THE RIGHT TO FREEDOM OF EXPRESSION AND THE DUTY NOT TO DEFAME:

AN APPRAISAL OF LAW AND PRACTICE

BY

KYAMBADDE AI<RAM

LLB/42712/141/DU

A DESSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE AWARD OF BACHELOR

OF LAWS DEGREE OF KAMPALA INTERNATIONAL

UNIVl.RSITY, KAMPALA

DECEMBER, 2017

DECLARATION

1, KY AMBADDE AKRAM solemnly declare that this Dissertation is my original research work

both in substance and in style and that to the best of my knowledge it has never been submitted

in any academic institution for any academic award.

1 further declare that all materials cited in this dissertation which are not my own have beenfully

acknowledged.

<"\ \..... 1 1 .. ~?.:-..... P .~ . . e:~ ~. Signature Date

APPROVAL

This dissertation has been done under the guidance and supervision of the appointed university

supervisor.

···~··········· · ··· · . ...... ~ .;;: ... l ~. ~ .. ' .. ~ :? .. : .~ .. : Mr. Owen Henry Date

ii

ACKNOWLEDGEMENTS

Gratitude is extended to Allah for the gift of knowledge, grace and wisdom; all those who

contributed to the success of this paper especially my supervisor, Mr. Owen Henry who has been

instrumental in shaping this dissertation to its current form.

I am deeply indebted to my parents for the wonderful support both moral and financial that has

made me reach greater heights.

Furthennore I would like to thank my beloved brothers and sisters for their continued prayers

and endless encouragements especially Mujomba Farouk, Nanyonjo Faridah, Nakanba Madina

and Barinkimye Sadiq, Aksam among others.

My sincere gratitude further goes to Hon. Anita Among for her support towards my career'plus

my classmates and friends who rendered me support that saw me accomplish my Law school.

iii

DEDICATION

This paper is dedicated to my dear parents Hajj Kyambadde Muhammad and Aisha Kyambadde

plus my brother Mujomba Farouk for seeing me through the Law School and making my dream

come true.

iv

LIST OF STATUTES

The Constitution of Republic of Uganda 1 995

The Penal Code Act Cap 120

The Newspaper and Publications Act Cap 305

Electronic Media Act Cap 104

The press and journalist Act Cap 105

The Press Censorship and Con·ection Act cap 306

The parliamentary Elections Act of 2005

The presidential Elections Act of 2005

Anti-Terrorisn1 Act

Uganda communications Act Cap 106

The Public Order and Management Act, 2013

Intemational Covenant on civil and political Rights (ICCR)

The Dakar UNESCO Declaration 2005

African Charter on Human and People's Rights(ACHPR)

Universal Declaration ofHwnan Rights

The Declaration of principles of freedom of expression in Africa 1981

Foundation of Human Rights Initiative

v

ADF

DP

FDC

ICCPR

IPC

LRA

N.R.M

NGO's

NRA

P.E.A

PCA

PEC

UBC

UDHR

UNC

UPC

LIST OF ABBREVIATIONS

Allied Democratic Force

Democratic party

Fmum for Democratic Change

International convention on Civil and Political Rights

Inter party Coalition

Lord's Resistance Army

National Resistance Movement

Non-Govennnent Organization

National Resistance Anny

Presidential Elections Act

Penal Code Act

Parliamentary Elections Act

Uganda Broadcasting Corporation

Universal Declaration of Human Rights

Uganda National Congress

Uganda People's congress

vi

ABSTRACT

Democracy is based profoundly on the right for people to express their views. Freedom of speech

is a basic human right in all free society, it is essential in decision making from parliament to

community level. When this basic human right is threatened, people become very emotional and

will do anything to protect it. This can lead to social unrest and alternatively have negative

effects on the economy. Some people argue that freedom of speech should only be allowed to a

certain extent. In my views in order for any nation to be considered free, it's citizen must be,able

to say how they feel.

To begin with, government make laws base on the constitution of a country. In a free society

before laws are made, legislations are examined by those who are in agreement and those

opposing. In this case everyone has a say, so it is very difficult for any leader to take advantage

of the system.

Furthennore, individuals feel safe and valuable in a free country when they are allowed to

express their feelings by voting dUJing general elections, and even when making community

decisions. Trying to remove or reduce this democratic right can cause protest and even riots.

Take for instance the series of riots that took place in the Caribbean during the mid-1900, the

riots that sparked off in the Arab spring countries such as Libya, Tunisia, Egypt, Syria among

others has been as a result of denial of the right of the people to express their view without

political intimidations

On the other hand, some people argues that if c1itical decisions are to be made base on how

everyone feels, the country will remain stagnant to change because we cannot please everyone at

the same time. They argue further by stating that only some social changes should include the

population opinion for instance health and education, whereas matters of national security should

always remain unclassified.

In short, despite the fact that people in free societies have difference in opinion, it is the duty of

policy makers to keep the people infonned and up to date when making decisions on their behalf.

There is nc justification for doing otherwise because freedom starts with a voice.

Nowadays, globalization and multiculturalism has changed the viewpoint of the people by

adopting themselves as smarter, quicker and effective cmmnunicator. In older days, people used

to accept any rules whatever they have been told to them without (taking) anyone's opinion

vii

whether in running government, family or society. They used to respect and behaved as told to

them.

First, Freedom of thought, views and speech is the most fundamental duty of every person of

different nations because without sharing remarks or thinking nobody knows about solution of

any cause. Liberty of words shows the power especially in politics or government. Most

importantly, everyone has right to think and act for battlement of society without causing harm

or prestige of some individual.

Second, it is necessary to understand common people's thought about any norms before it has

been made. The Government, which only can be created by people's opinion and their vote

because without them everything can become fuzzy however freedom of speech should be

allowed in snch necessmy circumstm1ces.

Furthennore, education, economic factors, medical, agriculture, info-tech and so on are run by

common people who do anything to compete with the world. So the society is only governed by

their potentiality and capabilities and kn<'whow of all their desire tendencies which gives rising

up gradation for making a nation brighter. So govenunent should know what citizens needs in

different field in civilized society.

To conclude, people should be free from such hurdles by shaJing their speech virtually. I think

freedom of speech is most valuable aspects of society to build up in fruitful way. Imposing

restriction in speaking may damage and survive longer without getting productive result.

Freedom of speech is guaranteed by the 1995 constitution of Uganda but it does not allow to

speak whatever trash or rubbish which cause harm to others or to disrespect you. Your speech

should point out such defects and wrong done by others moreover it should not touch personal

life.

viii

TABLE OF CONTENTS

DECLARATION ......................................................................................................................... .i

APPROVAL ............................................................................................................................... ii

ACKNOWLEDGEMENTS ....................................................................................................... iii

DEDICATION ........................................................................................................................... .iv

LIST OF STATUTES .................................................................................................................. v

LIST OF ABBREVIATIONS ..................................................................................................... vi

ABSTRACT .............................................................................................................................. vii

TABLE OF CONTENTS ........................................................................................................... .ix

CHAPTER ONE .......................................................................................................................... !

1.0 GENERAL INTRODUCTION ................................................................................................. !

1.1 BACKGROUND OF THE RESEARCH PROBLEM ....................................................... 3

RIGHTS AT STAKE ............................................................................................................... 6

1. The right of freedom of expression and opinions; ............................................................... 6

2. Thee right to impart, seek and receive information and ideas; ............................................ 8

3. Structural restrictions on the press: ...................................................................................... 9

4. Restriction of the rights to promote the right and reputation of the others or to promote

National Security, public order, health or morals; ................................................................. 10

1.2 STATEMENT OF THE RESEARCH PROBLEM ......................................................... 12

1.3 SCOPE OF THE STUDY: ............................................................................................... 12

1.3.1 Subjective scope; ........................................................................................................... 12

1.3.2 Time scope .................................................................................................................... 12

1.3.3 Geographical scope ....................................................................................................... 13

1.4 LITERATURE REVIEW ............................................................................................... 13

ix

1.5 OBJECTIVES OF THE STUDY ..................................................................................... 15

1.6 HYPOTHESIS ................................................................................................................. 15

1.7. SYNOPSIS ...................................................................................................................... l5

1.8. RESEARCH METHODOLOGY; ................................................................................... 16

1.9. ETHICAL CONSIDERATIONS .................................................................................... 16

CHAPTER TWO .................................................................................................................... ' ... 18

HISTORICAL DEVELOPMENT OF THE PRESS AND MEDIA FREEDOM OF

EXPRESSION IN UGANDA ................................................................................................ 18

2.0 Introduction ...................................................................................................................... 18

2.1 General perspective of press freedom world wide ........................................................... 18

2.1.1 Origins of the press and the press freedom in Uganda; ................................................. l9

2.1.2 Freedom of expression in the colonial period; .............................................................. 20

2.1.3 Freedom of press in post-independence Uganda under Milton Obote I regime from

1962 to 1971 ........................................................................................................................... 22

2.1.4 Freedom of press during Amin's regime; ..................................................................... 24

2.1.5 Freedom of press in Obote's regime; ............................................................................ 26

2.1.6 Freedom of press during NRM era 1986 to the present. ............................................... 26

2.1.7 Other interferences on freedom of expression after 1995 ............................................. 31

CHAPTER THREE ................................................................................................................... 35

THE LEGISLATIVE AND REGULATORY FRAMEWORK OF THE MEDIA ................ 35

3.0 Introduction ...................................................................................................................... 35

3.1 Laws Regulating Freedom of Speech and Expression ..................................................... 35

3.1.1 International Legislation ............................................................................................... 35

The Universal Declaration of Human Rights (UDHR) (1948) .............................................. 35

The International Covenant on Civil and Political Rights (lCCPR) 1966 ............................ 35

The Declaration of Principles on Fre ;dom of Expression in Africa (1981) .......................... 36

X

The Dakar UNESCO Declaration 2005 ................................................................................. 36

The Windhoek Declaration in Promoting an Independent and Pluralistic Af1ican Press

(UNESCO) ............................................................................................................................. 37

3.2. Uganda's international obligations .................................................................................. 38

3.2.1 The constitution of the Republic of Uganda 1995 ....................................................... .40

3.2.3 Penal Code Act, Cap 120 ............................................................................................. .43

Penal Code Act Cap 120 ........................................................................................................ 43

Sedition S. 39 and 40 PCA. ................................................................................................... .44

Promoting sectarianism S.41 PCA ........................................................................................ .45

Defaming a foreign dignita1y, ambassador or prince S.53 PCA. .......................................... .45

Criminal Libel. ...................................................................................................................... 45

3.2.4 Anti-Terrorism Act, 2002 ............................................................................................ .46

3.2.5 The Presidential Elections Act 2005 and the Parliamentary Elections Act 2005 ........ .48

3.2.6 Uganda Conununications Act 1997 ............................................................................. .48

3.3 Overly broad powers of media regulatory bodies ........................................................... .49

3.3 .1 Broadcasting council. ................................................................................................... .49

3.3.2 Uganda communications Cmmnission (UCC) .............................................................. 50

3.3.3 Media council. ............................................................................................................... 51

3.4 THE ANALYSIS OF THE FREEDOM OF EXPRESSION IN UGANDA; .................. 53

3.4.1 THE FREEDOM OF EXPRESSION IN THE PRESS AND THE MEDIA; ............... 53

3.4.2 THE FREEDOM OF EXPRESSION BY THE GENERAL PUBLIC; ........................ 61

3.5 The enactment of the public order and management Act, 2013 ....................................... 63

CHAPTER FOUR ...................................................................................................................... 68

THE LAW ONDEFAMATION ............................................................................................ 68

4.1 INTRODUCTION ............................................................................................................ 68

xi

4.2 Defamation takes two forms, ........................................................................................... 69

4.2.1 Libel; ............................................................................................................................. 69

4.3 Elements of defamation .................................................................................................... 70

4.3.1 The statements or words must be defamatory in nature ................................................ 71

' Determination of defamatory words ...................................................................................... 72

4.3.2 There are two kinds ofinnuendo ................................................................................... 73

4.4 The defamatmy statement must refer to the plaintiff ....................................................... 74

4.5There must be publication of the statement. ..................................................................... 76

4.6 Defences to Defamation ................................................................................................... 76

4.6.1 Justification; .................................................................................................................. 76

4.6.2 Privilege; ....................................................................................................................... 77

4.6.3 Fair comment; ............................................................................................................... 78

CHAPTER FIVE ....................................................................................................................... 80

CONCLUSION AND RECOMMENDATIONS ................................................................... 80

5 .I Introduction ...................................................................................................................... 80

5.2 Conclusion ........................................................................................................................ 80

5.3 Recommendations ............................................................................................................ 81

5.3.1 Independence of the Media and Broadcasting Councils ............................................... 81

5.3 .2 Recognition of the Rule of Law .................................................................................... 81

5.3 .3 Limitation should serve a legitimate ............................................................................. 81

5.3.4 Media should be made free of political control at an institutionallevel.. ..................... 82

5.3.5 Eliminate Substantive Restrictions on Registration Systems ........................................ 82

5.3.6 Access oflnfonnation to be a Public Right .................................................................. 82

5.3.7 Genuine Patriotism is needed ........................................................................................ 83

5.3.8 Government should Facilitate Enjoyment of Rights ..................................................... 83

xii

5.3.9 Government should involve stakeholders ..................................................................... 83

REFERENCES .......................................................................................................................... 84

xiii

CHAPTER ONE

1.0 GENERAL INTRODUCTION

The right to freedom of expression is so paramount in the lubrication of democracy. Freedo)ll of

speech is the concept of the inherent human right to voice one's opinion publicly without fear of

censorship or punishment. Speech is not limited to public speaking and is generally taken to

include other forms of expressions.

In many Nations, particularly those ones with relatively authoritarian fonns of Government,

ove1t government censorship is enforced. Censorship has also been alleged to happen in other

tonus and there are different approaches to issues such as hate speech, obscenity and defamation

law seven in countries seen as liberal democracies. Freedom of expression entails freedom to

hold opinions without interference and the rights to impart seek and receive infonnation and

ideas regardless of fmm, content or source. It's an essential means by which citizens can

influence their leaders and govenunents.

Various international and regional human rights instruments guarantee freedom of

expression. such as in the United nations universal Declaration of human rights and is ratified by

several states. Nonetheless the degree to which the right is upheld depends varies greatly from

one nation to another. Article 19(2) of the ICCPR1 and Alticle 9ofthe ACHPR recognizes the

1ight of freedom of expressionArticle 19 of the UDHR2, adopted in 1948, states that Everyone

has the right to freedom of opinion and expression; this right includes freedom to hold opinions

without interference and to seek, receive and impart infonnation and ideas through any media

and regardless of frontiers.

Today, freedom of speech, or the freedom of expression, is recognized in international and

regional human rights law. The right is enshrined in Article 19 of the International Covenant on

Civil and Political Rights3, Article 10 of the European Convention on Human Rights, Article 13

of the American Convention on Human 1Ughts and Article 9 of the African Charter on Human

1 International Covenant on Civil and Political Rights 2 Universal Declaration of Human Rights 3 ICCPR

1

and Peoples' Rights. Based on John Milton's arguments, freedom of speech is understood as a

multi-faceted right that includes not only the right to express, or disseminate, information and

ideas, but three further distinct aspects;

• The right to seek information and ideas;

• The right to receive infonnation and ideas; and

• The right to impart information and ideas.

Intemational, regional and national standards also recognize that freedom of speech, as the

freedom of expression, includes any medium, be it orally, in written, in print, through the

Intemet or through art fonns. This mea·,, that the protection of freedom of speech as a right

includes not only the content, but also the means of expression.

Relationship to other rights.4The right to freedom of speech and expression is closely related to

other rights, and may be limited when conflicting with other rights (see limitations on freedom of

speech). The right to freedom of expression is also related to the right to a fair trial and court

proceeding which may limit access to the search for infonnation, or determine the opportunity

and means in which freedom of expression is manifested within court proceedings. As a general

p1inciple freedom of expression may not limit the right to privacy, as well as the honor and

reputation of others. However greater latitude is given when criticism of public figures is

involved.

In order for individuals to realize their right to freedom of expression, individuals and media

outlets must be able to function freely without unreasonable government disturbances even in

government owned media outlets

Freedom of expression in Uganda has been subject to a number of restrictions since colonial

periods to date. However, in 1986when the NRM5 government under the leadership of

YoweriKagutaMuseveni6 came into power, there was a fundamentalchange into a more liberal

approach to the enjoyment of this freedom. A new constitution was promulgated in 19957 which

safeguarded the freedom of expression and right to access to information in the possession of the

4 The relationship between the right of freedom of expression and other rights 5 The National Resistance Movement 6 The president of Uganda since 1986 7 The constitution of Uganda 1995

2

state. One may ably assert that that the international articles were successfully incorporated or

domesticated into our laws as a result of ratification of the international covenants. These

freedoms however have been restricted especially when the media, both electronic and p1int,

have engaged government in political debate, dialogue or criticism. These constitutional

guarantees have been resh·icted by the enactment of punitive laws and creation of institutions

meant to suppress media houses and restrict access to infonnation. This has created a situation of

self-censorship among the media houses as opposed to the major roles of disseminating

information and watchdogs of govemment excesses, a cornerstone to their contribution to

democracy. This paper seeks to discuss the historical evolution of this freedom in Uganda and

examine the legal regime governing press freedom and identify the legal and other practical

limitations to the full enjoyment of this freedom.

1.1 BACKGROUND OF THE RESEARCH PROBLEM

Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first

session in 1946, before any human rights declarations or treaties had been adopted, the UN8

General Assembly adopted Resolution 59(1) stating that freedom of information is a fundamental

hwnan right and the touchstone off all the freedoms to which the United Nations is concentrated.

Freedom of expression9 is essential in enabling democracy to work and public participation in

decision making. Citizens can't exercise their right to vote effectively or take part in public

decision making if they don't have free access to infonnation and ideas and are not able to

express their views freely. Thus, freedom of expression is not only important for individual

dignity but also to participation, accountability and democracy, violation of freedom of

expression often go hand in hand with other violations, in particular the right to freedom of

association and assembly. In free and democratic societies, the press and other forms of media

are essential tools to governance. They ir vestigate research and publish all that is good or bad in

society. They alert and educate citizens whether mlers or governed, about the right and wrong

8 The United Nations General Assembly 9 (supra)

3

paths in the manner and style, respective govennnents are behaving and acting in the running and

administration of public affairs.

In this regard, the independence and freedom of press and other media together with ethics and

courage of the proprietors, directors, journalists and reporters who work for and in them are of

crucial importance. The interplay between freedom of press, restraints on prui of publishers and

the ethics and courage of the journalists creates the necessruy equilibrium for acceptable

standards and behavior in publishing and governru1ce. In countries where monolithic

authoritariru1 or personalized regimes are the order of the day, the role of the press is either

severely restricted or constantly challenged. But also its importance has never been greater or in

greater need. Generally, the media is adversely affected by the law, the policies and the practice

of the people in power.

In the end result, the accuracy, the integrity and credibility of the media both in print and

electronics ru·e seriously if fatally compromised. Where journalists and reporters are intimidated

or persuaded to cooperate and become good boys and girls in judgment of those they are minded

to support. Unconditionally, the truth of what they write or report in the press and other media

becomes suspect, their stories are mainly in support of party or government often uninfonned

and misinfonned, unsearched and boring, perhaps only their reports on international news and

events exhibit some grains of truth and interest to readers or listeners.

Yet as the comi held in the case of South Africa vs. Sunday times newspaper10that;

the role of the press in a democratic society can't be under estimated. The press is in the

frontline of the battle to maintain democracy. It's the fimction of the press for expose out

corruption, dishonesty and graft wherever it may occur and to expose the perpetrator".

It must also contribute to the exchange of ideas; it must advance communication between the

ones governing and the governed. The press must act as a watch dog of government. Personally,

I would go further and say the press and other media must go beyond the role of a watchdog,

they should act as bloodhounds against corruption, abuse of power and misgovernance.

10(2) SA 221 (1994)

4

The freedom of expression and information are equally of fundamental importance for, the

recognition and protection of other basic human rights and fw1damental freedoms. Before being

preoccupied with other govermnent pastimes, the NRM in its hay days of administration and

good governance was acutely aware of the role of the press plays in the free and democratizing

society. It entertained dialogues with members of the press and accepted the constitutional

provisions about the freedom of information.

It initiated the media bill which came to be enacted into law. Thus, Article 29 of the 1995

constitution provided that 29( 1) 1 1 that every person shall have a right to;

a) Freedom of speech and expression, which shall include freedom of press and other media.

b) Freedom of thought, conscience and belief which shall include academic freedom in institution of learning.

c) Freedom of practice of religion and manifest such practice which shall include the right to belong to and patticipate in the practice of any religious body or organization in a matmer consistent with the constitution;

d) Freedom to assemble and demonstrate together with others peacefully and unam1ed and to petition; and

e) Freedom of association which shall include freedom to fonn and join association or unions, including trade unions and political and other civic organizations.

Clause (2) provides to the effect that every Ugandan shall have the right to; a) To move freely throughout Uganda and to reside atld settle in any part of Uganda; b) To enter, leave and return to Uganda; and c) To a passport or other travel document.

In relation to the freedom of press, Article 41 of the constitution12 which has been the subject of

many nwnerous judicial applications, enforcements and interpretations, is equally important. It

provides that Article 41 (I) every person has a right of access to information in the possession of

the state or any other person or agency of the state except where the release of the information is

likely to prejudice the security or sovereignty of the state or interfere with the right to the privacy

of atly other person

However, parliament has to enact a law classifying the categories of infonnation that are like!; to

prejudice the security and sovereignty of the state per clause 213 of the satne article emphasizes

that parliament shall make laws prescribing the classes of information referred to in clause (1) of

11 Article 29 of the Uganda constitution of 1995 12 The constitution of Uganda 13 Ar1icle41(2) ofthe 1995 constitution of Uganda

5

this article and the procedure of obtaining access to that information;generally, then, the freedom

of speech includes the right to speak, write or publish whatever one choses and only subject to

other laws of that state.

This freedom includes the right of conscience and of worship and the right to give and receive

information and ideas through any medium. This is the freedom that includes several aspects of

constitutional importance such as the ab•olute freedom of speech in parliament, the immunity

and protection of the persons and proceedings in courts of law, the right to express and propagate

political views and ideas including those which are in opposition to those propagated b~· the

leaders and govemment of the day.

The freedom of speech and the press may be exceeded by the publication of treasonable,

seditious defamatory blasphemous or obscene matter or inciting mutiny or disaffection in

security forces. It's also an offence to exercise this freedom for the purposes of contempt of court

or parliament or a breach of the official secrets Act. These offences are of a criminal nature but

defamation may also be a civil wrong if its deliberately and falsely exposes any person about

whom its published, to hatred, ridicule or contempt or causes him or her to be shunned or

avoided by other reasonably disposed citizens.

Though progress has been made in recent years in tenns of securing respect for the right to

freedom of expression as seen above, efforts have been made to implement this right through

specially constmcted regional mechanism. New opportunities are emerging for greater freedom

of expression for the internet and world wide satellite broadcasting. New threats are emerging

too for example with global media monopolies and pressures on independent media outlets.

RIGHTS AT STAKE

1. The right of freedom of expression and opinions;

The freedom of speech is the right to articulate one's opinions and ideas without fear of

government retaliation Freedom or censorship, or societal sanction. The te1m freedom of

6

expression is sometimes used synonymously with freedom of speech, but includes any act of

seeking, receiving and imparting information or ideas, regardless of the medium used.

Freedom of expression is recognized as a human right under Article 19 of the Universal

Declaration of Human Rights14 and recognized in international human rights law in the

International Covenant on Civil and Political Rights (ICCPR). 15 Article 19 of the UDHR16 states

that "everyone shall have the right to hold opinions without interference" and "everyone shall

have the right to freedom of expression; this right shall include freedom to seek, receive and

impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in

print, in the fonn of art, or through any other media of his choice".

The version of Article 19 in the ICCPR later amends this by stating that the exercise of these

rights carries "special duties and responsibilities" and may "therefore be subject to certain

restrictions" when necessary "[f]or respect of the rights or reputation of others" or "[f]or the

protection of national security or of public order (order public), or of public health or morals".

Therefore, freedom of speech and expression may not be recognized as being absolute, and

common limitations to freedom of speech relate to libel, slander, obscenity, pornography,

sedition, incitement, fighting words, classified infonnation, copyright violation, trade secrets,

food labeling, non-disclosure agreements, the right to privacy, the right to be forgotten, public

security, and perjury. Justifications for such include the harm principle, proposed by John Stuart

Mill in On Liberty, which suggests that:

"the only purpose for which power can be rightfit!ly exercised over any member of a

civilized community, against his will, is to prevent harm to others." The idea of the

"offense principle" 17

Is also used in the justification of speech limitations, describing the restriction on forms of

expression deemed offensive to society, considering factors such as extent, duration, motives of

the speaker, and ease with which it could be avoided. With the evolution of the digital .1ge,

application of the freedom of speech becomes more controversial as new means of

communication and restrictions arise, for example the Golden Shield Project.

"UDHR 15 International covenant on Civil and Political Rights 16 Universal Declaration of Human Rights 17 An article from the book "On liberty" by John Stuart Mills published in 1867

7

Furthermore, the right of freedom of expression supposes the right of all people to express their

views and opinions freely. It's essentially aright which should be promoted to the maximum

extent possible given its critical role in democracy and public participation in political life. There

may be certain extreme fonns of expression which need to be curtailed for the protection of other

human rights. Limiting freedom of expre .sion in such situations always a fine balancing act. One

pruticular form of expression which is banned in some countries is hate speech

There may be some views which incite intolerrulCe or hatred between groups. This raise the

debate about whether such hate speech, as it is known should be restricted. An extreme of this

use of the mass media to promote genocide or racially motivated attacks such as the role played

by radio television libre des Milles collinesin the Rwandan genocide18

In some countries hate speech laws have been introduced to outlaw such expression. There is a

fine balance between upholding the right to freedom of expressions protecting other human

rights. The success of such laws has often been questionable and one of the consequences has

been to drive hate speech underground. While it may be necessary to ban certain extreme forms

of hate speech and certainly to make its nse by the state prohibited, parallel measures involving

the promotion of the pluralistic media areessential to give ways to counter view points

2. Thee right to impart, seek and receive information and ideas;

Restriction on individual journalist; the freedom to impart infonnation cru1 come under attack in

many ways and particularly impinge the fi·eedom of the press. Pressure on journalist possess a

very significru1t threat.

Informal censorship refers to a variety of activities by public officials ranging from telephone

calls and threats to physical attacks designed to prevent or punish the publication of c1itical

matters. The right of journalist to protect their sources is also important in ensuring the free flow

of information on matters of public interest. International ru1d regional human rights mechanism

18 The Rwandan Genocide of 1994

8

have asse1ied that joumalists should never be required to reveal their sources except under

certain conditions (it's necessary for a criminal investigation or the defense of a person accused

of a criminal offence, they are ordered to do so by court, after fill! opportunity to present the

case, necessary implies that information can't be obtained from elsewhere, that it is of great

importance and the public interest in disclosure significantly outweighs the harm to freedom of

expression from disclosure/ 9

Privacy laws can impede investigative reporting aimed at exposing conupt and illegal practices.

Privacy laws, while important in protecting the private affairs of individuals, should not be

misused to deny discussion of matters of public concem.

The media should be free to report on conflicts and public scrutiny in such situations is essential

in controlling humanitarian and hwnan rights abuses. Exclusion of the media is a very severe

restriction on freedom of expression and infonnation in this regard and restriction should only be

placed where there are clear safety concems. Elections are other times when the freedom of the

press to provide balanced and impartial infonnation becomes critical and more vulnerable to

repression by political actors.

3. Structural restrictions on the press:

These call into question whether the media are free from political control at an institutional level.

Restrictions can take the fonn of the press laws which allow for govemment interference in the

media or which impose unwa.ITanted restrictions on published content. All bodies with regulatory

authority over media print or broadcast should be fully independent of govemment. Processing

of license applications should be opw and transparent with decisions about competing

applications being made on the basis of pre-established criteria in the interest of the public's

right to know. To supplement the powers of broadcast regulatory bodies should be limited to

matters relating to licensing and complaints.

Media monopolies are another way in which the right to receive infonnation from a variety of

sources is restJicted. State broadcasting monopolies don't serve the public interests but then in

some smaller markets, a monopoly newspaper may be the only way to provide access to local

19 International and Regional human rights mechanism

9

news. Rules on monopolies need to be carefully designed to promote plurality of content, without

providing the goverrunent with an opportunity to interfere with the media.Other examples of

structural censorship i.e. use of economic measures by government to control information,

include preferential allocation of gove!l'ment advertising, goverrunent control over printing,

distribution network or newsprint and the selective use of taxes.

Access to information held by public authorities is another aspect of fi·eedom of information

debate. International/regional human rights mechanism have asserted the public's right to know

and urged govemments to adopt legislation along the following lines; the legislation should be

the principle of maximum disclosure, public bodies should be under an obligation to publish key

infonnation; public bodies should actively promote open government; exceptions should be

clearly and narrowly drawn and subject to strict hann and public interest tests; individuals

should have the right to appeal against a refusal to discloseinformation to an independent

administrative body, which operates in a fair, timely and low cost manner; the legislations should

provide protection for whistleblowers who release infonnation on wrong doings.

New technologies such as the intemet, satellite and digital broadcasting, offer unprecedented

Opportunities to promote freedom of expression and information. Action by the authorities to

limit the spread of harmful or illegal content through the use of these technologies should be

carefully designed to ensure that any measures taken don't inhibit the enormous positive

potential of these technologies. The application of rules designed for other media such as the

print or broadcast sectors, may not be appropriate for intemet. Obviously limitations on such

technologies will be a fine balancing act between defending the freedom of expression and

information and ensuring protection from abuses e.g. spread of child pornography

4. Restriction of the rights to promote the right and reputation of the others or to promote National Security, public order, health or morals;

Restrictions in the name of public order and national security can often be excessively broad and

vague. Intemational and regional bodies have said that such restrictions should only be imposed

where there is a real risk of harm to a legitimate interest meaning there is significant 1isk of

imminenthann; the risk of serious harm, that is to say violence or other unlawful action; there is

10

a close causal link between the risk of harm and expression; the expression was made intention

of causing the harm.

Criminal sanctions accompany such restrictions. Often the expression in question may not pose a

clear risk of serious harm to public interest and still its subjected to penal sanctions including

imprisonment. International/regional human rights mechanism on freedom of expression have

concluded that imprisonment should not be imposed except in the very most extreme

circumstances where there is intentional incitement to imminent and serious lawless action.

Civil defamation laws can also be misused to censor criticism and debate concerning public

issues. International or regional human rights bodies have said that civil defamation laws should

observe the following principles; public bodies should not be able to bring defamation actions ;

truth should always be available as defense ; politicians and public officials should have to

tolerate a greater degree of criticism; publications regarding matters of public interest which are

reasonable in all circumstances should not be considered defamatory; damage awards should be

proportionate to the actual hann caused and should take into account alternative remedies such as

apologies and con·ections.

Courtroom restrictions; there are vruious laws falling under contempt of court rubric which

restrict the flow of inf01matiou in order to protect the administration of justice. Some restrictions

exist to ensure a fair trial and avoid t1ial hy the media. Other restrictions are more to do with the

protecting the court from being scandalized. There are increasing questions on whether freedom

to criticize the judiciary should be limited in this way. Having cruneras in the courtroon, has

become a lively area of debate in recent years. Again, as with many other questions to do with

the freedom of expression, there is affine balance to be struck between the desirability of opening

up the judicial system on one hand and protecting the privacy of victims and their families on the

other

11

1.2 STATEMENT OF THE RESEARCH PROBLEM

The main problem in this research is to find out as to the legal framework regulating the freedom

of expression and speech, how it has been violated, the obligation not to defame others while

exercising this right and what recormnendations are being enforced to curb down the violatio•1 of

freedom of speech and expression.

There are legislations both national and international in place which protects the public against

the violation of this right but it seems these legislations are not being effectively basing on what

is happening to both the press and the media. The situation in Uganda today is appealing because

of the way the media freedom is being violated.

From here therefore the paper shall make critical review of the current laws like the 1995

constitution and finally this paper shall make recommendations as to which laws should be '

amended in order to facilitate smooth protection of the public for the violation of their freedom

of expression and speech.

1.3 SCOPE OF THE STUDY:

1.3.1 Subjective scope;

This study entails freedom of expression and speech especially in relation to media and its

effectiveness, identifying the challenges facing the media in its independent capacity and how

this affects the human rights environment in Uganda and drawing conclusions and maldng

recommendations that would provide alternative solutions to the existing state of affairs.

1.3.2 Time scope

With brief history from the colonial period to the promulgation of the 1962 constitution,20 the

study covers the period from the promulgation of the 199521 constitution to date

00 The 1962 Uganda constitution 21 The 1995 Uganda constitution

12

1.3.3 Geographical scope

The geographical scope of the study is mainly limited to Uganda though the media climate in

relation to the freedom of speech and expression was compared to other jurisdictions

1.4 LITERATURE REVIEW

As a matter of fact, there are a vast number of literatures which specially strive to evolve around

this matter in Ugandan libraries. The freedom of speech and expression is widely known in

Uganda especially around the media circles it is a recent problem and as a result of the long time

struggle of the media.

The rights monitoring and policy advocacy projece2 and the foundation of human rights

initiative23 in its reportFREEDOM OF EXPRESSION(report for the period l''June

30'"November 2007) gathered infonnation on freedom of expression in the period of

JuneNovember 2007 and using available data work towards better policies that advance

fulfillment of human rights obligations in Uganda. The report explores the tight of freedom of

expression noting challenges to its full enjoyment and makes recommendations for

improvements

Prof G. W Kanyeihamba24 addressed at tne consultative forum on Uganda media laws discussed

three documents.

The first was entitled; principles for a bill to amend the press and journalist Act with the

main object of regulating the media. The document was dated May 6, and it purported to

miginate from the office of the prime minister

:!::! 'The Rights Monitoring and Policy Advocacy Project documents human rights practices in order to promote dialogue and respect for human rights and democratic development in Uganda :!J The Foundation for Human Rights Initiative (FHRI) is an independent, nongovernmental. Nonpartisan and not-for profit human rights advocacy organization whose mission is to enhance the knowledge, respect and observance of human rights. promote change of information and best practices through training, education, research, advocacy arid strategic partnerships. 24 Prof. G.W. Kanyeihamba is a former Justice of the Supreme Court of Uganda and the African Court on H!lman and Peoples Rights. He is a former Ministly of Justice and Attorney General. He is the former Chancelior of Kampala International University and Kabale University.

13

The second was a draft dated January 29 and called A Bill for an Act entitled. The press and

journalist, (amendment) Act of 2010. cfhe long title to this document reads as follows ' an act

to amend the press and journalist Act in order to provide for the registration of the newspap~rs;

to require that the editor of the newspaper shall ensure that what is published is not prejudicial to

national security, to rationalize the composition of the media council , to provide for licensing of

newspapers, to increase the membership of the disciplinary committee, to provide expeditious

disposal of complaints before the disciplinary committee, to provide for offences and penalties

and to provide for other related matters'

And lastly the XIV Article 19 Global Campaign for free expression which was accompanied by

the current legislations on the press and the media, the declaration of the principle of freedom of

expression in Africa by the African commission on human and people's rights, the statement on '

the press and journalist (amendment) bill 2010 the judgment of the Uganda supreme court on

constitutional appeal no 2 of 2002.

Henry Odimbe0jambo25 in his book 'flections on freedom of expression in Uganda's fledgling

democracy' discussed the constitutionality of the limitations of the freedom of expression mainly

criticizing the sedition law basically assessing the legislative objective of sedition taking into

account its breadth and depth. In this book he discussed the vagina monologues and the Mabira

forest demonstration a case study. According to him there are three issues affecting the freedom

of expression in Uganda namely;

The archaic provision of our statutes that continue to defy and retard the democratization process

in the country an example of which is the sedition law.

More so an analysis of the perfonnance of the media and the weakness of the regulatory

mechanisms employed in the regulation of the media. As evidenced in the Mabira demo and the

" Henry Odimbe Ojambo holds a Bachelor of Laws (LLB) (Hans) from the university of Dar-es-salaam and LLM and SJD degrees from the University of Toronto. He is a Lecturer at Makerere University, and a Graham Fellow at the Faculty of Law. University of Toronto.

14

vagina monologues, the new and the emerging challenges fueled by globalization which call for

corresponding new prescriptions.

1.5 OBJECTIVES OF THE STUDY

The objectives of this research report is to investigate, gather and analyze information on

freedom of expression and using the available data work towards better policies and advance

fulfillment of the human rights obligations in Uganda. The report explores the freedom of

expression noting challenges to its full enjoyment and makes recommendations for

improvements.

1.6 HYPOTHESIS.

Freedom of speech and expression has not onlybeen hard but has remained a beautiful dream to

the disadvantaged and poor Ugandans especially the media due to a number of reasons.

Firstly, the archaic provision in our statutes that continue to defy and retard the democratization

process in the country, an example of the sedition laws, secondly the perfmmance of the media

council and its weakness in the regulatory mechanisms employed in the regulation of the media.

As seen in the Mabira demonstration, th~ new and emerging challenges fueled by globalization

which call for coiTesponding new prescriptions.

1.7. SYNOPSIS

Chapter two will cover the historical development of the press and the media freedom of

expression in Uganda covering all stages of development in detail.

Chapter three will deal with the legislative and the regulatory framework of the media and the

detailed analysis of the freedom of expression in Uganda.

Chapter four will seek to discuss the duty not to defame putting into account the law on

defamation.

15

Chapter .five will deal with the recommendations and suggestions for the improvement of the

freedom of speech and expression regime in Uganda and thereby make a final conclusion

1.8. RESEARCH METHODOLOGY;

The researcher used secondary data content analysis. Using this method, international and

regional human rights instruments were analyzed, writings of leading scholars, publicists and

newspaper reports of relevant events were reviewed. Information obtained from different media

houses and organizations was also analyzed. In this respect the researchers were not responsible

for the collection of 01iginal data but analyzed conclusions and findings of the authors. Several

interviews were conducted as follow up of this content analysis.

1.9. ETHICAL CONSIDERATIONS

Despite the high value of knowledge gained through research, knowledge can't be pursuedat the

expense of human dignity and that's why ethics is very important in my research.

I)Informed consent;

Infonned consent implies that interviewees have been adequately infonned about the procedures

of the study in which they have been asked to participate. In this research interviewees will be

asked to make their opinions and decisions to participate in the study based on adequate

knowledge of the study.

II) Privacy and confidentiality

Privacy in this research refers to the people, in that participants have a right to keep from the

public certain information about themselves. Confidentiality in this research will be more about

the data collected than the people; it's the agreement between the individuals that limit other's

access to private infonnation. A high level of privacy and confidentiality is to be maintained in

this research.

III) Anonymity;

In his research all participants will have a right to remain anonymous, that their individual

identities will not be a salient feature of the study

16

IV) The researcher's responsibility;

It's my undertaking in this research to be sensitive to human dignity and mean well in my

intentions.

17

CHAPTER TWO

HISTORICAL DEVELOPMENT OF THE PRESS AND MEDIA FREEDOM OF EXPRESSION IN UGANDA

2.0 Introduction.

This chapter will discuss the historical revolution of the press and media freedoms. This will

focus specifically examine the historical evolutions as handled by different regimes tracing it

right from the colonial period as the different regimes have handled thesefreedoms in different

ways. It will also analyze the major incidents where the media freedoms of expressions have I

been interfered with in Uganda up to the present.

2.1 General perspective of press freedom world wide

Press freedom is one of the fundamental human rights that have existed since time innnemoriaf6•

In the European states the press played a major role in community and national development.

This would be archived through writing articles, designing radio and televisionprograms that

would foster cmmnunity participation and community development.In America, the media is the

actual fourth arm of the govemment, which is seen as the national watchdog. There is a greater

law that protects this media in order to execute its duties freely without any interference and

restriction.

The media in Gennany has a greater historical importance that other countries have continuously

referred to as far as emphasizing the role and the strength of the media. During the era of the first

World War in the 1940's, the Gennan (NAZI) employed the power of the media to propagate

propaganda towards the enemy and eventually winning them.

In Asia the media gained greater impmiance in the political and economic reconstruction period'

The Asian governments used the media to successfully mobilize the masses to participate in the

community and the national developmentprograms. Such programs included agriculture, politics

and education among others.

"Christian Joumal Taber Charles 2002, P.20

18

The media in Africa is not something new, in broad sense it's something that has existed alonga

human life. Pre-colonial media in Africa was in fonn of storytelling around the fire places by the

elders as they would impart lmowledge to their children preparing them for they would be

expected to do when they grew up into adults. Following the changing trends as the world is

globalizing, the media has played a great role. These changes can't be avoided but there is aneed

to devise the means for protecting the media so that it can freely execute its role without any

restlictions is paramount

2.1.1 Origins of the press and the press ft·eedom in Uganda;

The origin of the press in Uganda as we know it can be traced from the late 19tl' century when

the missionaries began to publish newspapers that were meant basically to foster evangelism27.

Uganda's press has had a rather checkered history from its beginning in 1897 when the British

colonial administration setup the royal gazette, the forerunner of the state owned media this was

followed by the Mengo notes of the church missionary society in 190028•

Needless to say, the growth and the development of the press in Uganda has not been an easy

task, we know that the seeds of press development where sown during the difficult days of the

colonial administration and this was during the time struggle for self-rule and governance.

Politicians made use of the press andmedia in order to sensitize the masses about their attacks

and the fight for fundamental human rights in that struggle, this created a lot of awareness among

the masses and this partly explains the success of such independence struggles in Uganda and in

many African states. To mention we had Uganda Eyogera, published by the Ugandan national

congress UNC, Muwereza by the Democratic Party(DPi9 the colonial rule was antipathetic to

any meaningful freedom. Frequently, the colonial administration used all methods to stop

freedoms of expression and use of the law was found to be the most effective to the press

freedom30

27 A.E. A. MBAINE, tlze challenge to press freedom: A critique of press laws. A paper presented at Uganda human rights commission. 28 Amos Kajoba: the state of the media Uganda, Mengo notes, p2. 29 lent.l987 p.22. 30Supra.

19

2.1.2 Freedom of expression in the colonial period;

The colonial regime reacted harshly to and decisively against criticisms and political agitations

by the press. The press censorship and correction ordinance31 ,and section 49 and 53 of the penal

code32 on sedition and seditious publications were extensively used to harass and limit the

activities of the press. When the Second World War broke out in press censorship constituted

amajor part of the colonial administration33 • The colonial regime came out sharply on the press

to curtail publication of the sensational and critical commentary on colonial regime and its

agents, the chiefs mainly in Buganda34•

The British used the repressive laws to suppress the anti-colonial struggles as was Prof. Peter

Takirambudde's description of the social press law in Uganda was that;

(part) of the legal regime imposed upon Uganda was the press law; the press law, which

was however imposed, was not the more liberal democratic system, which was the fairly

well established. Instead the British imposed the authoritarian model complete and

suspend or ban publications35•

In the event of 1949, Munyonyozi, Mugobansonga and Gambuze newspapers were banned from

publications and circulation under the emergency regulations and the press censorship and

correction (amendment) ordinance36•

Earlier on in 1948 the editor and publisher of Gambuze Mr. Luyima and Mr. J.N tabula were

an·ested and charged on four counts for publishing a telegram from Mulurnba to the colonial

governor, the publication which if believed could not fail to bring into hatred any contempt the

person of her majesty's representation in Uganda as well as being circulated to raise discontent

31 no. 13 of1948 "penal code act of Uganda, now cap. 120. 33the first laws on press censorship had been formulated early in 1910 (the newspaper ordinance 1910), the press censorship ordinance (1915) and the penal code. 34ZIE GARIYO; the press and democratic struggle 1900-1962 in Uganda studies in the living conditions popular movements and the constitutions.P. 26. 35 James Namakajo, president ofUJA quoting professor peter Tikirambudde in a paper presented at a UJA discourse in Kampala in October 1990. 36No. 13 of 1948.

20

and dissatisfaction both against the administration of justice in the protectorate as well as

amongst the inhabitants37

The beginning of the 1950's saw the emergency of newspapers, which were very critical of the

colonial regime. The Uganda post and the Uganda express which started publishing in 1951 and

in 1953 respectively, were among the newspapers of the 1950s which took a vehemently critical

stand against both the colonial regime and the Buganda government. Thus Ivan kiwanuka and

Uganda post bitterly criticized the Buganda Katikkiro, Paul kavumafor banning European dances

with the violation of Buganda, he was arrested and charged with violation of the Buganda

customs by publishing defamatory matters against the Katikkiro38.Kiwanuka was fined IOOOshs

and few months later he was charged with publishing seditious material intended to bring

confusion and hatred among the people against the government39

On May 13, 1954 the colonial government banned tln·ee newspapers, Uganda post, Uganda

express and Uganda Eyogera which were harshly critical to the dep01tation of the Kabaka under

emergency regulations 40. Also peter Ssali editor of Uganda mi1ror and Musa Mnkiibi editor of

Doboozi lya Uganda were arrested on June 14 1954 on trumped up charges of receiving stolen

property and on May 25 1954 and they were sentenced to 9 and 12 months respectively with

hard labor by a magistrate court41•

Apparently the laws that were enacted during the colonial period42, were meant to check any

newspaper that could be established by Africans and therefore expose the wrongs of the colonial

administration as succinctly stated by Robert Mukhooli that;

To allow fi'ee expression in the colonial circumstances was to invite valid criticisms of

colonial expression and incitement against the colonial establishment43•

Thus journalists during colonial period were harassed and this increased during the independ'ence

struggle. It was hoped that the post-independence government would allow the freedom to

37 E.A. law reports vol. XVI 1949. 38Uganda post January 23 1953. P.l 39Gambuze, of May I 1953 40Ebifa Mu Uganda June 1- !954. 41 Ebifa Mu Uganda June 15- 1954. 42surety ordinance 1910, the press censorship ordinance 1915. 43 Robert MukhooliKabushenga (1994) quoted in the challenges to press freedom. A critique to anti- press laws 12-4-1999 by A.E.A MBAINE.

21

blossom and play its role in the development of the society. But in Uganda like in all Afiican

countries this remained wishful thinking.

It should be noted that all post-independence govenunents have used all methods nearly in equal . f d 44 measures agamst press ree om .

2.1.3 Freedom of press in post-independence Uganda nnder Milton Obote I regime from 1962 to 1971

Uganda attained independence on 9th October 1962 and the future of the media freedom looked

rosy, this saw the birth to both the electronic and print media and also marked the start of

enjoyment of the press freedom. The national Radio (radio Uganda), the national television

(UTV) and the leading daily newspaper (Uganda Argus) owned by Lango began operating. This

paper had a wider circulation of over 6000 because people were richer and there was good

transport that newspapers could reach anypart of the whole country.Between 1962 and 1966 a

reasonable degree of freedom of press and media existed until the happening of the Mengo crisis

in 1966 when Milton Obote the then prime minister toppled president Kabaka (king) Edward

Muteesa II, abrogated the constitutionand declared Uganda republic with himself as the president

obote's idea of the presidency. Was that the first citizen controlled everything.

Immediately after this timidity set in and the Uganda media started on the first truck down the

sewers. Even the journalists became party activist's operatives of the ruling Uganda people's

congress (UPC) there were no schools of journalism, one had to go to Britain or learn on job

learning by making mistakes, but many dint live long enough mistakes to learn sufficiently to

make the grade.

The regime of Obote was characterized by government intervention into the media coverage and

tight government ownership was in the hands of the state only. Private media was not allowed to

operate in the country then.The regime viewed the media as the only means an enemy could

overthrow the incumbent government by announcing over the radio and television that the

44 A.E.A MBAINE, the challenges to press frer ..tom: A Critique to Anti- laws, paper presented at human rights commission seminar 12-4-1999.

22

current govemment or president has been overthrown, the newspapers at that time were subject

by security by state agencies before any articles or story would be published.

Using the same position, the then colonel Amin Dada commanded the attack on premises of the

only national radio station (radio Uganda) in the absence of the then president Obote and

announced in the similar words that the then Obote govemment has been overthrown. In his own

word Amin said; Fromtoday I Iddi Amin Dada is thefidl president of the Republic of Uganda.

As earlier mentioned, because the press was one of those institutions that were supportive of the

independence struggle, it was hoped that the post-independence govemments would allow it to

blossom and play its role in the development of the society. But in Uganda like all African

countries, this has remained wishful thinking. All post-independence govermnents have used all

methods nearly in equal measures against press freedom45.

Immediately after independenceinl962, the parliament enacted the newspaper and publicatiOns

act in 196446 that in itself was a collection of the entire colonial anti press laws into one act. At

the same time press censorship and conection act 111948 also remained on the statute books47•

Govemment also invoked laws that did not directly affect the media to tame joumalists like

deporting foreign joumalist in 1965 for violating the secrets Act48•

Even when the constitution came into place in 11967, the freedom of press was the subject of

several claw backs like public morality, national security, and all other nebulous forms of public

interest. So right from the constitution press freedom remained uncatered for though the law as

Obote I regime continued to progress into dictatorship, joumalists also continued to have a tough

time. May faced imprisonment for example the editor of the transitional and about Mayanja49and

45 Ibid 46 DR. Henry OnoniPh.D A Historical Overview Of Press And Media Freedom- Roles, Limits And Challenges In Democratization. An article of a paper presented to the Makerere debating club on Friday 8- 12-2008 at the same conference room. 47surpra 48 Amos kajoba, president of Uganda newspaper editor and proprietor's association presented on June 3.1996. 49Uganda V RajatNeogy and Abu Mayanja (the transition case) I" Feb. 1968.

23

the passing of the public order and security act made the job of public watchdog abigger night

mare 5°

2.1.4 Freedom of press during Amin's regime;

When Amin came to power,among the 18( eighteen) reasons to why the ousted Obote was reason

number three which stated that during Obote's regime there was lack of freedom to air political

views. The media thought then that the new leader would bring total democratic rule and

ofcourse press freedom to the country but totheir dismay the situation worsened day by day.

Immediately, Amin ordered foreign joumalists to be deported to their respective countries. The

Ugandan renownedjoumaiists Lucas Llakut Ben Bella 5 1 also fled the country for their dear lives

as they were seen as the next targets.

Murder and ten·or of those persons who dint agree with the president ideologically characterized

the regime. The regime was brutal for over eight years. Then Obotewaged awar against his brutal

regime and overtln·ew it in 1980.

In Idd Amin's regime none could air anything apart from what the regime wanted to hear as any

other dictator would do. In his eight years of leadership Uganda was in the hands of megaloniac

whose word was the law and whose dreams, hallucinations and mood swings determined and

shaped govemment policy. If Amin didn't appear on the front page, then it meant summoning

editors to explain why.

Maliyamungu, Amin's hatchet man, was always present to posse unpleasant questions to the

unfortunate editor; he was one time quoted saying that;

50 supra

What issue was so important that it could eclipse the life president? And just do you think you are, to disregard the man to whom God has miraculously chosen to lead this country.

51 now the present Dean of faculty of Mass communication of Uganda Christian university

24

Do you think we didn't know that you're Obote apologist? Did you think you were going to get away with it? Watch out,Bwana, we are watching and when finally decide to deal with you, you will see.

It should be noted that in line with the above, Idd Amin's take over in 1971 made abad situation

even worse. The Argus newspaper was nationalized in December 1972 after the expulsion of the

Asians. It became the voice of Uganda under department of the ministry of information, with the

ministriesundersecretary as administrator. However, voice of Uganda became part of the political

system and took on purely propagandist identity. But however it was not long that all pretenses

at democracy and related liberties like press freedom were thrown to the wind, joumalists were

harassed and mostly killed. the media were only left to do propaganda for govemment in which

they suffered ahuge credibility crisis.

Interestingly, Amin also found it convenient to rely on the law to decisively deal with the press.

For example, the press censorship act which fonned the basis of censorship in Uganda came into

force in 1972, it was made again to become Decree no 35 of 1972, this gave the minister

discretion to ban any paper. It was invoked in 1974 and 1975 to ban the sale and distribution of

all imperialist papers in U ganda52. Amin banned both local and foreign newspapers forexample

the Nation of Kenya was banned from coming into Uganda in 1975, the people's newspaper was

banned andjoumalist Kateregga, sports editor of the voice of Uganda and Bagenda mpiima after

he criticized the Ujaama villages in Tanzania were arrested and detained.

Some joumalists lost their dearlives during Amins regime by repmiing on what the govem111ent

did not want forexample Reverend father Kiggundu of Munnon newspapers was killed after the

newspaper canied an article w1itten by somebody criticizing the Amin's regime, James bwogi,

chief editor of radio Uganda was also killed. The arrest and detention of bob Kitimbo and jimmy

Luyima led to the closure ofMuuno in 197653.

52 Amos kajoba, the role of the media, the state of the media in Uganda, part six, fighting corruption in Uganda. ;J Ibid.

25

Even during the time of liberation war in 1978 the government controlled media never gave

accurate reports about the war, the best it did was to announce that the situation was under

control and the president for life would teach Tanzania a lesson it would never forget.

2.1.5 Freedom of press in Obote's regime;

Under obote's regime the situation remained the same by numerous insecurity all over the

country from 1980 to 1985. those journalists who have lived beyond that time, Llakut Ben

Bella, Wafula ogutu, Sam katwere, drake Sereba and others can testify to what was happening.

Again the law features here prominently, in addition to killings, in governments efforts to restrict

even obliterate press freedom.

Four newspapers were banned during Obote regime in 1980 for reporting about Ugandarigging

of elections5\ the editor of Munnansi Anthony Sekyeyama was frequently arrested and detained.

His arrest was after Munnansi had critically monitored the human rights abuse by the army in

which Anthony was the editor. It's also noted that the editor of the Uganda times was detained

after he had written an ruiicle about massacre in no1ihern Uganda, then anybody else could and

as such this greatly hindered press freedom as it threatened the Journalists very much.

2.1.6 Freedom of press during NRM era 1986 to the present.

When the NRM came into power in January 1986, awhole new situation in the political,

economic social and cultural life seemed to have descended on the country. According to the

legal notice No I of 1986 the NRM political agenda was enshrined in the ten points progrrun this

was the pointer ru1d guide in changing Uganda This change was tenned as the fundamental

change 55 in all aspects of national life for the bettennent of the citizens unlike the other regimes

which were tmly dictatorial

"Banned newspaper: Ag. Africa. Weekly topic, the citizen and the economy page 20.

55YoweriMuseveni,s.Ten-point program, 1986.

26

Point] of the ten points program stated the establishment of democracy

Point 9 of the ten-point program stated 'corporation with other African countries in defending

human and democratic rights since the NRA/NRM ridden to power on the back of propaganda

through the media, they consequently recruitedhigh powered and skilled communicators into

their team mainly for propaganda purposes of dissemination and for misinfmmation so as to hide

the NRA atrocities and clinging to power and establishing a lone party state.

The NRA/NRMgovernment introduced a program to Liberalizethe media as opposed to the

passed regimes. With so many newspapers on the media front it did not take long for some

papers to show negative trends like sensa.ionalism and disregard of professional ethics.

The NRM 20 years have been the longest pe1iod the press has enjoyed some freedom, the NRM

seem to followed press freedom because of the following reasons;

a) TheLuweero war that had brought into power had been fought on a human 1ights

platfonn and government did not want to be seen to quickly abandon these freedoms.

b) The government calculated that the ban on politics would find less agitation if there was

press freedom

c) The government thought they good cadres who could handle criticisms m the

newspapers, moreover from the less leamed section of the populations like most of the

journalists of the time.

d) The character of president of being tolerant to everyone if the work of that person o iroup

doesn't immediately threaten his hold on power.

The Museveni govennnent subscribe to liberal press theory for two reasons,

I. to run the country in an ideal mmmer and as a reward to the joumalists who were very few and

most of these were freelance, poor m1d untrained. The broadcast media was the monopoly of

government and both Ugm1da television and radio Uganda, which were no more than a

government public relation division, were said to be a joke. The media therefore presented no

serious threat or so Museveni thought pmi of Museveni idea was that if the people chose to speak

against govemment, they should use the newspaper rather than resort to forming political parties,

Museveni's greatest nightmm·e. It should be instructive on the attitude of the NRM government

27

to trace freedom that the laws, which had been used to harass the media professionals, have been

in our statute books since 1986, and these laws have worked very well for even the Musqveni

administration.

During this error many papers sprung up with literally no restrictions in their path,

manyjournalists and non-journalists' alike setup papers. At one time we had as many as 40

publications on the street although their mortality rate was as high as the birth rate'

The late kajooba56 once said,

"the rise and fall of newspapers and magazines bothers me occasionally for a simple

reason that it gives certain signals for instability in profession which has a vital and

powerfitl role to play in moving forward, otherwise how does one explain the collapse of

MUNNO a topic of the time when the media has had the longest uninterrupted period of

press freedom"

With so many papers on the media landscape, it didn't take so long for some papers to show

negative trends like sensationalism and disregard of professional ethics. This led to public critic

and a call for control, guidance and discipline of the media. Leading the attacks to the

government officials including key personalities like president Museveni, his ministers and some

members of the public.

After the initial honeymoon of the two years after the ascendance to power by the NRM a signs

of all governments conducts in relation to press began to show .in June 1986, the weekend digest

was bmmed just exactly under the law that Iddi Amin Bmmed Munno in 1976 and Obote bmmed

the weekly topic in 1981, in march 1986, Sulli Kiwanuka Ndiwalana, the editor of focus a

Muslim owned newspaper was charged · Nith sedition for reporting that the NRA had found the

going tough in war against the Ugandan liberation army (UNLA) of gen, Tito okello lutwa. In

June 1986, the weekend digest was bmmed and is editors Jesse Mashat and Wilson Wandera was

charged for publishing that the Democratic Party DP was plotting to overthrow NRM

56 Supra

28

government. In December Francis Odida was charged with the seditious publication and

publishing false news. Odida's problem was to escalate when in December 1987 he was again

arrested and charged with sedition for publishing ruiicles of mock interviews of Alice Lakwena

leader of the Holy SpiritMovement a rebel in the northern and north eastem prui of the country in

the Sunday review in November 1987. He was charged with treason and was released after 7

months in Luzira prison. In December 1987 john Kakooza acting editor of Citizen was arrested

and charged with sedition, the story complained of stated that opposition guerillas controlled

tracts of teJTitories in the teso region, the commentary on the implication of the Lakwena

rebellion, a line drawing of president Museveni that was deemed disrespectful57.These arrests

continued even after the NRC had its parliamentary mandate extended for a second term in 1 c 89.

In 1989, Joseph K.iggundu editor in chief of the citizen newspaper was arrested ru1d charged with

criminal libel for publishing an ruiicle about Dr.K.isekka, the then prime minister had been

thrown out ofNRM govemment,

In 1991, even the electronic media was liberalized in the wave liberalization engineered by the

world bank and IMF. But the introduction of The mass communication degree at Makerere

university and improvement of the Uganda management institnte school of joumalism and the

general media revival basking in the new found freedom, produced amazing results. For the first

time the Uganda media struied the ideal path. Newspapers struied into analysis of political

institutes. Con·uption was exposed in most cases involving high rru1k.ing government officials

and resulting in many resignations.

In its attempt to control the press, the goverrunent indicated its intention to introduce the mass

media bill way back in 1987, this bill saw the coming and going of the four ministers of

infonnation and attorneygeneral. It kept trailing within the ministries of infonnation ru1d justice,

cabinet and NRC. This was basically due to the fightput-on by the journalist against the

oppression bill, in between the state continued to fight the media. What was drrunatic was the

arrest of the three journalists Alfred Acali of the news desk magazine, Festoe Bongu of the new

vision newspaper and Hussein Abidi the Swal!ili correspondent in Uganda after a press

conference in January 1990 for asking the ex-president of Zrunbia Ke!ll1eth Kaunda embarrassing

57 Supra

29

questions. The charges preferred against them related to offences under 5! 58• Thejoumalists'won

their freedom after a rigorous court battle with the government in which attempts to interfere

with the independence of the judicially was cited. Many more joumalistswere arrested and

detained.

When the government started to feel uneasy about reportage on corruption and other forms of

misadministration had to introduce the offence of sectarianism tln·ough section 42a. It's this

offence that the editor of the cmsadejudge Rugarambi was charged in December !998.t be fully

insulated against unsanctioned press reports of war. Govermnent prohibited publication of war

related information for example military installation, equipment troop movement and locations

through section 39a59.

In 1995, government thought enough was enough and brought the media bill, the bill

consolidating a number of laws relating to publication and other modes of transmission of

infmmation, while including. Emphasizing and consolidating the repressive aspects of it.

Eventually the print media was separated from the electronic media, this has been a tendency to

regard the press as a medium through which the govetmnent may reach to the people rather than

one through which the people may reach the government.

The journalists put up a spirited fight but in the end lost, the p1int media bill was passed and its

now the press and journalist Act. The most important thing which was achieved is the

recognition of the journalism as profession; journalists are majority of the media council and

control the professional body. The national institute of journalist of Uganda (NIJU) their

professional body. The act overlooked the fact the majority of media personnel who have kept

the media mnning didn't meet the qualifications set out in the Act and dint give them a grace

period.

Although the press in particular has never really recovered in terms of circulation to the level it

was at independence (combined circulation doesn't reach 120000) Uganda today has aider media

58 Late Amos Kaboja, president of Uganda newspapers and proprietor's association on 6-3-19 59 now called the Uganda people' defense forces (UPDF)

30

spectrum. There is more freedom and better quality reporting and analysis of issues, as well as

relatively wide latitude in which to operate. Although in the face it looks like the media is in

control, there are a lot of loopholes through which government interfere, the situation 1s

explained as, He who has the power to give has the power to withdraw60•

Whereas on the other hand the freedom of expression including the freedom of press is

guaranteed by Article 19(1) of the 1995 constitution, this freedom has been taken away on the

other hand by the press and journalist Act and also the provisions of the penal code which are

outdated and unconstitutional are still taken as laws and have been unleashed against the free

place.

It should therefore be submitted that from the colonial period to date, because the place was one

of those institutions that were supportive of the independence struggle. It was hoped that the

post-independence government would allow it to blossom and play its role in the development of

society. But in Uganda like all African countries this has remained wishful thinking. All post­

independence governments have used all methods nearly in equal measures against press

freedom.

2.1. 7 Other interferences on freedom of expression after 1995

After the promulgation of a fruitful and wonderful constitution of 1995, all hopes were raised

due to the fact that the freedom to free expression was given a big cake share as per Article 29,

nevertheless this came as ameredisguise and pretense because since then the freedom and press

has continued to face a lot of sabotage and impediments, imprisonment of the journalists,

mistreatment and breaking of their gadgets has been reported to be the order the dal1.

Since then we have seen many radios and televisions being censored to say what's juicy to the

government or else face closure62, this has seen many radios and televisions which have

60ZIE GARIYO; the media, constitution and democracy in Uganda, quoting from amnesty international reports of 1989, Uganda human rights record 1986-1989. 61 Ibid-p. 40-43 6' -penal code Act, cap 106 now cap. 120

31

remained as govermnents face clumpdown severally for example Dembefm , Kfm Daily

monitor, the Kamunye and red paper among others falling victim of such.

In 1996 for example john Kenny Lukyamuzi, the fire brand politician and enviromnentalists

together with the central broadcasting services presenter were detained in police cells. the

officers from the criminal investigation department(CID)have severally arrested and summoned

the editors of the daily monitor, Kamunye, red pepper newspapers severally and other critic

media and we have seen then going away with their machines like computers, microphones

among others.

In November 1997, the monitor's Charles Onyango obbo and Andrew Mwenda were charged

with publication of falsenews, the genesis of their arrest came after publishing an article titled

"Kabila paid Uganda in gold63"

In October 2002 three joumalists from monitor namely frank Nyakairu, WanyamaWangahand

Charles Onyango Obbo were charged for allegedly publishing false news and information which

was interpreted as being t!n·eatening to the national security,theanests stemmed from the articles

that ran in the newspaper saying that the LRA lord resistance anny had shot down a helicopter

belonging to the Uganda defense force and that on 10 October 2002 a large contingent of the

security officers raided the offices of the Uganda's largest independent newspaper . The daily

monitor also published a story about an anny helicopter which crashed in the Adiganga in Pader

north em Uganda which news was denied by the anny spokesperson and this f01med the cause

action against the paper and the three jolll11alists.64

In other another incident involving the breach of the freedomofpress is when the full minister of

roads was caught on camera when he boxed a woman joumalist of Bukedde respondent; this

happened the minister was being tied for the offences related to the ant conuption Act where it's

alleged that he swindled the Katosi road funds. There were many attempts to stifle the right of

63SYLIVIA TAMALE. BALABA "Press freedom and the law in Uganda today: the alpha and the omega' a paper presented at the seminar for Makerere university mass communication association July 1991 64Penal code act, cap 106. Now cap. 120

32

the joumalists to sue and was scared with intimidations to the joumalist upon suing the minister

and this explains why the case was stifled at that stage.

Another incident is where a joumalism student at united media consultants and trainers

(UMCAT) Jimmy Higenyi was shot dead by police in Kampala on January 12 2002, the student

was cove1ing a demonstration organized by the Uganda people's congress (UPC) on the streets

of Kampala, his report was for a student project, the government had banned the match under

article 269 of the Ugandan constitution which outlaws all political activity in Uganda. In this

incident the police ove1whelmed by thf' crowd struied shooting randomly which resultantly

costed the innocent life of the student.

After this incident the inspector general of the Uganda police gen Katumba Wrunala announced

that the officers who perpetrated the killings were an·ested, Shan investigations were made which

implicated only three officers who were brought to book and prosecuted.

In June 22 2003 police raided the catholic based radio Radio kyogaveritas in Soroti, closing

down the station for more than two months, the govenunent alleged that the radio was ai1ing the

interviews from the LRA captives, contrary to aJune 17/2003 directive by minister by minister

for refugees and disaster prepru·edness, Christine Amon gina Poru.

In November 2003 govenunent went on to seek an injunction banning monitor from publishing

the details of the leaked report in which the constitution review commission had rejected a

Cabinet proposal to lift the two tenn limit on the presidency. On December gtl• high court judge

justice Patrick Tabaro ruled that the monitor should wait until the CRC submits its final report to

the government before publishing its details.

In august 12 2005 AndrewMwenda, daily monitor political editor and the host of tonight with

Andrew Mwenda live talk show on KFM was arrested and charged with sedition.The

broadcasting council closed down K.frn and withdrew its license over remarks said made during

Andrew Mwenda live talk show the previous day. Uganda record joumalist Timothy Kalyegira

was charged with sedition over a story of a bomb blast. He was summoned on 29thJuly 2010

33

and was arrested and taken to the headquarters of the criminal investigations department at Kibuli

where he was released on police bond.

On 1Oth and 11th of September 2009 the government went ahead to switch off radio Ssuubi,

Akaboozi, Serpientiaand CBS radio which belonged to the Buganda kingdom, 18 presenters got

fired from the different media houses namely governed owned Uganda broadcasting

services.vision voice, radio Serpientia radio Simba radio one Record Television radio Buddu.

Radio Suubia mongst others and the fired were kalundi Robert Serumaga, Anthony Kibuuka,

Herbert Yawe Kabanda, Charles Odongotho, Rose Namwogerere, Omulangira NdawulaJuuko,

Alysious Matovu, Irene Kisekka, Ben Mutebi, Kivumbi aka Manyimatono, Kazibwe Bashir

Mbaziira among others. Although some media practitioners secretly returned to their respective

duties, it was only Serumaga who was charged with seditionwhichwas later annulled by the

constitutional court.

To crown on theabove, when in 1986 Yoweri Kaguta Museveni took over power, he promised a

fundamental change the Ugandans hoped for the renewed era of governance characterized :.1ter

alia by the enjoyment of their rights and freedoms of expression, assembly and association.

Journalist hoped that media freedom had received a new surge of life and that they had at last

secured an honest partner in the NRM with whom to build the nation.Indeed,anumber of

newspapers with the varying political viewpoints emerged and this was followed by the

liberalization of the electronic media.

Inspite of all these developments and regardless of the fact that guarantees for media freedom

and freedom of expression are enshrined in the 1995 constitution of the republic of Uganda

34

CHAPTER THREE

THE LEGISLATIVE AND REGULATORY FRAMEWORK OF THE MEDIA

3.0 Introduction

Uganda is obligated to respect the right to freedom of expressiOn of all persons under

international law and Uganda's constitution. However, several of its national laws, are

inconsistent with these obligations. As Human Rights Watch has documented in this repmi, the

Ugandan government uses these laws to revoke or suspend broadcasting licenses, bring charges

against individuals, restrict the number of people who can lawfully be journalists, and practice

other forms of repression of the media. If the government presses on with its cunent plans to

amend the Press and Journalist Act, Ugandan media law will move still farther away from

international free speech standards.

3.1 Laws Regulating Freedom of Speech and Expression.

3.1.1 International Legislation

The Universal Declaration of Human Rights (UDHR) (1948)

According to the Universal Declaration of Human Rights65 accords everyone with a right to

freedom of opinion and expression. This right covers freedom to hold opinions without interference and

to seek, receive and impart infonnation and ideas through any media and regardless of frontiers.

The purpose of this right is to ensure that people are able to exercise their rights through association and

sharing opinions whether through assembly or through media free from intrusion or hindrance of any

authority.

The International Covenant on Civil and Political Rights (1CCPR) 1966

The right to freedom of speech and expression is further provided for under futernational Covenant on

Civil and Political Rights66 declares that everyone shall have the right to hold opinions without

65 The Universal Declaration of Human Rights 1948, Article 19 66The International Covenant on Civil and PoliticJl Rights Article 19 Section (1) and (2).

35

interference67 and also to enjoy freedoms of expression that will include the freedom to seek, receive and

impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the

fonn of art, or through any other media of choice.68 This implies that by seeking information, receiving it

or imparting it, a person that so does, will not have committed a crime provided that, by so doing, the

person does not interfere with the rights of others.

The law69 further specifies two clear limitations to medial freedom where any propaganda for war is

prohibited by Jaw and any advocacy of national, racial or religious hatred constituting of incitement to

discrimination, hostility or violence shall he prohibited by law.

However, the question of the extent of the impact of messaged has a limitation as this is bound to

challenges.

The Declaration of Principles on Freedom of Expression in Africa (1981)

The freedom of speech and expression is further enhanced in the African Charter on Human and Peoples'

Rights70 which provides every individual with a right to receive infonnation in addition to expressing and

disseminating his opinion within the law. This law is not different from other international instmment' on

speech and expression. The Declaration emphasizes the key role of the media and other means of

communication in ensuring full respect for freedom of expression, in promoting the free flow of

infonnation and ideas, in assisting people to make informed decisions and in facilitating and

strengthening democracy

The Dakar UNESCO Declaration 2005

h1 a bid to promote freedom of speech and expresswn through the media, the Dakar UNESCO

Declaration of 3'd May 2005 calls upon the media to among other things:

• To commit themselves to fan and professional reporting as well as to put in place mechanis(!ls to

promote professionalism journalism;

67 IC("PR Article 19(1)

68 Ibid Article 19 (2)

69 Ibid Article 20(1) and (2)

70 The African Charter on Human and People's Rights 1981 Article 19.

36

• To commit themselves to raising public awarerlcss about corruption human rights violations and

other abused of power, and to investigate and report these cases in a fair and professional manner

• To support independent bodies that monitor threats to and abuses of press freedom;

• To commit themselves to ongoing programs of training for journalists to strengthen professional

and ethical standards; and

• To provide for transparency in ownership, to promote the economic sustainability of n'ledia

outlets, and to facilitate the independence of journalists by providing improved conditions and

living wages.

The purpose of this Declaration is to strengthen the position of the media in informing the public,

more so for the role to be played professionally with independence and in observation of the

code of ethics.

The Windhoek Declaration in Promoting an Independent and Pluralistic African Press (UNESCO)

The Windhoek Declaration on Promoting an Independent and Pluralistic African Press" is yet

another inshument adopted to regulate freedom of speech and expression in consistent with Article 19 of

the Universal Declaration of Human Rights accords the right to establish, maintain and foster an

independent, pluralistic and lice press which it views as essential to the development and maintenance of

democracy in a nation, in addition to economic development. An independent press in this case implying

one tree lmm governmental political or economic control.

This right is for purposes of ensuring that media or press is free from government dominion if it is to

express the position of the public and address their concerns without bias. Thus for this to be attained,

press should be free from the political and economic will of the government.

While a pluralistic and free press expresses the prevention of monopolies of any kind and the existence of

the greatest possible number of newspapers, magazines and periodicals reflecting the widest possible

range of opinion within the community. This implies that by being pluralistic the government as a

signatory to this law should ensure that it allows for as many media houses and press to be

established provided their establishment does not contravene the law.

71 "Windhoek Declaration on Promoting an Independent and Pluralistic African Press lc91, Article 9

37

3.2. Uganda's international obligations.

International legal instruments take the form of a treaty (also called agreement, convention, or

protocol) that binds the contracting states to the negotiated tenns. When negotiations are

completed, the text of a treaty is established as authentic and definitive and is "signed" by the

representatives of states. A state can agree to be bound to a treaty in various ways. The most

common are ratification or accession. A new treaty is ratified by those states that have negotiated

the instrument. A state that has not participated in the negotiations may, at a later stage, accede to

the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states

have ratified or acceded to the treaty.

When a state ratifies or accedes to a tre'lty, that state may make reservations to one or more

articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally

be withdrawn at any time. In some countries, international treaties take precedence over nat:Jnal

law, in others a specific law may be required to give a ratified international treaty the force of a

national law. Practically all states that have ratified or acceded to an international treaty must

issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully

effective on the national territory.

Uganda is a party to the International Covenant on Civil and Political Rights (ICCPR) , which

under article 19 imposes legal obligations on states to protect freedom of expression and

infonnation: Everyone shall have the right to hold opinions without interference; Everyone shall

have the right to freedom of expression; this right shall include freedom to seek, receive. and

impart infonnation and ideas of all kinds, regardless of frontiers, either orally, in writing or in

print, in the form of art or any other media

The ICCPR permits govermnents to impose certain restrictions or limitations on freedom of

expression, if such restriction is provided by law and is necessaty: (a) for respect of the rights or

reputations of others; (b) for the protection of national security or of public order (order public),

or of public health or morals.The UN Human Rights Committee, which monitors state

compliance with the ICCPR, has stated that "the legitimate objective of safeguarding and indeed

38

strengthening national unity under difficult political circumstances cannot be achieved by

attempting to muzzle advocacy of multiparty democracy, democratic tenets and human 1ights.

Uganda is also a party to the Afi'ican ('hailer on Human and Peoples' Rights (ACHPR) which in

article 9 states "every individual shall have the right to receive information and "every individual

shall have the right to express and disseminate his opinions within the law." The Afi'ican

Cmmnission's 2002 Declaration of Principles on Freedom of Expression in Afiica sets out

regional nonns guaranteeing free expression. The Afi'ican Commission has held that

govermnents should not enact provisions which limit fi·eedom of expression "in a manner that

ovenide constitutional provisions or undermine fundamental rights guaranteed by the (charter

and other international human rights instruments.

Ugandan authorities regularly state that broadcasts are "inciting the public to commit violence"

as the rationale for why suspensions and closures are necessary. The tension between the right to

free expression and infonnation on the one hand, and national security on the other, has been the

subject of much inquiry by courts. International bodies, and scholars. A group of experts in

international law, national security, and human rights issued the Johannesburg Principles on

National Security, Freedom of Expression and Access to infonnation on October 1, 1995.

Over time. these Principles have come to be widely renowned s an authoritative interpretation of

the relationship between these rights and interests. reflecting the growing body of international

legal op lnirn and emerging customary international law on the subject The principles set out

guidelines on restrictions on free speech, including the principle that governments must use the

least restrictive means possible in prohibiting speech that is contrary to legitimate national

secmity interests. According to the principles, national security interests do not include

"protecting a government from embarrassment or exposure of wrong doing. Some restrictions on

free speech such as criminalizing incitement to violence are permitted under international law in

the context of protecting national security, but such reshictions must narrowly draw, and subject

to judicial scrutiny

39

Some restrictions on free speech such as criminalizing incitement to violence are permitted under

intemational law in the context of protecting national security, but such restrictions must meet

several high hurdles.

a) First, restrictions must be prescribed by law, and they must be accessible, clear, narrowly

drawn, and subject to judicial scmtiny

b) Second, the restriction must have both the genuine purpose and the demonstrable effect of

protecting national security.

c) Third, the restriction must apply only where the expression poses a serious threat, is the least

restrictive means available, and is compatible with democratic principles.

Various human rights bodies and courts around the world have determined that protection of

freedom of expression must include tolerance from public officials regarding open criticism. As

the African Commission.stated. "People who assume highly visible public roles must neces;arily

face a higher degree of criticism than p1ivate citizens; otherwise public debate may be stifled

altogether."

3.2.1 The constitution of the Republic of Uganda 1995

The Constitution is the supreme law in Uganda anti thus critical to Uganda's reform of freedom

of speech and expression. Reforms pertaining to any limitations to the exercising of freedom of

speech and expression can be appreciated as justifiably fundamental to Ugandans. Such reforms can

remain critical to debates on justifiable limitations on fundamental rights due to peculiarities of Ct]lture

that may characterize and influence public policy of the nation.

In other word$, the constitutional provisions72' provide for protection of freedom of conscience,

expression, movement, religion, assembly and association. Under this provision the law gives an

entitlement to all persons to enjoy the right to freedom of speech and expression to include freedom of the

press and other media73.'

72 The Constitution of the Republic of Uganda 1995 Cap 4 Article 29 73 The constitution' of the Republic of Uganda 1995 ('ap4 At1icle 29 (!)(a) 60 Ibid Article 29 (!)(b)

40

This is in addition to exercising ones right to freedom of thought, conscience and belief which includes

academic freedom in institutions of leaming74• In this case each and every individual national has a right

to have his/her opinion expressed freely without undue influences, in addition to holding their beliefs as

paramount of how they wish to express and address their Concerns whether at home, in school and at the

workplace.

The same Article accords the people in Uganda with a right to practice any religion and thus freedom to

manifest such practice as to belong to and participate in practices of that religion or organization to which

that person belongs, provided it is within the confines and powers of the Constitution.75 Thus with a

power to belong, and participate the law further strengthen the freedom by allowing people to participate

in assemblies as well as demonstrate together with others for any discontentment, provided this is

exercised in a manner that is peaceful and unanned, this is in addition to petitioning against any mling

that may be passed on such demonstrations in case of any dissatisfaction.76

The Constitution 77further grants people with a right of freedom to associate, where they are entitled to

join unions, political parties Civic organizations and associations of their own choice. In other words, the

purpose of this provision under the constitution is to ensure that the rights of people to enjoy their

freedoms of association, expression. association, assembly and movement are held as paramount for every

individual citizen in Uganda More still the same law78 condemns any laws, cultures, customs or traditions

which offend the dignity, welfare or interest of the women. in other words, practices which undermine the

status of women and prevent them from exercising their fundamental freedoms are prohibited by the

constitution.

74 Ibid A11icle 29(1) (b) 75 Ibid Clause c 76 Ibid Clause d 77 Ibid Clause e 78 Ibid A11icle 3 (6)

41

In addition the right to freedom of speech and expression is further strengthened under Article 3879 of the

same law which advocates for civil rights and activities. Under this Article every citizen is entitled to a

right to participate in the affairs of government whether at an individual level or through representation

provided this is within the confines of the law. This is in addition to participating in peaceful activities to

influence the policies of government through civic organizations." The purpose of this law is for

concerns of citizens to be voiced and heard and on top of this influence government policy to that which

is demanded by the citizens against unpopular policies that do not reflect and address the problems of the

people.

The decision to enshrine the right to freedom of expression and access to information in the constitution is

an important recognition of the importance of free media and freedom of expression in a democracy.

Indeed, the Ugandan media have thrived in the last 15 years, scrutinizing public affairs, encouraging

robust public debate, and exposing corruption and other forms of malfeasance. In this regard, until

recently Uganda has often been cited as a good example of a vibrant media landscape in the legion.

Citizens have also been generally fi·ee to express themselves.81

However, much as the constitution accords all persons with the above rights to exercise their freedom of

speech and expression, does not imply that they have an entitlement to abuse these rights. These •'ights

can only be enjoyed if they do not interfere with the rights of others. Thus the constitution makes a

distinction, as to the extent of the enjoyment of these rights."

Under Article 43 the constitution provides for some limitations and sets the standard for the justifiability

of any limitation on fundamental rights as being 'acceptable and demonstrably justifiable in a free and

democratic society and thus cannot be taken for granted. 83 Thus in the enjoyment of these rights and

freedoms no persons shall prejudice the fundamental or other human rights and freedoms of others and

79 Ibid Article 38(1) 80 Ibid Clause 2 81 Isaac Bukayana, Ibid 123 82 Ibid Aiticle 43 83 Ibid

42

neither are they expected to exercise unfairness in public interest,84 of which public interest cannot petmit '

political persecution, detention without trial and limitation of the enjoyment of the rights and freedoms

that are acceptable and justifiably exercised in a free and democratic society.85 The law thus provides for

the exercising of these rights rithotl t having to infringe on the freedom of others and without any political

harassments of others.

3.2.3 Penal Code Act, Cap 120.

The Uganda Penal Code has provisions which greatly limit the media rights and freedoms. These

penal provisions exist in many African jurisdictions and more especially, former Btitish

Colonies. Surprisingly, equivalent provisions have been repealed or modified liberally in Britain

and many democratic nations. The justification for their continued existence is that they protect

'national welfare.' the Penal provisions include the following:

Publication of news prejudicial to national secw-ity, i.e., exposure of military options, strategies,

security, h·oop movement or troop location, location of military persons which is likely to, assist

the enemy and endangering state of military installations, or members of the anned forces S.37

of

Penal Code Act Cap 120.

Every country has laws on its hooks that aim to protect national secw-ity and enable order.

However, while there is no doubt that countries may restrict certain publications that genuinely

endanger national security (for example, in times of war the military will restrict publication of

troop movements). National security laws are easily abused by government to restrict

publications and even imprison journalist'. even in relatively developed democracies, judges have

a strong tendency to defer to the authorities when national security interests are asserted and in

less developed democracies there is hardly any judicial inquiry when national secmity related

charges are brought.

84 Ibid Ar1icle 43(I) 85 'Ibid Article 43 (2) (a), (b) and (c).

43

The recent case of Syrian blogger Tal a! - Mallohi is illustrative of how national security laws

are used against journalists as well as bloggers in under democratic countries. In 2009, a!

Mafluhi was arrested and held in administrative detention for close to a year. When she was

finally brought before a court in 2010, the court hearing was held behind closed doors, and she

was sentenced under Syria's emergency law to five years in prison for "disclosing information to

a foreign country that must remain a secret for national safety. "Her lawyers reported that the

judges had not cited any evidence or provided any details about why she was convicted.

Sedition S. 39 and 40 PCA.

In August 2010 the constitutional court ruled, after five years, that the crime of sedition is

Unconstitutional. Andrew MzljuniMwenda& nor v Attorney Genera/86; Counsel asserted that

unless sedition fits in the principles out lined in Article 29(1) (a), it is unconstitutional because

sedition criminalizes speech. It criminalizes criticism of the President and Government

institution. He outlined the hist01y and objective of sedition from Zzmde/Vsthe Queen87• It

originated in England. It presumed wisdom of a ruler and mistakes of that ruler were not to be he

pointed out openly. Truth aggravated the truth. A Nigerian case of NwankwoVs The state (1983)3

the Court compared monarchs to elected leaders. The democratically elected President seeks

mandate from the people. Seekers go through mudslinging. In Uganda where the President is

elected and not born, the actions of the President and activities of the State, administration and

justice offices mentioned in section 41 must undergo criticism of the citizens in fulfillment of

objective.

NO. 2. A leader should not cease to tolerate those who elect him, only because he has been

elected. The offence of sedition is unconstitutional.The federal Court of Appeal of Nigeria

declared the offense of sedition un constitutional null and void. This exception is in the judgment

of. C. A. in Nwankwo -V- Olatawura 3State (1983)1 NCR 366,406, is worth noting.

"(Consolidated Constitutional Petitions No.12 of 2005 & No.3 of 2006) (20101 UGCC 5 (25 August 2010) 87[1992] 2 S.C.R. 731

44

"Those who occupy sensitive post must be prepared to face public criticism in respect of their

office so as to ensure that they are accountable to the electorate. They should not be made to feel

they live in ivory tower and therefore belong to a different class. They must develop thick skins

and where possible plug their ears with cotton wool if they feel so sensitive or irascible. They are

within their constitutional rights to sue for defamation but they should not use the machinery of

goverrnnent to invoke criminal proceedings to gag their opponents, or the freedom of speech

guaranteed by our constitution will be meaningless

Promoting sectarianism S.41 PCA

The above case of Mwenda also sought the nullification of the law on sectarianism, however the

Court upheld the constitutionality of the crime of "promoting sectarianism, prohibits any act

promoting feeling of ill or hostility" on account of religion, uibe, ethnicity, or regional origin. As

it were, the petitioners failed to prove that the offence of promoting sectarianism is inconsistent

with the constitution. It thus still stands as valid law.

Defaming a foreign dignitary, ambassador or prince S.53 PCA.

In February, 2009 The Red Pepper tabloid publisheda story alleging that Libyan President Col.

Muammar Gadhafi was having an adulterous relationship with Best Kemigisa, the Queen Mother

of King Oyo Nyimba of Toro Kingdom. The red pepper was charged with defaming Libyan

president contrary to section 53 of the penal code. This case was eventually referred to the Media

Council by the minister of state for regional cooperation on behalf of the Libyan Arab People's

Bureau. The council ruled in favor of the complainant and awarded shillings 100 million (about

US$ 50 000) as damages.

Criminal Libel.

In spite of the legal guarantee of freedom of expression in the constitution, the' ('PR and

ACHPR, certain domestic laws have been used by the government to effectively resl!ict the

freedom of the press in breach of Uganda's obligations under international law and standards.

45

The mindset of govenunent ministers and other powerful figures in many countries around the

world remains to clamp down on criticism of them rather than to tolerate it, and in most countries

the law of libel remains their primary vehicle. Libel laws tend to be worded in fairly broad terms,

allowing courts considerable leeway in their interpretation of what is "libelous."

Convictions for criminal libel and defamr:ion do not always result in imprisonment, but they still

produce a serious chilling effect. Damages are a particular issue: In many countries, courts

routinely award high damages against media outlets, sometimes resulting in to bankruptcy. In

Kazakhstan, for example, a story on the rising price of grain by reporter AhnasKusherbaev

resulted in a $200,000 libel award against him and tl1e bankruptcy of the newspaper in which the

story was published. Kusherbaev implicated a powerful member of parliament, RommMadinov,

and implied that Madinov was pursuing his own business interests in parliament -his company

controlled a large part of the country's grain market. The Media Legal Defense initiative, a NGO

that helps joumalists defend their rights, has now taken his case to the United Nations Human

Rights Cmmnittee, arguing that the libel award has done lasting damage to his career as a

journalist: Mainstream newspapers refuse to employ him or take stories from him.

Libel laws are not only used to suppress domestic dissent. From time to time attempts are made

to suppress criticism abroad as vel!: The govenunent of Bahrain instructed a London law finn

in June 2011 to sue the daily newspaper the Independent for its critical coverage of the killing of

protesters, and the Guardian's Andrew Mekirum, based in Zimbabwe, was sued there for

"publishing falsehoods" in the JK, where the Guardiizn' s headquarters are located. While foreign

media outlets can usually weather relatively small libel cases such as this, lighting larger cases is

more difficult and can be a significant drain on their resources. (Also see Gadaffivs Red Pepper

above).

3.2.4 Anti-Terrorism Act, 2002

That global fight against terrorism has had an adverse impact on the freedom of the media.

Uganda has sadly been no exception. The parliament of Uganda enacted the Anti- Terrorism Act

in the wake of the September 11 attack on the USA. The Anti-Ten·orism Act imposes additional

46

burdens on the media, specifically related to coverage of any terr01ism organization, and imposes

possible sentence of death on those found to have violated the law.

The Act criminalizes journalists' efforts to meet or speak with people or groups considered to be

terrorists, again imposing a possible death sentence on the convicted. It outlaws the disclosureof

information that may prejudice an investigation concerning ten·orism. Finally, the Third

Schedule details information protected under legal privilege, but excludes from that "journalistic

material which a person holds in confidence and which consists of documents or of records other

than documents."

The Act seeks to compel journalists to disclose sources of information; this is vehemently

opposed by media practitioners for discouraging their news sources from providing leads to

st01ies. The Act does not provide a definition of a terrorist organization; instead of providing a

definition of a 'terrorist organization,' the Act delineates a list of acts which, when committed

"for purposes of influencing the Government or intimidating the public or a section of the public

and for a political, religious, social or economic aim, indiscriminately without due regard to the

safety of others or propetiy .... " The lack of a clear definition of what constitutes a terrorist group

renders reporting on organizations doubly risky for joumalists.

The Act makes reporting in conflict areas pmiicularly difficult

Ssemujju Ibrahim Nganda of the weekly observer echoed this sentiment saying that, the Anti­

Ten·orism Act is perhaps the greatest affront of freedom of the media because it puts significant

strain on media efforts to report those stories that originate from parties to a conflict. Mr. Nganda

and Frank Nyakairu of the daily Monitrr both pointed out that the law most directlyimpacts

media ability to cover the conflict in n01ihem Uganda and abuses conm1itted by security

personnel. As a result, Mr. Nganda argued, the law deprives the public of infonnation vital its

understanding of the conflict .The Anti-Terrorism Act should define what terrorist organizations

are and should make provisions for the protection of whistle blowers. Security concems are

legitimate but must not oven·ide the freedom of expression because the right is a primary tight

a11d any limitations can but only he secondary; it should not ovenide the primary rights unless it

is justifiable, not farfetched and has a clear nexus with the report in question.

47

3.2.5 The Presidential Elections Act 2005 and the Parliamentary Elections Act 2005

The Presidential Elections Act and the parliamentary elections Act 2005, detail candidates' right

to equal treatment and access to information and the media, and outline the responsibilities of

media outlets related to campails and candidates. Under Section 24 of the Presidential Elections

Act, all candidates arc to be given equal treatment by State-owned media. Similarly, the

Parliamentary Elections Act holds that "a candidate in an election shall not be denied reasor. .. ble

access to and use of State-owned c01mnunication media.

During campaigns, private electronic media outlets are prohibited from knowingly using the

media or allowing it to be used to enable a candidate to make or use false, malicious, sectarian,

derogatory, exaggerated or derisive statements, words, songs, poems, or images. Human Rights

Watch interview with Hon KabakumbaMatsiko, minister of information, April 9 2010.Further,

both legislations criminalize the publication of false statements regarding a candidate's illness,

death or withdrawal for the purpose of securing the victory of another candidate, whether done

knowingly or without reasonable grounds for believing it to be true.

3.2.6 Uganda Communications Act 1997

1n 1997, Parliament passed the Uganda c01mnunications Act, which lays out additional and

seemingly duplicative- requirements for radio broadcasters. The Act stipulates that "No person

shall, without a license issued w1der tl1is Act (an establish or use any radio commW1ication

station, possess radio communications apparatus, or provide radio communications services.

(c) Manufacture, possess, install. com1ect or operate any radio communications apparatus' ."

Likewise, telecommunications stations and service providers are required W1der Section 24 to

obtain a license from the Uganda CommW1ication commission (UCC) to operate' . Similar to

licenses W1der previous statutes, licenses issued pursuant to the Uganda CommW1ications Act

carry a fee and are subject to consideration whether the granting of the license is in the public

interest.

48

3.3 Overly broad powers of media regulatory bodies.

3.3.1 Broadcasting council.

The govemment' s direct control over private broadcasting owners deserves the closest scmtiny,

especially because of the critical importance of radio for inf01ming Uganda's citizens. As the

preamble to the 2002 Declaration on Freedom of Expression in Africa notes, radio has a

"capacity to reach a wide audience due to the comparatively low cost of receiving transmissions

and its ability to overcame barriers of illiteracy .... Oral traditions, which are rooted in African

cultures, lend themselves particularly well to do radio broadcasting".

The structure and broad legal power of the Broadcasting Council are a serious impediment to the

protection of freedom of expression in Uganda, in particular its direct subordination to the

minister ofinfonnation with no guarantees of independence. The world's tour special

Rapporteurs with specific mandates on freedom of expression publicly jointly declared that

"Regulation of the media ... is legitimate only if it is undertaken by a body which is protected

against political and other fonns of unwanted interference, in accordance with international

hun1a11 rights standards

The Broadcasting Council's requirements for a11 ammal broadcasting license and the grounds for

revoking a license are unclear in law and are open to abuse. a one-year license is a serious

burden on owners who have invested significant financial capital to function. One year is

considerably shorter than the license duration pennitted in several other Afiicm1 countries. For

example, South Africa, Mlawi, Tanzania, and Zai11bia allow between 10 and three years' Kenya

currently pennits indefinite licenses.

Under the tenns of Ugandan law, the Broadcasting Council also has complete discretion when

granting licenses as long as "much conditions as it the Broadcasting Council]may deem fit" are

met. This catch-all standards are systematically w1fair and arbitrary. Owners cmmot predict what

conditions may be required, and those conditions can change at m1y time.

49

The Broadcasting Council also has wide powers under the law to "confiscate any electronic

apparatus which is used in contravention" of the Electronic Media Act. The Council can and

does make its own determination as to who has contravened the Act, and seizes equipment

without any hearing. It is a criminal offense for any person to attempt to stop the council from

confiscating the equipment. The person whose equipment is confiscated has no clear recourse

Set out in law to challenge the seizure and to reclaim the confiscated items. The powers of the

council to confiscate equipment without due process violates several rights enslu·ined in the

Constitution and in international human tights law, including the right to free speech, the right

not to be arbitrarily deprived ofproperty"O, and the right to a fair hearing. Under the minimum

standards, broadcasters must also present programs that are "balanced to ensure harmony (2) The

law is silent on the definition of harmony, which body has powers to determine and how council

decisions regarding these standards may he appealed.

The broadcasting council is not subject to adequate controls or procedural safe guard in issuing

determinations on the. suspension or revocation of licenses or applying fines and penalties. By

crafting tenns and conditions to vest its· .;f with the power to cancel broadcasting licenses, the

Ministry of infonnation has acted outside its powers. Parliament, not ministries, should make

laws in a transparent process with public consultation for the enforcement if rights and freedoms

Under the Ugandan constitution. Broad powers, not set out in clear laws, to interfere with

freedom of expression violate Ugandans' constitutional rights".

3.3.2 Uganda communications Commission (UCC)

The Uganda Communications Act 1997 establishes the UCC. By statute, it regulates the national

communications sector, setting and ensuring compliance with national communications

standards, encouraging research, private investment and competition, and promoting consumer

interests as regards quality and equitable distribution of services" As the body charged with

implementing the objectives of the Uganda Cmmnunications Act, the Commission is in charge of

enhancing and expanding coverage and variety of communicationsservices and products as well

as establishing and administering a fund for rural communications development

50

Much like the Broadcasting Council, however, the UC'C is also responsible for licensing and

regulating communication services and allocating and licensing the use of radio frequency

spectrum.in the case of a radio communications system, these conditions and tenns will include

"the position and nature of the station, the purpose for and circumstances in which and the

persons by whom the station may be installed or used." The commission has similar powers

regarding specifications of telecommunication licenses.

According to Section 27 of the UCC Act". to ensure the orderly development and efficient '

operation of radio communications in Uganda, the Commission shall be the exclusive authority

to issue (a) license for radio communications apparatus and spectnnn use. and Section 28: state,

'Notwithstanding any other law, the commission shall have the exclusive duty to (a)

plan. monitor, manage and allocate the use of radio frequency spectrum."

Like the broad casting Council, the Uganda Cmmnunications Commission appointed inspectors

are empowered to

"enter and inspect at any reasonable time any place owned by or under the control of an

operator in which the inspector believes on reasonable grounds to be any document,

iriformation, or apparatus relevant to the enforcement of this Act and examine or remove

it for examinations or reproduction. "

The same power applies for "any place in which the inspector has reasons to believe that there is

any radio apparatus or interference-causing apparatus. And examine any radio apparatus, logs,

books, reports, data, records, documents orother papers, and remove the information, document,

apparatus, or equipment for examination or reproduction.

The UCC Act however does not however specify how the Uganda Communications Commission

and the Broadcasting Council are to interact. However, as stated above, under Section 6 of the

Electronic Media Act, broadcasters must obtain a license from the Broadcasting Council, and

according to section I 0. the Broadcasting Council is "responsible for the standardization,

planning and management of frequency spectmm. The powers granted to the UCC duplicate the

powers bestowed on the Broadcasting Council as it relates to licensure of radio stations and

allocation of frequency. Any difference is a matter of rhetmic and much confusion remains

regarding the specific powers of the two bodies in this regard, broadcast media owners have

51

voiced frustration with and criticism of the seeming overlap in the roles of the UCC and the

Broadcasting council. As stated earlier, the Attorney General also acknowledged the ambiguity

of the division of powers between the two. In discussions with F'HRI, Fred Otunnu Corporate

Affairs Officer with the Uganda Communications Commission argued that the laws need to be

reviewed and revised with an eye towards merging the Broadcasting Council and Uganda

Communications Commission. Such a merger, similar to that in other countries, would establish

a one-stop Centre for the provision of communication services and regulation of broadcast

media'.

3.3.3 Media council.

1Y1e Press and Journalist Act 1994 establishes the Media Council as the primary regulatory

body; tasked with regulating the conduct, ethical standards, and discipline of jownalists and the

media at large.The Media Council's powers also violate international human 1ights standards by

severely restricting access to the profession of journalism in Uganda, all journalists must hold

certificates issued by the Media council in order to "practice jownalism"

The definition for "practicing journalism" is very broad: "A person is deemed to practice

journalism if he or she is paid for the gathering, processing, publication or dissemination of

infonnation: and such person includes a freelance journalist" In addition, journalists must renew

their licenses on an annual basis and pay fees. It is also a criminal offense to practice journalism

without a license.

There is a disciplinary committee, sub group f ii executive committee of the Media Council

which issues decisions on complaints against journalists. The disciplinary committee, can

admonish a journalist, force the journalist to issue a public apology, and/or suspend the journalist

from working for up to six months; the same committee can force the jownalist's employer to

pay damages to an injured party'. After suspension, a journalist may appeal the disciplinary

committee's decision to the High Court, but may not work as a journalist while the appeal is

pending'.

52

3.4 THE ANALYSIS OF THE FREEDOM OF EXPRESSION IN UGANDA;

3.4.1 THE FREEDOM OF EXPRESSION IN THE PRESS AND THE MEDIA;

Under every Ugandan govemment since 196288, journalists who have spoken out against

govemment policies have faced physical violence, criminal charges, threats, and imprisom"llent.

President Museveni and the ruling National Resistance Movement (NRM) came to power89 and

instituted the "Movement" system, which denied other political patties the right to operate for

almost 20 years.

Uganda's first private radio station, Radio Sanyu, opened in 1993, ending the state's monopoly

on radio broadcast that had been in place since colonialism90. Ugandan media experts have noted

that dnring President Museveni' s first two tenns in office, the NRM govennnent tolerated more

outspoken criticism than did previous regimes. However, others ru·gue that radio liberalization in

Uganda was principally about an NRM economic strategy of privatization and "a freeing of

business space than as a deliberate strategy of enhancing media freedom."

Uganda's constitution91, a product of national consultation, contains strong provisions on

freedom of expression. However, while the NRM govemment has permitted more radio stations

to function since coming to power, it has also passed a series of increasingly repressive laws and

has expru1ded the number of govemment regulatory bodies, which have mandates to oversee,

control, and monitor the media.

88 The attainment of the Uganda independence on 91h October 1962

89 In 1986 90 The British rule in Uganda 91 The 1995 Uganda Constitution

53

An estimated 200 FM frequencies in Uganda operate in scores of local languages. Radio

continues to be the primary source of information throughout the country, and stations are owned

by a range of actors. Some stations are owned directly by government via the public broadcaster,

Uganda Broadcasting Corporation, or by the state corporation Vision Group, which owns a large

number of radio stations and newspapers in a diverse array of local languages. A large number of

radio stations are owned by govermnent ministers, parliamentarians, and business people with

established connections to the ruling party. Others are owned by independent business people

and churches.

Currently, five separate entities all have some fonnal overlapping mandate to control, monitor,

discipline, and/or sanction journalists and media houses. All are subject to direct government

control. Contrary to internationally accepted standards, and in contrast with several other African

jurisdictions, tl1ere are no provisions in law requiring the regulatmy bodies to be independent of

govermnent interference. This structure leaves the media, and especially those who are critical of

govermnent action, extremely vulnerable to closure or other punitive action. In addition, it is

widely believed that others in government, particularly the Internal Security Organization, the

domestic intelligence body, monitor the media and react, often to suppress c1itical reporting.

The media freedom92 refers to the general freedom enjoyed by the media both print and '

electronic to carry out the essential function of transmitting information. Vibrant media freedom

is one of the c&rdinal pillars of a democratic society.

Generally, the media and press acts as a watchdog, activist and guardian as well as educator,

entertainer and contemporary chronicler. For democracy to flourish, there must be an

independent, free and vibrant media which acts as the fomih estate. 93

" The definition of media freedom(Wikipedia)

54

A free press is fundamental to a democratic community, it seeks out and circulates news,

information, ideas, comment and opinion and hold those in authority accountable. It further

provides a platform for a multiplicity of voices to be heard at National, regional and local level.

The media freedom has its roots in the struggle for freedom, fairness, justice and equality ahd it

involves various responsibility and duties that has to be adhered to by all the stakeholders

The recognition of the media freedom has its origin from the Constitution94; Article 20(1) which

provides that the fundamental rights and freedoms of individuals are inherent and not granted by

the state.

Furthennore, the constitution further states that eve1y person shall have a right to freedom of

speech and expression which shall include the freedom of press and other media.

Several of Uganda's national laws are inconsistent with its obligations under international law

and its constitution, and the government exploits vagueness in national laws to suppress critical

appraisal. It does so by putting a wide range of restrictions which inhibit freedom of expression.

these include forexample libel laws, official secrets and anti-teJTorism legislations, the law of

contempt and other legal restrictions on court reporting and. The law of confidence and

development of privacy and data protection actions, intellectual property laws, legislations

regulating public order and management, trespass, harassment, anti-discrimination and

obscenity.

In Uganda, some laws criminalizing certain types of speech are overly vague and broad, which

makes even i1mocuous public statements open to criminalization forexample the crime of

promotion of sectarianism is defined as 2:1y act which is likely to ... promote ... feelings of ill will

93 Declared as the fourth ann of government by USA 94 The 1995 Uganda Constitution

55

or hostility among or against any ethnic group or boy of persons on account of religion, tribe,

ethnic or regional origin. Ugandan govemment therefore us this laws not to safeguard national

security per se but to stifle freedom of speech.

The media today in Uganda is more like public relations repmiing. If you stick to real issues, you

may not remain in the profession. You'll be in danger.

Joumalists are not free to do their jobs. In most cases, they really have the information. They

have done investigations, have the documents, but then they sit on it. If it relates to local

government people or a minister, even ,,·hen they have the proof to pin down the person, the

radio stations will sit on it, because they fear the consequences. Some joumalists have been put

in prisons, some have been abducted by unknown men in plain clothes for merely writing about

govenunent officials a thing which has scared their credibility to boldly give accurate

infonnation about such happenings.

It's a fundamental role of a journalist and the people in press is to inform the public what is

going on, but if they are denied that right, it's like you're forcing them to go astray and it is

largely witnessed that many have been forced to write what is contrary to their set work ethics ...

We're not free to report as we should anymore.

Majorly, the freedom of expression across the country is in significant jeopardy most especially

when the country is preparing for general elections in Uganda which are held every after five

years95• Tolerance of criticism and protection of free speech in Uganda fluctuates based on

political factors. Campaign ar1d election seasons are particularly tense, when violations of

freedom of expression tend to escalate. On a superficial level, Ugandan media seem to enjoy

95 Article 59 and 105(1) ofthe Uganda constitution 1995

56

considerable latitude, especially those based in Kampala, which regularly carry a range of

opinions, including occasional criticism of government policies. In reality, however, as Human

Rights Watch has found, genuinely free and independent journalism is under threat, particuiarly

outside the capital. The government deploys a wide range of tactics to stifle critical reporting,

from occasional physical violence to threats, harassment, bureaucratic interference, and criminal

charges. Increasing use of these tactics during the political unrest in September 2009, and in the

run-up to the votes, threatens to fatally undennine media fi·eedoms necessary for a free and fair

election.

Uganda has notionally had open multiparty politics since 2005, after 19 years of de facto one-

party mle under the National Resistance Movement (NRM)96, led by President YoweriMuseveni

who took power in 1986. Political parties now actively vie for public support, hold rallies, and

promote candidates for public office. But this process of opening up political space has been

extremely uneven in practice and has resulted in increasingly arbitrary state attacks on the media

as the mling party faces more and more public and open criticism. Since the previous political

campaigns in 2005, at least 40 criminal charges have been levied against journalists and talk

show panelists such as the clamp down on Radio stations like K.FM, Dembe FM, Newspapers

like Daily monitor, red pepper among others.

Several reports show that since 2005, attempts by Ugandan journalists to conduct independent

political reporting and analysis in print and on radio have been met by increasing govenunent

threats, intimidation, and harassment. Human Rights Watch conducted97 more than 90 interviews

over the course of nine months in 2009 and early 2010 that document the aggressive and

arbitrary nature of state responses to criticism of the central government and the mling l'll.M

96 National Resistance Movement 97 A Non-government organization

57

party. In some cases, these threats are ove1i, such as public statements by a resident district

commissioner that a journalist should be "eliminated," or a police summons on charges of

sedition, incitement to violence, or promoting sectarianism for criticizing government action in a

newspaper article. In many more cases, the threats are covert, such as phone calls-some

anonymous and others from well-known ruling party operatives-intimating violence or loss of

employment if a journalist pursues a ce1iain issue or story.

Some joumalists cope by steering clear of any reporting that may attract government attention or

sanction, succumbing to the chilling effect of harassment. Self-censorship is especially prevalent

among radio station reporters and talk show hosts based outside Kampala who broadcast in

Uganda's local languages in districts where legal protections and intemational scrutiny are the

most lacking. The hesitation of those reporters to address sensitive political issues has a

particularly pronounced effect on Ugandans' access to information about key issues in the lead­

up to the elections, as most still get their news and infonnation from local language radio.

The Ugandan govemment uses its national laws to bring charges against journalists, restrict the

number of people who can lawfully be journalists, revoke broadcasting licenses without. due

process of law, and practice other forms of repression. Similar laws and procedures exist in other

countries, but in Uganda, the govennnent uses the laws in partisan ways to create a minefield for

media owners and repmiers who speak or write about issues that the government deems

politically sensitive or controversial. Several government-controlled bodies, including the

Broadcasting Council, the Media Council, and the UCC98 wield broad, ill-defined, and

unchecked powers to regulate the media. Many of the sanctions they levy have been determined

to be in violation of freedom of expression by intemational experts.

98 Uganda Communication Commission

58

These kinds of restrictions--on both media outlets and individual journalists-were fully on

view in September 2009, when Uganda expe1ienced two days of rioting. Govermnent troops

responded to rioters throwing stones, blocking roads and lighting debris on fire with excessive

lethal force, resulting in the deaths of at least 40 people. The riots occmTed when the NRM

govemment instructed state agencies to block the visit of a cultural leader of Uganda's largest

ethnic group, the Baganda, from visiting an area that was historically part of his kingdom99•

Luganda-speaking radio stations voiced support for the Buganda cultural leader and encouraged

listeners to show that suppmt by traveling to the area dming the planned visit.

In response, the NRM-controlled regulatory body goveming radio in Uganda, the Broadcasting

Council, suspended the licenses of three Luganda-speaking stations and withdrew the license of

another, Central Broadcasting Station (CBS) 100-all without notice or a prior comt order. Police

and soldiers threatened joumalists trying to photograph and repmt on the m1folding events. In the

wake of the riots, the Broadcasting Council also pressured these and other stations to suspend

specific joumalists whom the Council deemed had "incited violence." The CoUI1cil101 officially

bmmed any open-air broadcasting-a very popular fo= for public debate in local commU!lities,

known as Bimeeza in Luganda-in the country on any topic. CBS remained off air at the time of

writing, while the other three stations have informally negotiated with authorities to return to the

airwaves.

The govenunent-sanctioned media clmnpdown dming and after the September riots and the

criminal charges levied against nmnerous print journalists appear to have led local govemment

officials m1d NRM party operatives to believe they should take similar action. HU!llan R:shts

99 Buganda kingdom 10° Central broadcasting services 101 The Broadcasting council

59

Watch research found that journalists based in rural districts are increasingly subjected to

intimidation, threats, charges, and, to a lesser extent, physical attacks while trying to report on

local political matters.

Rural radio journalists, in particular, have been targets of serious and repeated threats to their

lives and their jobs. The perpetrators are often pro-NRM government officials-especially

resident district commissioners who rep,·esent the President's office at the district level-or

police and intelligence officials who are retaliating against criticism or reporting on official

misconduct, such as alleged corruption, mismanagement, or human rights violations. In many

instances, when threatening reporters, local govemment officials specifically refened to what

happened in Kampala during the riots as evidence of the power of the state to stop negative

repmiing. Because local government officials are perceived to be closely aligned with police,

instances of tlu·eats and intimidation have gone largely unrepmied and without proper

investigation or prosecution. When instances have been made public, no investigation has taken

place.

Human Rights Watch recommends that Ugandan govemment officials and ruling party members

immediately end harassment, threats, and abuse of journalists. Government officials, particularly

the president and the ministers of infonnation and security, should publicly condemn threats to

the media and insist that local officials tolerate independent repo1iing in local languages. Police

and prosecutors should investigate and prosecute incidents of threats, harassment, and

intimidation of journalists. The government should also repeal or amend its laws to bring them

into line with their intemational obligations and the rights enshrined in Uganda's constitution.

The statutes of the various media regulatory bodies should also be amended without delay to

ensure that the bodies can act independently, without inappropriate government interference.

60

Any suspension of broadcasting licenses must be canied out with regard to the due process rights

of both journalists and media owners, including requiring police or the regulatory bodies to

present evidence of criminal activity before a court of law before preventing any speech.

In my conclusion, while the media in Uganda qualifies as pluralistic, it's by no means

independent. There is much interference with the editorial independence of both private and

public media houses. this has cultivated the space for the exercise of freedom of expression.

Unjustified restrictions of media freedom do not confonn with the principle of and practice of

democracy, a talent that thrive on the exchange of ideas. The govenunent should be the first

guarantor of the freedom of the media. While there is freedom of the media in an economic

sense, the discourse is often restricting in tenns of security. The press should instead uncover

free exchange of views and various opinions to safe guard the national interests

3.4.2 THE FREEDOM OF EXPRESSION BY THE GENERAL PUBLIC;

The freedom of expression and speech is a guaranteed freedom under the different laws

including the intemational instruments and are enjoyable by every person in Uganda regardless

of their economic, social or political status

However, in Uganda since the attainment ofindependence102, the enjoyment of the freedom has

been fatally shattered by the different political regimes which saw the freedom of expression go

into shambles of abuses.

The political regimes of leaders like Milton Obote and Idd Amin Dada saw the worst abusc: of

the freedom of expression, dming their rule they used the state machinery in order to stifle all

102 The Uganda independence in 1962

61

their c1itics by strongly censoring the freedom of speech. There was rampant arrest of many

political rivals and others were put to death just to maintain their stay in power by such leaders.

It was not until the coming of the NRA/NRM103 government that ushered in some relativity in

the enjoyment of the freedom of expression and speech.

This was followed by the enactment of the 1995104 popular constitution which largely

safeguarded the right to freedom of expression and speech as per Article 29(1) 105 which st1tes

that every person shall have a right to freedom of speech and expression which shall include the

freedom of press and other media.

This has been somehow maintained as may people have come up openly to condemn the

government on many various occasions where it had seemed to take a diverging side against the

peoples own will. This was seen torexample in which many members of parliament, religious

leaders and local persons have stood their ground to condemn the constitutional amendments of

the constitution specifically Article 102(b)106 and this has not been followed by too ri:mch

repellence and censorship from the government though there are instances where the NRM

supporters are given a go ahead to match and show their support towards the amendments while

other political parties are not accorded the same equal treatment to air out their views in public.

This also follows the fact that the govemment was condemned where it wanted to give away part

of Mabira forest to an investor Mehta in order to grow sugar and increase its production in

Uganda. The different stake holders stood their firm to condemn the government and no wonder

that the plans of giving the forest away fall fatal.

103 National Resistance Movement 104 The 1995 constitution of Uganda 105 Article 29(1) of the 1995 constitution of Uganda 106 Article 102(b) of the constitution of Uganda

62

More so on Ugandan radios, people are given a chance to air ont their views and criticisms

against the government. There are several radio programs and TV shows which mainly impeach

the government on its failnres. Some of them include NBS's "Eagle" and "Barometer'' programs

which are highly critical to the government and many others.

3.5 The enactment of the public order and management Act,2013

The public order and management was enacted to curtail the right of assembly and association, it

should be noted that under the constitution guarantees the right to assemble and association

under Section 29( d) 107 which state that every person has a right to freedom to assemble and

demonstrate together with others peacefully and unmmed and to petition.

The constitution108 further states that every person has a right to freedom of association which

shall include the freedom to fonn and join association or unions, including trade unions and

political and other civic organizations.

Therefore, from the above insight it clearly states that the freedom of association and assembly

are safeguarded under the constitution but this freedom has been crippled by the enactment of the

public order and management Act which put a lot of checks on this freedom.

In Uganda today many politicians belonging to the opposition side have been denied the freedom

to assemble peaceful no matter how far they follow the right procedures to convene their meeting

they end up being dispersed and this explains why there are a number of protests by civil

organizations, religious leaders, human rights activists and other stakeholders condenming the

police brutality and way of handling the opposition members. This has been evident in the strong

107The constitution of Uganda. 108 The 1995 cm,stitution of Uganda

63

deployment made by police during rallies leading to clashes resulting into several injuries and

continued arrests of political leaders in this country.

Many politicians in Uganda forexampleNobert Mao109, Lukwago, KiizaBesigye and many others

have been an·ested on several occasions i.nd charged with unlawful assembly a case instigated to

stifle their campaign against the government. Some of these charges have been preferred age :nst

them even where the police have no clear evidence to prove the case and this has led to a lot of

controversy

In the Zambian case of Christine Mulundika and 7 Others v. The People110.J.n this case, the

applicant and seven others, including the former Republican President, Dr. Kenneth Kaunda,

were charged in a Magistrate's Court with unlawful assembly, contrary to section 5 of the Public

Order Act (CAP. 113 of the Laws of Zambia). Section 5 required anyone who wished to hold a

public meeting, procession or demonstration to apply to the police for a penni!. The police Zvere

entitled to reject the application or, if they decided to allow the said event, they could impose

conditions. Among these conditions were: the persons who may or may not be permitted to

address such assembly or public meeting; the matters, which may not be discussed at such

assembly or public meeting, etc. Section 7 made it an offence to contravene section 5, which was

punishable by imprisonment of up to six months or a fine not exceeding one thousand five

hundred penalty units, or to both. The applicants challenged the constitutionality of sections 5

and 7 of the Act. The Magistrate Court stayed the climinal proceedings until the constitutional

issue was dealt with by the High Court. The High Court, fearing that it might create a vacuum,

declined to declare the two sections unconstitutional.

109 Former member of parliament for Gulu municipality, a lawyer and the DP party president. 110 (1995)25

64

The Supreme Court struck down sections 5 and 7 of the Public Order Act for being

unconstitutional as they infringed upon the freedoms of expression and assembly guaranteed by

Articles 20 and 21 of the Constitution, respectively. The Court held that section 5( 4) was not

reasonably justifiable in a democratic society for a nwnber of reasons.

In same vain the public order and management Act contravenes the right to assemble and

association which is guaranteed under the 1995 constitution of Uganda.

The Public Order and Management Act111has generated a lot of controversy both as a result of its

content and the way it has been applied by the authmities. The act was enacted following the

different processions and assembly by the opposition members of parliament and key political

actors to stifle their criticisms against the government. The law was passed by parliament in 2013

and it is construed as an eyed law to silence the opposition members who had staged different

campaigns against the government such as the walk to work campaign by Dr. KiizaBesigye,

Elias Lukwago and other opposition members.

Section 41f2 defines a public meeting as any gathering procession, assembly or demonstration in

a public place or premises held for the purposes of discussing, acting, upon petitioning or

expressing views on a matter of public interest.

The Act further states that the under Section 51f3an organizer of the meeting is mandated to give

notice of the meeting in writing and signed by him/her not less than three days and not later than

15 days before the proposed date of the public meeting.

111 The public order and management Act 2013 II:! S.4 of the public order and management Act 113 S.5 of the public order and management Act

65

This has been unfairly applied as many of the opposition members have been denied the right to

carry out demonstrations by giving notice to the police. Even in instances where the police are

given the notice in time they go ahea· i to combat such meeting so long as they are fully

organized by the opposition members. An example of this is where DP president Hon.NoJ.,ert

Mao the one who launched "Tojikwatako" literally meaning don't touch the constitution

campaign has on several occasions been anested by the police even where the notice has been

given an access granted for such meetings.

Another example is where the Opposition leader in Parliament Hon. Winnie I<:.iiza and other

Opposition MPs where denied a chance to consult their voters concerning the constitutional

amendments and this followed a directive by the Inspector General of Police (Gen. Kale

Kaihura) 114 that no opposition member of parliament is allowed to proceed with another me1'nber

to his constituency to canvas support for the amendment of the constitution.

The NRM members of parliament where granted free access to convene public gathering and

interact with people without strict censorship, this largely attracted public concern and many

public figures like Justice Kanyeihamba115, John Nagenda and many others have come out to

criticize it and have viewed it as unfair and a big threat to democracy in Uganda.

The Act has further been used by the government in order to combat down its critics and all

opposition members by denying them a chance to convene and air out their views, teargas has

been used on several occasions to disperse the crowds that belong to the oppositions which has

sometime led to death forexample one man died in Rukungiri when Besigye tried to convene a

meeting in the same place.

114 The inspector general of police llS Former justice of the supreme court of Uganda and the former minister of justice and constitutional affairs

66

Therefore, the law was enacted largely enacted in bad faith in order to counter the opposition and

no wonder it lacks the efficacy of being a good law because of its segregative application on

different persons and has had the largest form of violation of human rights and a threat to

democracy.

In my conclusion, it is clear from the above exposition that the Public Order and management

Act 2013 is a serious threat to democracy, not only because of its content, but also because of the

disc1iminatory manner in which it is applied. There is need to amend the Act so that it conforms

to the imperatives of the constitution and the new democratic order. Maintaining legislation that

is aimed at stifling political dissent contravenes the principles of good governance.

67

CHAPTER FOUR

THE LAW ON DEFAMATION

4.1 INTRODUCTION

The tort of defamation protects a person's reputation and integrity from being harmed by

dissemination of false statements. The need to protect individual reputation was highlighted in

the case of Reynoldvs Times newspaper116

Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fimdamental to its wellbeing whom to employ or work for, whom to promote, whom to do business with or vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one 's reputation. When this happens, society as well as individual is the loser. For it should not be suppose that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the pitblic good. It is in the public interest that the reputation of public figures should not be debased falsely. 117

This is a tort directed at injury to reputation. It aims to protect one's reputation from injury

arising out of statement written or said against them.

The law of defamation does not protect one against statements that are true.

The law aims to protect one's p1ivacy from depravity, a defamed person can sue for damages and

can obtain an injunction

Defamation is defined in the case of Onega vs0loya118 as a statement that tends to lower or

injure the reputation of the plaintiff in the estimation of the right thinking member of the society

or which cause the right thinking members of the society to shun or avoid him.

A defan1atory statement therefore has a tendency to injure the reputation of a person to whom it

refers by lowering him in the estimation of right thinking members of society generally and in

particular to cause him to be regarded with feelings of hatred, contempt, 1idicule, fear dislike or

disesteem. This is done by attributing some dishonorable conduct to the plaintiff ...

Non-natural persons, or corporate persons, can also be defamed. But proof of financial damage is

a must to allege defamation.

116 [2001]2 AC 127, 201 117 Lord Nicholls 118CIVIL SUIT NO. 114 of2009

68

If a statement raises sympathetic feelings, concem or pity, the defendant will still be liable if the

statement is laden with contempt. The liability for the defendant is also there for the defendant

even if the plaintiff never believed it.

In Uganda the defamation is provided for in the penal code Act119 and it states that any person

who, by ptint, writing, painting, effigy or by any means otherwise than solely gestures, spoken

words other than sounds, unlawfully publishes defamatory matter to defame that other person

conunits a misdemeanor tenned as libel.

Section 180(1) of the penal code Ac/20further provides that a defamatory matter is a matter likely

to injure the reputation of any person by exposing that person to hatred, contempt or ridicule or

likely to damage any person in his/her profession or trade by an injury to his/her reputation.

4.2 Defamation takes two forms,

4.2.1 Libel;

This refers to the written or visualdefamatory statement in a permanent form. This includes

written statements, pictures, movies, postcards and statues and theatre performances and Tv and

radio broadcasts also come into this category.

In the case of Youssoupoffi>s MGM!21 a film (Rasputin and the Empress) that suggested that the

claimant, a princess of the Russian royal family, was seduced or raped by Rasputin (a Russian

mystic, also referred to as the "Mad Mon:.~") was held to be libelous.

Also in Monson vsTussaud'/22 a waxwork figure of the claimant with a gun close to the

chamber of horrors in the defendant's premises was held to be libelous; it suggested that the

claimant (who had earlier been discharged of a criminal trial) was a criminal.

The tort of libel is actionable per se meaning that the plaintiff needs not to prove damage for him

to succeed in action of defamation. And libel can be punishable as a crime if it is sufficiently

senous.

In the case of Benedict K.M Kiwanuka VS Milton Obote and Anor123In the latter case, the

plaintiff sued Obote and the people's newspaper Obote made the "defamatory" statement at a

119Penal Code Act Cap 120. 120 Penal Code Act Cap 120 121 [1934] '" [1894] '" Case No. 315 of 1965

69

UPC rally. Want Obote said was report~d in the "The people" one of the issues was whether

Obote would be liable for libel.

Cowt held that although Obote did not expressly authorize the publication of his speech, the

authority might be inferred that a reporter was present and was getting infonnation for his paper.

Therefore, if Obote were to be liable, he would be liable for libel. The concept of implied

authority is rife here.

4.2.2Slander;

Slander refers to anon pennanent or transitory defamatory statement. The statement may be by

words, gestures, or sign language. The nature of slander means that it has a much more limited

scope of publication than libel.

Slander is not actionable per se; proof of actual is required. there is however no need to prove

damage where the slander clearly and unambiguously imputes

• That the claimant had committed an offence punishable by imprisonment

• That the claimant was unfit, dishonest or incompetent in relation to his trade. Profession

or calling

The reason for these exceptions is that the above allegations are of such a natw·e as to cause

serious hmm to the reputation of the claimm1t.

A slm1derous statement which imputes that the claimant had contracted a contagious or venereal

disease would only be actionable per se if the claimant has suffered special damage by reason of

allegation.

4.3 Elements of defamation

There are three elements a plaintiff must satisfy

1. The words or statement must be defmnatory

2. The statement or words must refer to the plaintiff

3. There must be publication of the statements.

70

4.3.1 The statements or words must be defamatory in nature.

A defamatory statement is a false statement in reference to somebody that is injurious to his or

her reputation in the eyes of the right thinking members of the society which makes him to be

seen with lidicule, odiwn, contempt or opprobliwn; or which causes other people to shun or

avoid him.

Whether the statement is defamatory is a matter of an objective test and a factual one.

In the case of Sim Vs Stretch124The question, then is whether the words in their ordinary

signification are capable of being defamatory [ ... ] judges and textbooks writers alike have found

difficulty in defining the precision the word 'defamatory'. The conventional phrase exposing the

plaintiff to hatred, ridicule or contempt is too narrow. The question is complicated by having to

consider the person or class of persons, whose reaction to the publication is the test of the

wrongful character of the words used, I don't intend to ask your Lordships to lay down a fonnal

definition, but after calling the opinions of many authorities I propose in the present case the test;

would the words tend to lower the plaintiff in the estimation of the light thinking members of the

society generally.

In Berko.f!VsBurchil125[ .•• ] Words may be defamatory even though they neither impute

disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade

or business or professional activity, if they hold him up to contempt scom or ridicule or tend to

exclude him from society. On the other hand, insults which do not diminish a man's stanr'.ing

among other people don't found an action for libel or slander.

Therefore, this is one of the essential element in any defamation action that the defendant

published something defamatory about the plaintiff. A communication may be considered

defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of

the community or to deter third persons from associating with him," according to the Ameli can

Restatement of Torts (or "The Restatement"). Examples of defamatory statements are virtually

limitless and may include any of the following:

• A communication that suggests the plaintiff was involved in a serious clime involving

moral turpitude or a felony

• A communication that exposes a plaintiff to ridicule

124[1936]2 ALLER 1237. 125 [1996]4 ER 1008.

71

• A communication that reflects negatively on the plaintiff's character, morality, or

integrity

• A communication that impairs the plaintiff's financial well-being

• A cmrununication that suggests that the plaintiff suffers from a physical or mental defect

that would cause others to refrain from associating with the plaintiff

Comis have long stmggled with the task of detennining a standard for deciding whether a

statement is defamatory. Many statements may be viewed as defamatory by some individuals,

but the same statement may not be viewed as defamatory by others. But generally, courts require

a plaintiff to prove that he or she has been defamed in the eyes of the community or within a

defined group within the community. Juries usually decide this question. Comis have stmggled

to some degree with the treatment of statements of opinions. In common law, statements of

opinion could form the basis of a defamation action similar to a statement of pure fact.

Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement

may be considered libel or slander.

It should also finiher be noted that the words must be defamatory it is not enough that words are

false. This raises two issues, one whether the words are capable of being defamatory at all and

this is majorly a question of law, and two whether the words in the pruiicular circmnstances were

defamatory of the plaintiff. This is a question of fact.

Determination of defamatory words.

In order for the words to be defrunatory, they must tend to lower the reputation of the plaintiff in

the estimation of right thinking members of society.

Professor Street says that is a substantial ru1d sizeable ru1d respectable propmiion of society

would think less well of a man, provided that such reaction is not plainly anti- social or

irrational, then the statement is defrunatory. The opinion must not be restricted to a special or

pruiicular group of society.

This was stressed in the case of Dr. RuhakanaRugandaVs Teddy SseeziCheeye and Anor126• It

was held that it is not sufficient that the matter is regarded as defamatory by a pruiicular group,

but must be perceived as such generally by the right thinking members of the society.

106(1992-1993) HCB 173.

72

In the leading case ofKiwanukaObote127.The plaintiff brought the suit in defamation against the

defendant. The defamat01y statement at!Jibuted to the defendant was that the plaintiff had asked

the kabaka that, if he had any problems, he (the Kabaka) should drive to Entebbe and Consult

him. The plaintiff alleged that the above statement was defamatory of Jim amidst the king loving

people in Buganda.The issue was: Would right thinking members of the conununity regard the

above statement as defamatory of the plaintiff. Court held that it is not enough to show that the

words tended to lower the plaintiff in estimation of a section of a community (in this case the

Baganda) because to amount to a libel, the statement must be defamatory in the eyes of the right

thinking members of society. Sir Udoma Held that if Buganda as a federal state was to be

considered an entity of itself, there are many immigrant tribes and the disparagement to the

plaintiff was limited to a small uneducated class of the Baganda. "My own view is that the

Baganda are part of the bigger entity called Uganda"

4.3.2 The1·e a1·e two kinds of innuendo .

./ Tme Innuendo and .

./ False Innuendo.

True innuendo;

The statement is always innocent. The defamatory character, is not found in the statement it self,

it lies in the extrinsic knowledge of the interest groups.

In this instance, the words in their ordinary meaning are not defamatory butt become defamatory

only when they are read by people who possess additional infonnation which are not mentioned

in the statement.

To succeed the claimant must make known this additional information and prove that the readers

were aware of it.

In TolleyVs Fry128 An amateur golfer was featured without his consent, in the defendant's

advertisement of their chocolate creams. It was held to be defamatory in that it contained an

innuendo that the defendant had behaved inappropriately as an amateur golfer by making money

from and advertisement.

127 Supra 128 (1930) AC 333 (HL)

73

In the case of Ms. Temu v Uganda Times. The defendant carried an arbitrary about the deceased

and stated that the deceased was not survived by a widow I wife. The plaintiff who actually was

married to the deceased brought a suit for defamation alleging that the arbitrary carried the

innuendo that the plaintiff was living or had been living in an immoral union with the deceased

to those who !mew about her marriage with the deceased. The plaintiff was entitled to recover

damages from the newspaper.

Vulgar abuse would generally not amount to a defamatory statement vulgar abuses are

statements of abuse made in the heat of passion or in the course of quarrel.

In the case of Field Vs Davis129C was called a tramp by D.C and claimed that the word was

defamatory beGause it suggested she was a woman of loose had immoral character. It was held

that the word amounted to vulgar abuse and was not defamatory.

False Innuendo;

This refers to a disguised defamat01y statement, in false innuendo, the words or statement may

only become defamatory if construed beyond their ordinary or apparent meaning, that is to say

when read between the lines and therefore word are given extended meaning and the defamatory

character lies in the secondary meaning of such words but not the words themselves.

In Sim Vs Stretcher,

The employer of the domestic servant sent this telegram to her previous employer: "Edith has

resumed her service with us today. Please send her possessions and the money you borrowed

also her wages to Old Barton".

The previous employer claimed that the telegram contained an innuendo that he has impecunious

and unworthy of credit. The words were held not to be defamatory.

4.4 The defamatory statement must refer to the plaintiff.

In a defamation action, the recipient of a communication must understand that the defendant

intended to refer to the plaintiff in the connnunication. Even where the recipient mistakenly

believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is

sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant

129 [1955] Times of25fu may 1995

74

may publish defamatory material in the form of a story or novel that apparently refers only to

fictitious characters, where a reasonable person would uuderstand that a pruiicular chru·acter

actually refers to the plaintiff. This is true even if the author states that he or she intends for the

work to be fictional.

In some circumstances, an author who publishes defamatory matter about a group or class of

persons may be liable to an individual member of the group or class. This may occur when:

(1) the commuuication refers to a group or class so small that a reader or listener can reasonably

w1derstand that the matter refers to the plaintiff; and

(2) the reader or listener cru1 reasonably conclude that the commuuication refers to the individual

based on the circumstances ofthe publication.

In the case of HultonVs Jones, the plaintiff (Jones) was a barrister and in the ruiicle he was

described as a church warden". The article referred to a fictitious character. In this case, it was

held that intention is inelevru1t in defrunation. it is defrunatory words themselves that constitute

the cause of action. And sometime, the defamatory words may not in themselves nrune the nrune

of the defruned person in this case the publishers would still be liable.

The defrunatory statement must refer to the plaintiff. A statement may refer to the plaintiff even

if is tme to ru1other person.

Rwabugmya 's case, the court mled that the advertisement in the papers did not refer to the

plaintiff, that the published picture was not the plaintiffs. in the same case, the court went on to

hold that there is no mandatory requirement that the plaintiff need not be nruned.

The statement may also refer to an individual belonging to a group. Forexample the statement

that "All lawyers are thieves" it's unlikely that an individual lawyer can't found an action in

defamation basing on this statement since the group it attacks is indetenninate as opposed to

detenninate

In Knup.ffer v London express newspaper/3(), it was held: "it is a mistake to lay down mles as to

libel on a class and qualify it with exceptions. The only relevru1t mle is that in order to be

actionable the defamatory words must be understood to be published of and concerning the

plaintiff. It is inelevant that the words are published of two or more persons if they are proved to

be published of him. And it is irrelevant that two or more persons is called by some generic or

class nrune."

130 [1944] AC 116

75

4.5There must be publication of the statement.

This is a central aspect of defamation. Publication simply means the communication of the

defamatory matter to at least one person other than the plaintiff.

This is yet another requirement in defamation cases that the defendant must have published

defamatory infonnation about the plaintiff. "Publication" certainly includes traditional forms,

such as books, newspapers, and magazines, but it also includes oral remarks. A streaming audio

clip on the Intemet may be considered a publication in this context. So long as the pers~n to

whom a statement has been communicated can understand the meaning of the statement, courts

will generally :iind that the statement has been published.

Therefore, it should be noted that the communication must be effective and must be in a

language that the interest groups understand. And Communication between spouses does not

amount to publication.

4.6 Defences to Defamation

There are basically three categories of defenses

The three defenses are

(a) Justification

(b) Ptivilege

(c) Fair cmmnent

4.6.1 Justification;

Justification simply means truth. it is a defence and the defendant has to show that the statement

he made is true and where it is successfully raised, it is full defence.

If the defendant can show that what was published is true, that is a complete defence even if the

publication was made maliciously and or with a bad motive. The burden is on the defendant to

prove that what he published is true. The plaintiff need not prove that what was published is

false.

76

4.6.2 Privilege;

Privilege simply means that the statement or the marker of such statement is prevented from any

sort of action or litigations.

There are two types of privilege

./ qualified privilege and

./ absolute privilege.

Privilege as a defence means that the occasion on which a statement is made is protected from

litigation. If one makes a defamatory statement in a privileged circumstance, the plaintiff can't

sustain a cause of action in cow"!.

Absolute privilege;

This means that the statement enjoys protection even if the occasion is being abused. It is

immatetial that the statement is malicious or spiteful. There are five occasions of absolute

privilege.

The .first one relates to parliamentary proceedings or debates. This privilege covers J:.oth

legislators and aides of legislations

Secondly, publication made by parliament or fonn parliament enjoys absolute privilege.

A.liicle 97 of the constitution

Section 23 and 14 of the national assembly, powers and privileges act

The third oneare judicial proceedings. Any statements made in court, whether oral or written,

enjoy absolute privilege such statement may be made by assessors, clerks, lawyers, witnesses

etc.

The defence of absolute ptivilege may also extend to proceedings of a semi judicial nature such

as quasi- judicial tribunals forexample judicial commissions of injury.

The fourth occasion of absolute privilege is communication between an advocate and a client.

That communication must be on litigation matters. It is not certain whether communication on

non-litigation matters enjoy absolute privilege.

The fifih occasion of absolute privilege is fair and accurate newspaper rep otis or public broadcast

of judicial proceedings published contemporaneously to such proceedings. The conditions to be

fulfilled are fair and accurate reporting and contemporaneous publication.

77

In the case of Edith Na!dmeraKalungiVsMunno publications131. The paper reported fairly the

proceedings of a ministerial in which the plaintiff was wrongly convicted of refusal to pay taxes

by claiming to be married. Court held that the reporting enjoyed absolute privilege.

The sixth occasion of absolute privileged are matters of state communication between officials

on matters of state enjoy this privilege.

If the defendant attempts justification but fails, this nonnally aggravates damages. The

implication is that the defendant is unrepentant.

Qualified privilege;

This means that the communications on that occasion is privileged unless such defence is vitiated

by express malice in other words, if somebody is simply abusing the qualified privilege, the

defence is vitiated

4.6.3 Fair comment;

Fair comment on a matter of public interest is a complete defence. This defence has three

elements.

(i) The matter commented on must be of public interest.

(ii) The statement must be an expression of opinion and not an assetiion of fact(s)

(iii) The comment must be fair and must not be malicious.

Public interest;

Under article 43 of the constitution states 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. However, the miicle doesn't define what's a matter of public

interest

Public interest therefore, is a matter in which the public has a legitimate interest. "Public" does

not mem1 "official" public interest is contrasted with plivate personal matter. It is not restlicted to

state officials. However, it is because this conduct entails a crime.

The statement must be an expression of opinion but not an assertion of fact;

Expressions of opinion are mere comments, subjective, judgmental; attitudes, vtews m1d

evaluative. While assertions of fact can be subjected to the 'true or false' rule. The test of

131 (1971) ULR206.

78

reasonability applies. Therefore, if one makes a statement of fact, the only defence one can have

is justification

The comment must be fair;

This must be taken to mean that the comment is based on true facts.

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CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.1 Introduction

The chapter presents the summary conclusions and recommendations 'f the study carried out on

the laws regulating mob justice and how they have solved the problem of mob justice.

5.2 Conclusion

Despite the presence of the law to provide and regulate freedom of speech and expression, these

fi·eedoms in Uganda are not freely exercised, and the law has not been left to lake its own

course of action. Media monopolies and impositions are yet another way in which the 1ight to

receive information from a variety of sources has been restlicted in Uganda. Power monopolies

created by the ieulatory body (media council as auth01ized by the Minister of infonnation) do

not serve the public interest but then to some extent rely on the state owned inc3ia to provide

access to local news that covers up the evils in the executive. Then when and how will checks

help the system to be balanced with such power monopolies is a question that leaves a lot to be

desired.

By appointing the Minister of Information and assigning him the role to appoint the media and

broadcasting councils, dep1ive the council of its independence, implying that the executive

impinges on the mle of law. Moreover the supreme law provides for such independence. 132 This

creates gaps in the supp01iive law when it provides independence and the administrative body

tenninates the independence.

Other examples of "stmctural censorship" i.e. use of economic measures by governments to

control infonnation, include preferential allocation of government advertising, govennnent

control over p1inting, distlibution networks, or newsplint and the selective use of taxes. In

conclusion against the backdrop of abuse of freedom of speech and expression the best and

appropriate measure for Uganda is to cl· .;ck on the rate of abuse of this right with its support

factors.

132 The Constitution of Uganda 1995 Article 29(l)(a)

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5.3 Recommendations

According to the study findings, the researcher drew the following recommendations as a way

forward to effective recognition and exercising of the right of freedom of speech and expression.

5.3.1 Independence of the Media and Broadcasting Councils

Uganda is a democratic country exercising democratic govemance. 133 Government proceeds in

the abuse of freedom of speech and exp· -.:ssion need to be forfeited right fi·om its regulation of

the press and media. The media and broadcasting councils should be left to democratically

appoint their leaders. The conncils should be elected entirely by the body of jow11alists since this

is their mediator between the public and the govenunent. The work of the Minister should be to

receive and welcome the appointees in addition to working with them in building the entire

media indush-y.

5.3.2 Recognition of the Rule of Law

There is need for the executive to recognize the rule of law while executing its assignments.

'This calls for a need to sensitize and educate the executive on constitutional issues, particularly

the Ministry of Infonnation in this context. This will help to define the confines of the powers

that the law accords to the Minister. The press and media in this regard should also he able tb act

within the confines of the law.

5.3.3 Limitation should serve a legitimate

Freedom comes with responsibility. Certain restrictions or limitations on free expression are

permissible in the public interest. However, they must be reasonable, acceptable and

demonstrably justifiable in a free and democratic society. The limitations must also be necessary

133Jjuuko, F.W."lbid p34

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and serve a legitimate interest; they must he clearly and narrowly defined in order to avoid the

possibility of abuse.

5.3.4 Media should be made free of political conti·ol at an institutional level

There is need to ensure that structural restrictions on the press call into question whether the

media are free from political control at an institutional level. This is because political restrictions

can take the form of press laws which allow for govenunent interference in the media and ones

which impose unwarranted restrictions on published content. This therefore calls for all bodies

with regulatory authority' over the media, print or broadcast, to be fully independent of

government.

Thus media regulatory bodies must be independent from political, commercial, and other

interests. They must be protected against political, economic or any other undue influence.

5.3.5 Eliminate Substantive Restrictions on Registration Systems

Processing of license applications should be open and transparent, with decisions about

competing applications being made on the basis of pre-established c1iteria in the interest of the

public's right to know. In addition, the powers of broadcast regulatory bodies should be limited

to matters relating to licensing and complaints. Licensing or registration systems for the media

should not impose substantive restrictions on the right to freedom of expression.

Entry into journalism should he free and open to allow people to enJOY flee speech and

expression. Licensing systems for journalists, whereby individuals are prohibited from practicing

journalism unless they are licensed, are illegitimate.

5.3.6 Access oflnformation to be a Public Right

By public having access on infonnation, '3 another aspect of the freedom of information debate.

Legislation needs to be adopted to he guided by the principle of maximum disclosures where

individuals should have the right to appeal against a refusal to disclose infonnation to an

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independent administrative body, which operates in a fair, timely and low-cost manner and

whistle blowers who release infonnation on wrongdoing also need to be protected by the law. 134

5.3.7 Genuine Patriotism is needed

Much thinking and creativity is needed because without genuine patriotism in the hearts and

minds of many people, abuse of media freedom is more likely to continue aiming at undermining

the country's struggles for justice and peace, democracy and human rights, unity and

solidarity.The state thus should get used to negative media against it. It should put in place a

strong public relations mechanism to respond effectively to those negative media.

5.3.8 Government should Facilitate Enjoyment of Rights

The enjoyment of freedom of speech and expression arc not favors that any govennnent

magnanimously grants its citizens. 135 The government is, in fact, under obligation to facilitate

citizens' enjoyment of the right to free expression. The primary object of any media law in a

democratic society should be to promote press Freedom and tree expression. Rules on

monopolies need to be carefully designed to promote popularity of content, without providing

the government with an opportunity to inter I em e in the media.

5.3.9Government should involve stakeholders

In the composition of the Uganda cmmnunication regulatory authority the minister appoints all

members who have to be approved by the cabinet. To me this approach of sidelining those that

are not politically in the same line is dehimental as they may fear to bite the hand that feeds

them. I believe that professional bodies like NIJU should be allowed to have appointees that are

not politically inclined

134Waliggo (2007)0p cit 25 135 Peter 0. Mwsigc and Bernard Tabaire,Ibid 27.

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