COURT ‘CASTRATES’ COMPUTER MISUSE ACT; 2022 AMENDMENT DECLARED ILLEGAL

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The Constitutional Court has ruled that the Computer Misuse (Amendment) Act, 2022 was enacted in violation of parliamentary procedure, and declared the provisions challenged in three consolidated petitions null and void.

This is in a unanimous  judgment delivered by a Panel of Five Justices of the Constitutional Court with Justice Irene Mulyagonja writing the lead judgement, and Justices Ketra Kitariisibwa Katunguka, John Mike Musisi, Jesse Byaruhanga Rugyema and  Esta Nambayo concurring with her.

The petitions were filed by a coalition of civil society organisations, lawyers and journalists from Alternative Digitalk, the Uganda Law Society and the Human Rights Network for Journalists-Uganda, challenging both the procedure used by the Parliament to pass the law and several of its substantive provisions.

Court found that the Parliament of Uganda passed the Computer Misuse Bill on September 8, 2022 without complying with Rule 24(3) of its Rules of Procedure, which requires verification of quorum before voting on legislation.

The court held that this omission by the Speaker of Parliament was inconsistent with Articles 88 and 89 of the Constitution, which governs the conduct of parliamentary business.

Justice Mulyagonja stated that compliance with procedural rules is a constitutional requirement, and failure to observe them renders the legislative process defective. The court then came to a conclusion  that the enactment of the law without confirming quorum meant that it was passed contrary to the law.

As a result, the Court on Tuesday has declared that the Computer Misuse (Amendment) Act, 2022 was enacted unlawfully. It has further held that the provisions of the Computer Misuse Act (2023 Edition) that were challenged in Constitutional Petitions number 34, 37 and 42 of 2022 are null and void because they were enacted without following the law.

The nullified provisions include Section 11(1), which relates to unauthorised access or interception of data and information; Section 23, which criminalizes the sharing of information about children; Section 26, which prohibits the sharing of information likely to ridicule, degrade or demean a person or group; Section 27 on sending or sharing unsolicited information; Section 28 on the offence of sharing malicious information; and Section 29, which criminalises certain forms of anonymous communication and publication of information under a false identity.

In their petitions, the applicants through their lawyers including Eron Kiiza, George Musisi, Kato  Tumusiime, Kakuru Tumusiime and Jonathan Elotu among others argued that these provisions were vague, overly broad and imposed unjustifiable limitations on constitutional rights, including freedom of expression, access to information and the right to practise a profession.

They also challenged the legislative process, arguing that Parliament did not ensure quorum and did not conduct adequate public consultation, particularly in relation to provisions on misuse of social media.

Although the court’s primary finding  has been on procedural impropriety, it has also addressed  the legal principles raised in the petitions, particularly in relation to clarity and precision in criminal law.

According to the Constitutional Court, for a law to be valid, especially one that creates criminal offences, it must meet the principle of legality by being clear, precise and foreseeable. She noted that vague and ambiguous provisions make it difficult for individuals to regulate their conduct and understand what is prohibited.

The court has also referred to international human rights standards, including the International Covenant on Civil and Political Rights, which requires that limitations on rights such as freedom of expression must be clearly defined in law.

The judgment  has also relied on principles developed under the African Charter on Human and Peoples’ Rights, particularly the requirement that any limitation must be prescribed by law, serve a legitimate aim, and be necessary and proportionate in a democratic society.

In the same judgment, the court  has examined Section 162 of the Penal Code Act, which criminalises defamation. The Justices have also found that the definition of “libel” under Section 163 of the Act is vague, ambiguous and does not meet the required standard of precision in criminal law.

Justice Mulyagonja has held that the definition fails to clearly specify the prohibited conduct, making it uncertain and difficult to apply. She noted that a person of ordinary intelligence should be able to know in advance what conduct is criminal and the consequences of violating the law.

The court further observed that while defamation laws may serve the legitimate aim of protecting the reputation of others, criminal sanctions are a more restrictive measure compared to civil remedies.

It noted that criminal defamation can have a chilling effect on freedom of expression, particularly for journalists and media practitioners, who may resort to self-censorship to avoid prosecution.

The judgment cited comparative jurisprudence and international standards discouraging the use of criminal sanctions for defamation, noting that civil remedies are less restrictive and more appropriate.

Court  found that Section 162 does not meet the test of necessity and proportionality, as required under international human rights law. It also held that the provision is inconsistent with Uganda’s obligations under the African Charter  as well as the National Objectives and Directive Principles of State Policy in the Constitution.

Consequently, the Court has declared that Section 162 of the Penal Code Act contravenes Article 9 of the African Charter, and that the definition of defamation under Section 163 does not meet the required legal standard and is therefore unconstitutional to that extent.

“I would therefore find that when Parliament passed the Computer Misuse (Amendment) Bill, 2022 into an Act of Parliament, it did not comply with the provisions of rule 24 (3) of the Rules of Procedure of Parliament made under Article 94 of the Constitution. Further, that the passing of the Bill into an Act of Parliament was inconsistent with Articles 88 and 89 of the Constitution, making the Computer Misuse (Amendment) Act, 2022, null and void. It follows that all of the impugned provisions of the Computer Misuse Act that were challenged in the three petitions are null and void and there is no need to interpret them as against the stated provisions of the Constitution”, reads the Judgement.

The three petitions were consolidated after court found that they raised similar issues regarding both the enactment and substance of the Computer Misuse (Amendment) Act, 2022.

The Attorney General had opposed these petitions.