Kahiu v. Mutua
Closed Contracts Expression
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The Kampala High Court in Uganda dismissed an application from a musician-turned-politician seeking a declaration that his right to freedom of expression had been infringed by the cancellation of a series of concerts. The politician planned to play a series of concerts in the fall of 2017, but the police cancelled them on the ground that a previous concert was marred by violence. The Court determined that the politician organized the concert for entertainment purposes and failed to prove that he planned to express specific views at his concert. Thus, he did not clearly show that he was being persecuted for his speech. The Court added that commercial gatherings, such as the one at hand, do not enjoy protection under freedom of assembly.
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Robert Kyagulanyi, known as Bobi Wine, is a Ugandan musician who became a vocal opponent of the Uganda President, Yoweri Museveni and was elected as an opposition parliamentary member in July 2017. In September and October 2017 Kyagulanyi was due to play a series of concerts around Uganda. Police officers stopped these concerts, on the grounds that the Constitution and Public Order Management Act empowered them to do so following violence at a previous concert.
Kyagulanyi filed an application before the High Court in Kampala on the grounds that the concerts’ cancellations violated his constitutionally-protected rights to equal protection under the law (article 21 of the Constitution); a fair hearing (article 28); freedom of expression, assembly, association and conscience (article 29); and to work (article 40). The case was brought against the Commander of the Kampala Metropolitan Police and the Ugandan Attorney General.
The central issue before the Court was whether the cancellation of the concerts was an unjustifiable infringement of Kyagulanyi’s constitutional rights.
There was no dispute that the concerts had been stopped but the police argued that they cancelled the concerts in terms of their mandate under the Constitution and the Public Order Management Act because at a previous concert Kyagulanyi had “uttered political statements, consulted members of the public who were not his constituents and incited violence.” [p. 5]
Kyagulanyi submitted that the reason for the cancellations was to prevent him from engaging with citizens who are not members of the constituency he represents in Parliament, and so constituted an infringement of his right to freedom of expression. In respect of the right to freedom of expression, assembly, association and conscience, enshrined in article 29 of the Constitution, Kyagulanyi focused solely on the infringement of his right to expression.
In defining the right to freedom of expression, the Court undertook an analysis of comparative law and referred to the Indian case of Rangarajan v. Ram 1990 LRC (Const) 412 and the Ugandan case of Obbo v. Attorney General SCCA No. 2 of 2002. The Court also noted that it found the categorization of expression into political expression, artistic expression and commercial expression by Prof. Alastair Mowbray in his book Cases, Materials and Commentary on the European Convention on Human Rights particularly helpful. The Court emphasized that, like article 19 of the International Covenant on Civil and Political Rights and article 9 of the African Charter on Human and Peoples’ Rights, the right to freedom of expression in the Ugandan Constitution can be limited to ensure the enjoyment of other citizens’ constitutional rights.
The Court held that Kyagulanyi bore the onus of demonstrating that there had been an infringement of his right. It found that he had demonstrated that the concerts had been stopped by police, but that there was an “absence of a nexus between the failure to perform at a music show and a violation of the freedom of expression.” [p. 5]] Here, the Court stated that the purpose of a music show is entertainment, and so a cancellation cannot be seen as infringing the right to freedom of expression. The Court held that Kyagulanyi had not claimed to have organized his music shows for the purpose of “articulat[ing] his views whether through song or otherwise” and that for an individual to successfully claim a violation of the right to freedom of expression “it must be clear that the person had uttered words for which he was now being persecuted or planned to make certain utterances but was stopped.” [p. 5] The Court referred to the facts in the Obbo case and in the UK case of Dehal v. Crown Prosecution Services  ALL ER (D) 152, and highlighted that in both those cases the individuals had actively articulated certain views through a newspaper and a notice respectively. The Court held that, in contrast, Kyagulanyi had not proven that “he had specific views which he wished to express at the music shows” and so held that his right to freedom of expression had not been violated. [p. 6]
The Court also held that Kyagulanyi’s right to work had not been violated by the cancellation of the concerts. Here, the Court referred to section 1 of the Public Order Management Act which states that the purpose of the legislation is to “regulate the exercise of the freedom to assembly and to demonstrate together with others peacefully and unarmed and to petition in accordance with Article 29(1)(d) and 43 of the Constitution.” [p. 9] However, the Court stressed that music shows do not fall under the definition of gathering under the Act as section 4(2)(d) explicitly excludes meetings for social, commercial or industrial purposes from the scope of the Act. The Court referred to Kivumbi v. Attorney General Constitution Petition No. 9 of 2005 which had held that the primary obligation on police is to “provide security and supervision” when there is a “reasonable belief” that disturbances may occur at a (planned or spontaneous) gathering. [p. 11] The Court noted that if Kyagulanyi had proved that his right to work had been violated, the onus would have shifted to the police to demonstrate that the right had been limited in accordance with the Constitution, and referred to the Canadian case of R v. Oakes (1986) 1 SCR 103, the African Commission case of Amnesty International v. Sudan  AHRL 297 and the European Court of Human Rights Case of Otto-Preminger Institute v. Austria (1995) 19 EHRR 34.
The Court held that the right to a fair hearing did not arise in the factual circumstances of the case and that Kyagulanyi had not demonstrated that he had been treated differently under the law and so the right to equal protection of the law had also not been infringed.
Accordingly, in finding that Kyagulanyi had not demonstrated that his constitutional rights had been infringed, the Court dismissed the application.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court in Kampala, Uganda adopted a narrow definition of expression in finding that the participation at a music concert did not constitute the expression of an individual’s views, holding that concerts are held merely for entertainment. In this judgment, the Court requires a clear indication of the views expressed in order for the right to freedom of expression to apply and that, in the absence of such an indication, a musician could not argue that interference with his musical appearances could constitute an infringement of the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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