Wakilii

Charles Onyango Obbo and Anor v Attorney General (Constitutional Appeal 2 of 2002)

Supreme Court · [2004] UGSC 1 · 2004 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the Constitutional Court's dismissal of a petition under Article 137 challenging the constitutionality of section 50 of the Penal Code Act
Decision
Appeal allowed; section 50 of the Penal Code Act declared unconstitutional and void.

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Holding

The Supreme Court unanimously allowed the appeal and declared section 50 of the Penal Code Act (publication of false news) void as inconsistent with Article 29(1)(a). Freedom of expression protects ideas and information regardless of their truth or falsity, subject only to Article 43. A public-interest limitation is valid only if acceptable and demonstrably justifiable in a free and democratic society, judged against an objective universal standard. Section 50 targets merely speculative danger ('likely to cause' fear or alarm), is overbroad, vague and disproportionate, and exerts a chilling effect on the press; the State failed to discharge its onus of justification. Article 273 could not save it.

Facts

The appellants, an editor and a senior reporter of the Monitor newspaper, published a story in the Sunday Monitor of 21 September 1997 headlined "Kabila paid Uganda in Gold, says report", extracted from a foreign newsletter. It alleged that President Laurent Kabila of the Democratic Republic of the Congo had given a consignment of gold to the Government of Uganda as payment for services rendered, and that a named army officer had played a key role in the transfer. The appellants were charged in the magistrates' court on two counts of publishing false news contrary to section 50 of the Penal Code Act, and were later acquitted at trial. They petitioned the Constitutional Court for declarations that the prosecution and section 50 were inconsistent with the Constitution. The Constitutional Court unanimously upheld the DPP's decision to prosecute and, by a majority of four to one, held section 50 not inconsistent with Article 29(1)(a). The appellants appealed to the Supreme Court only against the majority finding on the constitutionality of section 50.

Issues

  1. Whether section 50 of the Penal Code Act, criminalising publication of false news, is a limitation on the freedom of expression that is acceptable and demonstrably justifiable in a free and democratic society within the meaning of Article 43.
  2. Whether section 50 is part of the existing law saved by Article 273 of the Constitution and, if so, whether it can be construed into conformity with the Constitution.
  3. Whether the vagueness and overbreadth of section 50 render it inconsistent with the Constitution.
  4. Whether the standard of what is 'acceptable and demonstrably justifiable in a free and democratic society' under Article 43(2)(c) is to be applied subjectively or objectively.

Orders

  • Appeal allowed.
  • The majority decision and orders of the Constitutional Court set aside.
  • It is declared that section 50 of the Penal Code Act is inconsistent with Article 29(1)(a) of the Constitution and is void.
  • The appellants are awarded the costs of the appeal in this Court and of the proceedings in the Constitutional Court.
  • A certificate for two counsel is allowed.

Key headnotes

Freedom of Expression — Scope — Protection of false or unpopular statements
The right to freedom of expression under Article 29(1)(a) extends to holding, receiving and imparting all forms of opinions, ideas and information, and is not confined to correct opinions, sound ideas or truthful information; subject to Article 43, a statement is not excluded from constitutional protection merely because it is thought to be false, erroneous, controversial or unpleasant.
Limitation of Rights — Article 43(2)(c) — Objective standard of a free and democratic society
The standard of what is 'acceptable and demonstrably justifiable in a free and democratic society' under Article 43(2)(c) is an objective one founded on universal democratic values and principles, not a subjective standard varying with local circumstances.
Limitation of Rights — Limitation upon the limitation — Primacy of protected rights
Article 43(2) imposes a limitation upon the limitation in Article 43(1); the protection of guaranteed rights is the primary, dominant objective and limitation a secondary one, so a protected right may be overridden only by minimal impairment strictly warranted by the exceptional circumstances of prejudice to the rights of others or the public interest.
Limitation of Rights — Proportionality, overbreadth and chilling effect
A limitation directed only at speculative or conjectural danger ('likely to cause' fear or alarm) rather than actual prejudice falls outside Article 43(1); section 50 of the Penal Code Act, being disproportionate, overbroad and productive of a chilling effect on the press, is not acceptable or demonstrably justifiable in a free and democratic society.
Existing Law — Article 273 — Limits of construction into conformity
Existing law preserved by Article 273 must be construed with such modifications, adaptations, qualifications and exceptions as bring it into conformity with the Constitution; where no permissible construction can achieve conformity the law is void, and a court may not redraft legislation in a manner that goes beyond modification, that task being reserved to Parliament.
Burden of Proof — Justification of a limitation on a guaranteed right
The onus of proving that a limitation on a constitutionally guaranteed right is acceptable and demonstrably justifiable in a free and democratic society rests on the party seeking to uphold the limitation.
Constitutional Litigation — Precedence of constitutional petitions over other proceedings
Under Article 137(7) the Constitutional Court must proceed to hear and determine a constitutional question as soon as possible and may suspend any other matter for that purpose; it is therefore wrong to stay a constitutional petition pending the conclusion of a related criminal trial in an inferior court.

Legislation cited (20)

  • Constitution of Uganda 1995 art.29(1)(a)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.43(1)
  • Constitution of Uganda 1995 art.43(2)(c)
  • Constitution of Uganda 1995 art.273
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.137(7)
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.40(2)
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.120
  • Constitution of Uganda 1995 art.132(4)
  • Penal Code Act (Cap. 120) s.50
  • Press and Journalist Act (Cap. 105) s.3
  • Press and Journalist Act (Cap. 105) s.4
  • Press and Journalist Act (Cap. 105) s.7
  • Press and Journalist Act (Cap. 105) s.10
  • Trial on Indictment Decree s.71
  • 1967 Constitution of Uganda art.17

Cases cited (21)

  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • R v Zundel (1992) 10 CRR (2d) 193
  • Edmonton Journal v Alberta (A.G.) (1989) 2 SCR 1326
  • Lingens Case, (No.12/1984/84/131)
  • Rangarajan v Jagjivan Ram (1990) LRC (Const.) 412
  • Mark Gova Chavunduka v Minister of Home Affairs (Civil Application No. 156 of 1999)
  • R v Oakes (1986) 26 DLR (4th) 200
  • Hector v Attorney General of Antigua and Barbuda (1990) 2 AC 312
  • Haruna Kanabi v Uganda (Criminal Appeal No. 12 of 1995)
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Maneka Gandhi v Union of India (1978) 2 SCR 621
  • Thornhill v Alabama 310 US 88 (1940)
  • Schering Chemicals Ltd v Falkman Ltd (1981) 2 WLR 848
  • Handyside v United Kingdom (1979-80) 1 EHRR 737
  • Thomson Newspapers Co. v Canada (1998) 51 CRR (2d) 189
  • Uganda v Commissioner of Prisons, Ex parte Matovu (1966) EA 514
  • Muhinduka v The People (Appeal No. 95 of 1995)
  • Arutu John v Attorney General (Constitutional Petition No. 4 of 1997)
  • Re Hallett (1880) 13 Ch D 712
  • the State Vs The Ivory Trumpet Publishing Co. Ltd
  • De Clerk & Suct Vs Du Plassis and Anor (1994) 6 BLR 124
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