Case Summary and Outcome

The Civil Division of the High Court of Uganda at Kampala held, inter alia, that directives requiring the registration and accreditation of journalists by the Media Council of Uganda were illegal, irrational, and procedurally irregular. The directives were issued by the Media Council as a prerequisite to covering the 2021 general elections in Uganda. The applicants were the Editors Guild Uganda and the Centre for Public Interest Law – groups representing journalism and press freedom and independence – which sought orders of certiorari to defeat the directives. Honorable Justice Esta Nambayo accepted the case for judicial review and specifically found that efforts to register and accredit journalists were outside the scope of the Media Council’s powers under the Press and Journalist Act. The Court did not decide on arguments that freedom of expression was violated as that basis was not appropriate to address under judicial review.

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Facts

The applicants were the Editors Guild Uganda Limited and the Centre for Public Interest Law Limited. The Editors Guild Uganda was a professional body incorporated in Uganda comprised of senior journalists and scholars of journalism and media studies. The members aspire to practice journalism in Uganda and contribute to media professionalism, media freedom, and press independence.

The Centre for Public Interest Law was a public interest organization incorporated in Uganda with the goal of promoting respect for human rights, constitutionalism, rule of law, good governance, and engaging in public interest litigation. It also shared an interest in advancing media and press freedoms in Uganda.

On December 10, 2020, the Media Council of Uganda issued directives in a press statement labeled “Guidelines for Media Council of Uganda Accreditation of Journalists for Coverage of 2021 Elections and Other State Events”. Specifically, all journalists in Uganda were directed to register and become accredited by Media Council as a step to covering the 2021 general elections. No journalist would be permitted to cover any election or State event without a press tag issued by the Media Council.

The Media Council issued a subsequent statement that dismissed concerns raised by the Editors Guild and maintained its directives. It also extended the registration deadline from December 21 to December 30.

On December 30, 2020, the Deputy Inspector General of the Police stated that the police and sister security agencies would block journalists without Media Council-issued press cards from covering the 2021 general elections.

The applicants contended that the Media Council disregarded their concerns and were aggrieved by its statement. The directives were widely condemned as illegal, irregular, and irrational for contravening the Press and Journalists Act, restricting media and press freedoms, and violating constitutional freedoms of expression, access to information, and the practice of journalism as a profession. The applicants thus brought an application against the Attorney General, the respondent. The respondent filed affidavits opposing the application.

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Decision Overview

Honorable Justice Esta Nambayo of the Civil Division of the High Court of Uganda at Kampala sought to determine three issues: (1) whether the application raised issues for judicial review; (2) whether the directives were illegal, irrational, and procedurally improper; (3) what remedies were available to the parties.

Regarding whether the application concerned issues for judicial review, the applicant submitted that the procedure behind the directives was ultra vires of the Press and Journalist Act and the Electoral Commission Act, and contravened the rights and freedoms of the Constitution of Uganda. Such illegality, irrationality, and irregularity opened the directives to judicial review. The respondent contended that the applicants had no locus standi to file a claim for judicial review.

Pursuant to the Judicature (Judicial Review) (Amendment) Rules 2019, any person who had a direct or sufficient interest in a matter could apply for judicial review. The Court reviewed the profile of the applicants and noted that the nature of their businesses suggested that they had sufficient interest in the case and could file for judicial review. Similarly, the issues raised in the application were in accordance with the standard of those raised for judicial review and were properly before the Court.

Regarding whether the directives were illegal, irrational, and procedurally improper, the applicant argued that the respondent acted in breach of the provisions and requirements of the Press and Journalist Act and the Electoral Commission Act. Likewise, the respondent’s attempt to register and accredit journalists was done without certificates of enrolment being issued by the National Institute of Journalists of Uganda (NIJU), which violated the requirement for enrolment with the NIJU under the Press and Journalist Act. The NIJU was no longer operative and could not function to implement the statute. Therefore, the Media Council’s “improvising” [p. 17] to take control was outside its jurisdiction under existing law and challengeable by judicial review.

The respondent submitted that the directives were not irrational and did not unjustifiably curb the rights to practice journalism. The directives were issued in accordance with the Media Council’s mandate to regulate journalism, promote standards and the recognition of media practitioners so they were able to cover matters for the public.

The Court observed that neither party disputed that the NIJU was currently inoperative. Based on this, there was no enrolment taking place, no certificates being issued, and no registration occurring. Thus, it was not permissible for the Media Council to issue practicing certificates and their actions were an illegality that amounted to a procedural irregularity.

Moreover, the Press and Journalist Act did not enable the Media Council to accredit journalists. The Media Council is only empowered to register and issue practicing certificates to journalists in Uganda who have enrolled with the NIJU and paid their respective fees pursuant to the statute. The Court noted that “without the functioning of the [NIJU] the Media Council would be acting outside its mandate” [p. 21].

Reviewing the process for the accreditation of election observers pursuant to the Electoral Commission Act, the Court noted that the Media Council was not mandated to accredit journalists as election observers. Nor were they mandated by the Press and Journalist Act. Overall, the Court found the Media Council’s efforts illegal and irregular.

The applicants had also argued that the Media Council’s guidelines had effectively violated the constitutionally guaranteed freedom of expression, media rights and freedoms, right to access information, and the right to practice one’s own profession under Article 29(1)(a), 41(1), 40(2) of the Constitution of Uganda. Specifically, the statement by the Deputy Inspector General of the Police violated those rights and freedoms, contravening the obligation of the State under Article 20(2) of the Constitution to “respect, uphold and promote” those principles.

Referencing Media Council of Tanzania v. Attorney General EACJ [Reference No. 2 of 2017] and Scanlen & Holderness v. Zimbabwe Communication ACHPR [2009] 297/2005, the applicants added that similar accreditation requirements were found to be contrary to freedom of expression by the East African Court of Justice and the African Commission on Human and People’s Rights.

The Court noted that only three matters were set out in the case by the applicants. The illegality of the guidelines on the basis of constitutional rights and freedoms being violated had not been included. In addition, judicial review was concerned with decision-making processes, “not with the decision in issue per se” [p. 26]. In the Court’s view, the human rights issues raised did not fall under judicial review remedies sought in the application. Particularly, a proper and tailored application on the violation under Article 50 of the Constitution would need to be made and it could not be addressed simply as an issue under judicial review. Therefore, violations of rights and fundamental freedoms should be filed in accordance with the constitutionally provided regime and not inappropriately tagged along with administrative applications.

Regarding remedies, the applicants had sought orders of certiorari to defeat the directives of the Media Council. However, the Presidential and Parliamentary General Elections transpired on January 14, 2021 – before this ruling was delivered. The Court noted that the Local Government Elections, which were yet to be held, comprised part of the General Elections. Therefore, the Court issued the following orders:

1. The directives were quashed for being illegal and irrational.
2. The illegal registration and accreditation of journalists was quashed for being illegal, irrational, and procedurally irregular.
3. The Media Council and any other regulatory agents were prohibited from illegally or irrationally curbing media and press coverage of the 2021 general elections.
4. The respondent’s security agencies were permanently enjoined from implementing illegal and irrational directives.
5. The registration of journalists without an operational NIJU to enroll journalists pursuant to the Press and Journalists Act was declared illegal, irrational, and procedurally irregular.
6. The respondent’s failure to operationalize the NIJU was declared illegal and irrational.
7. The respondent had to pay the costs of the application.

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