Wakilii

Mwenda and Another v Attorney General [2010] UGCC 9

Constitutional Court · 2010 Petition Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions challenging the constitutionality of statutory offences under the Penal Code Act
Decision
Sedition provisions (sections 39 and 40 of the Penal Code) struck down as unconstitutional and the 1st petitioner relieved of his pending criminal prosecution; the challenge to the offence of promoting sectarianism (section 41) dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court held that sections 39 and 40 of the Penal Code Act, creating the offence of sedition, are inconsistent with the right to freedom of expression under Article 29(1)(a) and are not a justifiable limitation under Article 43. The State failed to discharge its burden of proving the limitation acceptable and demonstrably justifiable in a free and democratic society, and the provisions were so widely and vaguely worded that a person could not know the boundary of lawful expression. The sections were struck out and sections 42-44 declared redundant. However, the Court declined to find section 41 (promoting sectarianism) unconstitutional, holding it a justifiable restriction lawfully saved by Article 274. The petitions succeeded on sedition and failed on sectarianism.

Outcome

Sedition provisions (sections 39 and 40 of the Penal Code) struck down as unconstitutional and the 1st petitioner relieved of his pending criminal prosecution; the challenge to the offence of promoting sectarianism (section 41) dismissed

Facts

The 1st petitioner, Andrew Mujuni Mwenda, a journalist, hosted a live radio talk show on 93.3 KFM. Following the death of Sudanese Vice President Lt General John Garang in a Ugandan presidential helicopter crash and the declaration of public holidays of mourning, he moderated a debate by prominent politicians during which words were uttered criticising the President and the Government, including suggestions that government incompetence caused Garang's death. With the consent of the DPP, he was charged before the Chief Magistrate's Court, Nakawa, with sedition contrary to sections 39(1)(a) and 40(1)(a) of the Penal Code Act. Aggrieved, he petitioned the Constitutional Court contending that the prosecution and the sedition provisions were inconsistent with his constitutional freedom of expression. The 2nd petitioner, a media non-governmental organisation, separately and in the public interest challenged sections 39, 40, 41 and 179 of the Penal Code Act as inconsistent with the Constitution. The two petitions, raising similar issues, were consolidated by leave of the Court.

Issues

  1. Whether sections 39, 40, 41 and 179 of the Penal Code Act are inconsistent with or contravene Article 29(1)(a) of the Constitution.
  2. Whether sections 39, 40, 41 and 179 of the Penal Code Act, being limitations on the freedom of expression, are acceptable and demonstrably justifiable in a free and democratic society under Article 43.
  3. Whether sections 42-44 of the Penal Code Act, relating to sedition, and section 41, relating to promoting sectarianism, should be declared redundant.
  4. Whether the petitioners are entitled to the declarations, orders and reliefs sought in the petitions.

Orders

  • Sections 39 and 40 of the Penal Code are inconsistent with Articles 29(1)(a) and 43(2)(c) of the Constitution, are null and void, and are struck out of the Penal Code.
  • Sections 42, 43 and 44 of the Penal Code, which relate to sedition, are redundant.
  • The 1st petitioner is relieved of criminal prosecution in Chief Magistrate's Court Nakawa, Criminal Case No. 417 of 2005.
  • No order is made as to damages, the issue not having been seriously pursued.
  • The petitioners failed to prove that the offence of promoting sectarianism is inconsistent with the Constitution; the declaration on sectarianism is refused.
  • The 1st petitioner will have half of the costs.

Rules and key headnotes

Constitutional Law — Fundamental Rights — Limitations — 'Limitation upon limitation' under Article 43
A limitation imposed on the enjoyment of a protected right in defence of the public interest is valid only where its restriction on that right is acceptable and demonstrably justifiable in a free and democratic society.
Human Rights — Freedom of Expression — Sedition — Burden of justifying limitation
Where a statutory provision limits the freedom of expression, the burden lies on the State to prove that the limitation is acceptable and demonstrably justifiable in a free and democratic society.
Criminal Law & Procedure — Sedition — Vagueness and overbreadth of penal provision
A penal provision whose wording is so wide and vague that a person cannot know the boundary at which lawful expression ends has an endless catchment area and infringes the right to freedom of expression guaranteed by Article 29(1)(a) of the Constitution.
Constitutional Law — Existing Laws — Saving under Article 274
An offence enacted before the promulgation of the 1995 Constitution and saved by Article 274 as an existing law remains lawful unless it is shown to be inconsistent with the Constitution.
Human Rights — Freedom of Expression — Promoting Sectarianism — Justifiable restriction
A provision criminalising the promotion of sectarianism is a justifiable restriction on freedom of expression, aimed at protecting social harmony, public order and the dignity of identifiable groups, and is not unconstitutional.

Legislation cited (12)

Cases cited (16)

  • Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Rangarajan Vs Jagijivan Ram & others; Union of India & others Vs Jagjivan Ram (1990) LRC (Const) 424-427
  • R v Oakes (1986) 26 DLR (4th) 200
  • Zundel Vs the Queen
  • Nwankwo Vs The State (1983) (1) NCR 383
  • Pumbun Vs Attorney General (1993) 2 LCR 323
  • Re Ontario Film and Video Appreciation Society and Ontario Board of Censors 147 DLR (3rd) 67
  • R v Keegstra [1990] 3 SCR 697
  • Islamic Unity Convention v Independent Broadcasting Authority (CCT 36/01)
  • Surek and Ozdemir Vs Turkey, (Applications N0s 23927/94 and 24277/94
  • Lingens v Austria (Application No. 9815/82)
  • Joachim Buwembo and 3 Others v Attorney General (Constitutional Reference No. 1 of 2008)
  • James Rwanyarare and 11 Others v Attorney General (Constitutional Application No. 6 of 2000)
  • Kedar Nath Singh v State of Bihar
  • R v Lucas [1998] 1 SCR 439
  • Prosecutor v Ferdinand Nahimana (ICTR-99-52-T)

Full judgment

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Mwenda and Another v Attorney General [2010] UGCC 9 (25 August 2010)
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.