• A case study of Joseph Kabuleta's weekly rants

‘Imprisoning someone on the basis of limiting Article 29 is similar to using a sledge hammer to kill a fly.’
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‘Imprisoning someone on the basis of limiting Article 29 is similar to using a sledge hammer to kill a fly.’

By Simon Ssenyonga

On July 12, 2019, at about 17:50 hours, Joseph Kabuleta - former sports journalist - commonly known as the Watchman, while at Drew & Jack's Patisserie at Lugogo was rounded up by ununiformed operatives in a car identified with registration plate number UBB 459D and taken to an unknown location.

After posts about his kidnap (which the Police later clarified to have been an arrest) went viral in the media, the Ugandan Police Force issued a statement charging him with the offence of offensive communication contrary to section 25 of the Computer Misuse Act of 2011.

First off, let us examine this rant and posts by Kabuleta in the run-up to his arrest. On July 8, 2019, Kabuleta posted a write-up (which has commonly come to be addressed as the weekly rant) on Facebook titled, "Mafia Empire and the Transition." What was unique about this article was that he highlighted a purported move by the President to have his son succeed him in his political career and the alleged deliberate steps taken thus far. According to the Police press statement issued five hours after Police denying his whereabouts, it is claimed that he addressed the person of the President with grossly offensive words like, ‘thief', ‘gambler' and ‘a liar'. Unfortunately, a read of this particular text in context does not explicitly reveal any use of such words. Perchance the Ugandan Police Force interpreted his write-up to imply the use of such words.

In order for us to critically analyse the offence in section 25, it is necessary to breakdown its ingredients, which are; willful and repeated use of electronic communication, an intention to disturb or attempt to disturb the peace, quiet or right of privacy and no purpose of legitimate communication. This provision is very analogous to the former section 50 of the Penal Code Act - on publication of false news - which came into contestation in the case of Charles Onyango Obbo and Andrew Mwenda v. the Attorney General, Constitutional Petition 15/97 decided in 2000. This case sought to discuss the freedom of expression enshrined in Article 29 of the 1995 Ugandan Constitution, the lawful limitations permitted by law under Article 43, and the various remedies available to the government under such circumstances such as the use of state-controlled media to rebut and clarify such assertions.

In the words of Justice Kanyeihamba in his landmark decision, ‘Imprisoning someone on the basis of limiting Article 29 is similar to using a sledgehammer to kill a fly.'

We have had similar incidents happening in the US, where allegations have been brought against President Trump. He has also been called all sorts of names via electronic and televised media. However, he has always responded via twitter or simply ignored whatever has been said by brushing it off as ‘fake news'. The totally opposite reaction in the Ugandan context - with regard to the rant in context - may, unfortunately, pass off as a case of extreme insecurity by the concerned parties.

It is also important for us to note that there is no such ingredient as abuse of the person of the President under section 25 of the Computer Misuse Act, as per the statement of the Uganda Police regarding the charges preferred against Joseph Kabuleta. Credence cannot be sought from section 24 of the Penal Code Act which talks about annoying or ridiculing the person of the president because it mainly looks at physical infliction of harm or incitement to do such physical acts that may harm the president.

Lastly, there is no viable definition of what amounts to "legitimate communication" under the interpretation section of the Act. This ambiguity makes it a battlefield as to whether Kabuleta's weekly rant amounts to a legitimate communication or not in order to fulfil the ingredients of this crime.

Perhaps the questions we should be asking ourselves are whether section 25 of the Computer Misuse Act is a lawful and constitutional provision, and also, if many have come out to critique various actions of the current regime, why has Joseph Kabuleta attracted such peculiar attention? Lastly, were there no better ways of dealing with the matter as was advised in earlier Supreme Court decisions such as use of media to respond to such allegations as are purported to be in the rant? We surely might have a thing or two to learn from President Donald Trump.

The writer is a lawyer with Crownel Co. Ltd

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