ANDREW MWENDA MUJUNI & THE EAST AFRICAN MEDIA INSTTITUTE (U) LTD

Vs ATTORNEY GENERAL CONSOLIDATED CONSTITUTIONAL PETITIONS No. 12 2005-2006

Brief Facts

In the above case, the petitioners filled a suit seeking declarations of nullification of the offences of
sedition provided for under section 39 and 40 of the penal code and promoting sectarianism as provided
for under section 41 of the penal code on the basis that the above mentioned sections contravene and are
inconsistent with article 29(a) and (b), 30, 38, 41 and43 of the constitution of the Republic of Uganda
which allows freedom of speech, expression, press and other media.

The case dealt with a number of issues in light of the petitioners’ grievances all of which came to one
issue that is freedom of speech. Freedom of speech refers to the freedom to speak freely without
censorship or limitation. The idea of freedom of speech came from England’s bill of rights 1689 which
granted freedom of speech in parliament. Years later this concept was extended to everyone by enacting
the bill of rights and not just parliament. Freedom of speech was thus imported from article 19 of the
international bill of rights to Uganda’s 1995 constitution as seen in article 29 1(a) and (b).

1. Whether section 39, 40, 41 and 179 of the penal code Act are inconsistent with and or are in
contravention with article article 29 1 (a) and (b).
The right to freedom of speech was put in place to seek development in the democratic
principles of expression but the above sections seem to deprive citizens of that right. Sec 39
creates an offence as a result of speech which is intended to bring hatred to the persons of the
president, government, excite disaffection against the administration of justice and other claims
as provided for by law and this therefore nullifies and goes against the principles of freedom of
speech which the constitution provides for under article 29 1 (a) and (b). This can be seen in the
case Rangarajan Vs Jagjivan Ram 1989 and others where the appellant produced a film which
was contended before high court because the revising committee claimed that the film treated in
an irresponsible manner the reservation policy of the government, and that it would also cause
problems in Tamil Nadu. Court held that freedom of speech is the rule and is generally taken for
granted; everyone has the right to form their own opinion.
Through the case we see that freedom of speech gives one the right to form their own opinions
despite it coming from a minority group which thus portrays equality for all since both majority
and minority have equal rights to air out their views. We thus note an advantage to freedom of
speech through evidence of government tolerance for the minority that did not vote it to power
and is doing most of the criticism.

2. Whether sections 39, 40, 41 and 179 being limitations of the enjoyment of freedom of expression
are acceptable and demonstrably justifiable in a free and fair society under article 43(1) (c) of the
constitution.
Article 43 which provides that public interest shall not permit any limitation of the right
and freedoms prescribed by chapter 4 of this constitution, was put in place to ensure that in the
enjoyment of rights and freedoms, one does not prejudice rights of others or public interest. The
above sections of the penal code do not pass the test of limitation as they do not fall under
acceptable limitations as provided for in the constitution. This can be seen through the case of
Zundel Vs Queen; Attorney General of Canada, where the accused was charged with spreading
false news contrary to section 181 of the criminal procedure code which provides that, “ everyone
who willfully publishes a tale, statement, or news that he knows is false and causes or is likely to
cause injury or mischief to public interest is guilty of an indictable offence and liable to
imprisonment….”. The lordships in this case observed that “ a free and democratic environment
is a society based on the recognition of the fundermental rights, including tolerance of expression
which does not conform with the views of the majority.” This thus defends the citizens from
criminal prosecution for criticizing government hence promoting the right to freedom of speech
in a country. According to the national objective and directive principles of state policy XXIX (f)
the duty of a citizen is to promote democray and the rule of law. This also gurantees that
government criticism is guaranteed under freedom of speech in the exercise of duty of a citizen