This article is inspired by the various debates surrounding the arrest and questioning of the Editor of the Uganda Record Timothy N. Kalyegira 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.
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. However, the closure of media houses or the prosecution of journalists as an option of first resort does not and has not helped in clearing the air about allegations made or opinions expressed. More so, the trial of the Daily Monitor journalists for criminal defamation allegedly because they reported about Justice Mwondha's double salary as IGG and Judge clearly showed the ineffectiveness of such prosecutions.
In my experience, one will receive tangible results when journalists are sued (instead of) prosecuted e.g. Teddy Sezzi Cheeye while Editor of the Uganda Confidential. Assuming that what has been opined is untrue and has injured the one’s reputation, the aggrieved party has the right to sue for damages for defamation. However, in order to be successful, one must show in the first instance that they did have a reputation and that the reputation was damaged and that the opinion is the sole cause of the damaged reputation. In such suits, the publisher or writer must prove that the opinion or publication was not fair comment or privileged or justified "truth." This is why General Moses Ali's suit against the Daily Monitor newspaper failed. Indeed failure to successfully sue might lead to the defendant publisher claiming for costs against the plaintiff like in the case of Ofwono Opondo Vs The Daily Monitor Newspaper when the plaintiff withdrew his suit probably upon realizing the futility of his claim.
I obviously agree that the State is in a catch 22 situation of recognizing rights of others while protecting rights of others. However, His Lordship Justice Mulenga held in the petition of Charles Onyango Obbo and Andrew Mwenda Versus the Attorney General that (I)t can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society… In his opinion, which I agree with, 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. Was this an over sight? I think not. In any case we have seen that there have been situations where previous denials have been proven as true like the International Court of Justice's findings on the involvement of Uganda in DRC.
Depending on what the content of the publication is, the resort to criminal “redresses” in my view does not normally help unless the state is draconian. It is a clear violation of the right to freedom of expression and an infringement on the right to information. In any case, as Dr. Henry Odhiambo notes in his HURIPEC working Paper 18 REFLECTIONS ON FREEDOM OF EXPRESSION IN UGANDA’S FLEDGLING DEMOCRACY, “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.” This is probably why most of these prosecutions have either failed to take off or been withdrawn especially after the 1995 Constitution was promulgated.
I will borrow the reasoning of the Indian Supreme Court decision in Rangarajan v. Ram, to wit; 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’.
Therein lies the challenge - what is public interest? How do we measure public interest? It is very problematic to assume what is or is not public interest. Therefore, like in the case of CBS being closed, the nexus between the riots and the broadcasts have to be clearly made not assumed. That is why in the first sedition challenge, the Constitutional Court held that assuming a right will be infringed is not enough. Allowing others to determine this reminds me always of the Henrik Ibsen book An Enemy of the People - recalling that public interest can easily be swayed by a convincing tongue like the one of by Mark Anthony after the assassination of Julius Caesar.
I therefore agree with Dr. Odhiambo when he further notes that “In targeting the intention of the author of any communication and his or her message, (the Ugandan law on ) Sedition 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,”54 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
Daniel R. Ruhweza Esq.
Attorney & Lecturer-At-Law
Those who stand for nothing, fall for anything. Alexander Hamilton, US lawyer & politician (1755 - 1804)