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Onyango and Another v Attorney General (Constitutional Appeal No. 20 of 2002)

Supreme Court · [2004] UGSC 56 · 2004 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court 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 inconsistent with Article 29(1)(a) of the Constitution and void; costs to the appellants.

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Holding

The Supreme Court allowed the appeal and declared section 50 of the Penal Code Act — which criminalised publishing false statements likely to cause fear and alarm or disturb public peace — inconsistent with the freedom of expression guaranteed by Article 29(1)(a) of the Constitution and therefore void. The Court held that the limitation test under Article 43(2)(c), namely what is acceptable and demonstrably justifiable in a free and democratic society, is objective and measured against universal democratic standards, and that the burden lay on the State to justify the restriction, which it failed to discharge. Section 50 was too vague and wide and could not be saved under Article 273.

Facts

The appellants, journalists, published a newspaper article and were prosecuted under section 50(1) of the Penal Code Act for publishing a false statement, rumour or report likely to cause fear and alarm to the public or to disturb public peace. Contending that the prosecution and the section violated their freedom of expression and of the press under Article 29(1)(a) of the Constitution, they petitioned the Constitutional Court for a declaration that section 50 was unconstitutional. The Attorney General defended the section as a justifiable limitation reiterating Article 43. The Constitutional Court, by majority (Twinomujuni JA dissenting), dismissed the petition, holding that section 50 was valid law saved by Article 273. The appellants appealed to the Supreme Court.

Issues

  1. Whether section 50 of the Penal Code Act, which criminalises the publication of false statements likely to cause fear and alarm to the public or to disturb public peace, is inconsistent with the freedom of speech and expression guaranteed by Article 29(1)(a) of the Constitution.
  2. Whether the limitation imposed by section 50 is acceptable and demonstrably justifiable in a free and democratic society under Article 43(2)(c), and whether that test is subjective or objective.
  3. On whom does the burden lie to justify a limitation placed on a guaranteed fundamental right.
  4. Whether section 50 is part of the existing laws saved by Article 273 of the Constitution and, if so, whether it can be brought into conformity with the Constitution.

Orders

  • The appeal is allowed.
  • 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 will have the costs of this appeal and in the Constitutional Court.

Key headnotes

Constitutional Interpretation — Purposive Approach — Constitution as a Living Instrument
A constitution is to be interpreted both contextually and purposively as an ambulatory, living instrument capable of growth, and provisions relating to fundamental rights must be given a purposive and generous interpretation that secures the fullest enjoyment of the guaranteed rights.
Freedom of Expression — Article 29(1)(a) — Scope — Protection of False or Offensive Speech
The freedom of expression and of the press guaranteed by Article 29(1)(a) is inherent and protects the holding and imparting of ideas of all kinds, including statements that offend, shock or disturb and even those that may be false, subject only to the limitations permitted by Article 43.
Limitation of Rights — Article 43(2)(c) — Objective Test of Demonstrable Justification
The test of whether a limitation is acceptable and demonstrably justifiable in a free and democratic society under Article 43(2)(c) is objective, conforming to standards universally accepted of a democratic society, and is not a subjective test peculiar to local circumstances.
Limitation of Rights — Burden of Proof — State Must Justify Restriction
Where a limitation on a guaranteed fundamental right is challenged, once the petitioner establishes the infringement the burden shifts to the State to prove that the restriction is acceptable and demonstrably justifiable in a free and democratic society.
Publication of False News — Penal Code Act s.50 — Vagueness and Overbreadth — Unconstitutionality
Section 50 of the Penal Code Act, criminalising the publication of false statements likely to cause fear and alarm or to disturb public peace, is too vague, wide and conjectural, imposes an unacceptable chilling effect on the press disproportionate to any legitimate objective, and is inconsistent with Article 29(1)(a) of the Constitution and void.
Existing Laws — Article 273 — Saved Law Incapable of Conforming Modification
An existing law saved by Article 273 must be construed with such modifications as are necessary to bring it into conformity with the Constitution; where no modification can bring the law into conformity, the law must be struck down as inconsistent with the Constitution and void.
Precedent — Persuasive Value of Foreign Common Law Authorities
Decisions of the highest courts of other common law jurisdictions with similar legal systems and dealing with similar questions, though not binding, are of persuasive value and ought to be followed unless there are special reasons not to do so.

Legislation cited (11)

  • Constitution of Uganda 1995 art.29(1)(a)
  • 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(7)
  • Constitution of Uganda 1995 art.132(1)
  • Penal Code Act 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

Cases cited (18)

  • R v Oakes (1986) 26 DLR (4th) 200
  • Zundel v The Queen (1992) 10 CRR (2d) 193
  • Mark Gova Chavunduka and Another v Minister of Home Affairs and Another, Supreme Court of Zimbabwe Civil Application No. 156 of 1999
  • Ex parte Matovu (1966) EA 514
  • Muhindika and & others Vs The People - Appeal No 95 (Zambia)
  • Rangarajan v Jagjivan Ram and Another (1990) LRC (Const) 412
  • Re Hallett (1880) 13 Ch D 712
  • Paul K. Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Hunter v Southam Inc (1985) 11 DLR (4th) 644 (SCC)
  • Thornhill v Alabama 310 US 88 (1940)
  • Schering Chemicals Ltd v Falkman Ltd (1981) 2 WLR 848
  • Thomson Newspapers Co v Canada (1991) 51 CRR (2d) 189
  • Handyside v United Kingdom (1979-80) 1 EHRR 737
  • Maneka Gandhi v Union of India (1978) 2 SCR 621
  • De Clerk & Anor Vs Du Plessis and Anor (1994) 68 LR 124, at page 128-9 (The Supreme Court of South Africa)
  • Troop Vs Dulles us 2 L. Ed. 785 of 590 1956
  • Patel Vs, Attorney General (ZLR) (the Supreme Court of Zimbabwe)
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.