Case Summary and Outcome

Journalist Andrew Mwenda made several comments critical of the President and the government of Uganda on his live radio talk show. The state charged him with the crime of sedition, pursuant to sections 39 and 40 of the Penal Code, because his remarks were made with the intention to bring into hatred and contempt against the President, government, and Constitution. The Constitutional Court declared null and void the sedition provisions from the Penal Code because they were in contravention with the enjoyment of the right to freedom of expression.

Facts

Andrew Mwenda is a Ugandan journalist and host of a radio talk show. During his live talk show, Mwenda was critical of the head of state and the Ugandan government. He also expressed that the government was partly to blame for the death of Sudan’s former first Vice-President, John Garang, who was killed in a helicopter crash after his visit to Uganda. The state charged Mwenda with the crime of sedition under sections 39(1)(a) and 40(1)(a) of the Ugandan Penal Code. Particularly, the state alleged that the remarks made by Mwenda had the intention to bring into hatred and contempt or to excite disaffection against the President, the government and the Constitution.

Mwenda and the Eastern African Media Institute (EAMI) challenged the constitutionality of the said sections of the Penal Code because they were contrary to articles 29 and 43 of the Constitution that guarantee the right to freedom of expression. Specifically, Mwenda argued that sections 39 and 40 of the Penal Code limited the enjoyment of the right to freedom of expression enshrined in article 29(1)(a) of the Constitution. Also, he submitted that both sections of the Penal Code were not demonstrably justifiable in a free and democratic society as established in article 43(2)(c) of the Constitution. Likewise, the EAMI also petitioned the Constitutional Court to declare unconstitutional sections 41 (that criminalizes the promotion of sectarianism), 42-44 (sedition related provisions) and 179 of the Penal Code for being vague and contrary to the Constitution.

The state established that the rights to freedom of expression and of the press were not absolute rights. The Attorney General of the state asserted that the crime of sedition, embodied in section 39 and 40 of the Penal Code, was a justifiable limit to the right of freedom of expression. Moreover, the state established that section 41 of the Penal Code that referred to the promotion of sectarianism had the purpose of protecting social harmony and public order in Uganda.

Decision Overview

Deputy Chief Justice Leticia Mukasa Kikonyogo delivered the unanimous decision of the Constitutional Court of Uganda. Firstly, the court considered if the sedition crimes, embodied in sections 39 and 40 of the Penal Code, were inconsistent with article 29 of the Constitution that guarantees freedom of expression. The court answered in favor of Mwenda. The court determined that the state had the burden of proof to prove that the remarks made by Mwenda unduly affected the public interest. According to the court, the state did not provide evidence to prove prejudices to the public interest. Moreover, the court asserted that the sedition provisions are too vague and inhibited the enjoyment of the right to freedom of expression under article 29 of the Constitution.

Secondly, the court determined that the state had the same burden of proof to prove that section 39 and 40 were a justifiable limit to the right of freedom of expression under a free and democratic society. The court also answered in favor of Mwenda. Therefore, the court concluded that the provision pertaining to sedition crimes, sections 39 and 40 of the Penal Code were null and void. The other sedition provisions, sections 42-44 of the Penal Code were declared redundant and also ordered by the court to be removed.

However, the court did not deem unconstitutional section 41 of the Penal Code that criminalizes the promotion of sectarianism. The court argued that the EAMI failed to prove that the crime of promoting sectarianism was in contravention with the Constitution. Finally, the court ordered to relieve Mwenda from criminal prosecution. The state expressed that it will appeal to the Supreme Court regarding the unconstitutionality of the sedition provisions.