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Uganda’s Dred Scott v Sandford – Part 4: Fox Odoi and Others v Attorney General, and academic freedom in Uganda

Judges at a conference

Judges at a conference

The freedom of belief, thought and expression is one of the oldest known to humankind. Indeed, by scientific accounts, it is precisely this ability which set homo sapiens apart from other species, enabling our survival and progress over millennia.

It was not brute strength, but the ability to form thoughts and express them which proved vital to our flourishing in the Darwinian survival of the fittest.

It is no wonder, therefore, that this right is one of the most ancient, and most prized, over the ages with some locating it even as far back as to Athenian democracy around the 5th century BC.

The right would also be recognized in the English Protestation of 1621; the English Bill of Rights of 1689; the French Declaration of the Rights of Man and Citizen of 1793 (Article 11) and was the subject of the First Amendment to the United States Constitution (1791).

In terms of more recent texts, the right is enshrined in such documents as the Universal Declaration of Human Rights of 1948 (Article 19); the International Covenant on Civil and Political Rights of 1966 (Article 19) and the African Charter on Human and Peoples’ Rights of 1986 (Article 9). In Uganda, this right finds expression in Article 29 of the 1995 Constitution.

The importance of this right in post-1995 Uganda was perhaps best expressed by the lead judgment of Justice Mulenga in the Supreme Court case of Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No.2 of 2002).

In finding Section 50 of the Penal Code Act, which criminalized the publication of ‘false news, to be inconsistent with Article 29, Justice Mulenga made a number of observations which are as pertinent today as they were on 11th February 2004, when the judgment was rendered.

Given the limitations of space, I will only highlight three out of the several critical points made in the decision. In the first place, according to Justice Mulenga: ‘… the right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information.

It is not confined to categories, such as correct opinions, sound ideas or truthful information … [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. Everyone is free to express his or her views. 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”’.

Secondly, Justice Mulenga noted that: ‘A democratic society respects and promotes the citizens’ individual right to freedom of expression, because it derives benefit from the exercise of that freedom by its citizens.

In order to maintain that benefit, a democratic society chooses to tolerate the exercise of the freedom even in respect of “demonstrably untrue and alarming statements”, rather than to suppress it.’

[Emphasis in the original] Thirdly, Justice Mulenga stressed the chilling effect of broad anti-speech laws: ‘In practical terms, the broadness can lead to grave consequences especially affecting the media. Because the section is capable of very wide application, it is bound to frequently place news publishers in doubt as to what is safe to publish and what is not.

Some journalists will boldly take the plunge and publish, as the appellants did, at the risk of suffering prosecution, and possible imprisonment. Inevitably, however, there will be the more cautious who, in order to avoid possible prosecution and imprisonment, will abstain from publishing. Needless to say, both the prosecution of those who dare, and the abstaining by those who are cautious, are gravely injurious to the freedom of expression and consequently to democracy.’

This case is important in so far as it squarely locates the freedom of expression as being key to any meaningful experience of a democracy. How can one speak of a democratic society except where one acknowledges the need for robust disputation and debate, not only with regard to issues on which there is broad agreement but also, and perhaps particularly, with respect to matters where opinion is sharply divided?

Speech must be protected not only when it offends the sensibilities of society – even the majority thereof - but perhaps especially when it does. Otherwise, what is the point, or essence, of this freedom? It is not a freedom to join public choruses – it is a freedom to take minority, and even deeply unpopular, positions.

It is for this reason – the inextricable link between the freedom of expression, on the one hand, and the growth and sustenance of a liberal democracy, on the other – that certain elements of the freedom of speech are given enhanced protection.

This includes academic thought and speech – given its centrality to the development of democracy and civil society at large. This is why the 1995 Constitution made special mention of academic freedom in institutions of higher learning – singling it out as deserving of unique protection (Article 29 (1)(b)).

It is, therefore, deeply problematic that in this respect too, the five justices of the Constitutional Court who rendered the decision in Fox Odoi and Others v Attorney General did Ugandans a grave disservice.

From pages 146 to 165 of the decision, the Court indulges in a meandering foray into the scope and application of the freedom of expression which in parts correctly cites relevant international, regional and national text and jurisprudence and in others misconstrues and misapplies the same standards.

Ultimately, while broadly identifying some of the relevant constitutional principles in issue, the Court so grossly misapplies them as to render the decision not only unhelpful but also a patently dangerous and retrogressive addition to the jurisprudence of Uganda.

In Fox Odoi, the Court considered the constitutionality of a provision quite similar to that in issue before the Supreme Court in Charles Onyango Obbo. While in Obbo the provision criminalized the publication of ‘false news’, in Fox Odoi the provision – Section 11 – broadly created, as a free-standing secondary offence, the offence of ‘promotion’ of the primary offence in the impugned Act.

Section 11 (2)(b) in particular criminalized – on the pain of twenty years’ imprisonment – any publication, advertisement, printing, broadcasting or distribution of any material ‘promoting’ or ‘encouraging’ acts deemed criminal under the impugned Act.

A faithful application of the principles outlined by the Supreme Court in Onyango Obbo could only have led to a result similar to that reached in that case – the nullification of the provision as an affront to Article 29. Instead, the Constitutional Court in Fox Odoi turned the principles on Onyango Obbo on their head, with some striking results.

Perhaps the strongest evidence in this regard is evident at Page 164, Paragraph 438 of the Fox Odoi decision, in which the Court observed that Section 11 (2)(b) was ‘intended to confine academic freedom to the academic setting so as to avert public disquiet and undue social upheaval.’

Can this approach be reconciled – in any way – with the Supreme Court approach in Onyango Obbo, in which, as noted above, Justice Mulenga emphasized that freedom of expression remains deserving of protection even – and in fact especially – when it is ‘opposed or objected to by society’?

Can this strange dictum in Fox Odoi be reconciled with Justice Mulenga’s insistence, in Onyango Obbo, that in a democratic society expression must be protected even in respect of ‘demonstrably untrue and alarming statements’? I do not think so.

One might ask – and with good reason – what has changed in Uganda in the two decades between 2004, when Onyango Obbo was decided and 2024, when Fox Odoi was rendered? How could the Constitutional Court, in 2024, reverse gains made with respect to freedom of expression over the almost three decades following the enactment of the 1995 Constitution?

We shall hazardous some responses to this at the end of this particular series. For now, suffice to note that part of the answer lies in another strange – and inexplicable – portion of the Constitutional Court’s judgment – to be found at Page 160, Paragraph 424 of the decision.

Here, the Court partly justifies its conclusions as to the constitutionality of Section 11 (2)(b) of the impugned Act, on the basis of Section 13 (1) of the Anti-Pornography Act of 2014 (which related to the publication, broadcast, import, export, sell etc of pornography). The problem with this is that Section 13 was expressly held to be unconstitutional as contravening – among other provisions – Article 29 of the Constitution, in the case of CEDOVIP and Others v Attorney General (Constitutional Petition No.13 of 2014), a decision rendered on 13th August 2021.

And so, in Fox Odoi, we have the very strange and anomalous situation in which the Constitutional Court of Uganda cites, with approval (and some gusto) a statutory provision declared unconstitutional by the Constitutional Court of Uganda!

It was precisely this kind of judicial inconsistency which was at the heart of the infamous decision of the United States Supreme Court in Dred Scott v Sandford (1857).

Faced with the clear words of the United States Constitution – which protected all citizens and assured to them certain fundamental rights – the Court in Dred Scott tortured the constitutional text until it reached the shameful finding that African Americans – born in the United States – were not, in fact, ‘citizens’ under the Constitution.

Similarly, faced with the clear words of Article 29 of the 1995 Constitution, the five justices of the Constitutional Court in Fox Odoi upheld a statutory provision which effectively criminalizes speech and expression which may be deemed offensive by a section of the society. In so doing, the Constitutional Court has effectively rendered Article 29 of the Constitution meaningless.

Unfortunately, just as with its deeply tortured and problematic findings with regard to public participation (discussed in the past two editions of this column) – the effects of the Court’s failure to affirmatively and unequivocally protect the freedom of expression has not been long in coming.

Thus, it appears that we are now living in a Uganda in which university exams which directly or indirectly call into question the propriety of the actions of public officials – exercising public duties – are unacceptable. The Constitutional Court – by its dismal lack of the courage and fortitude required to give life and meaning to the Constitution - has created the conditions where Article 29, among other critical parts of the 1995 Constitution, is eroded and effectively erased.

Court decisions have consequences – Constitutional Court decisions even more so. The problematic finding with respect to freedom of expression (and academic freedom in particular) is only one of the several reasons why the decision in Fox Odoi is not only a bad one – in fact, a very bad one – but also a most dangerous one.

And it is precisely because of the depth and breadth of the danger it poses for the constitutional rights and liberties guaranteed to all Ugandans under the Constitution that we must dedicate a final column to its examination next week.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.

Comments   

+1 #1 Joseph 2024-06-09 22:15
"Here, the Court partly justifies its conclusions as to the constitutionality of Section 11 (2)(b) of the impugned Act, on the basis of Section 13 (1) of the Anti-Pornography Act of 2014 (which related to the publication, broadcast, import, export, sell etc of pornography).

The problem with this is that Section 13 was expressly held to be unconstitutional as contravening – among other provisions – Article 29 of the Constitution, in the case of CEDOVIP and Others v Attorney General (Constitutional Petition No.13 of 2014), a decision rendered on 13th August 2021."

Nooooooo. This would be gross incompetence. Did Kiryabwire and Egonda Ntende sign this decision?
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