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History made

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Century old law scrapped symbolising new day for press and civil freedom.

Mwenda (L) and Eastern Africa Media Institute lawyer, Kenneth Kakuru, sharing a laugh after the verdict. INDEPENDENT /james akena

On the morning of Aug 25, 2010 a dozen or so journalists clamoured into the registrar’s dingy basement office at the Court of Appeals on Parliament Avenue in the hope of witnessing history. The registrar, dressed in a navy-blue suit, was not used to the media spotlight and in a demure, quiet voice began reading the summation of the petition that had been filed almost five years prior by journalists Andrew Mwenda and Haruna Kanaabi, represented by the Eastern African Media Institute. Together the men were challenging the constitutionality of the sedition charges the state had levied against them. Around the country, journalists, politicians, students were glued to their TVs in anticipation. The Daily Monitor’s newsroom briefly stopped chasing their daily stories to hear the Constitutional Court’s decision.

After the summation came a summary of the submissions of the petitioner and a summary of the state’s responses. As the seemingly timid registrar reached the judgement of the five judges, tension mounted in the office, which was now overflowing with intrigued reporters.  As it became clear that the court had ruled in favour of the petitioners, James Nangwala, Mwenda’s attorney, began to strike the registrar’s table in jubilant anticipation; a rhythmic foot stomping echoed in the background. Before long Mwenda, Kanaabi and approximately 40 other individuals that have been charged with sedition were free. Champagne bottles were popped at the Daily Monitor and the celebration commenced. History had been made.

Andrew Mwenda’s sedition saga originated on Wednesday Aug 10, 2005, one week after John Garang, the highly-respected leader of the Sudan People’s Liberation Army, died in a helicopter crash just south of Yei in South Sudan. His death dealt a huge blow to the peace agreement that had been signed three weeks earlier to end 21 years of civil war between north and south Sudan. Three days of riots in Sudan followed and left over 130 people dead. Accusing fingers were pointed at President Museveni who had lent the 60-year-old leader his own personal helicopter for the journey to Nusite from Kampala.

In Uganda, the most vocal accusations against Museveni came from Mwenda, whose Andrew Mwenda Live radio programme on KFM was then drawing almost a million listeners daily. Mwenda felt that the Ugandan government should be held accountable for putting Garang on “a junk helicopter at night over rebel-infested territory.” These comments, together with his role in the subsequent publication of High Command minutes, induced Museveni to lash out at Uganda’s press and Mwenda personally days later at Garang’s funeral in Yei, South Sudan.

“They are vultures, vultures,” said the president. “For them the misery of the many is the joy of the vultures. Any newspaper that plays around with regional security, I will not tolerate it. I will simply close it. Finished. The end,” he continued angrily. “I’ve been seeing this young boy, Mwenda, writing about Rwanda, writing about Sudan writing about the UPDF. He must stop completely!”

But that night on his programme Mwenda didn’t stop—he went further, responding with equal vitriol to the president: “If the man wants me to vie for his job, let him come and close the Daily Monitor,” he said over the objections of his guest, Moses Byaruhanga, one of the president’s political assistants. “His little threats are completely ignored … Mobutu [President Mobutu Sese Seko] ruled Congo for 32 years and Museveni has yet to clock 20. Do you know how he died and how he left Congo? Even his own soldiers were shooting at him. If Museveni wants to walk that path, I tell you he’s welcome to walk that path.”

The episode, which Mwenda has since acknowledged “went extremely overboard,” provoked the Ugandan government to shut KFM for a week and resulted in 15 criminal charges against Mwenda, including sedition, criminal defamation and promoting sectarianism.

However, this was not the first time the state had taken the outspoken Mwenda to court. On September 12, 1997, Mwenda, then The Monitor’s senior reporter, and Charles Onyango-Obbo, The Monitor’s Editor at the time, were charged with “publication of false news” after a story entitled, “Kabila Paid Uganda in Gold—Says Report,” was published.

Siraje Lubwama (R) journalist with Daily Monitor, Mwenda (C) Kanaabi, share experience of sedition charges on Aug 27. INDEPENDENT/JIMMY SIYA

The two journalists immediately challenged the charge in the Constitutional Court (which is also the Court of Appeal), but were told they would first have to face the criminal charges in a lower court. Between October 24, 1998 and February 16, 1999, the pair made 33 trips to the courts and paid 33 bail extensions before they were acquitted. When they took their petition back to the Constitutional Court the court upheld the legality of the “publication of false news” offence with which they had been charged. However, when the court’s decision was later appealed in the Supreme Court, not only was the publication of false news law ruled unconstitutional, the judges argued that so long as a matter of constitutional interpretation is raised in the Constitutional Court all prosecutions involving that law must be stayed indefinitely until the court has pronounced itself on the matter.

Up until the Constitutional Court’s landmark ruling on Aug 25 this year, sedition—the act of saying or writing something that brings the president into disrepute or contempt—has been used against politicians such as Dr Olara Otunnu, UPC Party President; Beti Kamya, Rubaga North MP and journalists such as Semuju Ibrahim Nganda, and most recently Timothy Kalyegira, Editor of the online Uganda Record.

The sedition law, which also criminalises the act of printing, distributing or reproducing seditious content, includes a penalty of five years in jail and a Shs50,000 fine for first time offenders and seven years for a second conviction. Those found to possess seditious material without a lawful excuse face three years in jail or a Shs30,000, or both. To date, only Haruna Kanaabi, the former reporter and editor of the now defunct Shariat newspaper has served a jail term for a sedition charge (see page 13).

When Mwenda was charged in the aftermath of what came to be known as the “Garang Episode” in 2005, he joined the East African Media Institute, which was representing Kanaabi, to challenge the constitutionality of both the “sedition and promoting sectarianism” laws. For five years, the men waited to have their case heard.

“At one point a judge would be indisposed and another time one time the state counsel was sick,” says James Nangwala of the delay. “One time no statement of the summary of the two petitions had been prepared,” he recalls with a smile.

All along, however, the government continued to pluck journalists from their office, bring them to the Central Police Station for questioning, often for hours at a time, before releasing them only to summon them back again weeks later.

“I’ve been to the police station more than 50 times during my 9 years as a journalist,” recalls Semuju Ibrahim Nganda, a former editor at The Observer. “Sometimes I ask them to give me a room so I can work from there.”

Andrew Mwenda and Charles Bichachi going to the police for questioning last year.

The arrests, local journalists agree, are designed primarily to intimidate, embarrass and inconvenience. The Museveni government, having prosecuted only one sedition suspect somewhat successfully in the past 24 years, cannot reasonably expect to win many of their cases—especially since Mwenda’s and the Eastern Africa Media Institute constitutional petition has put prosecutions on an indefinite hold. But it can disrupt an individual’s work and alienate them amongst their peers. “I’ve lost friends on account of my charge,” says former Independent and current Daily Monitor reporter, John Njoroge. “People don’t want to associate with you out of fear they will get into trouble.”

Moreover, Makerere University Mass Communication lecturer Adolf Mbaine says a number of his students are now seeking “safer” careers in public relations or communications for the government out of concern of the continued threats and arrests associated with journalism.

The big question now is how far the sedition ruling will go to restore confidence to both journalists and critical citizens. “This section [of the law] was limiting Ugandans from demanding accountability from their leader,” says Kanaabi. “The platform is now free for use without fear for those managing it and for those who want to use it.”

But the sedition saga is still not quite over. Subsequent to the Constitutional Court’s ruling, State Attorney Patricia Mutesi, said the state will appeal the ruling to the Supreme Court. Mutesi has the support of powerful figures in the government such as Minister of State for Ethics and Integrity James Nsaba Buturo.

“It is an essential piece of legislation,” Minister Buturo told The Independent by phone. “Media is selfish—anything touches them and they complain. Journalists are made to believe they can say anything and nobody will point a finger.” Buturo added that in most developed countries the media is mature but, “you don’t find that here.” “They come out with material that can harm our nation…The president needs to be criticised but it goes beyond healthy criticism.”

Fortunately for Minister Buturo and other members of the government displeased with the sedition ruling, the promoting sectarianism law was upheld by the court on Aug 25 as constitutional. In their 38-page judgment of the petition, the judges allocated two sentences for their justification:

“After perusing the relevant provisions of the Constitution and considering submissions of counsel for the petitioners and respondents together with authorities referred to us, we find nothing unconstitutional about it,” reads the statement. “We decline to grant the declaration on sectarianism as prayed.”

 “They wanted the Supreme Court to deal with it,” Mwenda reasoned confidently afterward.

They were sure we were going to appeal.”

And appeal they did. Moments after the registrar read out the verdict Nangwala and Kenneth Kakuru, counsel for the Eastern Africa Media Institute appealed the ruling to the Supreme Court. However, the sedition charge, based on the number of individuals who have been detained under its provisions, was the bigger of the two. The promoting-sectarianism charge, which can be applied to anyone suspected of raising discontent or disaffection against any group of persons on account of their religion, tribe or ethnicity, “offers the government with less leg room,” says Mwenda.

However, both these charges may eventually appear insignificant if the proposed amendments to the Press and Journalist Act 1995 are eventually submitted and passed by parliament. The amendments, which would require publications to be licensed yearly by the Media Council, the body charged with enforcing ethical standards in the media and arbitrating disputes between media and the government, has been described by retired Supreme Court judge, Justice George Kanyeihamba as, “unacceptable devices intended to stifle debate and progress on good governance.”

Under the Press and Journalist Amendment Bill 2010, any publication could have their licence revoked if it publishes material “prejudicial to national security, stability and unity,” “injurious to Uganda’s relations with her neighbours or friendly countries” or “amounts to economic sabotage.” Moreover, in order for any new publication to be licensed it needs to demonstrate, “proof of existence of adequate technical facilities” and “the social, cultural and economic values of the newspaper.”

The Bill would also provide the minister with absolute power to appoint members of the Council, including the chairperson, in contrast to the present Act that requires the minister to consult the National Institute of Journalists of Uganda. The Media Council would also be given authority to not only mediate but regulate any potential media violations.

The proposals have raised the ire of many journalists and even spurred the establishment of the Article 29 Coalition, a voluntary network of organisations working to promote media freedom and professionalism and combat these amendments. Joshau Kyalimpa, President of Uganda Journalists Association and member of Article 29 Coalition, says the group has met with the Minister of Information and numerous stakeholders, including media experts from Ghana’s National High Commission, to express its concern.

“There are many indications that if the law was passed it would still be challenged in court and the government would lose, so I think the government kind of backtracked in its attempt,” says Kyalimpa. “We hope that this will be the end of the story, but we are ready to continue with the fight.”

Mwenda sees the blanket of proposed amendments as a strategic move to eventually pass just a few of them. “That is the art of negotiation,” he says. “If you want something it is better to ask for so many. There are only a few things in there that the government wants.” 

Even Media Council Chairperson, Professor Goretti Nassanga, has expressed skepticism over the amendments in their current form. “I’m hoping that is not how the bill will turn out,” says Prof. Nassanga. “We hope that in parliament MPs will consult their constituencies to address concerns.”

Prof. Nassanga added that the balance between media laws that promote national unity on the one hand and personal freedoms on the other, “is still very touchy,” and that the media needs to maintain focus on producing content that is in the public interest rather than in the interest of advertisers.


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