Victory Is Fleeting in Uganda’s Silence vs. Free Speech Battle

KAMPALA, UGANDA — On Jan. 10 Uganda’s Constitutional Court ruled unconstitutional a section of an internet law that journalists and critics of President Yoweri Museveni say was used for over a decade to persecute them.

Section 25 of the Computer Misuse Act of 2011 made criminal “offensive communication,” defined as willful and repeated use of “electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication.”

The ruling came in response to a 2016 petition that argued that Section 25 contradicted Article 29 of the 1995 Ugandan Constitution that enshrines freedom of speech and expression for all citizens.

“It’s a milestone,” says Eron Kiiza, a human rights lawyer who has represented Ugandan journalists who have accused the government of persecution. “Section 25 was notorious [as it was] the formality the government was using to silence critics.”

Among those who had been charged with offensive communication under the law are scholar Stella Nyanzi and writer Kakwenza Rukirabashaija, who both exiled themselves to Germany after facing persecution at home.

Nyanzi’s charges, levied in 2017 and 2018, both relate to Facebook activity; in 2018, she posted a poem wishing Museveni had died in his mother’s womb, and in 2017 she referred to the president as “a pair of buttocks.”

Rukirabashaija was charged and arrested in December 2021 after tweeting critical comments about Museveni. In 2020, he was twice arrested and charged with other cybercrime offenses, first related to his fiction novel “The Greedy Barbarian,” which is widely perceived to be a satire about Museveni, and then to his second book, “Banana Republic: Where Writing is Treasonous,” in which he chronicled the first arrest.

Less known internationally, radio presenter and comedy scriptwriter Julius Serwanja — who also was arrested after criticizing the president — says the court’s ruling has opened a bit of space for his comedy. “I write scripts based on what we see, comments that people send us — people take us as their microphones. They have no platforms and no capacity to talk.”

In 2020, Serwanja and three other members of the Bizonto Comedy Group were arrested and charged with sectarianism after appearing in a video skit saying that Museveni tended to favor politicians from western Uganda, where the president is from. They were released on bail after spending five days in detention and, Serwanja says, told by police to “not talk about anything concerning tribes, negative comments on government and meeting political leaders.”

In March 2021, the group was arrested again for the same video skit and released shortly after, Serwanja says.

Law still a threat

While praising the Constitutional Court’s ruling, lawyers and activists who advocate against the Computer Misuse Act stress that other problematic sections remain.

The law got a tougher update in 2022 when the Ugandan Parliament approved an amendment with several new provisions that criminalize an even wider range of online activities. The new provisions ban individuals from writing, sending or sharing “any information through a computer which is likely to ridicule, degrade or demean another person” or “promote hostility against a person.”

It also states that “a person shall not send to or share with another person unsolicited information through a computer unless the information is in the public interest” — without defining the public interest — and “a person shall not send, share or transmit malicious information about or that relates to another person through a computer.”

Those found in breach of such provisions could face fines of up to 15 million Ugandan shillings (about $4,069) and an up to seven-year jail sentence.

“[The Constitutional Court’s ruling] is a temporary relief,” says Allan Sempala Kigozi, head of legal aid at Unwanted Witness, a Ugandan nongovernmental organization that advocates for digital rights. He adds that other sections of the law should also be eliminated. “There are sufficient forms to address any form of defamation or using personal data without consent.”

Jimmy Haguma, acting commissioner of cybercrimes for the Uganda Police Force, defended the 2022 amendment, saying that while it will “curtail a lot of liberties of certain people,” the law will not affect those who operate “within their confines.”

The Uganda Communications Commission had no comment on the Constitutional Court’s ruling.

The court is yet to hear other challenges related to the Computer Misuse Act, including the 2022 amendment.

“It’s a stupid law,” says Norman Tumuhimbise, creative director of online media platform Alternative Digitalk Limited, and one in a group of 12 litigants who in October 2022 filed a petition demanding Uganda’s Constitutional Court repeal the new amendment in its entirety. “The act is worth breaking and if you don’t break it, then you are a problem to yourself.”

Tumuhimbise also was prosecuted under the previous version of the Computer Misuse Act. In March 2022, he and eight others from his team were arrested in their office and had their devices, papers and books confiscated, he says. A few days later, seven were released on bail under charges of cyberstalking — provided for in Section 26 of the Computer Misuse Act — and sedition, according to the Committee to Protect Journalists. Tumuhimbise and his colleague, Farida Bikobere, were charged with both cyberstalking and offensive communication, and they remained in jail for several more days. They were released from prison on bail set at 500,000 shillings ($136).

Tumuhimbise has authored two books critical of Museveni. Released in 2015, “The Komanyoko Politics: Unsowing the Mustard Seed” is a direct response to Museveni’s 1997 autobiography, “Sowing the Mustard Seed.” Tumuhimbise’s new book, “Liars and Accomplices,” was released in 2022.