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My President is a Pair of Buttocks': The limits of online freedom of expression

in Uganda

Article in International Journal of Law and Information Technology · July 2018

DOI: 10.1093/ijlit/eay009

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International Journal of Law and Information Technology, 2018, 26, 252–271
doi: 10.1093/ijlit/eay009
Advance Access Publication Date: 19 July 2018
Article

‘My President is a Pair of Buttocks’: the limits of

online freedom of expression in Uganda

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Solomon Rukundo*

ABSTRACT
On the 27 of January 2017, human rights activist, Dr Stella Nyanzi, wrote a post on
Facebook in which she dubbed the Ugandan president ‘a pair of buttocks’. Since then she
has been subjected to various forms of harassment by the state culminating in her arrest on
7 April 2017 when she was charged with cyber harassment and offensive communication
contrary to sections 24 and 25 of the Computer Misuse Act (CMA), respectively. Her case
is emblematic of the shrinking space for free expression in the Ugandan cyberspace. While
the Internet is frequently hailed as a tool for individual free expression, this is not the case in
Uganda where the state is using the Computer Misuse Act, specifically sections 24 and 25,
to limit online freedom. This article analyses the case of Dr Nyanzi arguing that sections 24
and 25 of the CMA are unconstitutional as they limit online freedom.
K E Y W O R D S : internet, Uganda, online freedom, freedom of expression, criminal law

I N TRO D UC T IO N
On 26 January 2017, while presiding over National Resistance Movement day celebra-
tions in Masindi town to mark his 31 years in power, President Museveni, in an inflam-
matory speech that attracted widespread condemnation, declared, ‘I am not an
employee. I hear some people saying that I am their servant; I am not a servant of any-
body. I am a freedom fighter; that is why I do what I do. I don’t do it because I am your
servant; I am not your servant. I am just a freedom fighter . . .’.1 On 27 January 2017,
the very next day, Dr Stella Nyanzi, a prominent Makerere University lecturer, human
rights activist and social media personality, posted the following, the first part written in
Luganda, a dialect common in central Uganda and understood in most parts of the coun-
try, on Facebook: ‘Museveni matako nyo. Ebyo byeyayogedde e Masindi yabadde ayogera
lutako.’ This translates as ‘Museveni is very much a pair of buttocks. When he spoke in
Masindi he was speaking as buttocks do.’ The acerbic post then proceeded in English:

I mean seriously, when buttocks shake and jiggle, while the legs are walking,
do you hear other body parts complaining? When buttocks produce shit, while

* African Centre for Law and Internet Studies, Kampala, Uganda. E-mail: soloruk12@gmail.com
1 G Muzoora, ‘I am not anyone’s servant, says Museveni’ (27 January 2017) Daily Monitor, <http://www.
monitor.co.ug/News/National/I-am-not-anyone-s-servant–says-Museveni/688334-3789590-whwy85/index.
html> accessed 28 March 2018.

C The Author(s) (2018). Published by Oxford University Press. All rights reserved.
V
For permissions, please email: journals.permissions@oup.com.

 252
 Limits of online freedom of expression  253

the brain is thinking, is anyone shocked? When buttocks fart, are we surprised?
That is what buttocks do. They shake, jiggle, shit and fart. Museveni is just an-
other pair of buttocks. Rather than being shocked at what the matako said in
Masindi, Ugandans should be shocked that we allowed these buttocks to con-
tinue leading our country.2

On 14 February 2017, while appearing before the Parliament’s Education

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Committee, the first lady and minister of education, Mrs Janet Museveni announced
that the government was backtracking on its earlier pledge to provide free sanitary
towels to all school going girls so that they do not have to leave school when their
menstrual periods start.3 Lack of sanitary towels is a major hindrance to girls going
to school in Uganda. The pledge had been a major campaign point in president
Museveni’s manifesto for the 2016 presidential race. On 15 February 2017, the very
next day, Dr Stella Nyanzi took to Facebook once again, posting a lengthy scathing
indictment of the first lady laced with various lurid descriptions of her as a ‘lazy pig’
with a ‘piggy nose’ and ‘rotten jaws’, a ‘big-thighed cow’, a ‘poisonous snake’ with
‘venomous mandibles’ and an ‘empty-brained leopardess’.4
Dr Stella Nyanzi, whose work specializes in the study of African sexualities, had
over time gained 140,000 Facebook followers due to her reputation for tincturing
her incisive socio-political analyses with graphic sexual imagery and descriptions.
Subsequently, Dr Nyanzi started the ‘Pads4GirlsUG’ campaign to provide the pads
herself through crowdfunding.5
For her troubles, Dr Nyanzi has since been subjected to incessant harassment by
the state in direct and indirect ways. On 6 March 2017, Dr Nyanzi was questioned
by the police over her Facebook posts but no immediate charges were made against
her. On 19 March 2017, she was blocked from boarding a plane by immigration offi-
cials at Entebbe International Airport, preventing her from attending an academic
conference in the Netherlands. No reason was given for this treatment.6 On
31 March 2017, the Appointments Board of Makerere University suspended
Dr Nyanzi from her job as a research fellow because ‘Dr Nyanzi has made it a habit
to insult, dehumanise and castigate the line Minister of Education and Sports under
whose docket Makerere University’s supervision falls’.7

2 S Nyanzi, ‘Facebook Post’ (27 January 2017) Facebook <https://www.facebook.com/stella.nyanzi/posts/

10154878225000053> accessed 28 March 2018.
3 L Namagembe, ‘No Money for Sanitary Pads, Gov’t Tells Parliament’ (15 February 2017) <http://www.
monitor.co.ug/News/National/No-money-for-sanitary-pads–gov-t-tells-parliament/688334-3813362-14iyxnd/
index.html> accessed 28 March 2018.
4 S Nyanzi ‘Facebook Post’ (15 February 2017) Facebook <https://www.facebook.com/stella.nyanzi/
posts/10154932446045053> accessed 28 March 2017.
5 ‘Uganda: Detention of Feminist Academic for Criticizing President a Travesty’ (10 April 2017) Amnesty
International <https://www.amnesty.org/en/latest/news/2017/04/uganda-detention-of-feminist-academ
ic-for-criticizingpresident-a-travesty/> accessed 28 March 2018.
6 S Otage, ‘Stella Nyanzi Blocked from Flying to the Netherlands’ (19 March 2017) Daily Monitor <http://
www.monitor.co.ug/News/National/Stella-Nyanzi-blocked-flying-the-Netherlands/688334-3855728-14ufd63/
index.html> accessed 28 March 2018.
7 R Kasasira, ‘Dr Nyanzi Sacked for Insulting Janet Museveni’ (1 April 2017) Daily Monitor <http://www.
monitor.co.ug/News/National/Makerere-varsity-sacks-Dr-Nyanzi-Janet-Museveni/688334-3872520-83uc56/
index.html> accessed 28 March 2018.
254  Limits of online freedom of expression

Ironically, this happened after the First Lady had issued a statement claiming to
have forgiven Dr Nyanzi.8 Finally, on 7 April 2017, she was arrested while hosting a
fundraising drive to raise money for sanitary pads for school girls and charged with
cyber harassment and offensive communication contrary to sections 24 and 25 of the
Computer Misuse Act9 (CMA), respectively.10 The Charge Sheet related specifically
to the statements made against the president ignoring those made against the First
Lady which had been ‘forgiven’. Dr Nyanzi was detained on remand for one month
at Luzira maximum security prison before she was granted bail on 9 May 2017.11

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The case is still going on and is being held up by delays caused by the prosecution.12
Dr Nyanzi’s case brings to the fore the question of online freedom of expression
in Uganda and its limits which this article seeks to address. In particular, this article
assesses the constitutionality of sections 24 and 25 of the CMA and the ways in
which they have been applied by the government. The article proceeds in four parts.
Part 2 examines online freedom of expression under international law and instru-
ments to which Uganda is party. It goes on to analyse the online freedom under the
regional instruments and Uganda’s constitution. Part 3 looks at the CMA whose pro-
visions Dr Nyanzi is accused of violating. Other cases similar to Dr Nyanzi’s will also
be addressed. Part 4 assesses the constitutionality of sections 24 and 25 of the CMA
and considers the way in which the government has used those sections to restrict
and limit online freedom. Part 5 provides the conclusion.

2 . O N L IN E F R E ED O M O F EX P R ES S I O N IN U G A N D A
The right to free expression is protected to varying degrees under international and
regional human rights instruments to which Uganda is party. Broadly, two types of
argument are commonly used to justify freedom of expression-instrumental argu-
ments and moral arguments. Instrumental arguments follow the line that preserving
freedom of expression leads to tangible benefits such as increased personal happi-
ness, a flourishing society, or even economic benefits.13 For example, it is often
argued that freedom of expression promotes free discussion which is necessary for
democracy to function effectively as citizens need to be exposed to a range of ideas
in order to make good judgments. Moral arguments for freedom of expression are
hinged on the idea that it is an infringement of an individual’s autonomy or
dignity—either as a speaker or a listener, or both—to have freedom of expression
curtailed.14 Both these approaches were adopted by the Zimbabwean Supreme

8 D Lumu, ‘I have Forgiven Stella Nyanzi, Mrs Museveni’ (30 March 2017) New Vision <https://www.new
vision.co.ug/new_vision/news/1449912/forgiven-stella-nyanzi-museveni> accessed 28 March 2018.
9 Computer Misuse Act 2 2011.
10 J Kato & D Wandera, ‘Dr Nyanzi Arrested over Offensive Communication’ (8 April 2017) Daily Monitor
<http://www.monitor.co.ug/News/National/Dr-Nyanzi-Janet-Museveni-Education-pad-schools-offen
sive/688334-3882326-oik0hh/index.html> accessed 28 March 2018.
11 ‘Dr Stella Nyanzi Released on Bail’ (10 May 2017) Daily Monitor <http://www.monitor.co.ug/News/
National/Nyanzi-returns-court-today/688334-3920712-3em3w8/index.html> accessed 28 March 2018.
12 ‘DPP Apologises for Delays in Nyanzi’s Pair of Buttocks Case’ (17 January 2018) The Observer <http://ob
server.ug/news/headlines/56640-dpp-apologises-for-delays-in-nyanzi-s-pair-of-buttocks-case.html> accessed
28 March 2018.
13 N Warburton, Free Speech: A Very Short Introduction (OUP 2009) at 7.
14 ibid.
 Limits of online freedom of expression  255

Court in re Munhumeso,15 where it was stated that freedom of expression serves four
broad purposes, namely: it helps an individual to obtain self-fulfilment; it assists in
the discovery of truth; it strengthens the capacity of an individual to participate in de-
cision making; and it provides a mechanism for establishing a reasonable balance be-
tween stability and social change.
Previously, freedom of expression was considered in relation to complex structures of
communication such as newspapers, radio and television rather than individuals. With the
Internet this has changed.16 The notion of freedom of expression as an individual liberty

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has been revived as the Internet has empowered the individual with mass media outreach
that was previously the preserve of large media houses.17 As was noted by Frank La Rue,
the UN Special Rapporteur on freedom of expression ‘. . . the Internet has become a key
means by which individuals can exercise their right to freedom of opinion and expression,
as guaranteed by article 19 of the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.’18

2.1. International law

Article 19 of the Universal Declaration of Human Rights (‘UDHR’)19 states that
everyone has the right to freedom of expression and this includes the right to ‘impart
information and ideas through any media.’ As merely a United Nations General
Assembly Resolution, the UDHR is not directly binding on states. However, since its
adoption in 1948, parts of it, including Article 19, have gained wide acceptance and
are now regarded as having acquired legal force as customary international law.20
Article 19(2) of the International Covenant on Civil and Political Rights
(‘ICCPR’)21 protects freedom of opinion and expression.22 The article’s emphasis
on ‘any other media’ as a form of expression certainly covers new innovations in in-
formation and communication technologies.23 Article 19(3) provides that the exer-
cise of the right to free expression is subject only to restrictions (i) provided by law
and (ii) necessary: (a) for respect of the rights or reputations of others; (b) for the
protection of national security or public order or public morals. Uganda is a signatory
to the ICCPR.24

15 Re Munhumeso and Others 1995 (1) SA 551.

16 VZ Zencovich, Freedom of Expression: A Critical and Comparative Analysis (Taylor and Francis 2008) at
100.
17 ibid.
18 F La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression A/HRC/17/27 16 May 2011.
19 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 (III).
20 Filartiga v Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd circuit).
21 International Convention on Civil and Political Rights (adopted 16 December 1966, entered into force 3
January 1976) 999 UNTS 171.
22 Art 19: ‘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 form of art, or through any other media of his choice.’
23 T Sorell, ‘Human Rights and Hacktivism: The Cases of Wikileaks and Anonymous’ (2015) 7 Journal of
Human Rights Practice 391–410.
24 United Nations Human Rights Office of the High Commissioner, Status of Ratification Interactive
Dashboard available at <http://indicators.ohchr.org/> accessed 27 December 2017.
256  Limits of online freedom of expression

2.2. The African Charter on Human and Peoples Rights

Article 9 of the African Charter on Human and Peoples Rights (‘ACHPR’)25 pro-
vides that people have the right to express and disseminate opinions within the law.
In interpreting Article 9, the African Human Rights Commission (‘AHRC’) asserted
the ‘fundamental importance of freedom of expression and information as an individ-
ual human right, as a cornerstone of democracy and as a means of ensuring respect
for all human rights and freedoms’.26 Unfortunately, the full effect of the article

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appears to be diluted by a clawback clause restricting forms of expression to those
sanctioned by law.27 However, the AHRC has held that ‘within the law’ refers to
international law28 which gives wide latitude for Africans to draw from international
law to support their claims for the freedom of expression.29

2.3. African Union Convention on Cyber Security and Personal Data

Protection
Article 25(3) of the African Union Convention on Cyber Security and Personal Data
Protection,30 while acknowledging the need for legal measures to curb the growing
threats to cyber security, requires that the adopted measures do not infringe on the
rights of citizens guaranteed under the national constitution and protected by inter-
national conventions, particularly the ACHPR. Article 25(3) singles out freedom of
expression as one of the key rights vulnerable to stringent and overreaching cyber-
security laws.

2.4. Declaration of Principles on Freedom of Expression in Africa

The AHRC in 2002 issued a Declaration of Principles on Freedom of Expression in
Africa.31 Principle 1 declares that the right to impart and receive information through
any form of communication is a fundamental and inalienable human right and an in-
dispensable component of democracy. Principle 2 provides that legal restrictions on
freedom of expression must serve a legitimate interest and be necessary and in a
democratic society. Principle 12 provides that defamation laws should not hold any-
one liable for true statements or reasonably held opinions regarding public figures,
public figures should be required to tolerate a greater degree of criticism and sanc-
tions should not be so severe as to inhibit the right to freedom of expression. The
principle also states that privacy laws should not inhibit the dissemination of infor-
mation of public interest.

25 African Charter on Human and Peoples’ Rights (1981) 1520 UNTS 217.
26 Law offices of Ghazi Suleiman v Sudan II (2003) AHRLR (ACHPR 2003).
27 R Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’ (1982) 22 Va J Int’l
L 667.
28 Article 19 v Eritrea Comm No 275/03, paras 91–92.
29 African Affairs Committee Freedom of Expression Subcommittee, The Right to Freedom of Expression on
the Internet as it Applies to Social Media in Africa (1 March 2016, New York City Bar).
30 African Union Convention on Cyber Security and Personal Data Protection EX.CL/846(XXV) Adopted
by the 23rd Ordinary Session of the Assembly of the African Union Malabo, 27 June 2014.
31 Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and
Peoples’ Rights 32nd Session 17–23 October 2002: Banjul, The Gambia.
 Limits of online freedom of expression  257

2.5. International Conference on the Great Lakes Region

Uganda along with eleven other neighbouring African countries32 is a member of the
International Conference on the Great Lakes Region. This was established in 2000
following UN Security Council resolutions calling for an international conference on
peace, security, democracy and development in the Great Lakes region.33 Under
Article 2 of the International Conference on the Great Lakes Region, Protocol on
Management of Information and Communication made in December 2006, one of

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the Protocol’s objectives is to promote freedom of opinion and expression and the
free exchange of ideas in the Great Lakes Region. Freedom of expression is defined
under Article 1 as ‘freedom to hold opinions and to express or disseminate such
opinions or thoughts, including freedom to seek, receive, and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the
form of art, or through any other medium of one’s choice’.

2.6. East African Community

Under Article 6(d) of the Treaty for the Establishment of the East African Community
(‘EAC Treaty’),34 the promotion and protection of human and people’s rights in ac-
cordance with the provisions of the ACHPR is one of the fundamental principles.
Freedom of expression was upheld as falling within that article by the East African
Court of Justice in Burundian Journalists’ Union v Attorney General35 the applicants
argued that the Burundian Press Law, No 1/11 was a violation of Burundi’s obligation
under the EAC Treaty in upholding and protecting human rights and the principles of
democracy, rule of law, transparency and accountability as specified in Articles 6(d) of
the Treaty. The law compelled journalists to obtain a press card before exercising their
profession and gave unfettered authority to the state-run National Communication
Council to approve or reject press card applications. The law also obligated journalists
to disseminate only ‘balanced information’ and prohibited the publication of informa-
tion that insults the heads of state. The law also compelled journalists to reveal their
confidential sources for stories relating to state security, public order and moral integ-
rity. The court held that mandatory accreditation did not violate free press where it is
‘purely technical and administrative registration procedure’. However, the prohibition
against covering and disseminating some information was a violation of freedom of the
press guaranteed under the EAC Treaty. The obligation of journalists to reveal their
sources of information on matters of State secrets also violated the EAC Treaty.

2.7. Ugandan Constitution

Article 29 of the Constitution of Uganda protects freedom of expression in Uganda.
Although the Constitution does not define what freedom of expression entails, the

32 Angola, Burundi, Central African Republic, Republic of Congo, Democratic Republic of Congo, Kenya,
Rwanda, Republic of South Sudan, Sudan, Tanzania and Zambia: ICGLR ‘Background’ <http://www.
icglr.org/index.php/en/background> accessed 28 March 2018.
33 UN Security Council, Security Council resolution 1286 (2000) [Burundi], 19 January 2000, S/RES/1286
(2000); UN Security Council, Security Council resolution 1291 (2000) [Democratic Republic of the
Congo], 24 February 2000, S/RES/1291 (2000).
34 Treaty for the Establishment of the East African Community (adopted on 30 November 1999, entered
into force 7 July 2000) 2144 UNTS 255.
35 Burundian Journalists’ Union v Attorney General, East African Court of Justice Ref No 7 of 2013.
258  Limits of online freedom of expression

Supreme Court of Uganda in Obbo v Attorney General36 (‘Obbo’) defined it as ‘free-

dom to hold opinions and to receive and impart ideas and information without inter-
ference . . .’.37 The court also noted that the right to freedom of expression is not
confined to ‘categories, such as correct opinions, sound ideas or truthful
information’.
New forms of technology do not warrant a narrower application of the freedom
of expression.38 In Rwanyarare v Attorney General39 (‘Rwanyarare’), the court consid-
ered a provision of the Referendum Act 200240 which prohibited the use of electron-

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ic media to make false, malicious, sectarian and derogatory statements and also
prohibited the use of ‘exaggerations or using caricatures’ and ‘derisive or mudslinging
words’. Electronic media was defined as including as including ‘television, radio,
internet and email and any other similar medium’. The court found these provisions
unconstitutional as they were far reaching and draconian and ‘only be intended to in-
timidate the media contrary to the spirit of article 29 (1) (a)’.

3 . C O M P U T E R M I SU S E A C T 2 0 1 1
3.1. Cyber-harassment
Section 24 of the Computer Misuse Act (‘CMA’) creates the offence of cyber harass-
ment, which is the use of a computer in making obscene requests or threatening to
inflict injury to any person or property. The anonymity and ease of communication
provided by the Internet make cyberspace the ideal roaming ground for people who
wish to harass others.41 The modes of communication available to facilitate cyber
harassment include e-mail, blogs, chat rooms, instant messaging services, electronic
bulletin boards and social networking sites.42

3.2. Offensive Communication

Section 25 of the CMA prohibits the willful and repeated use of electronic communi-
cation to disturb the peace, quiet or right of privacy of any person with no purpose
of legitimate communication. This provision is rooted in the right to privacy guaran-
teed under the Constitution.43 The test for offensiveness of communication is that it
must disturb the peace, quiet or right of privacy of the recipient, must be done re-
peatedly and must not be legitimate communication. The requirement that the com-
munication disturb the peace of another is a subjective one and what may disturb the

36 Obbo and another v Attorney-General [2004] 1 EA 265.

37 ibid.
38 Li X, ‘Hacktivism and the First Amendment: Drawing the Line between Cyber Protests and Crime’
(2013) 27 Harv JL & Tech 301–330.
39 Rwanyarare v Attorney General Constitutional Petition No 5 of 1999.
40 The Act had been passed to regulate the referendum in which the people of Uganda would choose to ei-
ther be governed by the ‘Movement system’ which was a thinly veiled one party system and the multi-
party system.
41 D Harvey, ‘Cyberstalking and Internet Harassment: What the Law Can Do’ Australian Institute of
Criminology (2003) <http://www.netsafe.org.nz/Doc_Library/netsafepapers_davidharvey_cyberstalk
ing.pdf> accessed 7 February 2018.
42 S Jameson, ‘Cyberharassment: Striking a Balance Between Free Speech and Privacy’ (2008) 17 Commlaw
Conspectus 231.
43 Art 27 of The Constitution of the Republic of Uganda 1995.
 Limits of online freedom of expression  259

peace of individuals may vary from one person to another. The requirement that the
communication be done repeatedly means that one-off communications, no matter
how disturbing, may not meet the threshold to fall under this section. They may
however fall under cyber harassment.44 Finally, there must be no legitimate purpose
to the communication meaning that the offender should have no justifiable reason
for sending the communication.

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3.3. Application of the Computer Misuse Act Provisions
There is little doubt that laws in the nature of those against cyber harassment and of-
fensive communication are necessary. Constant harassment and abuse online, it has
been argued, hinders freedom of expression as it prevents people from speaking their
mind and blocks out useful ideas.45 However, the provisions on cyber harassment
and offensive communication as they stand now are particularly prone to abuse by
government authorities to restrict criticism online. Besides Dr Stella Nyanzi, other
cyber dissidents have been prosecuted under the same law.
TVO or ‘Tom Voltaire Okwalinga’ is an online pseudonym used on Facebook by
an individual or group that has been known to leak government insider information
most famously releasing a recording in April 2014 that implicated the Inspector
General of Police in a plan to frustrate an opposition presidential candidate’s cam-
paign.46 In 2015, Robert Shaka, a computer expert suspected of being the man be-
hind the elusive TVO persona, was prosecuted for using computers to issue offensive
communications against the president, first lady, the police chief and others contrary
to section 25 of the CMA.47 It is noteworthy that while Robert Shaka was in custody,
TVO went on posting his insider leaks mocking the government for capturing the
wrong man.48
In May 2016, Henry Mutyaba and Robert Darius Tweyambe, were arrested after
circulating a photo on Facebook claiming that president Museveni was dead. They
were charged with offensive communication under section 25 of the CMA.49
In December 2016, Swaibu Nsamba Gwogyolonga, a political activist, was
arrested and charged with offensive communication contrary to section 25 of the
CMA after he posted a photo-shopped picture of the president dead and lying in a
coffin on his Facebook page stating that he will announce and mourn the death of
president when he dies.50

44 Section 24 of the Computer Misuse Act 2 2011.

45 DC Nunziato, ‘The Beginning of the End of Internet Freedom’ (2014) 45 Georgetown Journal of
International Law 383–410.
46 ‘Who’s Tom Voltaire Okwalinga –TVO?’ (10 June 2015) The Observer <http://www.observer.ug/news-
headlines/38278-who-s-tom-voltaire-okwalinga-tvo> accessed 27 December 2017.
47 ‘Crackdown on Social Media Crime Starts’ (22 June 2015) Daily Monitor <http://www.monitor.co.ug/
News/National/Crackdown-on-social-media-crime-starts/688334-2760414-9l6lnlz/index.html> accessed
12 December 2017.
48 J Kimbowa, ‘Who’s Tom Voltaire Okwalinga –TVO?’ (10 June 2015) The Observer <http://www.obser
ver.ug/news-headlines/38278-who-s-tom-voltaire-okwalinga-tvo> accessed 10 March 2018.
49 ‘FDC Chairperson Arrested over Posting Museveni in Coffin on Facebook’ (13 December 2016) Daily
Monitor <http://www.monitor.co.ug/News/National/FDC-chairperson-arrested-over-posting-Museveni-
in-coffin/688334-3485026-6lkhc9z/index.html> accessed 12 December 2017.
50 ibid.
260  Limits of online freedom of expression

In September 2017, Robert Kyagulanyi, a popular MP with a massive social media

following was detained by the police who questioned him over a statement he had
posted on Facebook in which he accused his fellow legislators of selling their con-
science and being traitors to the country.51 This was in reference to their support for
the lifting of the presidential age limit which would allow president Museveni to ex-
tend his 31-year rule indefinitely.

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4 . D I S C U S S I O N O N C O N S T I T U T I O N A L I T Y OF S E C T IO NS
2 4 A N D 25 O F TH E C M A
4.1. Irreconcilable with International Standards
It is difficult to reconcile sections 24 and 25 of the CMA with the prevailing inter-
pretation of the freedom of expression provisions in international instruments. In
September 2011, the United Nations Human Rights Committee (UNHRC), the
treaty monitoring body for the ICCPR, issued General Comment No 3452 (‘General
Comment’) in relation to Article 19. This is an authoritative interpretation of the
minimum standards guaranteed by Article 19 of the ICCPR. The General Comment
emphasizes that freedom of expression is an indispensable condition for the full de-
velopment of the person and constitutes ‘the foundation stone for every free and
democratic society.’ It recommends updating the legal framework regulating the
media to take into consideration the fact that the Internet has created a global net-
work for exchanging ideas and opinions that does not necessarily rely on the trad-
itional mass media intermediaries.
Moreover, the General Comment clarifies that Article 19(3) of the ICCPR can
never justify the muzzling of any advocacy of democratic tenets and human rights.
Article 19(3) sets a three part test for acceptable limitations to freedom of expres-
sion. First, the limitation must be provided by law. This must be a ‘national law of
general application which is consistent with the Covenant’53 and must not be ‘arbi-
trary or unreasonable’.54 The law must therefore meet standards of clarity and preci-
sion so that people can easily foresee the consequences of their actions in light of it.
As argued below, sections 24 and 25 of the CMA are vaguely worded laws whose
scope is unclear and therefore do not meet this standard. Secondly, the law restrict-
ing free expression must have a legitimate aim. The list of legitimate aims is not
open-ended. They are provided for in Article 19(3) of the ICCPR: ‘. . . respect for
the rights and reputations of others, and protection of national security, public order,
public health or morals’. They are exclusive and cannot be added to. Respect for
human rights is part of public order.55 While sections 24 and 25 can be said to pro-
tect the ‘rights and reputations of others’, it is acknowledged that for the sake of free

51 A Kasirye, ‘Police Explain Bobi Wine Arrest’ (22 September 2017) New Vision <https://www.newvision.
co.ug/new_vision/news/1462184/police-explains-bobi-wine-arrest> accessed 31 March 2018.
52 Human Rights Committee, General comment No 34 on art 19 of the International Covenant on Civil
and Political Rights CCPR/C/GC/34, 102nd session Geneva, 11–29 July 2011.
53 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/
1985/4 Principle 15.
54 ibid Principle 16.
55 ibid Principle 21.
 Limits of online freedom of expression  261

speech, these are better protected through civil rather than criminal enactments.56
Finally, any limitation must be absolutely necessary. Even if the limitation is in ac-
cordance with a clearly drafted legislation and serves a legitimate aim, it must be truly
necessary for the protection of the legitimate aim. Sections 24 and 25 of the CMA
cannot be said to be truly necessary. The potential for harm through offensive com-
munication and cyber harassment online is undeniable. Danielle Citron in her book
Hate Crimes in Cyberspace57 documents the different forms of harassment that take

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place online as a result of the Internet’s unique features which enable far reaching yet
anonymous communication. She notes that threats of violence, privacy invasions,
spread of reputation-harming lies, calls for strangers to physically harm victims and
technological attacks are so commonplace online that some are beginning to accept
them as part of the online experience.58 The Internet, she argues, equips malevolent
cyber-mobs with the power to victimize innocent people at very little cost and with
great ease. Nonetheless, it is doubtful that criminal sanctions are the correct ap-
proach to dealing with this challenge. Criminal sanctions apply a uniform rule to on-
line actions that are certainly not uniform. There is a difference between disturbing
the peace and privacy of a private citizen to no legitimate end and castigating the
president of one’s country for careless words spoken albeit in salacious language. As
UN Special Rapporteur Frank Rue noted, ‘. . . in situations of conflict between priv-
acy and freedom of expression, reference should be made to the overall public inter-
est on the matters reported’.59 Criminal sanctions are unlikely to allow for this
flexible and balancing approach. Allowing for civil suits for damages would be a bet-
ter approach. In this regard, therefore, sections 24 and 25 cannot be considered to
be necessary and therefore fail the Article 19(3) test.

4.2. Enhance Online–Offline Dichotomy

Sections 24 and 25 of the CMA enhance the false online–offline dichotomy in free-
dom of expression which has been rejected. In June 2012, the Human Rights
Council unanimously adopted a Resolution on the promotion, protection and enjoy-
ment of human rights on the internet.60 The Council affirmed that ‘the same rights
that people have offline must also be protected online, in particular freedom of ex-
pression, which is applicable regardless of frontiers and through any media of one’s
choice . . .’.
It is interesting to note that sections 24 and 25 have no offline counterpart; thus,
if Dr Nyanzi had made the same statements, say at a campaign rally, there is no off-
line offence she would have committed. There is no penal provision that prohibits
insulting another individual offline. The nearest offline offence in Dr Nyanzi’s cir-
cumstances would have been the offence of uttering words with a seditious intention
contrary to section 40(1) (b) of the Penal Code Act.61 Seditious intention was

56 F La Rue Report of the Special Rapporteur (n 18).

57 See generally, D Citron, Hate Crimes in Cyberspace (Harvard University Press 2014).
58 ibid 19.
59 F La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression, 17 April 2013 A/HRC/23/40.
60 UN Human Rights Council Resolution A/HRC/20/L.13, adopted 29 June 2012.
61 Penal Code Act Cap 120.
262  Limits of online freedom of expression

defined include ‘an intention to bring into hatred or contempt or to excite disaffec-
tion against the person of the President’.62 However, the offence of sedition was tell-
ingly held to be unconstitutional as it was ‘so wide and it catches everybody to the
extent that it incriminates a person in the enjoyment of one’s right of expression of
thought’.63 In this regard, the right to freedom of expression offline is not being mir-
rored online.
The state’s interest in restricting online freedom of expression is understandable.

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While there is ostensible offline freedom of expression with few laws limiting it dir-
ectly, the state’s overarching direct and indirect control of mass media ensures that
this vaunted freedom remains hollow. A survey of Uganda’s mass media landscape
reveals just how hollow this is. The Uganda Communications Act 2013 establishes64
the Uganda Communications Commission (UCC) and empowers it ‘to monitor, in-
spect, licence, supervise, control and regulate communications services’.65 The
Minister of Information and Communication Technologies appoints all members of
the Board that governs the UCC.66 This places the commission firmly under the
control of the executive branch of government and amenable to its influence.
Generally, UCC has functioned as another arm of the ruling party taking action
against media houses whenever it has been in the government’s interest.67 The
Uganda Communications Commission (UCC) in December 2015 banned
Television and Radio stations from hosting the former State House Press Secretary
and political commentator, Mr Tamale Mirundi, citing his use of ‘abusive language’.68
In 2017, NBS television was warned by UCC after Mr Mirundi used what it deemed
to be ‘abusive language that contravened public morality and promoted a culture of
violence and ethnic prejudice’.69 In 2014, a television station was temporarily banned
for daring to show the then 70-year-old president asleep in parliament.70 Besides
UCC’s ever looming watchful eye, the state’s interests are also catered for by the pri-
vate sector. Many private radio stations are owned by government officials and there-
fore indirectly under government control.71 Two media conglomerates, The Vision
Group and Nation Media Group (NMG), dominate the print newspaper market.

62 s 39(1)(a) of the Penal Code Act Cap 120.

63 Andrew Mujuni Mwenda & Anor v Attorney General, Constitutional Petition No 12 of 2005.
64 s 4 of the Uganda Communications Act 2013.
65 ibid.
66 s 9(3) of the Uganda Communications Act 2013.
67 PG Mwesigye, ‘UCC Deserves more Attention from Media, Civil Society, and Parliament’ (29 November
2017) ACME <https://acme-ug.org/2017/11/29/ucc-deserves-more-attention-from-media-civil-society-
and-parliament/> accessed 13 March 2018.
68 N Bwire & N Wesonga, ‘UCC Blocks Mirundi from TV, Radio’ (2 December 2015) Daily Monitor
<http://www.monitor.co.ug/News/National/UCC-blocks-Mirundi-from-TV–radio/688334-2980776-
8ncr5pz/index.html> accessed 28 March 2018.
69 ‘UCC Warns NBS TV over Tamale Mirundi’ (12 May 2017) Daily Monitor <http://www.monitor.co.
ug/News/National/UCC-warns-NBS-TV-over-Tamale-Mirundi/688334-3923932-li409b/index.html>
accessed 28 March 2018.
70 D Smith, ‘Uganda TV Station Banned after Showing President Asleep in Parliament’ (19 June 2014) The
Guardian <https://www.theguardian.com/world/2014/jun/19/uganda-museveni-tv-ban-asleep>
accessed 31 March 2018.
71 Y Kalyango, ‘Political News Use and Democratic Support: A Study of Uganda’s Radio Impact’ (2009) 16
Journal of Radio & Audio Media 200–215.
 Limits of online freedom of expression  263

The Vision Group is a publicly listed company with the government as the majority
shareholder and owns print and online newspapers, radios and TV Stations.72 The
limitation of freedom of expression through traditional mass media was highlighted
in the ebimeeza episode. Ebimeeza meaning ‘roundtables’ were open-air radio talk
shows whereby a self-selected group of people gather at a public venue usually a bar
and debate major issues live on air. The government attempted unsuccessfully to ban
ebimeeza in December 200173 and finally succeeded in 2009 when the precursor to

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UCC, the Broadcasting Council, indefinitely suspended them arguing that they were
a violation of the Electronic Media Act74 which required a radio station to have ‘ad-
equate technical facilities’ and ‘location of station and geographical area to which the
broadcast is made’.75 With mainstream broadcast and print media, the government
can rely on self-censorship within the media that does not want to attract UCC’s
wrath or trigger a government assault and shut down of their premises. Thus, though
overt repression is rarely shown, offline freedom of expression through traditional
mass media remains an illusion.
Internet tools such as Facebook are terraforming the traditional political land-
scape by ‘shifting who controls information, who consumes information, and how
that information is distributed’.76 Unlike with traditional media like radio and televi-
sion, with the Internet, Ugandans can now pick their own network of communica-
tion and self-select their content in a way that avoids any disagreeable ideas or
interpretations. Moreover, because these networks exist outside the traditional media
machine which is susceptible to government influence, opposition political groups
and personalities can shape and dictate their content with little to no government
interference. Fackson Banda notes that traditional journalism is ‘undemocratic’ citing
three reasons. First traditional journalism is structured around sources of news which
tend to be ‘official’ sources, ‘ensconced in their positions of power’.77 These are poli-
ticians, businessmen and women, NGOs and other elite sources of information. He
argues that ‘most ordinary people would disagree that they are being represented by
such sources of information’. These elite sources dictate the topical issues of the day
because of their ready and easy access to institutions of mass communication.
Secondly, he argues that traditional media is ‘given to the conventional definitions of
news which emphasize very important persons, controversy, conflict, unusualness,
and the like’. He finds these definitions are restrictive. Things which happen to or-
dinary people are not newsworthy unless there is a very important person to quote.
Finally, he argues that the profit seeking nature of traditional media can sometimes
focus their attention on issues other than democratic participation. A story likely to
bring down action from the government such as closing offices would require a great

72 GW Lugalambi & PG Mwesige, Public Broadcasting in Africa Series: Uganda (Open Society Initiative for
East Africa 2010) at 15.
73 MB Chibita, ‘Ugandan Radio as a Political Space and the Policing Thereof’ in The Conference on
‘Election Processes, Liberation Movements and Democratic Change in Africa’, (8-11 April 2010
Maputo).
74 Electronic Media Act Cap 104.
75 Lugalambi and Mwesige (n 72) 127.
76 J Gainous and KM Wagner Tweeting to Power: The Social Media Revolution In American Politics (OUP
2014) at 1.
77 F Banda, Citizen Journalism and Democracy in Africa: An Exploratory Study (Highway Africa 2010) at 27.
264  Limits of online freedom of expression

deal of courage and foolhardiness.78 It is unsurprising therefore that the government

is going through such effort to regulate and control the Internet creating online
offences that have no offline counterpart.
Enforcing a dichotomy between online and offline freedom of expression through
sections 24 and 25 of the CMA is an attempt by the state to limit free expression on-
line as it does offline. The inability of the state to control the flow of information in
cyberspace has certainly been frustrating. The Internet renders the state’s favourite

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tool, UCC, impotent when it comes to controlling information. In 2017 when radio
and television stations announced that they had been warned by UCC not to host
the popular opposition MP, Robert Kyagulanyi, he simply took to his Facebook page
where he continued sharing his message, posting nonchalantly, ‘They should also re-
member that we are in this age of social media. The world is more connected than
before. Tell your friend to tell their friend that I shall still communicate to the world
through Facebook, Twitter, and our website. If they stop us from going to radio, we
shall send out voice notes on WhatsApp. No matter what happens, we shall speak-
because we speak for the people. And the voice of the people is the voice of God’.79
Freedom of expression offline should be mirrored online. Sections 24 and 25 of the
CMA prevent this and are therefore in conflict with the prevailing understanding of
free expression internationally.

4.3. Facilitate Violation of Other Human Rights

In June 2016, the Human Rights Council adopted another resolution on the promo-
tion, protection and enjoyment of human rights on the Internet.80 This resolution
condemned unequivocally all human rights violations and abuses committed against
persons for exercising their human rights and fundamental freedoms on the Internet
and condemned measures that intentionally prevent or disrupt access to or dissemin-
ation of information online in violation of international human rights law. The UN
Special Rapporteur with uncanny prescience in 2011 noted that ‘the arbitrary use of
criminal law to sanction legitimate expression constitutes one of the gravest forms of
restriction to the right, as it not only creates a “chilling effect”, but also leads to other
human rights violations, such as arbitrary detention and torture and other forms of
cruel, inhuman or degrading treatment or punishment’.81
The extrajudicial measures taken by the government against Dr Nyanzi such as
restricting her travel and her suspension from her workplace are violations of her
freedom of movement and right to earn a living and as such are among the measures
condemned by the Human Rights Council and the UN Special Rapporteur.

4.4. Vagueness of the Provisions

The wording of the Computer Misuse Act’s provisions is certainly prone to attack.
Words like ‘obscene’, ‘lewd’, ‘lascivious’ and ‘indecent’ in section 24 and ‘disturb the

78 ibid.
79 ‘Bobi Wine Speaks Out on Being Banned from TV, Radio Shows’ (30 September 2017) The Tower Post
<http://thetowerpost.com/2017/09/30/bobi-wine-speaks-out-on-being-banned-from-tv-radio-shows/>
accessed 10 March 2018.
80 UN Human Rights Council, Resolution A/HRC/32/L.20, adopted 27 June 2016.
81 La Rue (n 18).
 Limits of online freedom of expression  265

peace, quiet’ in section 25 are not defined in the Act. This, it can be argued, makes
the offences unclear contrary to Article 28(12), which requires that offences be clear-
ly defined. In the Kenyan case of Geoffrey Andare v Attorney General,82 the petitioner
argued that section 29 of the Kenya Information and Communication Act, Cap
411A which provided that a person who sends a grossly offensive or indecent, ob-
scene or menacing message by means of a telecommunications system or who knows
to be false for the purpose of causing annoyance, inconvenience or needless anxiety

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to another person commits an offence. He argued that section 29 of the Act was
vague and over-broad especially with regard to the meaning of ‘grossly offensive’, ‘in-
decent’, ‘obscene ‘menacing’, ‘causing annoyance’ ‘inconvenience’ or ‘needless anx-
iety’, thereby offending the principle of legality which requires that a law, especially
one that limits a fundamental right and freedom, be clear and precise enough to
cover only the activities connected to the law’s purpose. The court held that as the
Act did not define the words used, the meaning of those words was left to the sub-
jective interpretation of each judicial officer seized of a matter. The law was therefore
vague, broad and uncertain. In Rwanyarare,83 the court considered a provision of the
Referendum Act 200284 which prohibited any person from using electronic media to
make statements containing words which are ‘malicious’ ‘sectarian’, ‘abusive or insult-
ing’ ‘exaggerations or using caricatures’ ‘derisive or mudslinging’. The court found
this provision unconstitutional due to vagueness and the fact that if applied, it would
only be applied against the opposition side and not the party in power.

4.5. Restricts Online Modes of Expression

Sections 24 and 25 of the CMA restrict the allowable modes of expression to those
considered polite. This directly contradicts the Supreme Court of Uganda which stated
in Obbo85 that a ‘person’s expression or statement is not precluded from the constitu-
tional protection simply because it is thought by another or others to be false, errone-
ous, controversial or unpleasant. Everyone is free to express his or her views’.86
Thus, simply because the mode of expression chosen is impolite or annoying
does not justify its suppression. In Mwenda v Attorney General,87 (‘Mwenda’) sections
39 and 40 of the Penal Code Act which provided for the crime of sedition were
found to be unconstitutional with the court noting that:

Our people express their thoughts differently depending on the environment

of their birth, upbringing and education. While a child brought up in an elite
and God fearing society may know how to address an elder or leader politely,
his counterpart brought up in a slum environment may make annoying and im-
polite comments, honestly believing that, that is how to express him/herself.

82 Geoffrey Andare v Attorney General Constitutional Petition No 149 of 2015.

83 Dr. James Rwanyarare and Another v Attorney General Constitutional Petition No. 5 of 1999.
84 The Act had been passed to regulate the referendum in which the people of Uganda would choose to ei-
ther be governed by the ‘Movement system’ which was a thinly veiled one party system and the multi-
party system.
85 Obbo and another v Attorney-General [2004] 1 EA 265.
86 ibid.
87 Andrew Mujuni Mwenda & Anor v Attorney General Constitutional Petition No 12 of 2005.
266  Limits of online freedom of expression

Similarly, the court in Malawi sated:

Freedom of speech/expression should not, in our view, be restricted to speak-

ing about only those things that delight the powers that be. It must extend to
the freedom to speak about even those things that have the capacity/potential
to displease, indeed annoy. Persons, institutions should not therefore be barred
from expressing themselves on any issue merely because doing so will discom-

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fort certain quarters for the remedy in such instances, is not to bar expression
but to allow those offended to pursue civil suits . . . People must be free to
hold and impact even unpopular and for minority opinions.88

It can be difficult, and perhaps even contradictory, for a citizen to be polite when
expressing frustration with actions or inaction by the state. Political agitation will of
necessity involve speaking or writing with less regard for the feelings of those tar-
geted. Demanding that all communication made online be polite is an unjustifiable
restriction on free speech. In the UK case of Derbyshire County Council v Times
Newspapers89 Butler Sloss LJ stated ‘. . . profound national commitment to the prin-
ciple that debate on public issues should be uninhibited, robust and wide open and
that it may well include vehement, caustic and sometimes unpleasantly sharp attacks
on government and public officers’.
In the US Supreme Court case of Cohen v California,90 the issue was the constitu-
tionality of the appellant’s conviction for ‘offensive conduct’ by wearing a jacket with
the words ‘Fuck the draft’ in a public venue. The court, in finding the conviction un-
constitutional, noted that ‘. . . much linguistic expression serves a dual communica-
tive function: it conveys not only ideas capable of relatively precise, detached
explication, but otherwise inexpressible emotions as well. In fact, words are often
chosen as much for their emotive as their cognitive force’. The court held that the
US Constitution protects both the cognitive content of speech and its emotive func-
tion as well noting that the emotive function may often be the more important elem-
ent of the overall message sought to be communicated.91 The word ‘Fuck’ in that
case communicated the appellant’s animus toward the draft which he felt was unjusti-
fied and unfair. In Dr Nyanzi’s case, her Facebook post was a reaction to the presi-
dent’s statement in which he had denied being a servant of the people of Uganda.
While her statement was certainly caustic, acerbic and impolite, the vulgar content in
itself did communicate a message. The president’s words had been autocratic and
threatening, and, in a young democracy like Uganda, worrying. For a law to require
her to respond politely would defeat the purpose of free expression as a check on
power.
Moreover, the language that Dr Nyanzi used can be considered creative and artis-
tic expression which should not be restricted. Widely accepted creative literature in
Uganda has such language. Okot P’Bitek’s famous poem, Song of Lawino, contains

88 R v Harry Nakandawire & Another, Malawi Criminal Case No 5 of 2010.

89 Derbyshire County Council v Times Newspapers [1992] 3 All ER 65 94.
90 Cohen v California, 403 US 15 (1971).
91 ibid.
 Limits of online freedom of expression  267

passages such as ‘Perhaps you are covering up/Your bony hips and chest/And the
large scar on your/And the scabies on your buttocks’92 and ‘A man’s manliness is
seen in the arena,/No one touches another’s testicles’.93 Restricting artistic expres-
sion simply because it is done online would not be realistic.
Further, African proverbs are known to frequently contain sexually explicit and
racy language.94 The late Chinua Achebe’s book Arrow of God contains proverbs like
‘A man who knows his anus is small does not swallow an udala seed’95 and ‘Unless
the penis dies young, it will surely eat bearded meat’96 and has frequently featured in

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the secondary school syllabus of Uganda.97 The president himself is renowned for
his use of such expressions. As columnist Charles Onyango Obbo put it, ‘Nyanzi is
an amateur when it comes to spinning catchy and dramatic lines about the nether
regions. The master is her present adversary – President Museveni himself’.98 Back
in the 1980s shortly after taking power, Museveni, after being informed by an aide
that the then Bank of Uganda governor had been waiting for him for 8 hours, is said
to have responded, ‘Tell him to wait. Are there ants in his anus?’99 In 2005,
Museveni referred to previous Ugandan presidents as ‘swine’.100 In January 2005,
Museveni in a speech referred to a Member of Parliament as a ‘poisonous mush-
room’ asking his constituents who comprised the audience, ‘How could you send
entyabire (Kinyankole word for poisonous mushroom) to Parliament to represent
you? You used your votes wrongly because your MP is anti-development’.101 In
January 2013, following allegations that the government was behind the alleged poi-
soning of a deceased member of parliament, the president called the inquisitive MPs
idiots and fools declaring ‘So anybody who says we kill unarmed people is an idiot.
He’s an idiot, he’s a fool, he’s despiseable [sic].’102 This drew the ire of many in par-
liament.103 In December 2015, while commenting on the actions of supporters of his

92 O p’Bitek, Song of Lawino & Song of Ocol (Heineman 1972) at 50.

93 ibid at 43.
94 K Yankah, ‘Insults and Ribald Language’ in PM Peek and K Yankah (ed), African Folklore: An
Encyclopedia (Routledge 2004) at 45–56.
95 C Achebe, Arrow of God (Heineman 1964) at 226.
96 ibid at 142.
97 H Zakumumpa, ‘Achebe’s Works Tell of African Culture with Understanding and Empathy’ (2 April
2013) Daily Monitor <http://www.monitor.co.ug/OpEd/Commentary/Achebe-s-works-tell-of-African-
culture/689364-1736328-srr6gwz/index.html> accessed 28 March 2018.
98 CO Obbo, ‘A ‘Pair of Buttocks’ and the Big Silent War over the Museveni Years’ (19 April 2017) Daily
Monitor available at <http://www.monitor.co.ug/OpEd/columnists/CharlesOnyangoObbo/pair—but
tocks–war-Nyanzi-Janet-Kaguta-Uganda-/878504-3894744-lbpm7r/index.html> accessed 28 March
2018.
99 ibid.
100 G Matsiko, ‘Past Leaders are Swines, Museveni Mantains’ (6 October 2005) Daily Monitor <http://
allafrica.com/stories/200510050767.html> accessed 28 March 2018.
101 A Mukose, ‘Museveni calls MP Abdu Katuntu Poisonous Mushroom’ (25 January 2005) New Vision
available at <https://www.newvision.co.ug/new_vision/news/1132391/museveni-calls-mp-abdu-
katuntu-eur-poisonous-mushroom-eur> accessed 28 March 2018.
102 H Heuler, ‘Rift between Ugandan President, Parliament Widens’ (09 January 2013) VOA News <https://
www.voanews.com/a/ugandan-mps-death-widens-rift-between-president-parliament/1580403.html> accessed
31 March 2018.
103 Y Mugerwa, ‘Museveni Defied as 130 MPs Back Recall’ (3 January 2013) Daily Monitor <http://www.
monitor.co.ug/News/National/Museveni-defied-as-130-MPs-back-recall/688334-1656266-lggp0i/index.
html> accessed 28 March 2018.
268  Limits of online freedom of expression

erstwhile colleague turned political opponent, Amama Mbabazi, the president com-
pared their actions to placing one’s ‘hands in the anus of a leopard.’104
Under Article 43, limitation to the freedom of expression is accepted where
exercising the right would prejudice the rights of others or prejudice public
interest. However, for any such limitation to be acceptable it must be a measure
that is accepted and demonstrably justifiable in a free and democratic society.105
In Obbo,106 the Supreme Court noted that the Constitution’s primary objective

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is the protection of the guaranteed rights including freedom of expression while
limiting their enjoyment is an exception to their protection and therefore a sec-
ondary objective. Although the Constitution provides for both, the primary ob-
jective is dominant and can only be overridden in the exceptional circumstances
that give rise to that secondary objective. Even when such limitation occurs,
only minimal impairment of enjoyment of the right, strictly warranted by the
exceptional circumstance is permissible.107 Restricting impolite political expres-
sion or artistic expression or even common proverbial and metaphorical expres-
sions simply because the medium used is the Internet does not meet the test
set in Obbo.
According to the UN the Special Rapporteur’s 2011 report,108 there are only four
exceptional types of expression that States are required to prohibit under international
law. These are: child pornography, direct public incitement to genocide, advocacy of
national, racial or religious hatred that constitutes incitement to discrimination, hostil-
ity or violence and incitement to terrorism.109 The Special Rapporteur underscored
that all other types of expression should not be criminalized, as the threat of criminal
sanctions exerts ‘a significant chilling effect on the right to freedom of expression’.110
Thus, the criminalization of online ‘offensive communication’ and ‘cyber harassment’
in general do not fall within the four exceptions.

4.6. Limits criticism of leaders

The current application of sections 24 and 25 of the CMA will inevitably result in a
chilling effect on warranted criticism of leaders among people. Public criticism of
leaders is a sine qua non for a democratic society. In the Canadian case of Edmonton
Journal v Alberta (AG),111 Cory J stated ‘. . . it is difficult to imagine a guaranteed
right more important to a democratic society than freedom of expression. Indeed a
democratic society cannot exist without that freedom to express new ideas and to
put forward opinions about the functioning of public institutions’. In Hector v

104 ‘Amama “Thugs” Stuck a Finger in a Leopard’s Anus – Museveni’ (21 December 2015) The Observer
<http://www.observer.ug/news-headlines/41737-mbabazi-thugs-stuck-a-finger-in-a-leopard-s-anus-museveni>
accessed 28 March 2018.
105 Obbo and another v Attorney-General [2004] 1 EA 265.
106 ibid.
107 ibid.
108 Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression A/66/290 10 August 2011.
109 ibid.
110 ibid.
111 Edmonton Journal v Alberta (AG) [1989] 2 SCR 1326.
 Limits of online freedom of expression  269

Attorney General of Antigua and Barbuda & Another,112 the court highlighted the
need for freedom of expression in relation to criticism of leader stating:

In a free and democratic society, it is almost too obvious to need stating that those
who hold office in government and who are responsible to public administration,
must always be open to criticism. An attempt to stifle or fetter such criticism
amounts to political censorship of the most insidious and objectionable kind. At the

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same time, it is no less obvious that the very purpose of criticism leveled to those
who have the conduct of public affairs by their political opponents is to undermine
public confidence in their stewardship and to persuade the electorate that the oppo-
nents would make a better job of it than those presently holding office.

Thus, the use of language that undermines the public’s confidence in the leaders
should be allowable and indeed expected as part of freedom of expression.
The court in Mwenda113 noted that the people have a right to criticize their leaders
and rightly advised that ‘leaders should grow hard skins to bear’. The AHRC in its
Declaration of Principles on Freedom of Expression in Africa114 similarly stated that
public figures should be required to tolerate a greater degree of criticism. This is espe-
cially crucial with political figures as freedom of expression is based on the assumption
that political leaders are fallible and therefore should be open to criticism.115 As noted
in the cases cited above, the CMA provisions have been put to prolific use by powerful
political figures to control criticism. This use of legislative provisions effectively com-
municates the state’s ability and power to reach into the digital sphere and punish dis-
sent therein. This inevitably has a chilling effect on online freedom of expression. In
the Kenyan case of Robert Alai v AG & DPP,116 Robert Alai, a prominent social media
personality and blogger, had posted on Twitter regarding president Uhuru of Kenya
that ‘Insulting Raila is what Uhuru can do. He hasn’t realized the value of the
Presidency. Adolescent President. This seat needs maturity.’ He was charged with
undermining the authority of a public official under section 132 of the Kenyan Penal
Code. He sought a declaration that section 132 was unconstitutional. The court, rely-
ing on Article 33 of the Kenyan Constitution which guarantees freedom of expression
noted that people ‘cannot be freely expressing themselves if they do not criticize or
comment about their leaders and public officers.’ The court further stated that:

The section does not define the words ‘undermining authority of a public offi-
cer’ leaving it to the subjective view of the person said to have been under-
mined and/or the court. In a democratic state, constructive criticism of public
or state officers is the hallmark of democracy and the means for public

112 Hector v Attorney General of Antigua and Barbuda & Another (1991) LRC (const) 237 (PC) [1990] 2
All ER 102.
113 Andrew Mujuni Mwenda & Anor v Attorney General Constitutional Petition No 12 of 2005.
114 Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and
Peoples’ Rights 32nd Session 17–23 October 2002: Banjul, The Gambia.
115 C Anthonissen, ‘The Sounds of Silence in the Media: Censorship and Self-Censorship’ in R Wodak and
V Koller, Handbook of Communication in the Public Sphere (DeGruyter 2008) at 407.
116 Robert Alai v AG & DPP Constitutional & Human Rights Division Petition No 174 of 2016.
270  Limits of online freedom of expression

accountability. Criminalizing criticism is not in accord with a transformative

constitution, since senior public officers should routinely be open to criticism.
Dissent in opinion should not amount to a crime otherwise this is in effect,
suppressing the right to hold different opinion from those in public office.

Thus, laws such as the CMA provisions on cyber-harassment and offensive commu-
nication which lend themselves well to the government as tools of suppression of dis-

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sent by restricting criticism of public figures are of doubtful constitutionality.
The reality in Uganda is that while many in leadership positions are freely criticized
by the press and mainstream media, the president and first family have always been some-
what of an exception.117 Any attempt at negative coverage of the president or his family
is always tempered. Seasoned journalist turned academic Yusuf Kalyango put it best:

Ugandan voters trusted President Museveni who apparently remains above

media criticism. The president is generally still beyond media criticism, but the
Ugandan cabinet ministers or other government bureaucrats are constantly
criticized and their acts are exposed by public affairs radio shows and other
political news programs. The media still do not connect the Ugandan presi-
dent directly to his failing regime and graft within State House. The criticism
of his administration and other politicians makes voters rally behind the presi-
dent, but not the independent adversarial press.118

This dynamic is being changed by the Internet. Citizens with no interest in pretending
to be objective regularly take to the Internet to launch tirades against the president as
an individual. Sections 24 and 25 are an attempt by the state to extend offline status
quo online. In December 2017, David Mugema and Jonah Muwanguzi were arrested
and charged with offensive communication under section 25 of the CMA for having
composed, recorded, produced and electronically communicated through social media
a song titled ‘Wumula’ the lyrics of which called for the resignation of Yoweri Kaguta
Museveni the president of Uganda.119 It is unlikely that the song would have received
any airplay on radio stations under UCC’s ever watchful gaze. However, with the
Internet, the song was simply shared on social media platforms. Sections 24 and 25 are
an attempt to restrict and control online protest against the country’s highest leader-
ship that otherwise enjoys an unspoken immunity from criticism.

4.7. Discriminatory Application

Sections 24 and 25 of the Computer Misuse Act are subject to discriminatory appli-
cation. First, online communication is considerably difficult to track. Even when the
communication is done publicly it is considerably difficult to trace. There are 14.8
million Internet subscribers and an estimated 18.1 million Internet users in

117 B Tabaire, ‘The Press and Political Repression in Uganda: Back to the Future?’ (2007) 1 Journal of
Eastern African Studies 193–211.
118 Kalyango (n 71).
119 ‘Court Grants Bail to Artists who Annoyed Museveni’ (6 December 2017) Daily Monitor <http://www.
monitor.co.ug/News/National/Court-grants-bail-artists-Museveni-Kamasanyu/688334-4217338-ufcw1mz/
index.html> accessed 15 December 2017.
 Limits of online freedom of expression  271

Uganda.120 It is impossible to trace what each of them posts on every website. The
result will be a discriminatory application of the provisions with probably people
with the largest following on social media platforms being the prime targets. The law
will not apply to all people equally. Moreover, it is unlikely that a pro-government
online tirade using even worse language than Dr Nyanzi’s would attract the state’s at-
tention for prosecution. As already noted, the president himself has used vulgar lan-
guage on occasion. His supporters certainly do the same even online,121 but so far
none has been prosecuted. In Rwanyarare,122 one of the court’s considerations in

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finding a provision of the Referendum Act 2002123 which prohibited the use of elec-
tronic media to make offensive statements unconstitutional was the fact that if
applied, it would only be applied against the opposition side and not the party in
power. Similarly, sections 24 and 25 are only being used to target those in opposition
and due to their discriminatory application should be considered unconstitutional.

5. CONCLUSION
Freedom of expression is an individual’s right and in today’s world is best expressed
online. Dr Stella Nyanzi’s prosecution by the government of Uganda is inadvertently
turning her into a free speech martyr because, as seen above, sections 24 and 25 of
the CMA restrict online freedom of expression contrary to international law and the
Ugandan Constitution. The prosecution of Dr Nyanzi and others for online expres-
sions against the president are an attempt to extend the offline status quo, in which
he has virtual immunity from personal attack, to the online environment. This should
not be. A citizen should be able to call her president a pair of buttocks and sleep
soundly afterwards. It is encouraging that the prosecution experience has not
daunted, Dr Nyanzi who has continued launching online missives against the govern-
ment, the president and first lady.124 There is hope that online freedom will prevail.

120 UCC Post, Broadcasting and Telecommunications Market & Industry Q3 Report 2017.
121 GW Kanyeihamba, ‘Politicians who use Insulting Language Portray their Uncultured Background’ (27
March 2016) Daily Monitor <http://www.monitor.co.ug/OpEd/Commentary/Politicians-who-use-
insulting-language-portray-their/689364-3134594-1n09eb/index.html> accessed 15 March 2018.
122 Dr. James Rwanyarare and Another v Attorney General Constitutional Petition No 5 of 1999.
123 The Act had been passed to regulate the referendum in which the people of Uganda would choose to ei-
ther be governed by the ‘Movement system’, which was a thinly veiled one party system and the multi-
party system.
124 ‘Dr Nyanzi Doubles Down on Presidential Insults’ (17 May 2017) Daily Monitor <http://www.moni
tor.co.ug/News/National/Dr-Nyanzi-doubles-down-presidential-insults/688334-3930418-2iric/index.
html> accessed 28 March 2018.

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