JUDICIARY Latest Features

It is indeed an honour and privilege\r\nfor me this evening to officiate at this second edition of the Uganda National\r\nJournalism Award ceremony. This award is aimed at improving the quality of\r\njournalism in Uganda by inspiring and recognizing excellence in reporting on\r\npublic affairs.

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Journalist and the media as a whole,\r\nin any democratic society play a critical role in holding, receiving and\r\nimparting all forms of opinions, ideas and information.
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\r\nTherefore, the importance of recognizing and inspiring those gallant men and\r\nwomen who devote their time, energy and effort to excel in this profession\r\ncannot be overemphasized.

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It is because of this critical role\r\nplayed by the press and the media that any democratic society must uphold\r\nfreedom of speech and expression. Indeed, a democracy cannot exist without\r\nfreedom to express new ideas and to put forward opinions about the functioning\r\nof public institutions. The concept of free and uninhibited speech permeates\r\nall truly democratic societies and institutions.

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Uganda, like any other democratic\r\nsociety, is committed to uphold, protect and promote the right to freedom of\r\nspeech and expression. It is for that reason that the right is entrenched in\r\nthe most binding instrument on the land, the Constitution. The Constitution\r\nguarantees to every Ugandan the right of freedom to hold opinions, receive and\r\nimpart ideas and inform without interference.

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This commitment is not only found in\r\nthe Constitution but also in other legislation like, The Press and Journalism\r\nAct, The Access to Information Act, and The Uganda Communications Act.

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In addition, Uganda is signatory to\r\ninternational conventions such as the Universal Declaration for Human Rights,\r\nthe International Convention on Civil and Political Rights, The International\r\nConvention on Economic, Social and Cultural Rights and the African Charter on\r\nHuman and People’s Rights, which guarantee freedom of speech and expression. 
\r\nThe Uganda Constitution provides in Article 29(1) (a) that;

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"Every person shall have the right\r\nto freedom of speech and expression which include freedom of the press and\r\nother media.”
\r\nArticle 41(1) states that;

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"Every citizen has a right of access\r\nto information in the possession of the State or any other organ or agency of\r\nthe State except where the release of the information is likely to prejudice\r\nthe security or sovereignty of the State or interfere with the right to privacy\r\nof any other person.”

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Article 20(1) of the some\r\nConstitution acknowledges that; 
\r\n"Fundamental rights and freedoms of the individual are inherent and not granted\r\nby the State.”

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In addition, Article 20(2) enjoins\r\nall organs and agencies of government and all persons to respect, uphold and\r\npromote the rights and freedoms of the individuals and groups enshrined in the\r\nConstitution.

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It is, however, worth noting that\r\nthe right to freedom of speech and expression is not absolute. They may be\r\nrestricted. However, any such restriction or limitation must be within strictly\r\nand narrowly defined parameters.
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\r\nArticle 43 of the Constitution provides general limitations on fundamental and\r\nother human rights and freedoms which include freedom of speech and expression.\r\nIt states that;

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"(1) In the enjoyment of the rights\r\nand freedoms prescribed in this chapter, no person shall prejudice the\r\nfundamental or other human rights and freedoms of others or the public\r\ninterest. 
\r\n(2) Public interest under 
\r\n(a) political persecution
\r\n(b) detention without trial; 
\r\n(c) any limitation of the enjoyment of the rights and freedoms prescribed by\r\nthis chapter beyond what is acceptable and demonstrably justifiable in a free\r\nand democratic society, or what is provided in this Constitution.”

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The coexistence in the same Constitution,\r\nof protection and limitation of the rights, necessarily generates two competing\r\ninterests.

\r\nOn the one hand, there is the interest to uphold and protect the rights\r\nguaranteed by the Constitution. On the other hand, there is the interest to\r\nkeep the enjoyment of the individual rights in check, on social considerations,\r\nwhich are also set out in the Constitution. Where there is conflict between the\r\ntwo interests, the courts have and will continue to come up to resolve it\r\nhaving regard to the different objectives of the Constitution.

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Onyango Obbo vs. Attorney General
\r\nYou will recall that in 2004, the Supreme Court in the case of Charles Onyango\r\nObbo and Another versus the Attorney General (Constitutional Appeal No. 2 of\r\n2002), declared section 50 of the Penal Code Act which criminalized publication\r\nof a false statement, rumor or report which is likely to cause fear and alarm\r\nto the public or to disturb the public peace as being inconsistent with article\r\n29(1)(a) of the Constitution.

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In the lead judgment of Hon. Justice Joseph Mulenga, with\r\nwhich all the other justices of the Supreme Court concurred, he went at great\r\nlength to explain the above constitutional provision in five critical areas,\r\nthat is, freedom of expression in a democracy, falsity and freedom of\r\nexpression, limitation on freedom of expression, the standard of limitation and\r\nprejudice to the public interest. On freedom of expression in a democracy, he\r\nstated; "... the right to freedom of expression is of great significance to\r\ndemocracy. It is the bedrock of democratic governance. Meaningful participation\r\nof the governed in their governance, which is the hallmark of democracy, is\r\nonly assured through optimal exercise of the freedom of expression. This is as\r\ntrue in the new democracies as it is in the old ones.”

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\r\nOn falsity and freedom\r\nof expression, he had this to say;

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"Subject\r\nto the limitation under Article 43, a person’s expression or statement is not\r\nprecluded from the constitutional protection simply because it is thought by\r\nanother or others to be false, erroneous, controversial or unpleasant.

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Everyone\r\nis free to express his or her views. Indeed, the protection is most relevant\r\nand required when a person’s views are opposed or objected to by society or any\r\npart thereof, as ‘false’ or ‘wrong’.”

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On\r\nlimitation on freedom of speech and the standard of the limitation stipulated\r\nin Article 43 of the Constitution he stated that;

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"In other words, by virtue of the provision in clause\r\n(1), the constitutional protection of one’s enjoyment of rights and freedoms\r\ndoes not extend to two scenarios, namely: (a) where the exercise of one’s right\r\nor freedom "prejudices” the human right of another person; and (b) where such\r\nexercise "prejudice” the public interest. 
\r\nIt follows therefore, that subject to clause (2), any law that derogates from any\r\nhuman right in order to prevent prejudice to the rights or freedoms of others\r\nor the public interest is not inconsistent with the Constitution. However, the\r\nlimitation provided for in clause (1) is qualified by clause (2), which in\r\neffect introduces "a limitation upon the limitation.”

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It\r\nis apparent from the wording of clause (2) that the framers of the Constitution\r\nwere concerned about a probable danger of misuse or abuse of the provision in\r\nclause (1) under the guise of defense of public interest.

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For\r\navoidance of that danger, they enacted clause (2), which expressly prohibit the\r\nuse of political persecution and detention without trial, as means of\r\npreventing, or measures to remove prejudice to the public interest.

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In\r\naddition, they provided in that clause a yardstick, by which to gauge any\r\nlimitation imposed on the rights in defense of public interest. The yardstick\r\nis that the limitation must be acceptable and demonstrably justifiable in a\r\nfree and democratic society. This is what I have referred to as "a limitation\r\nupon the limitation”.

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The\r\nlimitation on the enjoyment of a protected right in defense of public interest\r\nis in turn limited to the measure of that yardstick. In other words, such\r\nlimitation, however otherwise rationalized, is not valid unless its restriction\r\non a protected right is acceptable and demonstrably justifiable in a free and\r\ndemocratic society.”

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As regards prejudice to public interest he held that the\r\nprejudice must be real and not speculative or conjectural mischief. He stated; 
\r\n"Clause (1) of Article 43 allows for derogation of rights, or limitation of\r\ntheir enjoyment, in respect of two exceptional circumstances or scenarios,\r\nnamely, where the enjoyment, of one’s right "prejudices” either the personal\r\nrights of others or the public interest.

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Those\r\nare grave circumstances presenting actual mischief or danger to "the rights of\r\nothers” or to "the public interest”. In those exceptional circumstances, the\r\nConstitution allows for derogation or limitation in order to avert or remove real\r\nmischief or danger. The clause does not expressly or implicitly extend to a\r\nthird scenario, where the enjoyment of one’s right is "likely to cause\r\nprejudice”.

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I do\r\nnot understand the clause to permit derogation of guaranteed rights or\r\nlimitation of their enjoyment, in order to avert speculative or conjectural\r\nmischief or danger to public interest.”

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He\r\nheld that Section 50, however, relates precisely to that third scenario and was\r\ntherefore inconsistent with Article 29(1) of the Constitution.

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In\r\n2007, the Constitutional Court also nullified Section 32 of the Police Act that\r\ngave police powers to control public assemblies and demonstrations.

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In the lead judgment of Justice Constance Byamugisha, JA,\r\nshe stated that; "A society, especially a democratic one, should be able to tolerate a good deal\r\nof annoyance or disorder so as to encourage the greatest possible freedom of\r\nexpression, particularly political expression.”

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In\r\n2010, the same court annulled section 39,40,41,42 43 and 197 of the Penal Code\r\nAct that created the offence of sedition.

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The court relied on the case of Charles Onyango Obbo,\r\nSupra, and held that those sections of the Penal Code Act were in conflict with\r\nArticle 29 of the Constitution. In their words they said; 
\r\n"Our people express their thoughts differently depending on the environment of\r\ntheir birth, upbringing and education.

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While\r\na child brought up in an elite and God-fearing society may know how to address\r\nan elder or leader politely, his counterpart brought up in a slum environment\r\nmay make annoying and impolite comments, honestly believing that, that is how\r\nto express him/herself.

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All\r\nthese different categories of people in our society enjoy equal rights under\r\nthe Constitution and the law. And they have equal political power of one vote\r\neach. That explains Counsel Kenneth Kakuru‘s observation that during elections,\r\nvoters make very annoying and character assassinating remarks and yet in most\r\ncases false, and yet no prosecutions are preferred against them.

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The\r\nreason is because they have a right to criticize their leaders rightly or\r\nwrongly. That is why he suggested, rightly so that leaders should grow hard\r\nskins to bear. We find that, the way impugned sections were worded have an\r\nendless catchment area, to the extent that it infringes on one’s right\r\nenshrined in Article 29(1) (a). We answer issue one in affirmative and in\r\nfavour of the petitioners.”

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Therefore,\r\nall these court pronouncements go to show that the courts have come out clearly\r\nto defend freedom of speech and expression. With the press becoming more and\r\nmore vibrant, more of such cases are likely to come to the courts for\r\ninterpretation.

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As\r\nthe head of the Judiciary, I wish to reassure the public and especially members\r\nof press and other media that the Judiciary is committed, and will continue to\r\nguard jealously, the right to freedom of speech and expression in addition to\r\nother rights enshrined in our Constitution.

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This,\r\nof course, is not to say the press/media is free to write whatever they please.\r\nThere are, for instance, some serious concerns in regard to the manner in which\r\nthe media has and continue to conduct itself.

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What\r\nis the duty of the press to society? There is need to protect other individuals\r\nwho may be injured by the media.

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Sometimes, one’s freedom of expression and press clashes\r\nwith other individual’s rights. 
\r\nThis gives rise to actions for defamation, libel or slander. Here, the court\r\nmust play a balancing act of the need to promote freedom of expression, while\r\nat the same time protecting the right of others. This is what the Constitution\r\ndemands, i.e. that the enjoyment of one’s rights must not prejudice the rights\r\nof others.

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Vices\r\nsuch as sensationalism, distortion and inaccuracies, being insensitive to\r\npeople’s lives, lack of fairness (not giving all sides opportunity to be\r\nheard), partisanship, extortion and blackmail, accepting money to publish or\r\n‘kill’ stories, lack of sufficient rigor and analytical depth, insufficient\r\ninvestigation and research, inadequate knowledge of the subject being covered,\r\ninvasion of privacy and attention to profit at the expense of public interest\r\nhave been singled out.

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As\r\nwe approach election period and given the charged nature of our competitive\r\nelectoral politics, there will inevitably arise questions of accuracy in\r\nreporting, access by politicians from all sides to both private and public\r\nmedia, hate speech, etc.

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No\r\nmatter the side you are on, the need to keep your proper journalistic standards\r\nmust not be lost sight of. Responsible reporting will promote healthy debate of\r\nnational issues. Petty and narrow reporting in my view distorts the debate.

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-We know what Radio Mille Colline did in Rwanda!
\r\n-Why would a responsible media house refuse a politician of a different view\r\npoint from airing his/her views on that radio, TV or press? True professionals\r\nshould encourage, not stifle debate. 
\r\nAll these call for high level professionalism and impeccable moral conduct. The\r\nmedia council and Uganda Communications Commission should encourage\r\nself-regulation.

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Awards\r\nlike these are important elements of self-regulation. I am told the entries in\r\nthe competition are judged against the following criteria; reporting accuracy\r\nand comprehensiveness; writing style, language and storytelling technique;\r\noriginality and enterprise in reporting; reporting rigor, depth and breadth of\r\ndiscussion and engagement; skill in use of journalism tools for original\r\nreporting; insight, analysis and examination of the context of story, relevance\r\nand public impact or benefit. These are the kind of things for which every\r\njournalist should want their work to be judged.

This story was published by the Daily Monitor on April 12, 2015