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Lawyers ask EACJ to strike out criminal defamation

By Edward Anyoli

Added 28th August 2020 09:11 AM

The lawyers said freedom of the press is a cornerstone of the community principles of democracy, rule of law, accountability, transparency and good governance

Lawyers ask EACJ to strike out criminal defamation

Attorney General William Byaruhanga

The lawyers said freedom of the press is a cornerstone of the community principles of democracy, rule of law, accountability, transparency and good governance

Lawyers have told the East African Court of Justice that Uganda's law on criminal defamation violates the treaty behind the establishment of the East African Community.

The lawyers have urged the court that the law provided under Uganda's Penal Code, sections 179 and 180, should be quashed.

In the case, reference No.16 of 2014 Ronald Ssembuusi vs The Attorney General of Uganda, the applicant alleges that the criminal defamation laws provided in sections 179 and 180 of the Penal Code Act Cap. 120 Laws of Uganda and its continued enforcement is a violation of freedom of expression and access to information, including media freedoms protected under Articles 6 (d) & 7 (2) of the (EAC) Treaty.

The Attorney General (AG) argues that the court lacks the jurisdiction to interpret the matter and ought to be dismissed with costs to the respondent. The AG further contends that the defamation laws are of general application and serve a deterrent purpose.

The court on Wednesday held a virtual session for the lawyers to make submissions.

Human rights lawyers Nicholas Opio, Catherine Anite and Vision Group's lawyer, Kenneth Ntende, told court that sections of the Penal Code of Uganda violate Uganda's obligations under the treaty for the establishment to recognise, promote and protect human rights.

The lawyers argue that criminal defamation laws present one of the biggest threats to freedom of expression and the media's ability to express freely, stressing that journalists still face criminal charges, especially when reporting about public officials and institutions.

"The applicant submits that the continued application and enforcement of the criminal defamation provisions under sections 179 and 180 of Uganda's Penal Code Act, is in violation of Uganda's obligation under the treaty," Opio said.

The case was previously filed by Ssembuusi (a journalist, now deceased), challenging Uganda's continued application and use of criminal defamation laws under sections 179 and 180 of the Penal Code Act, but currently the case is being pursued through legal representative, by Ssembuusi's brother Edward Kyeyune.

Ssembuusi, who was working with CBS radio, was convicted and sentenced to a fine of sh1m or one year's imprisonment in default. He was found guilty by Kalangala Chief Magistrates' Court of defaming the then district chairperson of Kalangala.

The lawyers said freedom of the press is a cornerstone of the community principles of democracy, rule of law, accountability, transparency and good governance under Articles 6(d) and 7 (2) of the Treaty for the Establishment of the East African Community.

Section 179 stipulates that any person who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that person, commits the misdemeanour termed libel.

Section 180 is about defamatory matter that is likely to injure the reputation of any person by exposing that person to hatred, contempt or ridicule, or likely to damage his or her profession or trade by an injury to his or her reputation.

"A free press goes hand in hand with the principles of accountability and transparency. Freedom of expression is an essential right," Opio said.

What lawyers think

Catherine Anite said the unrestricted flow of ideas and opinions among people is the bedrock of a functioning democracy, helping to hold leaders accountable as well as contributing to developing society.

"In this regard, a free press is essential for the enjoyment of freedom of expression and other rights, and to enable the public in any democratic society receive information and share opinions," Anite said.

Vision Group's lawyer Ntende said criminal defamatory is an archaic law that should no longer be enforced.

"If England from which we got all our laws no longer enforces these laws, why should Uganda continue to enforce them?" Ntende asked.

Attorney General said the East African Court of Justice has no jurisdiction to hear the case and that only Constitutional Court of Uganda has competent jurisdiction to determine the legality of section 179 and 180 of the Penal Code Act of Uganda. Court shall deliver the judgement on notice.

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