Uganda Constitutional Court blows chance to expand free speech

A month ago today, the Constitutional Court dismissed a petition seeking to abolish the law of criminal defamation/libel. The meaning of the unanimous decision of justices Mpagi-Bahigeine, S.G. Engwau, C.K. Byamugisha, S.B.K. Kavuma, and A.S. Nshimye is this: that protection of the reputations of public officials in Uganda is more important than protection of freedom of expression.

This is serious stuff
The petition arose from the charge of criminal defamation brought last year against four journalists, then all with Daily Monitor, for writing stories in August 2007 about the change in IGG Faith Mwondha’s salary. (Full disclosure: I am the second applicant in the constitutional petition, being accused number 2, and I signed the affidavit in support of the application.)

Our lawyer, Mr James Nangwala, argued in the Constitutional Court that criminal defamation is an unnecessary and punitive law carrying a prison term. He said defamation is essentially a civil offence with adequate remedies such as payment of damages/money and issuance of injunction that should be resolved in civil court, where Ms Mwondha ought to have sought redress. Defamation is a civil offence because it is injury to an individual’s reputation and has nothing to do with the breach of the public peace so the element of criminality does not arise.

In any case, he contended, public officials must be open to criticism in a democracy. Criminalising defamation means the government prosecutes the case and that is not good use of public resources. He also said that “freedom of expression should be protected over and above that of a defamed person” and finally that “if the offence of criminal libel is left on the statute, it will be selectively used to curtail the freedom of expression, press and other media. This will have a chilling effect on the values the public derives from the press”.

In reply, the State relied heavily on the Canadian Criminal Code. It argued that “protection of an individual’s reputation from wilful and false attacks recognises both the intimate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in society, thus preventing damage to reputation as a result of criminal libel is a legitimate goal of criminal law”. The aim is to “avoid lampooning persons holding public offices with impunity.” And that civil remedies are not enough to “redress the injury caused to an individual when a writing which tends to injure his/her reputation exposes the defamed person to public hatred, ridicule and contempt”. Finally, that a person’s reputation is a “tribute that must, just as much as freedom of expression, be protected by a democratic society”.

In weighing the arguments, the court framed the debate thus: “The issue here is whether any public interest is served by protecting a person’s reputation.” It agreed with the State when it said that “...protecting reputation is a matter of public interest as well as protecting the right of the individual concerned” especially if the individual is a “member of the public and renders service to the public”. It added that “perpetrators who wilfully and knowingly publish lies calculated to damage the public reputation of a member of a democratic society ought to be [criminally] punished”.

Some issues quickly bubble up the surface. The court’s conclusion assumes that a complaining public official’s reputation is beyond reproach. Not always. It could be that the public interest is actually served when the press exposes the true (and duplicitous) character of an official by writing about his or her public conduct.
More intriguing is the court’s wanton use of the phrase “wilful and false attacks” and its variants. This assumes that those of us who published the stories about the IGG were driven by malice. How do the good justices know this without a guilty verdict in the trial court?

“It would trivialise and demean the magnificence of the rights guaranteed by the Constitution if individual members of the public are exposed to hatred, ridicule and contempt without any protection.” Really? No one is advocating zero protection. Our argument is that there is enough protection for allegedly defamed persons in the civil court. Of course, the judges could misleadingly use the phrase “without any” having virtually rejected the civil remedy route.

The June 4 ruling also appears to not have sufficiently considered the letter and spirit of the Supreme Court’s unanimous judgement in February 2004 annulling the false news law. Writing for the court, Justice Joseph Mulenga said in part: “Subject to the limitation under Article 43, a person’s expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant ... Indeed, the protection is most relevant and required where a person’s views are opposed or objected to by society or any part thereof, as ‘false’ or ‘wrong’”.

I hope the Supreme Court, to which we are appealing, will follow its own landmark judgement and overturn the Constitutional Court decision. Criminalising defamation is not acceptable and demonstrably justifiable in a free and democratic society. And neither is a judgement that favours protection of bloated public egos over and above protection of freedom of expression.

bentab@hotmail.com