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Center for Public Interest Law (CEPIL) and 2 Others v Attorney General (Consitutional Petition No. 9 of 2014)

Constitutional Court · [2021] UGCC 44 · 2021 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of provisions of the Press and Journalist Act, Cap. 105 (as amended)
Decision
Petition dismissed with no order as to costs; impugned provisions of the Press and Journalist Act held constitutional.

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Holding

The Constitutional Court dismissed a petition challenging numerous provisions of the Press and Journalist Act as inconsistent with the rights to a fair hearing, freedom of expression and association, and the right to practise one's profession. Applying a purposive interpretation, the Court held that section 5(1)(d) did not render the section 5(3) offence undefined contrary to Article 28(12); that section 6(a)'s public morality duty conformed to permissible limitations under the ICCPR and African Charter; that the Media Council under section 8 was sufficiently independent; and that statutory regulation, licensing and accreditation of journalists, including temporary suspension under section 34(3), were permissible derogations from freedom of expression. The limitations were demonstrably justifiable in a free and democratic society.

Facts

Three non-governmental organizations — CEPIL, HRNJ and EAMI — petitioned the Constitutional Court challenging various sections of the Press and Journalist Act, Cap. 105 (as amended), as inconsistent with the Constitution. They contended that section 5(1)(d) allowed the Media Council to vary the particulars of a criminal offence; that section 6(a)'s requirement that publications not be contrary to public morality was vague; that sections establishing and empowering the Media Council placed the media under ministerial and government control; and that mandatory enrolment, licensing and accreditation of journalists, together with suspension pending disciplinary appeal under section 34(3), unduly restricted freedom of expression, association and the right to practise the journalism profession. The Attorney General opposed the petition, arguing the provisions were proper regulatory measures and, where they limited rights, were justifiable limitations under Article 43 of the Constitution. The petition was supported and opposed by various affidavits and was argued following a scheduling conference and oral amendments narrowing the challenge.

Issues

  1. Whether sections 5(1)(d), 6(a), 8, 10(2), 11, 16(2) and (3), 26, 27(1) and (2), 28(b), 29(2), 34(3), 40(3), 42(2)(d) and paragraphs 1 and 2 of the Fourth Schedule of the Press and Journalist Act are inconsistent with or in contravention of Articles 28(12), 29(1)(a) and (e), and 40(2) of the Constitution.
  2. Whether those impugned provisions are acceptable and demonstrably justifiable under Article 43(2)(c) of the Constitution.
  3. What remedies, if any, are available to the Petitioners.

Orders

  • The Petition is dismissed.
  • No order as to costs, the matter being one of public interest litigation.

Key headnotes

Constitutional Interpretation — Constitutionality of Legislation — Purpose and Effect
In determining the constitutionality of legislation a court considers both the purpose and the effect of the statute; where a provision is imprecise or ambiguous a liberal, general and purposive interpretation, guided by the long title and the whole instrument, must be given to it before deciding whether it conforms to the Constitution.
Criminal Liability — Definition of Offence — Article 28(12) — Subsidiary Legislation
A provision permitting a regulator to prescribe additional registrable particulars does not render a criminal offence undefined contrary to Article 28(12) where the core elements and penalty of the offence are already complete in the statute and any supplementary particulars must be formally prescribed by regulations that, like any law, inform the public of prohibited conduct.
Freedom of Expression — Public Morality — Permissible Limitations
A statutory duty requiring that published material not be contrary to public morality is not an arbitrary interference with freedom of expression; it conforms to the limitations permitted by Article 19(3) of the ICCPR and Article 27(2) of the African Charter, which Uganda is obligated to uphold, and is therefore consistent with Article 29(1)(a) of the Constitution.
Freedom of Expression — Independence of Media Regulatory Bodies
A statutory media regulatory council is not incompatible with freedom of expression where its membership is dominated by journalism professionals and civil society nominees, only a minority are direct ministerial appointees, and it is formally accountable to Parliament, since such composition satisfies the soft-law standards of independence, transparency and public accountability.
Freedom of Expression — Statutory Regulation, Licensing and Accreditation of Journalists
The close link between journalism and freedom of expression does not negate the need for statutory regulation; the State has a right and duty to ensure the orderly regulation of communications, and licensing, enrolment and accreditation of journalists are permissible derogations from freedom of expression that do not render the right illusory.
Freedom to Practise Profession — Suspension Pending Disciplinary Appeal
Temporary suspension of a journalist and the prohibition on practising pending the determination of a disciplinary appeal are commonplace disciplinary measures comparable to those governing other regulated professions, and do not amount to an unconstitutional infringement of the right to practise one's profession under Article 40(2).
Limitation of Rights — Article 43(2)(c) — Tripartite Justifiability Test
A limitation of a Chapter Four right is demonstrably justifiable in a free and democratic society under Article 43(2)(c) where it is prescribed by accessible law, pursues a pressing and substantial objective, is a proportionate means of achieving that objective, and does not erode the right so as to render it illusory.

Legislation cited (32)

  • Press and Journalist Act Cap 105 s.5(1)(d)
  • Press and Journalist Act Cap 105 s.5(3)
  • Press and Journalist Act Cap 105 s.6(a)
  • Press and Journalist Act Cap 105 s.8
  • Press and Journalist Act Cap 105 s.9
  • Press and Journalist Act Cap 105 s.10(2)
  • Press and Journalist Act Cap 105 s.11
  • Press and Journalist Act Cap 105 s.12
  • Press and Journalist Act Cap 105 s.16(2) and (3)
  • Press and Journalist Act Cap 105 s.26
  • Press and Journalist Act Cap 105 s.27
  • Press and Journalist Act Cap 105 s.28
  • Press and Journalist Act Cap 105 s.29
  • Press and Journalist Act Cap 105 s.33(b)
  • Press and Journalist Act Cap 105 s.34(1)
  • Press and Journalist Act Cap 105 s.34(3)
  • Press and Journalist Act Cap 105 s.40(3)
  • Press and Journalist Act Cap 105 s.42(1) and (2)
  • Press and Journalist Act Cap 105 Fourth Schedule paragraphs 1 and 2
  • Constitution of Uganda Article 28(12)
  • Constitution of Uganda Article 29(1)(a)
  • Constitution of Uganda Article 29(1)(e)
  • Constitution of Uganda Article 40(2)
  • Constitution of Uganda Article 43(1)
  • Constitution of Uganda Article 43(2)(c)
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 27(2)
  • International Covenant on Civil and Political Rights Article 19(2) and (3)
  • Universal Declaration of Human Rights Article 19
  • Civil Procedure Act s.27(2)
  • Advocates Act s.20(4)(b)
  • Advocates Act s.22(3)

Cases cited (14)

  • R v Big M Drug Mart Ltd (1985) 1 SCR 295
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Kolender v Lawson, US Supreme Court No. 81-1320 (1983)
  • Media Council of Tanzania & 2 Others v Attorney General of the United Republic of Tanzania (EACJ Reference No. 2 of 2017)
  • Scanlem and Holderness v Zimbabwe (2009) AHRLR 289
  • Inter-American Court of Human Rights, Advisory Opinion OC-5/85 (14 November 1985)
  • Capital Radio (Private) Ltd v The Broadcasting Authority of Zimbabwe & 2 Others (Civil Application No. 162 of 2001)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)
  • United States v Butler, 297 US 1 (1936)
  • Groppera Radio AG v Switzerland (A/173) (1990) 12 EHRR 321
  • S v Zuma & Others (1995) 2 SA 642 (CC)
  • Constitutional Rights Project & Others v Nigeria (2000) AHRLR
  • Coalition for Reform and Democracy (CORD) & 2 Others v Republic of Kenya & 10 Others (Consolidated Petition No. 628 & 630 of 2014 & 12 of 2015)
  • R v Oakes (1986) 1 SCR 103
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