The Independent Online Journalists Association-Uganda (INDOJA-U) have called for an overhaul of the Computer Misuse (Amendment) Bill.
The bill proposed by Kampala Central Member of Parliament, Muhammad Nsereko among other things prohibits the sharing of any information relating to a child without authorisation from a parent or guardian, the sending or sharing of information that promotes hate speech and provides for the prohibition of sending or sharing false, malicious and unsolicited information among others.
Meeting members of the committee on Information, Communication Technology and National Guidance, INDOJA-U President, Andrew Irumba Katusabe accompanied by some of the Association’s members and the Association’s legal counsel Joel Mucunguzi of Signum Advocate, told the committee that the bill, in its entirety, seeks to kill investigative journalism and has been brought in bad faith.
“Regarding the proposed introduction of Section 22A, the Investigative Journalist has to ask for consent. Who will give us consent and authorization to run a story about the starving street children that need help and support most of them females that are being sexually abused and assaulted? Should we leave them to suffer simply because we lack authorization?” Irumba wondered before he further questioned committee members thus; “Furthermore, there are many scenarios where it’s the parents and guardians who are mistreating these children, so what would you advise a neighbor to do in such a situation? To let the child die or inform the police and be arrested for sharing information about the children without authorization? I can authoritatively conclude that this amendment is going to bring a clog against the protection of children’s rights yet these are the future of this when I and the framer of this bill are long gone.”
“Hon. Nsereko, is suggesting that if I find him urinating on a roadside and therefore becoming a nuisance, for me to take that video or photo evidence, I must first seek his permission,” added !rumba.
The INDOJA-U boss concluded, “So it’s upon this background that I would opine the framers of this bill have a hidden agenda of misinforming the public using the media platforms that they have control over and the cropping online media platforms are being a challenge since they feel they are not under their control.”
Members of the Independent Online Journalists Association-Uganda (INDOJA-U) have called for an overhaul of the computer misuse Amendment bill proposed by Hon Muhammad Nsereko. pic.twitter.com/EGF04lIjAR
— Parliament of Uganda (@Parliament_Ug) August 9, 2022
Joel Mucunguzi, the legal advisor to the association said that Nsereko’s bill should have looked at regulating cyber flashing where obscene pictures are sent to strangers’ online, cyber harassment and revenge pornography and not working towards crippling freedom of expression.
He said the proposed law takes away powers of writers, journalists to express themselves and yet these are fundamentals when it comes to free speech.
“They could amend and repeal those provisions especially in relation to freedom of speech; the idea is that they should at least do better bench marking looking at the different cybercrimes in other countries and borrow them, instead of creating different crimes,” he said.
Read lrumba’s Full Submission Before The Committee Below;
“The objectives of the amendment are: to enhance the provisions on unauthorized access to information or data; prohibit the sharing of any information relating to a child without authorization from a parent or guardian; prohibit the sending or sharing of information that promotes hate speech; prohibit the sending or sharing of false, malicious and unsolicited information; and to restrict persons convicted of any offence under the Computer Misuse law from holding public office for a period of 10 years.
The Bill comes at a time when the Ministry of ICT and National Guidance has embarked on the review and alignment of key sector laws, to harmonize and strengthen the regulatory, coordination, policy, monitoring and oversight functions within the communications and media sector.
Several actors in the media and legal spaces have expressed various views on the implications of this proposed law. The most outstanding of these have been concerns that it poses an incalculable risk of whittling away from the right to freedom of expression (including the freedom of the press) that is constitutionally guaranteed under Article 29 of the Constitution and other international human rights instruments.
Legal and media practitioners have also highlighted the fact that the Bill duplicates provisions of existing laws and regulations. The Bill has also been criticized for the vagueness of its language, the overly punitive stance it adopts as well as its discriminatory tendency to single out “leaders.”
Mr. Irumba making his submission before the ICT Committee
Key issues:
1. What are the legal implications of the Computer Misuse (Amendment) Bill?
2. What does the proposed law mean for press freedom in Uganda?
3. What is the best way forward?
I. LEGAL IMPLICATIONS OF THE COMPUTER MISUSE (AMENDMENT) BILL
The Universal Declaration of Human Rights (UDHR), proclaimed by the United Nations General Assembly in 1948 in the wake of the holocaust, expressed a commitment by the world to promote and observe a full suite of fundamental Human Rights. Article 19 of the UDHR protected freedom of opinion and expression in the following terms (United Nations, 1948);
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The freedom of opinion and expression, like other fundamental Human Rights is inherent and not granted by any state. However, it is protected in, among others, the African Convention on Human and Peoples’ Rights (ACHPR), the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD), each of which protects freedom of opinion and expression. 178 of 197 countries have ratified the ICERD; 169 of 197 countries have ratified the ICCPR; 196 of 197 countries have ratified the CRC; and 174 out of 197 countries have ratified the CRPD (Office of the High Commissioner for Human Rights). Uganda is one of the countries, which, as a demonstration of its commitment to its aspiration to becoming a free and democratic society, has ratified these Human Rights instruments. Through ratification, the countries become party to those treaties and voluntarily agree to be bound in international law to uphold the Human Rights contained therein.
By virtue of the overwhelming rate of treaty ratification and its inclusion in the UDHR, freedom of speech is now considered to be a norm of customary international law. The implication of this is that domestic laws cannot be cited as a justification for non—adherence to the principles of international law, especially those that have attained recognition as of customary international law.
As such, when attempting to impose limitations to this very fundamental civil and political right, legislators must be alive to the fact that there is a test for the limitation of such rights. In Uganda, limitation of fundamental rights (except those that are non—derogable) is adumbrated under Article 43 of the 1995 Constitution. The Constitutional Court and the Supreme Court of Uganda have made multiple pronouncements on the permissible limitations to Rights. The most renowned decision in Ugandan jurisprudence is the Supreme Court’s decision in the case of Charles Onyango Obbo & Andrew Mujuni Mwenda versus Attorney General in which, most notably, the Court emphasized that the limitation of rights must be alive to the provisions of Article 43(2)(c) which expressly requires limitations to be acceptable and justifiable in a free and democratic society. Against that backdrop, the Bill, which from its preamble, fixates on regulating truth and emotions, by purporting to prevent the sharing of “negative (whatever that means), false, malicious, hateful, unwarranted pictures, or even threatening information,” runs afoul of the provisions of Article 43(2)(c) to the extent that it establishes a criterion of falsity to impose a limitation to the freedom of expression.
Indoja-u members before the ICT Committee
Mulenga, JSC (RIP), guided in the case of Charles Onyango Obbo that ”before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should… be entirely certain that there can be no justification for offering protection.” He went further to note that “the criterion of falsity falls short of this certainty given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity.”
To this extent, a law that supposedly seeks to prevent falsity, ignores well— established precepts of the law, both municipal and international. As such, from the legal end of things, Clauses 4 and 5 which seek to prohibit falsity stands little to no chance of surviving a legal challenge.
This goes without mentioning that even the provisions being hailed by the movers as useful for the protection of the right to privacy and personal data of children are duplications of other laws. Section 8 of the Data Protection and Privacy Act, 2019 expressly prohibits non—consensual publication of a child’s personal data. Nothing in the proposed law adds anything of value to this.
As such, these provisions of the Bill are vacuous to the extent that they duplicate existing laws including the Regulation of Interception of Communications Act, 2010 and Data Protection and Privacy Act which already prohibit unlawful interception of communications and unlawful access to and sharing of personal information. Clause 2, of the Bill, accordingly adds no value to the law in Uganda.
Similarly, the Bill proposes the adoption of very punitive and prohibitive penalties which will not only unjustifiably hinder expression and access to information but also transparency and accountability in governance. The penalties proposed stretch to UGX 15 million, imprisonment not exceeding 10 years, or both for unauthorized access, interception, recording and sharing of information under clause 2. On the other hand, sharing information related to children (clause 3), hate speech (clause 4), unsolicited information (clause 5) and misleading or malicious information (clause 6) are punished with imprisonment not exceeding seven years.
These penalties, viewed alongside the very vague definitions of terms like “unsolicited information” run afoul of the principle of legality which requires that there cannot be a penalty for an offense that is not clearly defined. This flaw in the Bill is reminiscent of the provisions of the Act it seeks to amend which under Sections 24 and 25 prohibit and penalize vaguely defined concepts “cyber harassment” and “offensive communication.” These provisions are currently under fire from legal practitioners, with the Uganda Law Society currently undertaking a legal challenge of these provisions in the Constitutional Court.
Clause 7 of the Bill specifically seeks to bar persons convicted under the Computer Misuse Act from holding public office for a period of 10 years, and to further bar convicted persons from public offices that they were holding. In addition to the restrictions under the Official Secrets Act, it may discourage the disclosure of information by duty bearers where such disclosure would be necessary for enforcing transparency and accountability.
II. IMPLICATIONS OF THE BILL FOR MEDIA/PRESS FREEDOM
The starting point is that social media, which the Bill seems to make the specific target of its assault, is media protected by law under Article 29. The media is not referred to as the fourth estate as a mere joke. This designation is underlain by the crucial role a free and independent media plays in the maintenance of a civilized, free and democratic society. The provisions of Clause 4 and 5 of the Bill are effectively placing cuffs on investigative journalism, citizen journalism, among other ways of leveraging the power of the media to the advantage of the society as a whole.
The Computer Misuse Act has been previously used to suppress digital rights including free expression and access to information. For instance, academic and social critic Dr. Stella Nyanzi was arrested for insulting the president in a social media post. In 2019, she was convicted of cyber harassment contrary to section 24 of the Act but acquitted of offensive communications, which is prescribed under section 25. Former presidential aspirant Gen. Henry Tumukunde was arrested over alleged treasonable utterances (“Harmful Propaganda”) in radio and television interviews; members of the Bizonto comedy group were arrested over alleged offensive and sectarian posts, and most recently, author Kakwenza Rukirabashaija was arrested, detained and prosecuted over offensive communication against the president and his son.
The fact that this law seeks to place more power in the hands of the people that are already using the existent provisions to violate the freedoms guaranteed under the Constitution and international Human Rights law demonstrates either obliviousness to the rights or a malicious attempt to erase them and create a dystopian society in Uganda.
Amongst the protected freedoms under our law is the freedom of the press and media practitioners which I believe is the basis of this intellectual interface. One would wonder what indeed freedom of press and media practitioners is, however you cannot understand that without a broad understanding of it in simpler terms. Freedom of expression, as indicated above, includes and is not limited to the, seeking, receiving and impartation of information amongst one another. There was a time that live talk shows commonly known as Bimeza were banned in Uganda, only to be brought back with a lot of stringent restrictions. Social media, which, it goes without mentioning, is a self—correcting interface, offers a unique opportunity for a Bimeza— like discourse to continue and shape the direction of society. Anyone with an interest in truth would use its instantaneous power to correct the record, as opposed to trying to stop people from communicating at all under the guise of “falsity.”
We cannot afford to give all that authority and control to the state with the diminishing judicial activism in Uganda, in a country where investigations take long to be concluded and courts take much larger ages to convict or acquit Ugandans. I would hence conclude that the framer of this bill is aiming at creating the politics of misinformation as he seeks and only wishes to keep people from the enjoyment of their freedom of expression. I pray he looks at the penal laws of the country and their principals as there not only to punish but also to reform and maintain sanity which won’t be promoted if this amendment bill is passed and the principal act is amended.
MPs and technocrats pay attention as Indoja-u president makes submission
The second amendment
The bill says that; A person who, without authorization, (a) accesses or intercepts any program or another person’s data or information; (b) voice or video records another person; or (c) shares any information about or that relates to another person commits an offence.”; This begs some practical questions best exemplified by hypothetical scenarios:
1- If I am a student doing my research to pass a certain course and I collect information on a certain topic, does this mean am to serve jail term? Because learners always use people’s information while researching and in turn refer to them, however without their consent.
2- I am a journalist, if I’m investigating a one Nsereko on corruption allegations which in most cases is done stealthily, but the suggested amendment law says I must first get his permission, because if I don’t, then I stand being prosecuted by this proposed law. Is that still independent journalism?
3- Is the mover, Hon. Nsereko, suggesting that if I find him urinating on a roadside and therefore becoming a nuisance, for me to take that video or photo evidence, I must first seek his permission?!
I would like to submit that, the bill, in its entirety, seeks to kill INVESTIGATIVE JOURNALISM, where we investigate matters of concern clandestinely. I would hence conclude that this law seeks to ridicule and undermine other standing laws like the Anti— corruption Act, the IGG Act, the Evidence Act, the access to information Act among others.
Regarding the proposed introduction of Section 22A, the Investigative Journalist has to ask: who will give us consent and authorization to run a story about the starving street children that need help and support most of them females that are being sexually abused and assaulted? Should we leave them to suffer simply because we lack authorization? Furthermore, there are many scenarios where it’s the parents and guardians who are mistreating these children, so what would you advise a neighbor to do in such a situation?
To let the child die or inform the police and be arrested for sharing information about the children without authorization? I can authoritatively conclude that this amendment is going to bring a clog against the protection of children’s rights yet these are the future of this when I and the framer of this bill are long gone.
Section 23A on hate speech I would love to ask the framer of this amendment, what really is hate? What’s the major determinant and threshold one has to use to know that something is degrading, demeaning?
Lastly, what is a diversion? I would like to challenge us all to define what a diversion means and am very sure every member here will give me a different meaning. So what do you think will happen to the rest of Ugandans? Lastly, I want to ask us all why is it only the social media platforms that are targeted by this amendment as this is evidenced in the objectives of the bill?
So it’s upon this background that I would opine the framers of this bill have a hidden agenda of misinforming the public using the media platforms that they have control over and the cropping online media platforms are being a challenge since they feel they are not under their control.
some of the Indoja-u members at parliament
III. WAYS FORWARD
The Bill requires an immediate overhaul. Deletion of the provisions that duplicate the Data Protection and Privacy Act, the Penal Code Act, the Interception of Communications Act, the Oaths Act among other laws will leave the Bill wholly hollow and without a leg to stand on.
An amendment to the Computer Misuse Act, 2011 must consider how other jurisdictions define terms like “revenge porn,” cyber stalking, cyber – harassment, cyber – flashing and other terms that arise as a result of technological advancement. This way, the law should be couched to appreciate the realities of the information age and the internet without taking away its pivotal democratizing role.
Further, the Committee should consider that the Act is currently in violation of Article 29 of the Constitution and that Sections 24 and 25 are unlikely to survive on the law books after the current Constitutional petition. A smart legislature would be well informed in proactively repealing these vague, imprecise and overbroad provisions.
Notably, the Committee should consider the fact that social media has a self—correcting mechanism to the extent that studies have found that whereas it may be easy to spread “false” information; it is also much easier to debunk false information. I so submit.”
