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Gwogyolonga and 3 Others v Attorney General (Constitutional Petition No. 15 of 2017)

Constitutional Court · [2023] UGCC 96 · 2023 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions challenging the constitutionality of statutory provisions under Article 137 of the Constitution
Decision
Consolidated petitions partly successful: the section 24 challenge was dismissed and section 179 upheld as constitutional, while the proceedings against the 1st petitioner under section 25 (already held unconstitutional) were ordered dismissed; no order as to costs.

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Holding

Hearing consolidated petitions challenging sections 24 and 25 of the Computer Misuse Act 2011 and section 179 of the Penal Code Act, the Constitutional Court held that section 25 (offensive communication) had already been declared unconstitutional in Andrew Karamagi, so no fresh declaration was needed and the first petitioner's related charges were ordered dismissed. Section 179 (criminal libel) remained constitutional per Joachim Buwembo, so those proceedings continue. Section 24 (cyber harassment) was held not to contravene Articles 29(1)(a), 28(12) or 43, being sufficiently defined and a demonstrably justifiable limitation on free expression, since harassment is not protected speech. The petition succeeded only in part, with no order as to costs.

Facts

The first petitioner was charged in the Magistrates Court with offensive communication under section 25 of the Computer Misuse Act 2011 and criminal libel under section 179 of the Penal Code Act. He, together with two non-governmental organisations focused on freedom of expression and human rights, brought Constitutional Petition No. 15 of 2017 challenging the constitutionality of those provisions. The Uganda Law Society separately brought Constitutional Petition No. 001 of 2019 challenging sections 24 (cyber harassment) and 25 (offensive communication) of the Computer Misuse Act. The two petitions were consolidated and heard on written submissions. The petitioners contended that the impugned provisions were vague, overbroad, and unjustifiably restricted the freedom of speech and expression guaranteed by Article 29(1)(a), contrary also to Articles 28(12) and 43, and to Uganda's international human-rights obligations. The Attorney General defended the provisions as clearly defined, serving legitimate public-interest aims, and constituting justifiable limitations in a free and democratic society.

Issues

  1. Whether section 25 of the Computer Misuse Act 2011 (offensive communication) contravenes Articles 29(1)(a), 28(12) and 43(2)(c) of the Constitution.
  2. Whether section 24 of the Computer Misuse Act 2011 (cyber harassment) contravenes Articles 29(1)(a), 28(12) and 43(2)(c) of the Constitution.
  3. Whether section 179 of the Penal Code Act (criminal libel) contravenes Article 29(1)(a) of the Constitution.
  4. Whether the court is required to re-interpret a constitutional provision it has already authoritatively construed in earlier petitions.

Orders

  • The questions in Constitutional Petitions No. 15 of 2017 and No. 001 of 2019 concerning section 25 of the Computer Misuse Act do not warrant fresh declarations, that provision having already been held to contravene Articles 29(1)(a), 28(12) and 43 of the Constitution.
  • Section 24 of the Computer Misuse Act is not in contravention of or inconsistent with Articles 29(1)(a), 28(12) and 43 of the Constitution.
  • The proceedings against the 1st petitioner in the Magistrates Court under section 25 of the Computer Misuse Act are to be dismissed.
  • There shall be no order as to costs.

Key headnotes

Constitutional Law — Definiteness of Criminal Offences — Article 28(12) — Sufficiency of Statutory Definition
A criminal offence satisfies Article 28(12) of the Constitution where its statutory language, given its plain and ordinary meaning, sufficiently defines the prohibited conduct; not every descriptive word used in stating the particulars of the offence must itself be separately defined in the statute.
Freedom of Expression — Cyber Harassment — Article 29(1)(a) — Scope of Protected Speech
Repeated harassment of a person, whether committed online or offline, is not protected speech under Article 29(1)(a); harassing messages are neither information nor ideas and fall outside the freedoms guaranteed by the Constitution and by regional and international human-rights instruments.
Limitation of Rights — Article 43 — Demonstrable Justification — Burden of Proof
A statutory limitation on a guaranteed right is valid only where it is acceptable and demonstrably justifiable in a free and democratic society; this operates as a limitation upon the limitation, and the onus of proving that the restriction meets that standard rests on the party seeking to uphold it.
Constitutional Interpretation — Prior Authoritative Interpretation — Need to Re-determine
The Constitutional Court need not interpret the same constitutional question concerning a particular statutory provision more than once; where the court has already authoritatively construed a provision against the Constitution, a fresh determination of the same question is unnecessary.
Criminal Libel — Section 179 Penal Code Act — Permitted Restriction under Article 43
Section 179 of the Penal Code Act, providing for the misdemeanour of libel, is not inconsistent with Article 29(1)(a) and is a restriction permitted under Article 43 as being demonstrably justifiable in a free and democratic society; defamatory libel lies far from the core values of freedom of expression.
Obscenity — Meaning of 'Obscene, Lewd, Lascivious or Indecent' — Community Standards
Whether material is obscene, lewd, lascivious or indecent is assessed by contemporary community standards and the ethos at the time of interpretation; the three-pronged test in Miller v California guides the determination, so that works of genuine literary, artistic, political or scientific value remain protected.

Legislation cited (21)

  • Computer Misuse Act 2011 s.24
  • Computer Misuse Act 2011 s.25
  • Penal Code Act Cap 120 s.179
  • Penal Code Act s.166
  • Penal Code Act s.39
  • Penal Code Act s.40
  • Constitution of Uganda 1995 Article 29(1)(a)
  • Constitution of Uganda 1995 Article 28(12)
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 44
  • Constitution of Uganda 1995 Article 21
  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Constitution of Uganda 1995 Article 2(2)
  • Constitution of Uganda 1995 Article 20
  • Constitution of Uganda 1995 Article 79
  • Civil Procedure Act s.7
  • Civil Procedure Rules Order 6 rule 8
  • Constitutional Court (Petitions and References) Rules SI 91 of 2005 rule 13
  • Press and Journalist Act Cap 105 s.8
  • International Covenant on Civil and Political Rights Article 19

Cases cited (31)

  • Andrew Karamagi and Robert Shaka v Attorney General (Constitutional Petition No. 5 of 2016)
  • Joachim Buwembo and 3 Others v Attorney General (Constitutional Reference No. 1 of 2008)
  • Charles Onyango-Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Andrew Mujuni Mwenda and Another v Attorney General (Constitutional Petition No. 12 of 2005)
  • Uganda v Geoffrey Onegi Obel (Constitutional Reference No. 24 of 2011)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Okello Okello John Livingstone and 6 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • P. K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Rtd Dr Col Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 2 of 2010)
  • Centre for Domestic Violence Prevention and 8 Others v Attorney General (Constitutional Petition No. 13 of 2014)
  • Olara Otunnu v Attorney General (Constitutional Petition No. 72 of 2010)
  • Nelson Kawalya v Sebanakitta Hamis [2021] UGHCLD 7
  • Godfrey Andare v Attorney General, Constitutional Petition No 149 of 2015 (K)
  • Robert Alai v Attorney General & Another [2014] eKLR
  • R v Harry Mkandawire & Another, Criminal Case No 5 of 2010 (Malawi)
  • R v Oaks (1986) 1 SCR 103
  • Derbyshire County Council v Times Newspaper [1992] 2 All ER 65, at 94
  • Miller v. California, 413 U.S. 15 (1973)
  • Memoirs v. Massachusetts, 383 U.S. 413
  • Roth v. United States, 354 U. S. 476
  • United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973)
  • Virginia v. Black, 538 U.S. 343, 359 (2003)
  • Watts v. United States (1969)
  • Grayned v City of Rockford, 408 U.S 104 (1972)
  • Connally v General Construction Co. 269 US 385 (1926)
  • Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130
  • R v. Lucas, [1998] 1 S.C.R. 439
  • South Dakota v South Carolina, 192 USA 268, 1940
  • Attorney General of Tanzania v. Rev Christopher Mtikila (2010) EA 13
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.