By Mulengera Reporters
Well-meaning and public-spirited as always, the Attorney General Kiwanuka Kiryowa has dutifully written a memo guiding the top leadership of Uganda Police and that of the DPP on how to conduct themselves and generally treat reputation and free speech-related cases reported to them by aggrieved citizens, complainants and public officials seeking protection against young Ugandans who criticize them on Tik Tok.
It had become norm for thin-skinned government officials and other powerful members of society to weaponize Police, the ODPP and the entire criminal justice system by getting whoever criticizes and says uncomplimentary things about them locked up under the provisions of the Computer Misuse Act.
However, for such officials, the curtains fell last week when the Constitutional Court justices, led by the able Lady Irene Mulyagonja, struck down such provisions and declared them null and void for having the effect of criminalizing free speech-related rights which are so clearly provided for in the Constitution under Article 29 and other aspects of the entire Chapter, which is Uganda’s Bill of Rights.
The ruling caused relief and celebrations among millions of Ugandans who had been enduring the pain of seeing their children locked up at Luzira and other prisons merely because they leveraged social media to call out their leaders and holders of public office whose conduct they considered unbecoming and very outrageous.
At Uganda Law Society, which was one of the petitioners who moved the Constitutional Court to strike down the offensive sections of the Computer Misuse Act, lawyers led by their able President Isaac Ssemakadde had expressed fears that Kiryowa would, as always, advise government to appeal to the Supreme Court.
The ULS fraternity was fearful that Kiryowa would secure a stay of execution and then proceed to have a lukewarm appeal which he would be reluctant to prosecute so that the Mohammed Nserekjo-sponsored impugned CMA provisions for years remained law and continued to be used to justify the locking up of Uganda’s children and youths who dared criticize public officials. This would be something akin to what the AG did in the case of the similar (Mike Kabaziguruka) Constitutional Court decision (outlawing trial of civilians in the Military Court Martial) against which he (AG) unsuccessfully appealed in the Supreme Court.
However, KK proved such skeptics wrong a few days ago when he wrote to Police and ODPP calling on them to respect and comply with the latest Court decision on CMA. He guided that Police shouldn’t entertain such cases or complaints seeking to punish the young people of Uganda who take to Tik Tok to criticize public officials because the provisions they have been leveraging are no longer law.
He also guided that those who were already under Police custody over such offences should immediately be released and all the relevant criminal investigations and prosecutions be immediately dropped. The ODPP was also ordered to immediately stop prosecution relating to such offences. Courts and judicial officers too must stop trying anyone on those offences.
Prisons must release all those Tik tokers who have been on remand while undergoing trial on offences deriving from the impugned provisions of the CMA. Prudent as always, KK was graceful enough to point out which provisions were nullified and what each one of them provided and the offences deriving from thereof. Those already serving sentence, having been sentenced prior to the ruling, must serve out their full custodial sentence because the latest decision doesn’t apply to their circumstances since the law can never operate or apply retrospectively.
KK said the best option for government would be re-enacting a new law, while complying to coram-related procedural requirements as was guided by the Court, as opposed to wasting time appealing against the decision in the Supreme Court. Until that happens, police will no longer have any legal basis to hunt down and lock down Uganda’s children who take to their respective Tik Tok spaces to voice their grievances while criticizing public officials.
NO LICENSE TO ABUSE:
The scrapping of the offence of criminal defamation under the Penal Code Act and other free speech-related offences doesn’t mean that Ugandan Tik Tokers will now abuse whoever they choose without remedy or without ever being held accountable. They can simply never get away with it as victims of their fake news and defamatory utterances have a remedy under civil defamation laws. What happens is that any aggrieved public official hires a private lawyer, while giving them instructions to sue any Tik Toker or publisher of content which has the effect of lowering their reputation before the right-thinking members of society.
The content creator gets sued and gets the platform to defend himself in the civil suit while coming from home but pays heavily, by way of damages, at the end of the trial. If he or she loses the case, they are ordered to pay damages to atone the detriment their actions/utterances may have caused. They don’t have to be brutally picked up by Police and subsequently be locked or remanded in Luzira as has always been the case under the now nullified CMA or criminal defamation proceedings.
All that happens is standing trial in a civil court but upon failure to pay the ordered damages as awarded to the plaintiff, they can get condemned to civil prison upon failing to pay the money. All the aggrieved government officials now ought to do is to mount pressure on the Judiciary to ensure such civil defamation suits are quickly tried.
They can also still use UCC and enforce legal provisions that require all providers of online communication services to register, enroll and get licensed. Many Tik Tokers aren’t licensed and the same applies to those publicizing content via YouTube, Facebook, X and other platforms. Under such provisions, the offending content creator can still lawfully be subjected to the criminal proceedings which, upon conviction, can culminate into serving a jail term.
The latest unanimous ruling by the Constitutional Court is also good news for lawyers in the private practice because victims of defamatory content and communication will have no option but to hire them to institute civil defamation cases against Tik Tokers and other creators of online content. The same must be relieving news to the leadership at both Police and ODPP because they are now able to consolidate the inadequate human (read prosecutors and investigators), technological and financial resources at their disposal and direct the same to core policing work such as tracking, chasing and hunting down of offenders who commit more serious offences such as murder, defilement, treason and others. The OC CIDs have been diverting a lot of time and resources on criminal defamation-related investigations and operations at the expense of their core work namely fighting more dangerous crimes and offenders.
The rogue-minded officers at both Police and DPP will, however, feel deprived and will naturally hurt because the big government officials will no longer have reason to bribe the OC CID or even the DPC to have the targeted online content creator apprehended. That money will now have to be invested in private lawyers to originate career-ending civil defamation suits against the offensive online content creators. It will no longer be possible for such rogue-minded OC CIDs and DPCs to get financially facilitated to criminalize civil matters relating to defamation or exercise of free speech. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
