Case Summary and Outcome
The Constitutional Court of Uganda held that section 179 of the Penal Code criminalizing libel was not contrary to the right to freedom of expression guaranteed under Articles 29 and 43 of the Constitution.
Four Ugandan journalists with the Daily Monitor Newspaper brought the constitutional challenge following charges brought against them for the unlawful publication of defamatory material in articles concerning Faith Mwondha, the Inspector General of Government.
The Court reasoned that the protection of one’s reputation was a matter of public interest because an individual is a member of the public and renders service to the public. It follows, the Court said, that the protection of one’s reputation justified restrictions on freedom of expression. It reasoned further that criminal sanctions were justified because those who deliberately publish lies intending to damage a person’s reputation commit an egregious act, comparable to acts of assault, fraud, even murder and manslaughter and should be punished.
Joachim Buwembo, Bernard Tabaire, Emmanuel Davies Gyezaho, and Mukasa Robert (Applicants) were professional journalists with the Daily Monitor Newspaper, Uganda’s leading independent newspaper. In August 2007, they contributed to the publication of two articles about a scandal surrounding Inspector General Faith Mwondha. Following her complaint to the police, the Applicants were arrested and charged with the offence of unlawful publication of defamatory matter under sections 179 and 22 of the Penal Code Act. Section 179 provides:
“Any person who, by print, writing, painting, effigy or by any means otherwise than solely by gesture, spoken words or other sound, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person commits a misdemeanor termed libel.” [p. 11]
During the criminal proceedings, the Applicants petitioned the Constitutional Court of Uganda to address the constitutionality of section 179, arguing that the criminalization of libel is inconsistent with Article 29(1)(a) of the Constitution, which recognizes freedom of expression, including a free press, as a fundamental right. They also argued that the impugned criminal provision could not be considered as a lawful means of restricting free speech under Article 43 of the Constitution because the criminalization of a defamatory writing doesn’t protect any known freedom of any person other than the reputation of the complainant, nor does it concern public interest because defamation is a tort and it affects the complainant individually – an action in defamation dies with the person defamed.
To address the constitutionality of section 179 of the Penal Code, the Court began its analysis by examining whether or not the provision fell within the permissible restrictions on derogatory rights under Article 43 of the Constitution, which provides that “[i]n the enjoyment of the rights and freedoms . . . , no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.” [p. 10]
Drawing on Uganda’s case law, the Court affirmed that the right to freedom of expression can be limited to protect other competing fundamental rights including public interest, State security, and sovereignty. The Court went on to say that the test to assess reasonableness of such limitations is “an objective one” and its application must be considered “within the context of the subject matter or circumstances of each case.” [p. 12]
The Court then proceeded to address whether any public interest is served by the underlying objective of criminal defamation laws, namely the protection of one’s reputation. As Article 43 of the Constitution does not define “public interest,” the Court took judicial notice of the definition by Black’s Law Dictionary. It defines as “[s]omething in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.” [p. 13] It was also the Court’s view that reputation itself has two embedded rights: “the right of an individual to have his reputation protected by law, and secondly, the public interest embedded in the individual’s reputation by virtue of the fact that the individual is a member of the public and renders service to the public.” [p. 13]
In addition, the Court held that although the Constitution does not make an explicit reference to reputation, its importance is implied by necessity under Article 45 of the Constitution, pursuant to which,
“[t]he rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.” [p. 13]
Having concluded that the reputation of persons is constitutionally protected under Articles 43 and 45, the Court addressed whether section 179 showed “any kind of arbitrary restriction to the freedom of expression.” [p. 14] In doing so, the Court considered the following factors set out by the Supreme Court of Zimbabwe in Mark Gova v. Minister of Home Affairs, S.C. 36/2000: Civil Appeal No. 156/99:
- The legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding the fundamental right;
- The measures designed to meet the objectives must be rationally connected to it and not arbitrary, unfair or based on irrational considerations; and
- The means used to impair the right or freedom must be no more than necessary to accomplish the objective. [p. 14]
The justices first emphasized “the importance of the reputation of a person to the public” by referring to several Canadian judicial decisions that highlight the integral link between one’s reputation and his or her participation in Canadian society.
As to whether criminal imposition is a justifiable means of protecting the public reputation of an individual, the Court rejected the applicants’ argument that the civil remedies of monetary damages and injunctions were adequate and punitive criminal sanctions were unnecessary. The justices were of the view that “while the victims of such wrongs may well deserve to be compensated, perpetrators who willfully and knowingly publish lies calculated to damage the public reputation of a member of a democratic society ought to be punished.” [p. 16]
Furthermore, the Court deemed libel as an egregious act, similar to acts of assault, sexual assault, fraud, even murder and manslaughter, adding that the existence of criminal sanctions for such offenses, which are also considered tortious, “ensures that those who commit acts society has deemed egregious are properly punished.” [pp. 16-17]
Based on the foregoing reasons, the Court unanimously upheld section 179 as constitutional. According to the justices, to do otherwise, would mean that the right of freedom of expression was unlimited which would contravene Article 43 of the Constitution. The Court, therefore, dismissed the petition in its entirety and ordered the continuation of the criminal proceedings.