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By  Mulengera reporter

In her 22 page judgment dated Friday 29th May, Justice Patricia Basaza Wasswa of the High Court has inadvertently imposed great restrictions on enjoyment of media rights and practice by directing that Pepper Publications pays close to Shs100m to ex-Oyam North MP Ayena Adongo. Basaza, who previously ruled against the same Red Pepper in the Justice Wako Wambuzi case, finds that it amounted to infringement of dignity and privacy rights of the applicant (Adongo under Articles 24 & 27 of the Constitution) for the newspaper to publish pictures of him having sex with a woman. That this was an act of privacy intrusion because the venue for the sex marathon depicted bedroom-like setting inside which Adongo had “reasonable expectation of privacy” which the newspaper invaded.

The background to the story is that in January and August 2016, the newspaper published several articles publicizing the pictures of the ex-MP having sex with another adult who he says was his wife Hilda Marris Ayena. Despite producing a marriage certificate showing they were customarily married in 2015, the couple told court they have 8 children some of whom are at the University who were scandalized and traumatized by the impugned publications.

On getting instructions to take on the newspaper, young Kampala lawyer Isaac Semakadde must have realized defamation was going to be a harder case to make against the Red Pepper since they established truthfulness of their story through the pictures and cleverly brought the matter to court as one of enforcement of human rights under article 50 of the Constitution.

This Article 50 empowers the High Court to enforce human rights protection and enjoyment whereby once an infringement is proved, the High Court can give remedies to the aggrieved party against the responded. And Justice Basaza agreed with Ayena Adongo’s human rights enforcement application and granted remedies against the Red Pepper. Semakadde cleverly argued that the right to privacy, including privately having consensual sex between two adults, is one Adongo reasonably expected the state to protect him to enjoy and he therefore deserves a remedy from court against Red Pepper whose actions interfered with his enjoyment of that right.

The newspaper’s lawyer Maxim Mutabingwa had argued that the newspaper had a duty and right to report about the truth contained in the pictures they carried because they are entitled under Article 29 of the Constitution and Section 2 of Press & Journalists Act. The judge rejected this reasoning saying such rights had limitations under Article 43 implying you can’t justify infringement of other people’s constitutionally-guaranteed rights in the exercise and enjoyment of your own rights (Article 43 comes in to create that balance). Court also held that the rights under Section 2 are qualified in Section 3 of the same Act that prohibits publication of pornographic and obscene content similar to what the newspaper put out to the total detriment of the applicant Ayena Adongo.

It was also submitted by the applicant that the timing of the applications (at the time he was about to begin representing ex-LRA chief Dominic Ogwen at ICC) is indicative there was malice in the impugned publications clearly aimed at prejudicing him as a high flying lawyer who was also potentially about to offer himself for reelection in the Oyam North by-election that would result from the success with which the incumbent MP’s election had been challenged. The judge also rejected the newspaper’s defense that they never actually invaded Adongo’s privacy because they never broke into his bed room to take the photos themselves but it’s something they merely came across and dutifully published.

All in all, Ayena Adongo’s precedent-setting case means defamation won’t be the only way through which those aggrieved by offensive media publications can come to court seeking remedy against the media outlets. If an aggrieved party can’t succeed under defamation (because maybe the truth is too overwhelming against them), they can come for the deprived human rights enforcement in the same High Court under Article 50 and still financially get some atonement against the newspapers.

Nobody has cleverly come to court that way to atone their detriment against newspapers. It’s an intriguing development for the media practice because now that Ayena Adongo has succeeded that way, many other aggrieved citizens (regardless of the truth in what media might have reported against them) will now have an avenue to come to court riding on the Ayena Adongo precedence (which now becomes law unless the Red Pepper successfully appeals against it and have it overturned).

Being the successful party, who shouldn’t win in vain, Justice Basaza has awarded Adongo Shs60m as a remedy for the infringement he suffered and another Shs15m as punitive damages which the judge says is aimed at deterring the newspaper from treating others (whose nudes might become available) the same way.

She also issued a permanent injunction directing the Red Pepper never to carry such stuff against Ayena Adongo. Doing so would make them liable for contempt of court proceedings just like was recently done to Vision Group for writing about Gen Otafiire after court ordered them never to. In the end, High Court ordered Vision Group to pay Otafiire up to Shs200m (See The Adongo award totaling Shs75m also attracts annual interest of 10%. Yet that isn’t all. Justice Basaza ruthlessly directs the newspaper to also pay all the legal expenses Adongo has incurred since 2016 when he first filed his case. See more details in the full judgment below to see the court’s reasoning for yourself;

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