This article is inspired by the various debates surrounding the arrest and questioning of the Editor of the Uganda Record Timothy N. Kalyegira. http://ugandarecord.co.ug/ mainly due to the Uganda Record reports on the bomb blasts in Kampala on the night of July 11, 2010 and the insinuation or suggestion by the Uganda Record that this could have been a state-orchestrated crime.
The very fact that there are divergent views on whether or not Timothy Kalyegira should be questioned or tried for his views is enough to show the division on whether one should be tried for having a divergent view. In my opinion, it is easier and even cheaper to ignore or counter divergent views rather than try to police people’s thoughts, opinions and ‘conspiracy’ theories.
The fact that there is no universal application of what can and cannot be said or written makes it even more complicated. In Canada and USA, it is an offence to preach against homosexuality ( see http://www.christianlawjournal.com/featured-articles/british-street-preacher-harrassed-by-police-for-preaching-against-homosexuality/; http://theologica.ning.com/forum/topics/so-it-is-now-illegal-to-preach?xg_source=activity; OR http://www.christianlawjournal.com/featured-articles/professor-fired-for-teaching-catholic-doctrine-on-homosexuality-is-reinstated/; OR http://www.christianlawjournal.com/featured-articles/street-preacher-can-preach-hell-fire-even-more/) while in Uganda it is an offence to promote homosexuality.
In other countries like Rwanda, one cannot question the occurrence of the genocide.( http://en.wikipedia.org/wiki/Laws_against_Holocaust_denial.) Indeed Peter Erlinder, who is lead defense lawyer at the U.N.'s International Criminal Tribunal for Rwanda was arrested for denying the Rwanda genocide. (http://www.reuters.com/article/idUSTRE6515H320100602).
The aforementioned status quo is just a tip of the iceberg regarding the whole human rights debate which includes controversies like abortion, death penalty, female genital mutilation, dress codes, extra ordinary rendition and other various issues which border on cultural relativism, legal pluralism, and many other yardsticks.
It is probably enough to say that their existence cannot be ignored as noted by the British Foreign Office website reminding tourists visiting the United Arab Emirates that "You should respect local traditions, customs, laws and religions at all times, and be aware of your actions to ensure that they do not offend other cultures or religious beliefs. Women should dress modestly when in public areas, such as shopping malls. Clothes should cover the tops of the arms and legs, and underwear should not be visible. Public displays of affection are frowned upon and there have been several arrests for kissing in public." (http://uk.news.yahoo.com/21/20100805/tuk-bikini-briton-arrested-in-dubai-6323e80.html)
With the aforementioned background, when one tries to analyse the offence of sedition per se, one cannot imagine how many people would be in gaol today -worldwide- if they were prosecuted for having conspiracy views which would be considered “seditious thoughts, expressions or theories.”
In America today, the list of writers and producers of controversy is endless. I can easily mention the controversial book Obama Nation ( http://en.wikipedia.org/wiki/The_Obama_Nation whose author was deported from Kenya - http://www.timesonline.co.uk/tol/news/world/africa/article4897758.ece, The Zeitgeist movie (http://www.zeitgeistmovie.com/, and the documentary Fahrenheit 9/11 http://turktube.nl/video/1564e43565ae9fc/Fahrenheit-911--Michael-Moore- http://www.imdb.com/title/tt0361596/plotsummary; http://en.wikipedia.org/wiki/Fahrenheit_9/11. I suspect if these had been produced in Uganda, those responsible would certainly be behind bars or crippled financially like former Chief Editor of the Uganda Confidential, Teddy Sezzi Cheeye.
Be that as it may, I do acknowledge that the state is in a “catch 22” situation. It needs to deter divergent views while in the same vein should be seen to promote freedom of speech and expression as mandated by our Constitution, the African Charter of Civil and Political Rights as well as the international Covenant on Civil and Political rights. The Bahati Bill‘s attempt to oust Uganda’s commitment to these international covenants clearly shows the dilemma our legislators face. We should therefore expect the State to act when we challenge it - however, the State will not act in a fashion that we think it ought. It might close media houses like CBS or arrest journalists and in extreme cases lock them up for good or as is reported in many jurisdictions worldwide, kill them like the hanging of Ken Saro Wiwa of Nigeria. (http://africanhistory.about.com/od/countrieswest/a/SaroWiwa.htm)
In Uganda, our State normally prosecutes the journalists or writers of "controversial" articles or programmes. According to the Independent Magazine, personalities like Andrew Mwenda, Managing Editor The Independent magazine, James Tumusiime; the Managing Editor The Observer newspaper, Ssemujju Ibrahim Nganda, the Political Editor The Observer newspaper, a Luwero farmer David Ntege, Beti Kamya; MP Lubaga North, Hussein Kyanjo; MP Makindye West, Issa Kikungwe; MP Kyadondo South, Betty Nambooze Bakireke; DP Spokesperson, Meddie Nsereko of CBS Radio, David Mpanga, Buganda's Research Minister and Daudi Ziwa have been either charged or quizzed. (http://allafrica.com/stories/201001270492.html).
These people have joined the ranks of Rosa Parks, Martin Luther King Jr, Mandela, Aung Sang Suu Kyi, and many others who refused to keep quiet about the injustices they see in their communities and have instead taken the road less travelled by exercising their rights to civil liberties including the freedom of expression. Whereas many of us will hold their actions as illegal, I strongly recommend that those who have not, should read a stellar piece by Martin Luther King Jr – Letter from a Birmingham Jail- http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html - where he states at one point that “one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Such reasoning is what led to the release of Nelson Mandela, the Civil Rights Act in America (which paved the way for blacks to vote), as well as the successful challenges to laws like the Witchcraft Act of Uganda, corporal punishment, divorce, adultery and others. It is this reasoning that has laid the ground for female emancipation, the Anti female genital mutilation Act among others.
It is upon this basis that I agree with the Supreme Court’s findings in which that "publication of false news" cannot be an offence as it contravened Article 29 (1) (a) which states that every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media. Section 50 on false news, provided that any person who publishes false news, statement, rumors or report, which is likely to cause fear and alarm, commits a misdemeanor.
The lead judgment by Justice Mulenga noted that;
...in the absence of constraints of freedom of expression, the objective of upholding the truth would be defeated… I do agree that Article 29 (1) of the Constitution guarantees free speech and expression and also secures press freedom. These are fundamental rights. It can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society… Article 29 (1) (a) does not stipulate or specify what a person is free to say or express. Both the constitution and the Press and Journalist Act, which was enacted in 1995 to ensure the freedom of press, do not provide a definition of freedom of expression or of the press… Nevertheless, there is no dispute as to what that freedom encompasses… In the 1967 constitution, and before that, in the independence constitution of 1962, the freedom of expression was defined as freedom to hold opinions and to receive and impart ideas and information without interference. The African Charter on Human and Peoples' Rights, an international instrument for freedom to which Uganda is party, in its article 9, also states that every individual shall have the right to receive information, expression and disseminate his opinions within the law. The Supreme Court Justices submitted and declared Section 50 of the Penal Code void. (http://allafrica.com/stories/201004120772.html)
The Constitutionality of the offence of sedition has now been challenged by Andrew Mwenda after being arrested for his views on the death of Garang. http://andrewmwendasblog.blogspot.com/2008/11/when-uganda-arrests-its-most-prominent.html. Obviously it isn't Mwenda alone who holds this view. The law self-acknowledges its limits when it confines itself to those who commit the offence by “act, speech or publication” (Section 39(2). That sedition has been challenged previously is clear. See Uganda Journalists Safety Committee and Others v Attorney General (Ruling) (Constitutional Petition No. 7 of 1997)  UGCC 9 (19 December 1997) ( http://www.ulii.org/ug/cases/UGCC/1997/9.html )
In my view, the aforementioned challenge led to the amendment of the charge sheet to include another problematic offence of 'promoting sectarianism." We wait to see the findings of the Constitutional Court. Subsequently however, Hon. Betty Kamya Member of Parliament for Lubaga North was charged with the above offence for penning a controversial article which inter alia queried President Museveni’s Ugandan heritage. The article, entitled “Where is Museveni's Heart, (Daily Monitor, January 28, 2008) drew a 17 page response from the President which in my view, was the right response to such articles because the readers are then given fair ground to engage with the issues. However, by seeking to prosecute Kamya, the legislator was given another opportunity to query why those who promote are charged in the courts of law but those who actively carry out the deed are not. It is worth noting that these cases have never been prosecuted to date.
Now I think many of us have said, written or expressed views which would easily be construed as seditious. However why do we continue to do so – in spite of the law? Allow me suggest that it is because we agree with the reasoning of Martin Luther King Jr. who stated -
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.
I quote Dr. Henry Odhiambo with approval when he notes that
‘In a democratic dispensation, accountability on the part of the leadership to its subjects is a critical requirement. It is through such accountability that the electorate can make informed decisions for purposes of casting their votes. It therefore follows without debate that leaders under a democratic dispensation cannot afford to shield themselves from adverse criticism. As a mechanism for immunization of the leadership to adverse criticism by their subjects, Sedition can therefore only be maintained where the goals of the leadership are to stifle accountability and promote graft, inefficiency, and all sorts of political decadence.” http://www.huripec.mak.ac.ug/working_paper_18.pdf
Does this mean that the writer or opinion maker should have no sensitivity or responsibility? Obviously not. Apart from recognizing that journalists have the right to protect their sources of information, a reasoning which is similar to the Witness Protection Act recently passed in Uganda, Article 43 does envisage that there will be a limitation of fundamental freedoms justified if it infringes upon other fundamental rights or on the public interest.
As Dr. Odhiambo notes, over and above the requirement to found a limitation on fundamental rights upon legitimate and compelling legislative objectives, it is critical that any such limitation does not unnecessarily diminish the enjoyment of the right in issue, as well as infringe upon other rights… the standard to be met in ensuring that any limitation is not caught by the doctrine of over breadth is one of proximity (causality) between the intended objective and the potential effect of the limitation.
I agree with the finding of the Indian Supreme Court decision in Rangarajan v. Ram to wit; our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.
Conclusively, Odhiambo writes that
“The Ugandan law on Sedition would certainly fail this principle of constitutionality. In targeting the intention of the author of any communication and his or her message, the Sedition provision makes unfortunate assumptions that create a real and substantial risk of punishing constitutionally protected conduct, particularly in form of viewpoints. In the first place, the provision seems to assume homogeneity of the audience in terms of how they interact and perceive any given communications. Secondly, the provision also seems to be premised on the rather unfortunate assumption that leaders must always be highly regarded by the public. To the contrary, as already stated, not only do studies “in cognitive psychology and behavioral economics indicate that individuals operate with significant, persistent perceptual biases,” but it also deserves reiterating the point that the traditional, conservative view of the relationship between the governed and the governors has no place in a democracy.”
I rest my case.