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Human Rights Network For Journalists Ltd and Another v Attorney General (Constitutional Petition No. 25 of 2018)

Constitutional Court · [2023] UGCC 97 · 2023 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First-instance constitutional petition under Article 137(3)(a) challenging the constitutionality of provisions of the Uganda Communications Act, 2013.
Decision
Petition dismissed; the impugned provisions of the Uganda Communications Act, 2013 upheld as constitutional, with Egonda-Ntende JCC dissenting on section 21(b).

Observed later treatment

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Holding

The petitioners challenged numerous provisions of the Uganda Communications Act, 2013 as violating freedom of the press (Article 29(1)(a)), property (Article 26), equality (Article 21) and fair administrative treatment (Article 42). The Constitutional Court, per Musoke JCC (Madrama, Mugenyi and Gashirabake JJCC concurring), dismissed the petition, holding that the Minister's oversight of the Uganda Communications Commission does not render it insufficiently independent, that the licensing and minimum broadcasting standards are reasonable and justifiable limitations, and that arbitrary regulatory conduct is curable by judicial review rather than proof of unconstitutionality. Egonda-Ntende JCC dissented, finding section 21(b)'s licence requirement for disposing of radio apparatus an unjustified limitation on the right to property.

Outcome

Petition dismissed; the impugned provisions of the Uganda Communications Act, 2013 upheld as constitutional, with Egonda-Ntende JCC dissenting on section 21(b).

Facts

In 2013 Parliament enacted the Uganda Communications Act to regulate the communications sector through the Uganda Communications Commission (UCC). The two petitioners, non-governmental organisations advocating for media rights, contended that numerous provisions gave the Minister excessive supervisory powers over the UCC, its Board and the Uganda Communications Tribunal, including powers to issue policy directives, appoint and remove Board members and the Executive Director, and control finances. They argued this compromised the regulator's independence and freedom of the press. They pointed to the UCC's suspension of the Radio Hoima and NBS Television broadcasting licences in May 2017 and a September 2017 letter threatening selective enforcement of broadcasting guidelines. They further challenged a requirement to obtain a licence before disposing of radio communications apparatus, the exemption of police and armed forces from licensing, and minimum broadcasting standards said to be vague. The Attorney General maintained that the provisions were necessary, regulatory and constitutional. The parties relied on written submissions.

Issues

  1. Whether sections 7(1) and (2), 9(3), 11(2), (3) and (4), 13, 14(5), 16(4)(d)(iii), 29(a), 60(5), 61(b), 63(2), 67(1)(f) and (2), and 72(1) and (2) of the Uganda Communications Act are inconsistent with Article 29(1)(a) of the Constitution.
  2. Whether section 21(b) of the Uganda Communications Act is inconsistent with Articles 26(1) and 29(1)(a) of the Constitution.
  3. Whether section 23(b) of the Uganda Communications Act is inconsistent with Article 21(1) of the Constitution.
  4. Whether sections 31, 41(4) and paragraph (a)(i), (ii) and (iv) of Schedule 4 of the Uganda Communications Act are inconsistent with Articles 42 and 29(1)(a) of the Constitution.
  5. Whether the impugned limitations under the challenged provisions are acceptable and demonstrably justifiable in a free and democratic society.
  6. Whether the petitioners are entitled to the reliefs prayed for.

Orders

  • Petition dismissed.
  • No order as to costs.

Rules and key headnotes

Constitutional Law — Freedom of the Press — Independence of Communications Regulator
Ministerial oversight of a statutory communications regulator does not by itself render the regulator insufficiently independent or infringe the right to freedom of the press, where the enabling Act provides that the regulator exercises its functions independently subject to that oversight and the mere possibility of arbitrary ministerial influence remains unproven.
Constitutional Law — Limitation of Rights — Freedom of Expression and Public Morality
A statutory requirement that broadcast content not be contrary to public morality is a permissible limitation on freedom of the press under Article 43, public morality being a conception of right or wrong behaviour, and any wrongful application of the standard is curable by challenge in a court of law.
Land & Property — Right to Property — Licensing as Control of Use
A requirement to obtain a licence before selling, letting, hiring or otherwise disposing of radio communications apparatus is a reasonable and justifiable limitation on the right to own property under Article 26(1), being a measure controlling the use of property in the interest of orderly regulation of the communications sector.
Constitutional Law — Equality and Non-Discrimination — Justifiable Exemptions
Exempting the police, armed forces and other state services from communications licensing requirements does not constitute discrimination under Article 21, since the distinction is not based on a prohibited ground and is demonstrably justifiable on national security grounds, which Article 21(4) permits Parliament to provide for.
Administrative Law — Fair Treatment Before Administrative Bodies — Judicial Review
Allegations that a regulatory body has exercised statutory powers arbitrarily, unfairly or unjustly are matters for judicial review and do not establish the unconstitutionality of the empowering provisions, which themselves provide due-process safeguards consistent with Article 42.
Constitutional Law — Limitation Analysis — Burden of Proof
Once a petitioner establishes a prima facie limitation of a fundamental right, the burden shifts to the State to justify the limitation as demonstrably justifiable in a free and democratic society; a bare affidavit assertion of necessity, unsupported by evidence, does not discharge that burden.
Constitutional Law — Jurisdiction — Constitutional Interpretation
The Constitutional Court's jurisdiction under Article 137 is confined to questions of constitutional interpretation; whether a person has been treated unfairly by an administrative body is amenable to judicial review and to enforcement under Articles 50 and 53 and does not, of itself, require constitutional interpretation.

Legislation cited (26)

Cases cited (10)

  • Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Indian Express Newspapers (Bombay) Pvt Ltd v Union of India 1986 AIR 515
  • R v Big M Drug Mart Ltd [1985] 1 RCS
  • Media Council of Tanzania and 2 Others v Attorney General of Tanzania (Reference No. 2 of 2017)
  • Handyside vs. UK, Application No. 5982 of 1972
  • Tre Traktorer Aktiebolag v Sweden, Application No. 10873/84
  • Capital Radio (Private) Ltd v Broadcasting Authority of Zimbabwe and 2 Others (Civil Application No. 162 of 2001)
  • Turyatemba and 4 Others v Attorney General and Another (Constitutional Petition No. 15 of 2006)
  • African Commission on Human and Peoples' Rights v Kenya, Application No. 006 of 2012
  • Mark Gova and Another v Minister of Home Affairs and Another, SC 36/2000

Full judgment

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Human Rights Network For Journalists Ltd and Another v Attorney General (Constitutional Petition No. 25 of 2018) [2023] UGCC 97 (17 March 2023)
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.