Onyango-Obbo v Attorney-General [Uganda, Supreme Court.]
| Jurisdiction | Uganda |
| Date | 11 February 2004 |
| Court | Supreme Court (Uganda) |
(Odoki, Chief Justice; Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba, Justices and Byamugisha, Acting Justice)
Human rights Freedom of speech and expression Freedom of press Definition Democratic importance Constitution of Uganda 1995 Article 29 of Constitution guaranteeing freedom of speech and expression, including freedom of press Section 50 of Penal Code Act making publication of false news a criminal offence Limitation on enjoyment of constitutional right Article 43(2)(c) of Constitution providing conditions for validity of limitation valid Whether directed to prevent or remove prejudice to public interest Whether acceptable and demonstrably justifiable in a free and democratic society Whether limitation falling within parameters of Article 43 Whether Section 50 valid limitation under Constitution Whether Section 50 of Penal Code Act contravening Article 29 of Constitution
Treaties Human rights Freedom of expression Definition International instruments to which Uganda party African Charter on Human and Peoples' Rights 1981, Article 9 International Covenant on Civil and Political Rights, 1966, Article 19 The law of Uganda
Summary: The facts:The appellants, Messrs Onyango-Obbo and Mwenda, Editor and Senior Reporter respectively of the Monitor newspaper, were charged with the criminal offence of the publication of false news contrary to Section 50 of the Penal Code Act (Section 50)2 after publishing a story extracted from a foreign paper. They were acquitted.
The appellants' petition to the Constitutional Court invoking the protection for freedom of the press pursuant to Article 29 of the Constitution of Uganda 1995 (the Constitution)3 was dismissed. The Constitutional Court held, unanimously, that the action of the Director of Public Prosecutions in prosecuting the appellants was not inconsistent with the Constitution and, by a
four to one majority, that Section 50 was not inconsistent with Article 29(1)(a) of the Constitution. The appellants appealed the majority decision. They contended that Section 50 was inconsistent with the Constitution because its limitation on the enjoyment of the right to freedom of expression was beyond that permitted by Article 43 of the Constitution.4Held (unanimously):The appeal was allowed. Section 50 was inconsistent with Article 29(1)(a) of the Constitution and thus void.
Per Justice Mulenga JSC (with whom the other members of the Court agreed): (1) Although the freedom of expression or of the press was defined in neither the Constitution nor the Press and Journalist Act 1995, the definition contained in the 1967 Constitution and 1962 Independence Constitution still held good.5 The definitions in international instruments to which Uganda was party, Article 9 of the African Charter on Human and Peoples' Rights6 and Article 19 of the International Covenant on Civil and Political Rights,7 were also instructive. It was evident that the right to freedom of expression extended to holding, receiving and imparting all forms of opinions, ideas and information; they need not be correct, sound or truthful. Indeed, the protection was most relevant when society objected to views as false so as to avoid the greater danger of smothering alternative views. Freedom of speech was indivisible. This view was supported in judicial precedents from diverse jurisdictions that upheld the right to freedom of expression (pp. 5748).
(2) The protection of fundamental human rights was a primary objective of every democratic constitution and an essential characteristic of democracy. Protection of the right to freedom of expression was the bedrock of democratic governance. Uganda was committed to upholding that right as evidenced in the constitutional provisions, the Press and Journalist Act 1995 and the exercise of the right in practice. Its restriction was permitted only in special circumstances (pp. 57880).
(3) Under Article 43 of the Constitution any limitation on a freedom was not valid unless its restriction on a protected right was acceptable and demonstrably justifiable in a free and democratic society. The Constitution's objective of protecting guaranteed rights was primary; exceptional circumstances alone warranted minimal impairment (pp. 5802).
(4) Section 50 aimed to protect the public from false statements, rumours and reports that might cause alarm, destabilizing colonial authority. Its post-colonial retention was probably due to lack of review. Section 50 did not fall within the parameters of Article 43 of the Constitution. It failed the first test of validity. The respondent had not shown that the limitation was necessary to prevent prejudice to the public interest; Section 50 was directed to a danger to the public interest that was remote and uncertain. Neither was it acceptable and demonstrably justifiable in a free and democratic society. The democratic principles to which Uganda was committed were universal in nature. Section 50 gave insufficient guidance as to what could be safely published. In such a society it was neither acceptable for a law to place the media, with its key role, in such a dilemma nor to give the state prosecutor such unfettered discretion (pp. 58295).
Per Justice Oder: (1) While the freedom of expression protected by Article 29(1) of the Constitution was not absolute but subject to its Article 43, the Constitutional Court appeared more concerned with justification for the limitation imposed by Section 50 than protecting the freedom itself, and more concerned with the limitation under Article 43(1) than with the provisions of Article 43(2)(c) (pp. 5968).
(2) The standard for what was acceptable and demonstrably justifiable in a free and democratic society was universal. Uganda was party to several international human rights treaties which all provided for the universal application of those rights and the principles of democracy. The framers of the Constitution had intended to commit Uganda to democracy as universally known, particularly in light of Uganda's history (p. 598).
(3) The Constitutional Court should have followed relevant authorities. It was a universally acceptable practice that cases decided by the highest courts in jurisdictions with similar legal systems be followed, although not binding. Cardinal principles of constitutional interpretation applied, such as treating provisions as a whole and so as to secure maximum enjoyment of the right (pp. 5989).
(4) The crucial issue was whether the limitation imposed by Section 50 went beyond what was acceptable and demonstrably justifiable in a free and democratic society under Article 43(2)(c). The respondent had not proved that the restriction was necessary. Section 50 failed this test (pp. 599603).
Per Justice Kanyeihamba: The Constitution was the supreme law of the land, to be interpreted contextually and purposefully. It was a living instrument designed for the good governance, liberties, welfare and protection of all persons in Uganda. Since Section 50 restricted the appellants' freedoms unconstitutionally, it was null and void (pp. 6035).
Per Justice Tsekooko: (1) The value attached to persuasive authorities from other common law jurisdictions depended upon the position in the hierarchy of the court which decided the case. A reference to authoritative relevant cases was good practice (pp. 6089).
(2) Using an objective test to ascertain whether a law was reasonably justified in a democratic society, as used by Canadian courts, was the correct approach. That the framers of the Constitution had opted for an objective test was clear from the incorporation of human rights provisions set out in various international instruments (pp. 60910).
(3) The Constitutional Court had the duty to strike down any law restricting freedom of speech as guaranteed to citizens under the Constitution (p. 610).
Per Chief Justice Odoki: (1) Freedom of expression, one of the fundamental freedoms pertaining to the citizen as a human being, was recognized and protected by many international conventions and declarations as well as national constitutions. The freedom of the press, the right to investigate and publish freely, was within its scope (pp. 61011).
(2) The importance of freedom of expression to a democratic society could not be over-emphasized. Democracy was a fundamental constitutional value and principle in Uganda. It was not, however, absolute even in the most democratic societies (pp. 61113).
(3) The general standard for testing permissible limitations was contained in Article 43. Criteria had also evolved in foreign case law. Section 50 was too vague to provide the necessary certainty for an acceptable limitation on the freedom of expression. The limitation was disproportionate to its objective. The review of such laws inconsistent with the Constitution was due (pp. 61314).
Per Acting Justice Byamugisha: (1) The Constitution ushered in a new constitutional order; one objective was to build democracy for which a free flow of information was necessary, even if some was false (pp. 61517).
(2) The Constitution was the yardstick for all laws. Section 50 was rendered ineffective by the Constitution and the Press and Journalist Act 1995. Such broad discretion on the part of the Director of Public Prosecutions could not be right. An opinion, even if false, could be expressed if it did not prejudice the rights of others or public interest. Society had to learn to accommodate a wide variety of views (pp. 61721).
Per Justice Karokora: Considering the importance of the media in a democratic governance, a law that created such uncertainty as to whether publication constituted a criminal offence and gave the prosecutor unfettered discretion was unacceptable and unjustifiable in a free and democratic society. The criminalization of false news was tantamount to removing rights guaranteed under Article 29(1)(a) of the Constitution (pp. 6223).
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