Enforce social media ethics for security agencies

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OPINION

By Simeo Nsubuga

The utterances by a Prison officer should be a wake-up call to all the security agencies.

The utterances by Lawrence Ampaire, aka Cop Ampe, a prison officer attached to Ngora Central Government Prison, are a clear indicator of what has been going on for quite some time in our security forces.

He has since joined politics and appeared at a rally recently, castigating the same institution that he swore to protect and serve. To avoid more Ampaires, there's a need for social media etiquette for serving officers and men in security.

It depicts a continuous struggle for Human Rights and Freedoms of security officers, especially their fundamental human right to speak freely vis-à-vis the code of conduct for security officers which bars/stops them from speaking about internal matters of the forces. It is only the Force’s Public Relations Officer (PRO) who is the only officer authorised by the Institution to speak freely. 

Over time, there have been several officers, even of a higher rank than Cop Ampe, who have tried to turn the wheels of free speech while in uniform.

The likes of Gen. David Ssejusa, Gen. Henry Tumukunde, Col. Dr Kizza Besigye, all army/former army officers.

In the Uganda Police Force, ASP Mohammad Kirumira became the most vocal and AIP Ronald Poteri.

Unlike the rest of the officers, Poteri was accused of leaking a secret conversation between then IGP Gen. Edward Kale Kayihura and then Prime Minister Hon. Amama Mbabazi.

The law

Save for the general laws that protect freedom of speech and expression, there is a limited legal framework that empowers Security officers to speak out freely.

Article 19 of the Universal Declaration of Human Right (UDHR), Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the African Charter on Human and People’s Rights (ACHPR) all grant and protect freedom of expression and speech of security officers in their capacity as human being and not as officers, men and women in uniform.

The governing Principle at the UN level is that security officers do not surrender their fundamental human rights when they take their oath.

Any monitoring of their personal social media must be treated as a serious restriction on their rights and must be justified by an individualised, credible threat that meets the high threshold of the necessity and proportionality test.

The closed framework that directly interprets and offers protection to men and women in uniform is the Standards from the UN Human Rights Council and Special Rapporteurs on digital surveillance and the right to privacy. These frameworks prohibit mass network surveillance on social media and other communication tools of everyone, including security officers.

They also prohibit restriction of these freedoms by the State in the guise of protecting National Security, arguing that any restriction should meet the threshold of necessity and proportionality.

At the National level, Article 29 of the Constitution of the Republic of Uganda is the guiding framework. It is also not specific to officers but liberal for every individual.

The UPDF Act, the Police Act and the Prisons Act plus their relevant Codes of conduct for Officers, are even more stringent, allowing only spokesperson and heads of institutions to speak freely. The Division, Regional and district commanders only speak as and when expressly delegated by the Chief of Defense Forces (CDF), Inspector General of Police (IGP) or Commissioner General of Prisons (CGP).

In the Tinyefunza case (Attorney General v. Major General David Tinyefuza, Constitutional Appeal No. 1 of 1997) in which he challenged the Army Code of Conduct as being inconsistent with the 1995 Constitution of Uganda, the Supreme Court was categorical that even in a privileged environment like Parliament, army representatives cannot just speak or reveal information that threatens national security or touches commissions of crime under the guise of privilege. 

In the case of AIP Poteri (Uganda Court Reporters Association Ltd v. Attorney General), Justice Lydia Mugambe, then of the High Court, noted that it is not enough for the state to claim that the information about to be or released by the officer threatens National Security, there should be cogent or otherwise evidence of the threat posed. Without proof, no restriction should be allowed. 

Social Media

The position in most of the above legal frameworks pre-dates the advent of social media. The terrain of communication has since changed. With the increasing use and acceptance of social media platforms like X, TikTok, Whatsapp, Facebook, SnapChat, among others, every person has become a journalist, an editor and a media house in their own right as long as they create an account on the said platforms.

As I speak, a big number of security officers are on TikTok, X, Facebook and have become influencers in their own right. Some use their platforms to pass on official information, others for entertainment purposes and have been seen dancing, singing and doing all sorts of entertainment in uniform. However, security agencies, despite embracing these new medium of communication and opening official pages on these platforms, they have not come up with a direct law addressing or guiding officers on the use of social media both in their private or official capacity.

The above Acts and the Code of Conduct majorly relate to airing views in the legacy media and inappropriate forums within their ranks, and not on social media.

Again, the available existing law is the Computer Misuse and the Data Protection Act. On the flip side, as alluded to above, these are also general as regards the restriction on the use of communication equipment or internet-based applications, and there is nothing specific for security officers and men in uniform.

Proving offences under the Computer Misuse Act, especially where the suspect denies the account on which the message is alleged to have been publicised, was dealt with in the case of Stella Nyanzi v Uganda (Criminal Appeal No. 79 of 2019). 

In this particular case, the High Court acquitted Dr Nyanzi of the offences related to Computer misuse based on the fact that the trial Court failed to establish the territorial jurisdiction of the device used in the commission of the alleged offence. This decision means that for the prosecution to prove any offence related to the use of social media, they have to get data from the proprietors of the social media app, and as we all know, they are not locally domiciled.

Secondly, they survive on free speech and guarantees of safety from surveillance so giving out information related to their subscribers will amount to abuse of trust on their part and loss of mass revenue as a number of subscribers will, most likely, flee the platform. In a way, the decision is very good for the protection of free speech for everyone and warns the state to commence prosecution only when it is highly necessary.

I am aware of the subsequent rulings in the cases of AG Vs Male Mabirizi and AG Vs Isaac Kimaze Ssemakadde, but these are discussions for another day since they are already under appeal.

So, given that social media is here to stay and has become part of us, it is high time its use vis-à-vis the security interest of relevant state organs became a subject in all the police, army and prison officers’ trainings so that the young officers come well equipped with knowledge on responsible use.

In summary, there is a need for amendments of some sections of the police, prisons, and the UPDF acts and the respective codes of conduct for security officers to strengthen the use of social media by the members of the security vis-à-vis the enjoyment of fundamental human rights to speak freely on social media.

The writer is a Member of the Uganda Human Rights Commission