There have been various debates surrounding the arrest and interrogation of the editor of the online Uganda Record Timothy N. Kalyegira mainly about his articles on the bomb blasts in Kampala on July 11, 2010. The Uganda Record insinuated or suggested that this could have been a state-orchestrated crime.

In my opinion, it is easier and cheaper to ignore or counter divergent views rather than try to police people’s thoughts and ‘conspiracy’ theories. Closing media houses or prosecuting journalists as an option of first resort does not and has not helped in clearing the air about allegations made or opinions expressed. The trial of Daily Monitor journalists on criminal defamation for reporting about Justice Mwondha’s alleged double salary as Inspector General of Government and judge clearly showed the ineffectiveness of such prosecutions.

In my experience, one would receive tangible results when journalists are sued (instead of prosecuted) like Teddy Sseezi Cheeye was while editor of the Uganda Confidential. Assuming that what has been opined is untrue and has injured one’s reputation, the aggrieved party has the right to sue for damages for defamation. However, in order to succeed in the case, one must show that they had a reputation and that it has damaged and that the opinion is the sole cause of the damaged reputation.

In such suits, the publisher or writer must prove that the opinion or publication was not fair comment or privileged or justified “truth.” This is why Gen. Moses Ali’s suit against the Daily Monitor newspaper failed. Indeed failure to successfully sue might lead to the publisher claiming costs against the plaintiff like in the case of Ofwono Opondo versus Daily Monitor when he withdrew his suit probably upon realising the futility of his claim.

I obviously agree that the state is in a Catch 22 situation of recognising people’s rights while protecting rights of others. However, Supreme Court Justice Joseph Mulenga held in the petition of Charles Onyango Obbo and Andrew Mwenda versus Attorney General that:  It can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society…” In his opinion, which I agree with, “Article 29 (1) (a) does not stipulate or specify what a person is free to say or express. Both the constitution and the Press and Journalist Act, which was enacted in 1995 to ensure freedom of the press, do not provide a definition of freedom of expression or of the press.” Was this an oversight? I think not. In any case there have been situations where previous denials have been proven true like the International Court of Justice’s  findings on Uganda’s invasion and plunder of DR Congo, which previously had been vehemently denied by the state.

Depending on what the content of the publication is, the resort to criminal “redresses” in my view does not normally help unless the state is draconian. It is a clear violation of the right to freedom of expression and an infringement on the right to information. Dr Henry Odhiambo notes in his HURIPEC working paper “18 Reflections on Freedom of Expression in Uganda’s Fledgling Democracy: “As a mechanism for immunisation of the leadership to adverse criticism by their subjects, sedition can therefore only be maintained where the goals of the leadership are to stifle accountability and promote graft, inefficiency, and all sorts of political decadence.” This is probably why most of these prosecutions have either failed to take off or been withdrawn especially after the 1995 Constitution was promulgated.

I will borrow the reasoning of the Indian Supreme Court decision in Rangarajan versus Ram: “Commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.”

Therein lies the challenge- what is public interest? How do we measure public interest? It is very problematic to assume what is or is not public interest. Therefore, like in the case of the closure of the Central Broadcasting Service radio station, the nexus between the Buganda riots and the broadcasts have to be clearly made, not assumed. That is why in the first petition against sedition, the Constitutional Court held that assuming a right will be infringed is not enough. Allowing others to determine this reminds me of Henrik Ibsen’s An Enemy of the People; public interest can easily be swayed by a convincing tongue like the one of Mark Anthony after the assassination of Julius Caesar.

I therefore agree with Dr Odhiambo when he notes that “In targeting the intention of the author of any communication and his or her message, (the Ugandan law on ) sedition makes unfortunate assumptions that create a real and substantial risk of punishing constitutionally protected conduct, particularly in form of viewpoints. In the first place, the provision seems to assume homogeneity of the audience in terms of how they interact and perceive any given communications. Secondly, the provision also seems to be premised on a rather unfortunate assumption that leaders must always be highly regarded by the public. To the contrary, as already stated, not only do studies “in cognitive psychology and behavioural economics indicate that individuals operate with significant, persistent perceptual biases,” but they also reinforce the fact that the traditional conservative view of the relationship between the governed and the governors has no place in a democracy.

Daniel R. Ruhweza is attorney and lecturer of law

Comments (7)

Subscribe to this comment's feed

Name

Email

Website

Title

Comment

smaller | bigger

I have read and agree to the Terms of Usage.

Add Comment Preview