Case Summary and Outcome

The Constitutional Court of Uganda at Kampala unanimously held that the petition submitted by the applicants could not be considered and thus struck it out but with no costs due to the public interest nature of the petition. This was ruled after the NGO Unwanted Witness-Uganda and Journalist Tumuhimbise Norman submitted a petition to the Court, in accordance with Article 137 (3) (a) of the Ugandan Constitution, challenging the Government’s shutdown order of social media and access to mobile financial services on two occasions, the presidential and parliamentary elections in February 2016 and the inauguration of the elected president in May the same year. The Court reasoned that the petition should have been submitted before another competent court given that it did not raise any questions of constitutional interpretation but concerned only alleged violations of constitutional provisions through either acts or omissions of the government.

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Facts

In 2016, access to social media and mobile financial services was blocked or shut down during the general elections and presidential inauguration by a governmental order communicated to telecommunication operators and internet service providers based in Uganda, preventing people from accessing them.

On a more personal level, four testimonies were submitted. The first one was deposed by the second applicant, Tumuhimbise Norman, who failed, due to the internet shutdown, to conduct a preset Skype interview on 18 Feb 2016 with an organisation called “Beautiful Trouble” in order to submit his contribution to an annually published book, missing the submission deadline and getting his $500 contract terminated, which was deemed a huge loss to an unemployed young man such as himself.

The second testimony was submitted by Chemonges Ivan in writing who stated that he was unable to continue his journey to Mabarara University of Science and Technology to collect admission application forms as he could not withdraw money from his mobile money account. Consequently, he had to stay at a lodge that cost him USh 106,000 and missed the deadline after finally making it to Mbarara University, and could not apply to any other University, causing him mental and psychological distress.

The third affidavit filed by Ochen Dickson Ojackol asserted that due to the shutting down of mobile financial services, he could not manage to transfer money to his mother in order for her to access medical care leading to a deterioration in her health condition and causing him mental and psychological suffering. The fourth affidavit by Okure Nathan stated that he went through the same distressing circumstances.

Consequently, the applicants moved to challenge the shutdown order before the Court, arguing that the said shutting down of social media was in violation of Article 29 (1) (a) of the Constitution, which guarantees and protects the right to freedom of expression. They also argued that shutting down mobile financial services was inconsistent with Article 22 (1) and Article 45 of the Constitution, which afford protection for the right to livelihood and life.

In response to that, the defendant argued back that first, the petition failed to raise any questions of constitutional interpretation. And second, the shutdown order on the two occasions did not violate Articles 29 (1) (a), 22 (1), and 45 of the Constitution and was permissible under Article 43 of the Constitution, which allows for general limitations on human rights that are for the good of the rights of others or in the public interest. The defendant also stressed that the shutdown orders were imposed in good faith and in the public interest for the maintenance of national security “against the reasonably suspected risk of incitement of violence by publishing unregulated content on social media” [para. 20, p. 4].

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Decision Overview

The Court in this case consisted of a panel of five Justices, namely Justice Irene Mulyagonja, Justice Catherine Bamugemereire, Justice Christopher Madrama, Justice Kenneth Kakuru, Justice Kenneth Kakuru, and Justice Richard Buteera.

Justice Irene Mulyagonja delivered the judgment of the Constitutional Court of Uganda in Kampala.

The central issue to be determined by the Court was whether the blocking and shutdown orders of social media and mobile financial services, during the general elections and the swearing in of the elected president, was inconsistent with Articles 29 (1) (a), 22 (1), 43, and 45 of the Constitution, reading in its related parts:

Article 29

“(1) Every person shall have the right to

a) freedom of speech and expression, which shall include freedom of the press and other media;

…”.

Article 22

“(1) No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.

…”.

Article 43

(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2) Public interest under this article shall not permit-

a) political persecution;

b) detention without trial;

c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.

Article 45

“The rights, duties, declarations and guarantees relating to the fundamental and Human other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned”.

The applicants, on one hand, argued on the matter of jurisdiction that the Court has the jurisdiction to consider this case in accordance with Article 137 (3) (b) of the Constitution which stipulates that “a person who alleges that any act or omission by any person or authority is inconsistent with or in contravention of a provision of the Constitution may petition the Constitutional court for a declaration to that effect and for redress where appropriate”.

As for the merits, they stressed that there is a strong interconnection between democracy and freedom of expression and that the latter is the bedrock of all human rights, thus, the optimum exercise of freedom of expression has become a prerequisite for the existence of a democratic society. They referred in this regard to the Constitution Preamble, which indicates “where the country Uganda has been and where we want to be as a democratic society with freedom of expression at the centre … [and therefore] Uganda is a democratic society, and it must apply universal standards of a democratic society” [Paras. 5 and 10, Pg. 7]. The applicants also argued that the protection afforded under Article 29 (1) (a) for freedom of expression extends to access to social media platforms through which the people of Uganda can express their opinions freely. The applicants finally stated that the reasons submitted by the defendant as a justification for the shutdown orders were unfounded, particularly since there was neither justification nor an inquiry report provided in relation to that by the Uganda Communications Commission, the regulatory authority of telecommunications in Uganda.

The Government, on the other hand, stated in response to the jurisdiction issues that the petition does not introduce any questions of constitutional interpretation, rendering it “misconceived, frivolous and vexatious” [Para. 30, Pg. 8]. Regarding the subject, the Government argued that while the Constitution recognises Uganda as a democratic society and lays down protection for the right to freedom of expression, it also acknowledges that freedom of expression is not absolute, thus, the shutdown orders did not contravene with the Constitution. The Government further stated that the shutdown orders were permissible under Article 43 of the Constitution, given that they did not overstep the acceptable boundaries set out in the Constitution and were demonstrably justifiable in a democratic society, in addition to the fact that it was done in good faith, for the public interest, “and most importantly for the purposes of national security, peace and order” [para. 5, p. 9].

The Court in assessing the case at hand entertained first the issue of jurisdiction. The Court referred to Article 137 of the Constitution which is concerned with questions related to the interpretation of the Constitution. The relevant parts of Article 137 provided the following:

“(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.

…

(3) A person who alleges that

a) an Act of Parliament or any other law or anything in or done under the authority of any law; or

b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate.

…”.

In interpreting the provisions of Article 137, the Court relied on a number of case laws, including Ismael Serugo v. Kampala City Council, Constitutional Appeal No. 02 of 1998 in which the Court stated that “the Constitutional Court has no original jurisdiction merely to enforce rights and freedoms enshrined in the Constitution in isolation to interpreting the Constitution and resolving any dispute as to the meaning of its provisions” [Paras. 5 and 10, Pg. 10]. The Court also referred to Attorney General v. David Tinyefuza, Constitutional Appeal No 1 of 1997 which stipulated that “jurisdiction of the Constitutional Court is limited … to interpretation of the Constitution. Put in a different way … unless the question before the Constitutional Court depends for its determination on the interpretation of the Constitution … , the Constitutional Court has no jurisdiction” [para. 30, p. 10].

Following that, the Court, in an attempt to offer a meaning to Article 137 (3) (b), referred to Attorney General v. David Tinyefuza, Constitutional Appeal No 1 of 1997 in which Justice Mulenga noted that “by giving the ordinary and natural meaning to the wording …, under paragraph (b) the court is empowered and may access, analyse or evaluate the import of an Act or omission by any person in order to determine whether such act or omission is in contravention of a provision of the constitution, without having to interpret or give meaning to that provision … therefore, the jurisdiction of the Constitutional Court to be exercised over causes of action under Clause (3) is broader than interpretation of provisions of the Constitution in the narrow sense of ‘giving meaning to words and expressions’ in the Constitution” [paras. 25, 30, and 35, p. 11].

Accordingly, the Court noted that the petition in the case at hand neither raised questions of interpretation nor sought the definition of words previously offered a meaning by the Court, in addition to the fact that “the words of the provisions said to have been violated by the respondent are also clear and unambiguous” [para. 5, p. 12]. Nevertheless, the petition was concerned with acts of the government that allegedly infringed upon constitutional provisions. The Court acknowledged that the allegedly violated rights are indeed protected under the Constitution, but the applicants should have sought declarations and remedies before other competent courts in accordance with Article 50 of the Constitution which empowers “any person who claims that a fundamental or freedom guaranteed under this Constitution has been infringed or threatened … to apply to a rights and competent court for redress which may include compensation”.

Finally, and before setting aside the case, the Court decided to address the meaning of Article 43 (2) (c) of the Constitution, in light of Article 29 (1) (a) of the Constitution which guarantees freedom of expression, including freedom of the press. Article 43 (2) (c) stipulates that public interest shall not permit any limitation of protected freedoms beyond what is acceptable and demonstrably justifiable in a free and democratic society. The Court noted that the petition is concerned with citizens’ rights arising from technological advancement and the use of internet services. And although the relevant jurisprudence is still nascent all over the world, the Court “has to render a strict construction of the restrictions in Article 43 (2) (c) with regard to Article 29 (1) of the Constitution” [para. 10, p. 15].

The Court then referred to the judgment of Justice Mulenga in the Supreme Court case of Charles Onyango Obbo and Andrew Mwenda where he noted that: “However the limitation provided for in clause (1) is qualified by clause (2) which in effect introduces a limitation upon limitation. It is apparent from the wording of clause (2) that the framers of the Constitution were concerned about probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest. For avoidance of that danger, they … provided in that clause a yard stick … that the limitation must be acceptable and demonstrably justifiable in a free and democratic society” [paras. 15, 20, and 25, p. 14].

After that, the Court went beyond national jurisprudence and referred to the Supreme Court of India’s case of Bhasin v. Union of India which dealt with the legality of the total shutdown of the internet in the Kashmir Region under the justification of maintaining public order. The Court noted that the parameters set by the Supreme Court of India in this regard “are a good starting point [for the appropriate tribunal] to determine whether the shutdown of the internet during and after the 2016 General and Local Government Elections was consistent with the Constitution of Uganda”. These parameters adopted by the Supreme Court of India are as follows:

1. Freedom of expression and freedom to practice any profession over the internet are afforded constitutional protection under Article 19.
2. Indefinite internet suspension is impermissible and only temporal suspension could be allowable.
3. Internet suspension orders must respect the proportionality principle and must not extend beyond the necessary duration.
4. Internet suspension orders are subject to judicial review.

Nevertheless, and in conclusion, the Court held that the petition should have been submitted before another competent court given that it did not raise any questions of constitutional interpretation but concerned only alleged violations of constitutional provisions through either acts or omissions of the government.

Accordingly, the Court struck out the petition with no orders as to costs due to the public interest nature of the petition.

Concurring opinions

1. Justice Catherine Bamugemereire agreed with the Court decision but drew a different conclusion, suggesting that the Court refer the case to the competent court. Additionally, Justice Bamugemereire noted that despite the evolving discussion and the current arguments in the United Nations around the question of whether internet access should be deemed a basic human right, a right to the internet has not been adopted yet.

She acknowledged the importance of the internet nowadays in various areas of life as a tool for empowerment and knowledge, but she also highlighted that harms could arise from the internet as well. Thus, a right to internet access should be viewed in light of the correlating, competing rights such as protecting privacy and maintaining public order.

She also noted that the internet is viewed as an enabler to other rights such as rights to expression and therefore it is “about time that a safe way to access social media whether through the internet … is guaranteed.” Justice Bamugemereire further emphasised that the constitutional aspect of digital rights is a novel area of constitutional interpretation and that the question of internet shutdown is a matter “that needs to be brought to the fore front and clear solution found for it including but not limited to creating clear rights and responsibilities around it”.

2. Justice Christopher Madrama noted that the Court should not entertain the petition as any petition must raise a question of constitutional interpretation in order for the Court to exercise its jurisdiction. He also emphasised that since Article 29 (1) of the Constitution has been previously interpreted by the Court and “an appeal from the decision of the Constitutional Court has been determined by the Supreme Court”, the Court should not re-entertain the matter unless it is clear that another dispute on the interpretation of Article 29 (1) has arisen and had not been determined by any of the Court’s precedents. Otherwise, it would be wrong to burden the Constitutional Court with petitions raising questions of constitutional interpretation which have been previously interpreted because this would adversely impact “the efforts and capacity of the court to clear its caseload”.

3. Justice Kenneth Kakuru agreed that the petition ought to fail given that the petition had to present a question as to the interpretation of the Constitution, yet it failed to frame a correct question and did not pursue an answer to whether the applicants had their rights restricted beyond the justifiable limitations in a democratic society, which might have been entertained by the Court in this case.

He noted that in the digital era, it is quite clear that any internet shutdown would have adverse consequences on everyone even if the shutdown lasted for just one day. Justice Kakuru also stressed that the petition was solely based on the subjective view of the applicants while it should have relied on an objective test as entailed in Article 43 (2) (c) of the Constitution by for instance drawing “a comparative study detailing the circumstances under which the internet may be shut down in free and democratic societies”.

Finally, Justice Kakuru opined that a growing number of petitions submitted before the Court by NGOs and individuals are poorly conceived with a shallow substance. And therefore, the Court should “proceed to strike out unfounded petitions summarily and only proceed to hear and determine deserving ones”.

4. Justice Richard Buteera agreed that the petition should fail for the reasons stipulated in the decision without offering further elaboration or comment.

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