Karamagi and Another v Attorney General (Constitutional Petition No. 5 of 2016)

Constitutional Court · [2023] UGCC 2 · 2023 Petition Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 challenging the constitutionality of a statutory provision

Decision

Petition allowed; section 25 of the Computer Misuse Act No. 2 of 2011 declared null and void and its enforcement stayed

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court held that the petition raised genuine questions for constitutional interpretation, and that section 25 of the Computer Misuse Act No. 2 of 2011 (offensive communication) is unconstitutional. Its key terms — 'disturb the peace, quiet or right of privacy' and 'no purpose of legitimate communication' — are undefined, vague, overly broad and ambiguous, failing to give sufficient guidance for legal debate and granting law enforcement unfettered discretion. The provision is an unjustifiable limitation on freedom of expression that is not demonstrably justifiable in a free and democratic society under Article 43. The Court declared section 25 null and void for inconsistency with Article 29(1) of the Constitution, stayed its enforcement, and awarded costs to the petitioners.

Facts

The two petitioners, regular internet users, challenged section 25 of the Computer Misuse Act No. 2 of 2011, which made it an offence to wilfully and repeatedly use electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication. They contended that the provision was an insidious form of censorship, vague and overly broad, and that the State could achieve any legitimate purpose by less drastic means. They argued that key terms in the section were undefined, leaving citizens unable to know what conduct was prohibited and exposing them to selective and arbitrary prosecution that placed them in constant fear of violating the law. They sought a declaration that the section was inconsistent with Article 29(1)(a) of the Constitution and consequential redress. The Attorney General denied the allegations, contended the petition raised no question for constitutional interpretation, and argued that the right to freedom of expression is not absolute and may be limited in accordance with the Constitution.

Issues

Whether the petition raises any questions for constitutional interpretation.
Whether section 25 of the Computer Misuse Act No. 2 of 2011 threatens or infringes online/digital freedom of expression and is inconsistent with or contravenes Article 29(1) of the Constitution.
Whether the petitioners are entitled to the reliefs sought.

Orders

Section 25 of the Computer Misuse Act No. 2 of 2011 is null and void as it is inconsistent with and/or in contravention of Article 29(1) of the Constitution.
The enforcement of Section 25 of the Computer Misuse Act No. 2 of 2011 is hereby stayed.
Costs to the petitioners.

Key headnotes

Constitutional Interpretation — Cause of Action — Challenge to Constitutionality of an Act of Parliament

A constitutional petition sufficiently discloses a question for constitutional interpretation where it specifies the Act or provision complained of, identifies the constitutional provision with which it is alleged to be inconsistent, and seeks a declaration to that effect; a liberal and broader interpretation is to be given to such a petition.

Constitutional Interpretation — Purpose and Effect — Generous and Purposive Construction of Rights

In determining the constitutionality of legislation the court considers both its purpose and effect, reads the Constitution as an integrated whole, and gives provisions guaranteeing fundamental rights and freedoms a purposive and generous interpretation that secures their maximum enjoyment.

Penal Statutes — Void for Vagueness — Requirement of Fair Notice and Limitation of Enforcement Discretion

A penal provision is void for vagueness where it so lacks precision as not to give sufficient guidance for legal debate, fails to give fair notice of the conduct it proscribes, or delegates such extensive discretion to enforcement officials that conviction may automatically flow from a decision to prosecute.

Creation of Offences — Constitutional Requirement that an Offence be Defined — Article 28(12)

Article 28(12) of the Constitution requires that an offence be defined with sufficient clarity to enable a citizen to distinguish prohibited conduct from permissible conduct; a provision whose key terms are undefined and incapable of clear definition does not satisfy this requirement.

Freedom of Expression — Limitation of Rights — Proportionality and the 'Demonstrably Justifiable' Test under Article 43

A law limiting a protected right is valid only if its restriction is acceptable and demonstrably justifiable in a free and democratic society; the party asserting justification must prove it by evidence, and the limitation must impair the right no more than is reasonably necessary to achieve a legitimate objective.

Freedom of Expression — Protected Speech — Criminalisation of Communication that Offends, Shocks or Disturbs

Freedom of expression includes the right to communicate ideas that offend, shock or disturb; prosecuting a person for the content of protected communication, absent a narrow and justifiable purpose, violates the guarantee of freedom of expression in a free and democratic society.

Legislation cited (10)

Constitution of Uganda 1995 Article 137
Constitution of Uganda 1995 Article 29(1)(a)
Constitution of Uganda 1995 Article 20
Constitution of Uganda 1995 Article 43
Constitution of Uganda 1995 Article 28(12)
Computer Misuse Act No. 2 of 2011 s.25
Computer Misuse Act No. 2 of 2011 s.2
Constitutional Court (Petitions and References) Rules 2005 (SI No. 91 of 2005)
International Covenant on Civil and Political Rights Article 19(2)
African Charter on Human and Peoples' Rights Article 9(2)

Cases cited (20)

David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
The Queen vs Big M. Drug Mart Ltd. (1996) LRC (Const.) 332
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
South Dakota vs North Carolina 792, US 268 1940 LED 448
Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
Apollo Mboya vs Attorney General and others, High Court of Kenya, Constitutional and Human Rights Division Petition No. 472 of 2017
Male Mabirizi and others, Constitutional Court Consolidated Constitutional Petitions Nos 49 of 2017, 3 of 2018, 5 of 2018, 10 of 2018, and 13 of 2018
Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
Musser v Utah, 92 L.Ed 562
Winters v People of State of New York, 92 L.Ed. 840
R v Novia Scotia Pharmaceutical [1992] 2 S.C.R.
Skilling vs United Stated, 130. S. Ct. 2896 (2010)
Charles Onyango Obbo and Another v Attorney General (Constitutional Petition No. 15 of 1997)
Olara Otunnu v Attorney General (Constitutional Petition No. 12 of 2010)
Pumbun vs The Attorney General [1993] 2 LRC 317 at p.323
DPP Vs Pete [1991] LRC (Const) 553
Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
Handysida v UK References: 5493/72, (1976) 1 EHRR 737, [1976] ECHR 5
Zundel's Case
State Vs The Ivory Trumpet Publishing Co. Ltd.

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.