
fear of prosecution under this provision. Increasingly, this law is being used to muzzle journalist
rights to report on matters affecting the wider population. Human Rights Watch noted that
“journalists critical of the government face intimidation and sometimes criminal charges from
state agents and members of the ruling party.”48 Threats from agencies to journalists always
have undertones referencing possible prosecution under the Anti-Terrorism law if some reports
that are deemed against the government are published. All in all these provisions should be
reconciled with constitutional protections of freedom of expression and speech and access to
information.

V. Conclusion & Recommendations

The importance of Article 29 to the enjoyment of all other rights cannot be overstated. A country
that cannot freely engage in discussions about issues that affect them—especially on governance
matters suffocates growth and development. Overall, “Freedom of expression is not only a
fundamental human right in and of itself, but it has ramifications for economic development as
well.”49 The declaration further adds that the “media has a “corrective” function by bringing to

47
Anti0Terrorism Act 2002, article 9 (1), accessed at
http://www.vertic.org/media/National%20Legislation/Uganda/UG_Anti-Terrorism_Act_2002.pdf.
48
Human Rights Watch, World Report 2011: Uganda, Events of 2010, accessed at
https://www.hrw.org/world-report/2011/country-chapters/uganda.
49
Joint Declaration on the right to freedom of expression generally, regulation and responsibility of the media,
access to information, defamation and prevention and investigation of attacks against freedom of expression,
accessed at https://www.article19.org/resources.php/resource/3042/en/.

14
the public’s attention corruption and inequitable practises. The absence of free media can lead to
economic stagnation and improper practises by both governments and businesses.”50

More still, “Implicit in freedom of expression is the public’s right to open access to information
and to know what governments are doing on their behalf, without which truth would languish
and people’s participation in government would remain fragmented.”51 Other fundamental
human rights freedoms will be bereft of all effectiveness if the people have no access to
information and can not engage in the free flow of all kinds of information. It is from this
perspective that any laws that are enacted with the sole purpose of stifling space to engage in
exchange of opinions, discussions and even attack on government programs and policies cannot
be tolerated in a free and democratic society, unless they fit the yardstick of the permissible
restrictions.

Therefor there is need for parliament and all stakeholders in the protection and promotion of
human rights to review all laws enacted that directly attack article 29 and not within the
permissible limitations and article 43.

Secondly, parliament and government need to assess their compliance with international human
rights standards especially those they have signed on to and where there are international norms
not yet ratified, they should urgently undertake the process of ratifying and domesticating them.
There is a human rights checklist that was launched by the Standing Committee on human rights
in Parliament. It was intended to draw attention to the promotion and protection of human rights
in the legislature.52 The checklist was informed by the need to guide parliament to ensure that
bills and business of parliament complies with human rights standards. Parliament has to ensure
that all legislation passed is in compliance with the checklist. However, this has not yielded the
intended goals as the committee rarely sits to discuss the human rights implications in bills and
other business before parliament. There is not to equip the committee with committed members
to ensure that all laws proposed before parliament meet human rights standards as espoused in
the Ugandan Constitution and the human rights checklist.

50
Ibid.
51
Ibid
52
“Standing Committee On Human Rights: Checklist for Compliance with Human Rights in Policy, Bills, Budgets,
Government Programmes and All Business Handled by Parliament,” Parliament of Uganda,, accessed at,
http://www.parliament.go.ug/new/images/stories/hr_checklist_13.pdf.

15
Thirdly, security agencies should desist from trampling on individual rights to assemble and
associate in public. They should conduct investigations into acts of their own officers that have
continued to brutally attack and disperse peaceful demonstrators enjoying constitutionally
protected rights to freedom of expression, assembly and speech.

Lastly, parliament should carry out an assessment of all laws passed and harmonize them with
Article 29 of the Constitution, and those that don’t conform to the law should be repealed.

16