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Centre for Public Interest Law (CEPIL) and 2 Others v Attorney General (Constitutional Petition 9 of 2014)

Constitutional Court · [2021] UGCC 48 · 2021 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of statutory provisions
Decision
Petition dismissed; the impugned provisions of the Press and Journalist Act held not inconsistent with the Constitution; no order as to costs

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Holding

Three media NGOs challenged sections of the Press and Journalist Act, Cap 105, as inconsistent with the rights to a fair hearing, freedom of expression and association, and freedom to practise one's profession (Articles 28(12), 29(1)(a) and (e), 40(2)). The Constitutional Court held that section 5(1)(d) was not impermissibly vague and did not offend Article 28(12); that statutory regulation of journalism through qualification, licensing and accreditation, and a Media Council dominated by industry nominees and accountable to Parliament, do not infringe freedom of expression; and that suspension under section 34(3) is a justifiable limitation under Article 43. The petition was dismissed with no order as to costs given its public-interest character.

Facts

The petitioners, three non-governmental organisations concerned with media and human rights, filed a constitutional petition challenging numerous sections of the Press and Journalist Act, Cap 105 (as amended). They contended that the provisions, which govern the registration of editors' particulars, the establishment and composition of the Media Council, the licensing, qualification and accreditation of journalists, the suspension of journalists pending appeal, and a code of ethics, were inconsistent with Articles 28(12), 29(1)(a) and (e) and 40(2) of the Constitution. They argued in particular that section 5(1)(d) was unconstitutionally vague, that section 6(a)'s public-morality duty was amorphous, that the Media Council was controlled by the responsible Minister, and that journalism, being inseparable from freedom of expression, should be self-regulated rather than statutorily licensed. The respondent maintained that the Act ensured press freedom while providing for the lawful and proportionate regulation of mass media, and that any limitations were justifiable under Article 43. The petition was decided on submissions and affidavit evidence.

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 Cap 105 (as amended) are inconsistent with or contravene Articles 28(12), 29(1)(a) and (e), and 40(2) of the Constitution.
  2. Whether the impugned sections of the Press and Journalist Act 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; each party to bear its own costs.

Key headnotes

Constitutional Law — Constitutionality of Legislation — Relevance of Purpose and Effect
In determining the constitutionality of a statute, both its purpose and its effect are relevant; an unconstitutional purpose or an unconstitutional effect can each invalidate the legislation, and an imprecise or ambiguous provision must be given a liberal, general and purposive interpretation read in light of the long title.
Criminal Offences — Void-for-Vagueness Doctrine — Article 28(12)
A penal provision satisfies Article 28(12) where the offence is defined and a penalty prescribed with clear minimal guidelines; a provision allowing additional registrable particulars to be supplemented by regulations does not add an ingredient to the offence nor render it undefined, since such subsidiary legislation will itself inform the public of prohibited conduct.
Freedom of Expression — Permissible Limitations — Article 29(1)(a)
Freedom of expression under Article 29(1)(a) is not absolute; it may be limited by laws prescribed by law that pursue legitimate aims such as protection of the rights of others or public morality, consistent with Article 19(3) of the ICCPR and Article 27(2) of the African Charter, and a duty not to publish material contrary to public morality conforms to those standards.
Regulatory Bodies — Independence — Media Council
A statutory media regulatory body does not offend freedom of expression where its membership is dominated by nominees from the journalism industry and civil society, only a minority are ministerial nominees, and it is formally accountable to Parliament; such a body is distinguishable from one where a minister enjoys absolute regulatory discretion.
Freedom of Expression — Statutory Regulation of Journalism — Licensing and Accreditation
The statutory regulation of journalism through qualification, registration, licensing and accreditation requirements is a permissible derogation from freedom of expression; the correlation between journalism and free expression does not negate the State's right and duty to ensure the orderly regulation of communications.
Limitation of Rights — Article 43(2)(c) — Test of Demonstrable Justifiability
A limitation on a fundamental right is demonstrably justifiable in a free and democratic society under Article 43(2)(c) where it is prescribed by clear and accessible law, pursues a pressing and substantial objective, is proportionate, and does not erode the right so as to render it illusory.

Legislation cited (36)

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

Cases cited (14)

  • R v Big M Drug Mart Ltd (1985) 1 SCR 295
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1999)
  • Kolender v Lawson, 461 U.S. 352 (1983)
  • Media Council of Tanzania & 2 Others v Attorney General of the United Republic of Tanzania (EACJ Reference No. 2 of 2017)
  • Scanlen and Holderness v Zimbabwe (2009) AHRLR 289
  • Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 (IACtHR, 13 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 U.S. 1 (1936)
  • Groppera Radio AG v Switzerland (1990) 12 EHRR 321
  • Constitutional Rights Project & Others v Nigeria (2000) AHRLR 227
  • 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
  • S v Zuma & Others 1995 (2) SA 642 (CC)
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