Stella Nyanzi (who describes herself as a “thinker, scholar, poetess, lyricist, writer, Facebooker and creative producer”) was charged by the Uganda Police in March, 2017, for offensive communication contrary to section 25 of the Computer Misuse Act 2011.

The particulars of the offense read as follows,

“Stella Nyanzi … made a suggestion or proposal referring to his Excellency Yoweri Kaguta Museveni, the President of the Republic of Uganda as among others ‘A pair of Buttocks’ which suggestion/proposal is obscene or indecent.”

Since Nyanzi’s arrest, Ugandan communicators including those who utilize social media platforms such as Blogs, Facebook and Twitter have been debating the question, “How free is our Freedom of Expression and when does offensive language become criminal? This Blog seeks to contribute to that ongoing debate.

The Freedom of Expression is guaranteed under Article 29(1) (a) of the 1995 Constitution of the Republic of Uganda. This provision states that “every person shall have the right to freedom of speech and expression which shall include freedom of the press and other media.” ‘Other media’ in this context includes Social Media platforms like Facebook that Stella Nyanzi utilized to voice her critique on how Uganda is being governed. While the current Constitution is lauded for being progressive and democratic, it gives no definition of the right to freedom of expression.

The old 1962 and 1967 Constitutions defined the right to freedom of expression as “Freedom to hold opinion and to receive and impart ideas and information without interference.” This definition is still relevant today as was held by the Supreme Court of Uganda.

Every person therefore has a right to hold an opinion as well as the right to decide whether to express it or not. An opinion can be disseminated through political discourse, canvassing, cultural and artistic expression, religious discourse, teaching, and through commercial advertising. Stella Nyanzi often utilizes cultural and artistic expression such as her undress protest at Makerere University in 2016.

‘Offensive expression’ should only cover grave expressions such as those that incite discrimination on the basis of race, religion or nationality. Recent developments have however revealed that most of what is referred to as ‘offensive language’ in Uganda is usually personal opinions against the regime and does not qualify to be categorized as ‘offensive’.

Dr Stella Nyanzi
Dr Stella Nyanzi

Besides Stella Nyanzi, other Ugandans have had their right to freedom of expression gagged on grounds of ‘offensive language’. In October 2016, the Uganda Communications Commission (UCC) issued a directive against NTV compelling the TV station to stop broadcasting programmes featuring Frank Gashumba as a guest speaker because the political analyst was allegedly using profane and abusive language. Earlier in November 2015, the UCC issued a similar directive against five Radio Stations as well as four Television Stations, which routinely hosted Mirundi Tamale, a renowned Political Analyst.

The pertinent question to pause here is; in what circumstances is the state justified to limit the right to freedom of expression?

The right to “hold opinions and to impart ideas and information” is not an absolute one and according to Article 43 of the Constitution, it can be limited if its enjoyment will prejudice the freedoms of others or if Public Interest demands so.

Ugandan Communicators only cross the line of Freedom of Expression when their spoken, written, sign language  and  nonverbal  expression such as  images and objects of art are offensive enough. To qualify as offensive enough, the communication must threaten national security, or, public health, or, public order, or, public morals, or, it must be an infringement of the rights of others. Only then, can the State limit the Communicator’s Freedom of Expression, However the limitation must satisfy three tests before being imposed by the State.

The limitation must be provided for in a specific Law. In the case of Stella Nyanzi the Law that was relied on is the Computer Misuse Act 2011 which creates the crime of offensive communication.Section 25 of that law provides that a person commits the crime when he/she willfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no legitimate purpose. Determining what amounts to ‘disturbing the peace and quiet’ is a legal question that must be answered before convicting the individual.

Yong-Joo Kang of Korea was arrested and detained under allegations of contravening the National Security Law because he wrote publications opposing the state military regime of the 1980’s and these were said to be aimed at destroying the free and democratic basic order of Korea. The Human Rights Committee heard his case and found that any law that compels an individual to alter his/her political opinion restricts the freedom of expression. Holding a dissenting view about the ruling party does not amount to ‘disturbing the peace’ and therefore Ugandan Communicators are entitled by right to hold opposing opinions against the Government and to express these opinions through various mediums.

Secondly, the limitation must have a legitimate aim. The law should be aimed at protecting national security, or, public health, or, public order, or, public morals, or, the rights of others. A desire to shield a government from criticism can never justify limitations on free speech.

Thirdly, the limitation must be necessary. This test requires that the objective of the limitation should be sufficiently important to override a fundamental right. The measures set to achieve the objective must not be arbitrary, unfair or based on irrational considerations. The means used to impair the right to freedom of expression must be proportionate and necessary to the objective of the limitation. When Andrew Mwenda and Charles Onyango Obbo challenged the law criminalizing the ‘publication of false news’, the Supreme Court found in their favour and held that the law was unconstitutional because it failed to meet the tests outlined above.

Ugandan Communicators should boldly hold and express their views, plainly or metaphorically and we should not be intimidated when State threatens us, as has been done to some of the vocal political analysts. Criticism of Government is pertinent in attaining a free and democratic Uganda and we can legally do this using our art, our words and our bodies as long as we keep within the permissible boundaries set by both National and International laws.

This blog was originally curated from Daphine Arinda’s Blog