Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
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The Uganda Court Reporters Association appealed to the High Court of Uganda to review a magistrate court’s decision to exclude both the press and the public from an upcoming criminal trial on the basis of national security. The High Court overruled the decision, holding that the court had acted unfairly and unreasonably because it had not properly balanced competing rights and interests.
A magistrate court ordered that the Uganda Court Reporters Association (the Association) be excluded from attending the trial of Ronald Poteri, who was charged with wrongful communication and leaking information. The Association filed an application for judicial review to the High Court of Uganda, seeking to overrule the magistrate court’s decision to exclude the press and general public from the proceedings. The exclusion prohibited them to publish, broadcast, or otherwise disseminate any information relating to the trial.
The Attorney General requested to have the proceedings in-camera for national security reasons. Primarily, because the accused was charged with disclosure of official secrets, and the evidence that was going to be introduced at trial would be classified. The Attorney General also argued that, according to the Ugandan Constitution and to the Official Secrets Act, the magistrate court had discretion to grant the state’s application for reasons of morality, public order, and national security.
The Association requested the High Court to declare the order of the magistrate court not only invalid, but also unjustifiable. It also requested that, in conformity with the principle of open justice, the High Court lift the restriction imposed by the magistrate court. The Association also contended that magistrate court’s decision had been reached through irrationality, illegality, and procedural impropriety that warranted judicial review. The Attorney General opposed judicial review, stating that it was not the proper procedural mechanism and that the magistrate court had committed no error when exercising its discretion.
Justice Lydia Mugambe delivered the opinion of the High Court of Uganda at Kampala. Mugambe identified that the controversy concerned the right for in-camera proceedings on the basis of national security and access to court proceedings and information by the press and the public. Mugambe stated that both competing rights are legally protected by Uganda’s Constitution. In assessing the case, Mugambe employed a comparative analysis of jurisprudence from South Africa, the United Kingdom, and Canada, as well as an analysis of Uganda’s constitutional framework.
Mugambe recognized the importance of open justice and the role of media access to legal proceedings. More importantly, she asserted that if the state objects to the release of the information, it must provide evidence to support its claim of secrecy. It cannot be a mere invocation of security and privileged information. The courts have to balance the competing rights and determine whether a matter falls within the exception of Article 41 of the Constitution.
To satisfy the requirement to find a balance between the two rights, the magistrate court should have requested evidence from the state to support its secrecy claim. The magistrate court also should have evaluated the nature of the limitation sought by the state and verified that it’s purpose could not be achieved through less restrictive means. Mugambe also pointed out that, pursuant to Article 28 of the Constitution, the magistrate court should have properly evaluated the dangers of the in-camera proceedings to decide if such a limitation was sufficient in a free and democratic society.
According to Mugambe, because the magistrate court had not weighed and evaluated both competing rights, it acted unreasonably and unfairly. The state had not supported its secrecy claim, and, therefore, the magistrate court was obligated to request evidence to support its claim, which it had not done. Mugambe concluded that the magistrate did not properly balance the competing rights, as it did not considered the public interest as required by Article 43(1) of the Constitution. For these matters, Mugambe determined that the magistrate court had committed an illegality, had been irrational, and that its decision was clothed in procedural impropriety. Therefore, the High Court overruled the decision of the magistrate court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the High Court of Uganda has been lauded as a historical breakthrough. It is an important decision in which open justice triumphed over the rhetoric of national security. The state has to provide evidence to support its secrecy and national security claims, and courts have to balance the claim of national security or secrecy with the right to information and the principle of open justice.
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.
The decision has been praised as a victory for open justice, determining that courts have to strike a proper balance between competing rights of the state, vis-à-vis national security and secrecy claims, and the rights of the press and of the public to have access to information.
Let us know if you notice errors or if the case analysis needs revision.