Wakilii

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

Supreme Court · [2004] UGSC 44 · 2004 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the majority decision of the Constitutional Court dismissing a petition 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; costs to the appellants

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Holding

The Supreme Court allowed the appeal and held that section 50 of the Penal Code Act, which criminalised publication of false news likely to cause fear, alarm or to disturb the public peace, is inconsistent with the freedom of expression guaranteed by Article 29(1)(a). The Court held that constitutional protection extends even to false statements, and that the limitation imposed by section 50 did not fall within Article 43(1) and was not acceptable and demonstrably justifiable in a free and democratic society under the objective standard in Article 43(2)(c). The section was too vague, overbroad and directed at conjectural rather than real danger. No modification under Article 273 could save it. Section 50 was declared void.

Facts

Charles Onyango Obbo and Andrew Mujuni Mwenda were practising journalists, respectively an editor and a writer at The Monitor newspaper. In September 1997 they published an article which the State alleged was false news. They were charged under section 50 of the Penal Code Act, which makes it a misdemeanour to publish any false statement, rumour or report likely to cause fear and alarm to the public or to disturb the public peace. The appellants petitioned the Constitutional Court contending that section 50 was inconsistent with the freedom of expression guaranteed by Article 29(1)(a) of the Constitution. The Constitutional Court, by majority, dismissed the petition, holding section 50 to be a valid limitation saved by Article 273, with Twinomujuni JA dissenting in part. The journalists appealed to the Supreme Court.

Issues

  1. Whether section 50 of the Penal Code Act, which makes publication of false news a criminal offence, contravenes the right to freedom of expression guaranteed by Article 29(1)(a) of the Constitution.
  2. Whether section 50 constitutes a limitation on freedom of expression that is permissible under Article 43, being acceptable and demonstrably justifiable in a free and democratic society.
  3. Whether the standard of justification in Article 43(2)(c) is to be applied objectively or subjectively to local circumstances.
  4. Whether section 50 was saved as existing law under Article 273 and could be construed so as to conform to the Constitution.
  5. Whether the Constitutional Court erred in staying the hearing of the petition pending disposal of the related criminal proceedings.

Orders

  • Appeal allowed.
  • The majority decision and orders of the Constitutional Court set aside.
  • Section 50 of the Penal Code Act declared inconsistent with Article 29(1)(a) of the Constitution and void.
  • The appellants to have the costs of the appeal and of the proceedings in the Constitutional Court.

Key headnotes

Constitutional Law — Freedom of Expression — Scope — Protection of false, erroneous or controversial 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, sound or truthful statements; a statement is not excluded from constitutional protection merely because it is thought to be false, erroneous or unpleasant.
Constitutional Law — Limitation of Rights — Article 43 — Two-stage test for permissible limitation
A limitation on the enjoyment of a guaranteed right in the public interest is valid only if it is directed to prevent or remove prejudice to the public interest within Article 43(1), and in addition is a measure that is acceptable and demonstrably justifiable in a free and democratic society under Article 43(2)(c); clause (2) operates as a limitation upon the limitation in clause (1).
Constitutional Law — Limitation of Rights — Standard of 'free and democratic society' — Objective construction
The standard of what is acceptable and demonstrably justifiable in a free and democratic society under Article 43(2)(c) is to be construed objectively by reference to universal democratic values and principles, and not subjectively by reference to local circumstances; while application may vary, the underlying democratic values remain the same.
Human Rights — Freedom of Expression — Criminalisation of false news — Vagueness and overbreadth
A penal provision that criminalises publication of statements merely likely to cause fear, alarm or a disturbance of public peace, without requiring any actual consequence, is too vague, overbroad and conjectural to constitute an acceptable limitation on freedom of expression, and exerts an impermissible chilling effect on the press.
Constitutional Law — Limitation of Rights — Burden of justification
The onus of proving that a limitation on a guaranteed right is acceptable and demonstrably justifiable in a free and democratic society rests on the party seeking to uphold the limitation, who must discharge it by evidence.
Statutory Interpretation — Existing Law — Article 273 — Limits of saving and modification
Although existing law continues in force under Article 273 subject to such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution, where no construction can bring a provision into conformity the provision is void; the power of modification does not extend to restructuring legislation in a manner that goes beyond modification, adaptation, qualification and exception.
Constitutional Law — Procedure — Article 137(7) — Precedence of constitutional petitions
Under Article 137(7) a court hearing a constitutional question must proceed to hear and determine it as soon as possible and may suspend any other matter; a constitutional petition takes precedence and it is an error to stay the hearing of a constitutional petition pending the disposal of related criminal proceedings.

Legislation cited (10)

  • Penal Code Act (Cap. 120) s.50
  • Constitution of Uganda 1995 art.29(1)(a)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.43(2)(c)
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.137(7)
  • Constitution of Uganda 1995 art.273
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.120
  • Press and Journalist Act (Cap. 105)

Cases cited (20)

  • R v Zundel (1992) 10 CRR (2d) 193
  • Mark Gova Chavunduka and Another v Minister of Home Affairs and Another (Civil Application No. 156 of 1999)
  • R v Oakes (1986) 26 DLR (4th) 200
  • Edmonton Journal v Alberta (Attorney General) [1989] 2 SCR 1326
  • Rangarajan v Jagjivan Ram (1990) LRC (Const) 412
  • Hector v Attorney General of Antigua and Barbuda [1990] 2 AC 312
  • Handyside v United Kingdom (1979-80) 1 EHRR 737
  • the Lingens Case, (No.12/1984/84/131)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Maneka Gandhi v Union of India (1978) 2 SCR 621
  • Hunter v Southam Inc (1985) 11 DLR (4th) 641
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Paul K. Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Haruna Kanabi v Uganda (Criminal Appeal No. 12 of 1995)
  • Uganda v Commissioner of Prisons, Ex parte Matovu [1966] EA 514
  • C. Muhindika and others Vs The People - Appeal No.95 of 1995 (Zambia)
  • Thornhill v Alabama 310 US 88 (1940)
  • Schering Chemicals Ltd v Falkman Ltd [1981] 2 WLR 848
  • Re Hallett's Estate (1880) 13 Ch D 696
  • The 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.