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Alternative Digitalk Limited and Others v The Attorney General (Consolidated Constitutional Petitions No. 34, 37 & 42 of 2022)

Constitutional Court · [2026] UGCC 3 · 2026 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions under Article 137 challenging the constitutionality of an Act of Parliament and a Penal Code provision
Decision
Petitions partly succeed: the Computer Misuse (Amendment) Act, 2022 and section 162 of the Penal Code Act declared null and void, with a permanent injunction against enforcement of the impugned provisions

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Holding

The Constitutional Court partly granted consolidated petitions challenging the Computer Misuse (Amendment) Act, 2022 and the offence of criminal libel. It held that Parliament passed the Amendment without the Speaker ascertaining the requisite quorum as required by rule 24(3) of the Rules of Procedure and Articles 88 and 89 of the Constitution; the Hansard showed no quorum check or record of votes, rendering the entire Act, and all the provisions challenged, null and void. The Court further held that section 162 of the Penal Code Act, which criminalises libel, is vague and, being enforced by a custodial sentence, contravenes Article 19(3) of the ICCPR and Article 9 of the African Charter, and is therefore null and void. A permanent injunction issued and the respondent was ordered to pay 30% of the petitioners' advocates' costs.

Facts

On 8 September 2022 Parliament passed the Computer Misuse (Amendment) Act, Act No 24 of 2022, which the President assented to on 14 October 2022; in 2023 the principal Act was consolidated as the Computer Misuse Act, Cap 96. The petitioners — non-governmental organisations, advocates, journalists, politicians and human rights activists — brought three petitions under Article 137 contending that the new and amended provisions (now sections 11, 23, 26, 27, 28 and 29) unjustifiably criminalised forms of online expression in overly broad, vague terms and that Parliament passed the Bill without ascertaining the requisite quorum. The Uganda Law Society additionally challenged section 162 of the Penal Code Act, which criminalises libel as a misdemeanour. The only evidence on quorum was averments that no quorum was ascertained, met by the Clerk to Parliament's affidavit and a copy of the Hansard for 8 September 2022, which recorded the votes merely as 'Question put and agreed to' with no quorum check or tally and no record of the minority that had spoken against the Bill.

Issues

  1. Whether Parliament passed the Computer Misuse (Amendment) Act, 2022 without ascertaining the requisite quorum, contrary to rule 24 of the Rules of Procedure of Parliament and Articles 88 and 89 of the Constitution.
  2. Whether the burden of proving the absence of quorum lay on the petitioners or shifted to the respondent.
  3. Whether the impugned provisions of the Computer Misuse Act (sections 11, 23, 26, 27, 28 and 29) are overly broad, vague and ambiguous and contravene the rights to freedom of expression, privacy and a fair hearing.
  4. Whether section 162 of the Penal Code Act, creating the offence of criminal libel, is inconsistent with Articles 29 and 43 of the Constitution and with Uganda's international treaty obligations under Article 45.
  5. What remedies are available to the petitioners.

Orders

  • Declared that Parliament passed the Computer Misuse (Amendment) Bill, 2022 into an Act without complying with rule 24(3) of the Rules of Procedure of Parliament made under Article 94 of the Constitution.
  • Declared that the enactment without complying with rule 24(3) was inconsistent with Articles 88 and 89 of the Constitution, rendering the Computer Misuse (Amendment) Act, 2022 null and void.
  • Declared that the provisions of the Computer Misuse Act (2023 Edition) challenged in the petitions are all null and void for having been enacted without following the law.
  • Declared that the definition of 'libel' under section 162 of the Penal Code Act, read with section 163, is vague and ambiguous and contravenes Article 19(3)(a) of the ICCPR and Objective XXVIII(i)(b) of the National Objectives and Directive Principles of State Policy.
  • Declared that section 162 of the Penal Code Act contravenes Article 9 of the African Charter on Human and Peoples' Rights, and section 163 does not meet the standard of law required by Article 9(2), and is null and void to that extent.
  • Declared that section 162 of the Penal Code Act contravenes Objective XXVIII(i)(b) and Article 8A(1) of the Constitution and is null and void.
  • A permanent injunction issues restraining the respondent and all Government agencies, authorities and officials from enforcing sections 11, 23, 26, 27, 28 and 29 of the Computer Misuse Act, 2023 Edition, and section 162 of the Penal Code Act.
  • The respondent shall pay 30% of the costs of the petitioners' Advocates.

Key headnotes

Constitutional Law — Enactment of Legislation — Mandatory Ascertainment of Quorum
Rule 24(3) of the Rules of Procedure of Parliament imposes a mandatory duty on the Speaker or Chairperson to ascertain that the requisite quorum of one third of Members entitled to vote is present before any vote is taken, and this duty arises whether or not a Member objects to the absence of quorum.
Constitutional Law — Enactment of Legislation — Effect of Non-Compliance with Quorum Requirements
An Act of Parliament passed without the requisite quorum being ascertained at the time of voting is enacted inconsistently with Articles 88 and 89 of the Constitution and is null and void, and the Hansard must definitively record that quorum was present and how Members voted.
Evidence — Burden of Proof — Proof of a Negative Fact
Under section 102 of the Evidence Act the burden of proof lies on the party who would fail if no evidence were given; a party asserting a negative fact such as the absence of quorum need only establish it prima facie, whereupon the burden shifts to the other party to prove compliance.
Human Rights — Freedom of Expression — Criminal Defamation and Custodial Sanctions
A criminal libel provision enforced by a custodial sentence is a disproportionate limitation on the right to freedom of expression; the imposition of imprisonment for defamation violates Article 9 of the African Charter on Human and Peoples' Rights where a less restrictive civil remedy exists.
Statutory Interpretation — Principle of Legality — Vagueness of Penal Provisions
A penal provision must be formulated with sufficient precision to enable a person of ordinary intelligence to regulate their conduct; the definition of 'defamatory matter' in section 163 of the Penal Code Act is vague and indeterminate and fails the principle of legality required of an offence proved beyond reasonable doubt.
Constitutional Law — International Treaty Obligations — Justiciability under Article 45
By virtue of Articles 45, 287 and 8A and Objective XXVIII of the Constitution, international human rights instruments to which Uganda is a party, including the ICCPR and the African Charter, are justiciable and apply to the interpretation of constitutional rights and of laws challenged under Article 137.

Legislation cited (29)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 88
  • Constitution of Uganda Article 89
  • Constitution of Uganda Article 94
  • Constitution of Uganda Article 29
  • Constitution of Uganda Article 43
  • Constitution of Uganda Article 45
  • Constitution of Uganda Article 8A
  • Constitution of Uganda Article 287
  • Constitution of Uganda Objective XXVIII
  • Computer Misuse (Amendment) Act 2022 s.1
  • Computer Misuse (Amendment) Act 2022 s.2
  • Computer Misuse (Amendment) Act 2022 s.3
  • Computer Misuse Act Cap 96 s.11
  • Computer Misuse Act Cap 96 s.23
  • Computer Misuse Act Cap 96 s.26
  • Computer Misuse Act Cap 96 s.27
  • Computer Misuse Act Cap 96 s.28
  • Computer Misuse Act Cap 96 s.29
  • Penal Code Act s.162
  • Penal Code Act s.163
  • Penal Code Act s.22
  • Evidence Act s.102
  • Rules of Procedure of Parliament 2021 rule 24
  • Rules of Procedure of Parliament rule 93
  • Rules of Procedure of Parliament rule 97
  • International Covenant on Civil and Political Rights Article 19
  • African Charter on Human and Peoples' Rights Article 9
  • Universal Declaration of Human Rights Article 19

Cases cited (20)

  • United States v Ballin 144 US 1 (1892)
  • Wakiso Miraa Growers & Dealers Association Ltd v Attorney General (Constitutional Petition No. 1 of 2017)
  • Paul K. Ssemwogerere & Another v Attorney General (Constitutional Petition No. 3 of 1999) [2001] UGCC 2
  • Prof. Oloka-Onyango & 9 Others v Attorney General (Constitutional Petition No. 8 of 2014)
  • Male H. Mabirizi Kiwanuka & Others v Attorney General (Constitutional Petition No. 2 of 2018)
  • Stockdale v Hansard (1839) 9 Ad & El
  • Jacqueline Okuta & Another v Attorney General & Others [2014] KEHC 8382 (KLR)
  • Dr Busingye Kabumba & Another v Attorney General [2022] UGCC 8
  • Gwogyolonga & 3 Others v Attorney General [2023] UGCC 96
  • Lohe Issa Konate v Burkina Faso [2014] ACHPR 42
  • Charles Onyango Obbo & Another v Attorney General (Constitutional Appeal No. 2 of 2002) [2004] UGSC 44
  • Centre for Health, Human Rights & Development & Others v Attorney General [2022] UGCC 14
  • Madrama v Attorney General (Constitutional Appeal No. 1 of 2016) [2019] UGSC 1
  • Joachim Buwembo & 3 Others v Attorney General (Constitutional Reference No. 1 of 2008)
  • Simms v Stretch [1936] 2 All ER 1237
  • Dr. Sarah Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB)
  • Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461
  • Chimakure & Others v Attorney-General 2013 (2) ZLR 466 (S)
  • Basildon Peta v Minister of Law, Constitutional Affairs and Human Rights & Attorney General (CC 11/2018)
  • S v Hoho 2009 (1) SACR 276 (SCA)
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