CLA News / Challenging the Ugandan Computer Misuse Act: The Devil is in the Detail by Andrew Karamagi
SUMMARY
Close to four decades after shooting its way to power, the rulers of Uganda have found themselves in the same rut as all regimes that prioritise regime survival over the well-being and dignity of citizens. Using lawmaking power to stifle free speech, criminalise dissent, violate due process, and disregard fundamental constitutionalism. The Computer Misuse Act was a typical establishment response to the digital revolution and its ability to facilitate pro-democracy efforts. It is cut from the same cloth as laws like the Non-governmental Organisations Act of 2016; Interception of Communications Act, 2010; Anti-Terrorism (Amendment) Act, 2015; Anti-Money Laundering Act, 2013; Public Order Management Act of 2013; the repealed Anti-Pornography Act, 2014; and the repealed Anti-Homosexuality Act of 2014. All these pieces of legislation have a common thread that runs through them: suppression of civil liberties and rights. Against this background, the impugned Act was not an aberration or mistake; it was a logical development in a phenomenon often referred to as Rule by Law—as opposed to the Rule of Law. Put in other words, oppression must become legal. This is the vantage point from which the enactment of the ill-fated Computer Misuse Act of 2011 should be viewed. This understanding inspired Robert Shaka and me to file a petition before the Constitutional Court of Uganda, whose panel of five agreed unanimously with us.
ARGUMENT
The rosy wording of the objective section of the Computer Misuse Act struck my co-petitioner and me. It purported to make provision for the safety and security of electronic transactions and information systems, to prevent unlawful access, abuse, or misuse of information systems, including computers, and to secure the conduct of electronic transactions in a trustworthy electronic environment. Who wouldn’t want such a well-intentioned piece of legislation in this age of digital computing?
As the cliché goes, the Devil was in the detail.
Sections 9 through 11 of the law enabled state intelligence agencies to overstep privacy rights without restriction and proffer charges based on an individual’s refusal to disclose “data”, which has been broadly, vaguely, and disproportionately defined to mean and include electronic representations of any form. Under these three provisions (9-11), it was compellable to hand over any “data” to assist with investigations. It did not matter if the tablet computer’s memory card contained private health information, bank statements, or privileged communications—the law required that it be handed over, and the individual would have to trust the State to behave prudently with such information as it pursues whatever investigation. Moreover, telecom service providers were equally compellable.
Contrary to the tenets of criminal law, which requires specificity, Section 12 created indeterminate offences open to overly broad and arbitrary definitions, given the unique and evolving nature of information and computing technologies.
Section 13 concerned “access with intent to commit or facilitate the commission of a further offence.” It is not clear how the State would lead evidence where the intention of an accused person to commit or facilitate the commission of a further offence would be proved or disproved.
Section 14 made things worse by potentially preventing the owner from concealing, protecting, or changing the information stored on the computer. The Section should have considered the work of the broad range of artists who use the information to convey a particular message. The provision was equally ripe for abuse and misuse.
Sections 18 and 20 were not accommodative of the place of whistleblowers who engaged in the disclosure of unauthorized information of the kind that is enumerated under sub-section (2) (a) to (d).
Our research about this law led us to conclude that the most egregious enactment was Sections 24 and 25, which create the crimes of “cyber harassment” and “offensive communications”, respectively. We concluded that our petition would have to focus on one or both of these provisions to bring down the entire Act. In essence, we contended that Section 25 excessively restricts our freedom of speech and expression as it provides the Director of Public Prosecution unbridled administrative and prosecutorial discretion. After all, it had been used to prosecute and persecute several Internet users for sharing views deemed objectionable by the government or high-ranking politicians and public officers.
When we contemplated the petition, several cases and incidents stood out: the arrest, detention without charge, and later prosecution of my co-petitioner, Robert Shaka, and my co-author[1], Dr. Stella Nyanzi. In the former case, the prosecution alleged that Shaka disguised himself as “Tom Voltaire Okwalinga”—a popular anti-Establishment Facebook page—and, between 2011 and 2015, willfully and repeatedly used a computer with no purpose of legitimate communication, disturbed the right to privacy of President Museveni by posting statements regarding his health condition on social media.
For her part, Nyanzi, an academic and critic of the Museveni Administration, was violently arrested, detained, and slapped with a litany of charges, among them offensive communications, especially for referring to President Museveni as a “pair of buttocks.”
Then Police spokesperson Fred Enanga once circulated a warning about the dangers of posting politically related information or content on social media because this could attract charges. Indeed, a few people were interrogated by the Police. They arrested Ugandans abroad in return for their online publications. All under the unfetered power of Section 25!
This provision effectively placed journalists, artists, students, academics, and the broader public in constant fear of violating the law. We were convinced that this amounted to a violation of the right to free thought (and ultimately expression), which is the foundation of Article 29(1) (a) of the embattled 1995 Constitution of the Republic of Uganda.
Both were also vague and broader. They needed to give proper notice of the conduct they sought to proscribe. Terms such as “disturb or attempt to disturb the peace, quiet or right of privacy” were not defined in the Act and could not be conclusively defined by a regular Internet user.
Further reading of the Act led us to Section 28, which, as with previously highlighted provisions, was prone to abuse and selective application as it gave the State an unbridled ability to conduct searches and seizures on homes, office premises (especially media houses), vehicles and any other location on the apparent claim that there are reasonable grounds for believing that an offence under the Act has been or was about to be committed in any premises. This provision encouraged the provision of ‘legal’ grounds for outrages like the police raid on The Monitor Publications in May 2013, which was executed on the flimsy grounds that a letter written (and already published) by the same newspaper, attributed to renegade Gen. David Sejusa was a threat to national security! What was to stop the regime from raiding, searching, and seizing, especially media houses, on the pretext of believing that an offence was or was about to be committed under the Computer Misuse Act?
At the end of our research, we were alive to a worrisome legislative trend that sought to cover ongoing or routine illegalities—most of which violated existing court orders or judgments. A few examples will illustrate the point:
Before enacting the Public Order Management Act in 2013, the Police routinely clobbered and dispersed peaceful demonstrations and protests, arguing that they were illegal. This notwithstanding a Supreme Court decision[2] to the effect that the Police had no power to prohibit public gatherings but only to regulate and provide security when such gatherings (about which the Police have been notified) are convened. The enactment of that law legalized what the Police were already doing but wanted to do with legal cover.
The same can be said of the annulled[3] Anti-Homosexuality Act of 2014 which afforded law enforcement institutions the latitude to harass persons of sexual orientations that were deemed “disgusting and unnatural.”
The perennial harassment of Non-governmental Organisations, particularly those involved in governance-related work, had to be codified in the NGO (Registration) Act of 2016 so that it continues under a veneer of legality. Similarly, the already ongoing targeting of dissenting voices under the Anti-Money Laundering or Anti-Terrorism Acts had to be sanitized by enacting a law.
Lastly, the unpopular proposal[4] to amend Article 26 of the Constitution to allow for compulsory acquisition of land for public purposes—contrary to the current stipulation of the said Article, which enacts to the effect that acquisition of private land by the government must be made after prior and adequate compensation sought to legalise the scourge of land grabbing. Like the Public Order Management Act sought to criminalise the rights to assembly, the Anti-Homosexuality Act the equality before and under the law regardless of one’s sexual orientation or other such distinction; we believed that the Computer Misuse Act was enacted for the sole purpose of proscribing dissent and contra-Establishment opinions as conveyed on social media sites and platforms.
CONCLUSION
Based on the above concerns, Constitutional Petition Number 5 of 2016 (Andrew Karamagi and Robert Shaka v. Attorney General) was conceived and lodged in the Constitutional Court. Despite our shared sense of urgency, the wheels of justice turned ever so slowly that it was not until seven years later that the Court handed down a unanimous verdict in our favor. As co-petitioners and the lawyers (Nicholas Opiyo, Isaac Ssemakadde, and Eron Kiiza) who represented us throughout this period, it was exhilarating to receive a favorable judgment from their Lordships and witness the stoppage of prosecutions under the now repealed provisions.
The issue remains: will a court decide to stop the descent into autocracy in Uganda?
Author: Andrew Karamagi
Designation:
Organisation/Law Firm
Email Address: karamagiandrew@gmail.com
Country: Uganda
[1] Stella Nyanzi, Andrew Karamagi, The socio-political dynamics of anti-homosexuality legislation in Uganda, Agenda Vol. 29, Issue 1, 2015
[2] Muwanga Kivumbi v Attorney General (Constitutional Appeal No. 6 of 2011) [2017] UGSC 4
[3] Oloka-Onyango & 9 Others v Attorney General (Constitutional Petition No. 8 of 2014) [2014] UGSC 14
[4] Constitutional (Amendment) Bill No. 13 of 2017
