Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
Closed Expands Expression
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The United Nations Working Group on Arbitrary Detention (WGAD) rendered an opinion that found that the deprivation of liberty of a well-known Ugandan academic and activist, Stella Nyanzi, was arbitrary. Ms. Nyanzi was arrested and charged under the Computer Misuse Act, 2011, after writing a number of Facebook posts that were critical of the Ugandan President and the First Lady (who is also the Minister of Education). In its Opinion, the WGAD applied heightened scrutiny to Ms. Nyanzi’s case in light of her role as an academic and social activist. The WGAD found that Ms. Nyanzi’s arrest and detention amounted to a violation of her rights to freedom of expression, a fair trial, the presumption of innocence, liberty and security of person, and freedom from torture or to cruel, inhuman or degrading treatment. The WGAD also commented on the nature of the legislative provisions criminalising cyber harassment and offensive communication in Uganda, under which Ms. Nyanzi was charged, and stated that when laws are so broadly and vaguely worded as these they may have a chilling effect on the exercise of the right to freedom of expression.
On January 27, 2017, Stella Nyanzi, a well-known Ugandan academic, human rights defender and activist, referred to President Museveni as “a pair of buttocks” on her public Facebook page. On February 15, 2017, she also wrote a Facebook post which criticised the Minister of Education – who is also the First Lady, Janet Museveni – for failing to realize an election promise to provide free sanitary pads for schoolgirls. Ms. Nyanzi had been a vocal critic of President Museveni and a supporter of his political opponent, Kizza Besigye. Ms. Nyanzi was also an advocate for controversial issues in Uganda, including the rights of lesbian, gay, bisexual, transgender and intersex persons. After President Museveni won his fifth presidential election on February 18, 2017, Ms. Nyanzi began experiencing an increase in harassment from State agents. [para. 5]
On March 6, 2017, she was interrogated by the Directorate of Criminal Investigation and Crime Intelligence in connection with her Facebook posts. On March 19, she was prevented from attending an academic conference in the Netherlands. On March 31, she was suspended from her job as a research fellow at Makerere University (a university over which the First Lady was in charge as Minister of Education). [para. 7] On April 2, Ms. Nyanzi’s home was raided by armed individuals who threatened her three children and her domestic worker. Ms. Nyanzi’s sister also reported that she had been followed by armed individuals. [para. 8]
On April 7, 2017, Ms. Nyanzi was arrested after giving a speech at a hotel in Kampala. It was reported that she was forcibly removed from her own car outside the hotel and put in the back of a vehicle by plain-clothed members of the police unit called the “Flying Squad.” The “Flying Squad” was responsible for policing violent crimes. [para. 9] Ms. Nyanzi was then taken to the Kira Division police station where she was detained, physically assaulted, and denied access to a lawyer for 18 hours. When her lawyer eventually saw her, Ms. Nyamzi’s clothes were torn and she had been denied feminine hygiene products.
Ms. Nyanzi first appeared in the Bugandan Road Magistrate’s Court three days after her arrest. At this first hearing, she was formally charged under sections 24(1), 24(2)(a) (cyber harassment) and 25 (offensive communication) of the Computer Misuse Act, 2011 (Act) in relation to her Facebook posts about President Museveni, including her post referring to him as “a pair of buttocks.” Sections 24(1) and 24(2)(a) of the Act make it an offence to “mak[e] any request, suggestion or proposal which is obscene, lewd, lascivious or indecent.” Section 25 of the Act criminalizes communication that “disturbs or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication.” [para. 23]
In the Magistrate’s Court, the prosecution filed an application under the Mental Treatment Act, 1938 to determine Ms. Nyanzi’s sanity, which would require a fourteen-day stay at a mental hospital. The Magistrate’s Court did not consider Ms. Nyanzi’s bail application at this hearing as it had to first consider the prosecution’s application to carry out the assessment. Ms. Nyanzi was placed in remand at a maximum-security prison, and during her stay at this prison the prosecution attempted to obtain a forced mental examination. Ms. Nyanzi approached the High Court to seek bail. On April 25, 2017, the High Court held that the prosecution was entitled to obtain a mental evaluation and that no bail application would be considered until that examination had been conducted. Ms. Nyanzi’s lawyer was not given the opportunity to examine a police witness, whose affidavit testimony was relied on by the prosecution to make the application for a mental examination.
During the proceedings against Ms. Nyanzi, a government spokesperson gave an interview in which he said that the case of Ms. Nyanzi was not properly managed but also reportedly added “I doubt Nyanzi or the forces behind her, which is Besigye and company plus the LGBT lobby, can sustain an extended political fight with us Government on any issue”. [para. 16]
A source approached the Working Group on Arbitrary Detention (WGAD) to raise the issue of Ms. Nyanzi’s detention. On May 9, 2017, the WGAD sent a communication to the Government of Uganda in connection with Ms. Nyanzi’s detention. The source argued that Ms. Nyanzi’s detention fell within a number of the five categories of arbitrary detention as defined by the WGAD. According to these categories, the WGAD considers an individual’s detention to be arbitrary when (I) it is clearly impossible to invoke any legal basis justifying the deprivation of liberty, (II) the deprivation of liberty results from the exercise of certain rights or freedoms guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (including the right to freedom of expression), (III) the total or partial non-observance of the international norms relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an arbitrary character, (IV) asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy, and (V) the deprivation of liberty constitutes a violation of international law on the grounds of discrimination. The source argued that Ms. Nyanzi’s detention fell within categories I, II, III, and V arbitrary detention.
The Government of Uganda did not respond to the communication or make submissions, and the WGAD proceeded to consider Ms. Nyanzi’s situation on August 24, 2017. At the time of the WGAD’s hearing, Ms. Nyanzi was still detained in the maximum-security facility.
On August 24, 2017, the UN Working Group on Arbitrary Detention (WGAD) rendered an Opinion stating that Ms. Nyanzi’s deprivation of liberty was arbitrary and fell within categories I, II and III. The WGAD began by reiterating that it applied a “heightened standard of review in cases where the freedom of expression and opinion is restricted or where human rights defenders are involved”. [para. 46] It held that “Ms. Nyanzi’s role as a prominent academic and social activist defending women’s rights and the rights of lesbian, gay, bisexual, transgender and intersex persons requires the Working Group to undertake this kind of strict scrutiny.” [para. 46]
The WGAD first considered the case in relation to category I arbitrary detention, which concerns deprivation of liberty without invoking any legal basis. The WGAD found Ms. Nyanzi’s detention to fall within category I because the Government of Uganda failed to undertake the necessary formal procedures to establish the legal basis for her arrest, held her incommunicado for eighteen hours, and held her in pre-trial detention beyond the 48-hour limit within which a defendant had to be brought before a court in Uganda following arrest.
The WGAD then went on to consider the detention in relation to category II, in particular whether Ms. Nyanzi’s detention violated the right to freedom of expression. The WGAD reiterated that “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties” (See, Human Rights Committee, General Comment 34). [para. 52] It went on to observe that Article 19 of the International Covenant on Civil and Political Rights (ICCPR) “includes the right of individuals to criticize or openly and publicly evaluate their Governments without fear of interference or punishment”. [para. 53] In this respect, the WGAD made reference to, among other things, Ms. Nyanzi’s advocacy for schoolgirls to have access to hygiene products and the rights of lesbian, gay, bisexual, transgender and intersex persons.
The WGAD noted a number of the measures taken by the state against Ms. Nyanzi in 2017. With regard to her prosecution under sections 24(1), 24(2)(a), and 25 of the Computer Misuse Act, 2011 (Act), the WGAD could not find Ms. Nyanzi’s detention necessary or proportional for the purposes set out in Article 19(3) of the ICCPR (respect of the rights or reputations of others; the protection of national security or of public order, or of public health or morals). The WGAD also could not find it plausible that Ms. Nyanzi’s Facebook posts threatened national security or public order, let alone public health or morals”. [para. 58] Accordingly, the WGAD found that Ms. Nyanzi’s detention was in violation of Article 19 ICCPR and was, therefore, arbitrary in terms of category II.
In relation to category III, the WGAD held that Ms. Nyanzi’s detention infringed the right to a fair trial and that these infringements were “of such gravity as to give her deprivation of liberty an arbitrary character”. [para. 63] For instance, the WGAD noted that she was not brought promptly before a judge, was held incommunicado, was not informed promptly and in detail of the nature and reasons for the charges against her, was interrogated without her lawyer present and under torture or cruel, inhuman or degrading treatment, did not have adequate time and facilities to prepare her defence to the application for a mental examination, and her lawyer was not allowed to cross-examine a witness relied on by the prosecution in support of their application for a mental examination. The WGAD also noted that the State’s treatment of Ms. Nyanzi violated the principle of the presumption of innocence.
In addition, the WGAD further analysed sections 24(1), 24(2)(a) and 25 of the Act in light of the principle of legality. It noted that “[o]ne of the fundamental guarantees of due process is the principle of legality, including the principle of nullum crimen sine lege certa, which is particularly relevant in the case of Ms. Nyanzi. The principle of legality, in general, ensures that no defendant may be punished arbitrarily or retroactively by the State.” [para. 64] It went on to observe that “[l]aws that are vaguely and broadly worded may have a chilling effect on the exercise of the right to freedom of expression, as they have the potential for abuse”. [para. 65] The WGAD noted that criminal laws must be drafted in such a way that an individual has “a proper indication of how the law limits his or her conduct” and that the law must be sufficiently precise so that an individual can regulate his or her conduct. It noted that the relevant provisions in the Act contained “unclear wording that denies foreseeability for potential, unsuspecting defendants”. [para. 67]
In light of the above, the WGAD concluded that the deprivation of liberty of Stella Nyanzi violated several rights under the ICCPR, including the rights to freedom of expression, a fair trial, the presumption of innocence, liberty and security of person, and freedom from torture or to cruel, inhuman or degrading treatment. Therefore, it found her detention to be arbitrary and within categories I, II, and III. The WGAD requested that the Government of Uganda bring Ms. Nyanzi’s situation “into conformity with the standards and principles set forth in the international norms on detention”. [para. 72] It went on to opine that “the appropriate remedy would be to release Stella Nyanzi immediately and accord her an enforceable right to compensation and other reparations.” [para. 73] In addition, the WGAD urged the Government of Uganda “to bring the relevant legislation … which has been used to restrict the right to freedom of expression, into conformity with the commitments of Uganda under international human rights law”. [para. 74]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Opinion of the Working Group on Arbitrary Detention (WGAD) expands expression as it finds the arrest and detention of an outspoken activist under cyber-crime legislation to be a violation of various aspects of international human rights law. In doing so, it confirmed that, when a human rights defender’s right to freedom of expression is restricted in this manner, there is a need for a “heightened standard of review” in ascertaining the legality of their detention. The WGAD also provided useful statements on the incompatibility of three provisions of Ugandan cyber-crime legislation with international law and the principle of legality. For instance, it stated that vague and overbroad laws can have a “chilling effect” on individuals’ exercise of freedom of expression, and that the law had to be brought into conformity with Uganda’s commitments under international human rights law. Such statements will undoubtedly assist constitutional challenges to such provisions that have been brought in Uganda and elsewhere.
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