IN THE SUPREME COURT OF UGANDA HOLDEN AT MENGO
CORAM: Odok, CJ, Oder, Tsekooko, karokora mulenga, kanyeimba, JJ.S.C.
Byamugisha, Ag. J.S.C
CONSTITUTIONAL APPEAL No.2 of 2002
Between
1. CHARLES ONYANGO OBBO
2. ANDREW MUJUNI MWENDA……………………………….APPELANTS
And
ATTORNEY GENERAL……………………………………………….RESPONDENT
JUDGMENT OF ODOKI, CJ
I have had the benefit of reading in draft the judgment prepared by my learned brother, Mulenga
JSC, and I agree that, for the reasons he has given, this appeal ought to succeed. I also agree
with the orders he as proposed.
I shall make only a few comments for emphasis. The first point relates to the importance of
freedom of expression in a democratic society. Freedom of expression is one of the fundamental
freedoms pertaining to the citizen as human being. As cassin R said in man and the modern
state. “ no one has the power to control his internal thoughts and feelings nor to prevent
him from outwardly expressing his thoughts and feelings. Moreover freedom of objection
and discussion is one of the surest sources of truth.”(see vallant F sir (ed) an introduction to
the study of Human rights, 1972, page 46.)
Freedom of expression is recognized and protected by many international conventions and
declarations as well as national constitutions. This freedom is guaranteed under Article 29 [1] (a)
of the Uganda constitution. Although the constitution does not define what constitutes freedom
of expression, it is generally accepted that it entails the freedom to hold opinions and to seek,
receive and impart information and ideas of all kinds, either orally, in the writing, in print, in the
form of art, or through other chosen media, without interference by public authority and
regardless of frontiers (see: the international covenant on Human Rights, Article 10). In
Thornhill v Alabama 310 US 88, pages 101-102, the supreme court observed that freedom of
speech or of the press should be indentified with “ the liberty to discuss publicly and
truthfully all matters of public concern without fear of subsequent punishment.”
Freedom of the press is a special freedom within the scope of freedom of expression. Freedom
of press is considered as the right to investigate and publish freely. But as lord Denning said in
schering chemicals v. falkman Lts.(1981) 2 W.L.R.848, freedom of the press covers not only
the rights of the press to impart information of general interest or concern but also right of
the public to receive it”
The importance of freedom of expression including freedom of the press to a democratic society
cannot be over emphasized . freedom of expression enables the public to receive information and
ideas, which are essential for them to participate in their governance and protect the values of
democratic government, on the basis of informed decisions. It promotes a market place of ideas.
It enables those in government or authority to be brought to public scrutiny and thereby hold
them accountable.
In Mark Gova chavunduka &Another vs the minister of Home Affairs and Another,
supreme court civil Application No.156 of 1999, the supreme court of Zimbabwe emphasized the
special objectives that freedom of expression serves in a democracy, in these words:
“Furthermore, what has been emphasized is that freedom of expression has four broad
special objectives to serve: (1) it helps an individual to obtain self-fulfillment; (ii) it assists
in the discovery of truth and in promoting political and social participation; (iii) it
strengthens the capacity of an individual to participate in decision making; and (iv) it
provides mechanism by which it would be possible to establish a reasonable balance
between stability and change. See to the same effect Thomson Newspapers co. vs Canada
(1998) 51 CRR (2nd ) 189 (can.Sc) at 237.
Democracy is a fundamental constitutional value and principle in Uganda. The preamble to the
constitution declares that the people of Uganda are committed to establishing “asocial-economic
and political order through a popular and durable national constitution based on the
principles of unity, peace, equity, democracy, freedom, social justice and progress.” Clause
II of the National Objectives and Directive principles of state policy in the constitution sets out
democratic principles, which provided, inter alia, that
“[i] the state shall be based on democratic principles which empower and encourage the
active participation of all citizens at all levels in their own governance”.
Furthermore Article 1 of the constitution recognizes the sovereignty of the people and declares
that “all authority of state emanates from the people of Uganda, and the people shall be
governed through their will and consent.” It is further provided in Article 1 (4)
“The people shall express their will and consent on who shall govern them and how
they should be governed, through regular, free and fair elections of their
representative or through referenda.”
The bill of rights in chapter 4 guarantees not only civil and political rights but also social,
cultural, and economic rights. Indeed the entire constitution reflects commitment by the
people of Uganda to establish a free and democratic society. The implementation of
various government policies on democratization and liberation clearly demonstrates that
Uganda is building a democratic society.
The breadth and importance of the rights to free speech were emphasized by the
European court of human rights in the Handyside vs The United Kingdom (1979-80),
EHRR 737, (Para 49) as being inherent in the concept of a democratic and pluralistic
society. In a celebrated statement, the court
Freedom of expression constitutes one of the essential foundations of a democratic
society and one of the basic conditions for its progress and for the development of
every man. Subject to para.2 of article 10(of the European convention on Human
rights), it is applicable not only to “information” or “ideas” that are favourably
received, or regarded as inoffensive or as a matter of indifference but also to those
which offend, shock, disturb the state or any sector of the population. Such are the
demands of that pluralism, tolerance and broadmindedness without which there is
no democratic society”
The second point to emphasize is that freedom of expression is not absolute or boundless,
even in the most democratic societies, instead limitations may be imposed on the freedom
of expression, which strike the balance between state involvement in press and media
autonomy, as well as between freedom of expression and other basic rights and social
interests, protected by law.
The Uganda constitution abolished claw-clauses in the Bill of rights, which previously
unduly restricted the enjoyment of basic human rights and freedoms. The general
standard set for testing the permissible limitations is now contained in Article 43. In case
of freedom of expression guaranteed under Article 29 1 (a), no restriction on the freedom
is permissible unless it is interested to protect the rights of other or the public interest. As
regards public interest, the limitation must not go “beyond what is acceptable and
demonstrably justifiable in a free and democratic society, or what is provided in this
constitution.”
The scope of the limitations imposed on freedom of expression has been considered by
courts in various jurisdictions thought the world including ; united kingdom, Canada ,
india, Zimbabwe, Zambia, Nigeria, European union and the united states. The criteria or
tests to be adopted in deciding whether the limitation is permissible have been evolved.
Of particular relevancy have been the decisions which have considered, whether the
offence of publishing a false statement or rumor, is a permissible limitation to freedom of
expression. These include the decisions in the Canadian case of RV.Zundel (1992) 10
CRR(2nd ) 193 and the Zimbabwean case of Mark Gova chavunduka &Another
V.Minister of Home Affairs and Another, [supra].these decisions have been ably
considered in the judgment of my learned brother Mulenga JSC. In both cases provisions
similar to section 50 of the penal code Act were struck down as un constitutional.
The offense of publishing false news under section 50of the penal code Act is too vague,
and conjectural to provide the necessary certainty required to impose an acceptable
limitation on freedom of expression. . The determination of falsity of a statement and like
hood of causing fear or alarm is problematic. The limitation puts the press and other
media in dilemma as to whether publish and face punishment or not publish and with
hold the information from the public. It imposes an unacceptable chilling effect on the
freedom of the press. It does not serve any pressing or substantial social need, which out
weighs the need to protect freedom of expression. To be obtained. The limitation is not
necessary to protect the rights of others or to protect the public interest. It is there fore,
not acceptable or demonstrably justifiable in a free and democratic society.
I agree with what Mc Nally JA said his concurring judgment in the mark Gova
Chavunduka case, [supra]
“the section is too widely expressed too unclear as to its limitations, and too
intimidating (because no-one can be sure whether what he says or writes will or will
not attract prosecution or imprisonment). That is why it cannot stand.
We are saying that freedom of expression is limitless. We are not saying that people
may publish any thing they wish, however pornographic, however untruthfully
subversive, however race-hatred inspiring…..all we are saying is that the section is
unacceptable as it stands.”
Iam of the opinion that section 50 of the penal code Act was saved under Article 273 of
the constitution, but no modification can bring it in conformity with the constitution.. the
section is in conflict with the provisions of Article 239(1) (a) of the constitution and is
therefore void.
It is my considered o[pinion that section 50 of the penal code Act belongs to those laws
which should have been repealed following the promulgation of the 1995 constitution it
is high time that a comprehensive exercise is carried out to review or repeal such laws
which are inconsistent with the constitution.
I agree with mulenga JSC that the constitution court was in error to suspend the hearing
of the constitutional petition first and suspend the hearing of the criminal case, because
constitutional cases take precedence over other cases.
As the other members of court also agree with the judgment and orders proposed by
learned brother, mulenga JSC, the unanimous decision of the court is as follows:
(a) This appeal allowed.
(b) It is declared that section 50 of the penal code Act is inconsistent with Article 29(1)
(a) of the constitution, and is void.
(c) The appellants will have the costs of this appeal and in the constitutional court. A
certificate for two counsels is allowed.
Dated at Mengo this 11th day of February 2004.
B.J.ODOKI
CHIEF JUSTICE
I