Constitutionally Speaking…Hate speech and the constitution

I must begin by appreciating the patience of the readers of this column.

April 7th was the first anniversary of the death of my mother – Mrs. Bazaire Kabumba – and I thought it important to take the month off to honour her life, and reflect more broadly on life and death.

The break was also prompted by a growing disillusion with the idea of law in Uganda today – most recently precipitated by the continued detention of my cousin brother Eron Kiiza. Fortunately, Eron has since then been released on bail – by virtue of a ruling by an increasingly rare breed of judicial officer – one still able to look at the law (especially the Constitution) and to do justice when the circumstances require it.

I remain under no illusion as to the very dire straits in which the notion of law finds itself in this rickety republic of ours. Indeed, it is now clear that efforts such as this column might only now serve as a memorialization, on an ongoing basis, of what went wrong in Uganda – for the sake of posterity. It is in this spirit, and with these caveats, that I take up this critical space in The Observer again.

On this occasion, it is to tell the story of two men from Western Uganda, who appear to be united in their hatred of Buganda and Baganda: Geoffrey Mugisha and Muhoozi Kainerugaba.

The first gentleman – Geoffrey Mugisha (otherwise known as ‘Kempaka’) – spewed his vitriol against the Kabaka and people of Buganda via a video posted on TikTok in April. His language in that video appeared to be bent on causing the deepest possible offence to the people of Buganda, and in particular to create hostility between them and people from Western Uganda.

It is very gratifying that the law of the land was set in motion in this instance, and that he has since been charged with hate speech (on 30th April). I hope that Mr Mugisha was able to achieve a measure of humility from the realization that he was prosecuted by Mr. Ivan Evans Kyazze, a Senior State Attorney, before His Worship Ronald Kayizzi, the Chief Magistrate, at a court incidentally stationed at Buganda Road.

It seems to me to be the utmost foolishness for a person to be insensitive, or outrightly arrogant, to one’s hosts. As I have argued in this column previously, although notionally Uganda is a single State, it is in reality composed of several sub-national groups with distinct histories and identities.

Buganda is one of the most ancient and organized of these groups, at par with – if not better than – several recognized and independent States in the international community today (in terms of population size, territory, economic capacity, governmental efficiency and other parameters).

For Mugisha to have said the things he said, as a Munyankore residing in Munyonyo, was just about as wise as a Ugandan going to Kenya, and wantonly disparaging the people of Kenya while a guest of that country. We now turn to the second gentleman – Muhoozi Kainerugaba.

On 27th April, a Mr. Edward Sebuufu (otherwise known as ‘Eddy Mutwe’), the personal bodyguard of the National Unity Platform (NUP) President Robert Kyagulanyi Ssentamu (otherwise known as ‘Bobi Wine’) was abducted from Mukono district by security operatives.

A few days later, Muhoozi boasted via X (formerly Twitter) that Eddy was in his (Muhoozi’s) basement, ‘learning Runyankore’. The clear implication was that Eddy was being tortured – and the unmistakable invitation was for all Ugandans to identify that torture with, and equate it to, the Runyankore language, and Banyankore as a whole.

The words of this second gentleman – Muhoozi – are as pernicious as those of the first (Mugisha). Indeed, they are even worse. First of all, Muhoozi happens to be Uganda’s Chief of Defence Forces (CDF). He is governed by, and subject to, both civil law (including the Constitution) and military law.

Both of these legal regimes require soldiers to observe the highest standards of civility and decorum, including respect for human rights and human dignity. His words set the tone for the actions of the men and women under his command.

If the CDF feels entitled to gleefully and recklessly incite ethnic hatred, he thereby extends permission to the rank and file of the Uganda Peoples’ Defence Forces (UPDF) to do the same.

Secondly, and related to the above, Muhoozi is CDF of a presumably national army – the UPDF, not the Banyankore Peoples’ Defence Forces (BPDF). If somewhere along the way there has been a policy decision by the Army High Command to change the mandate of these forces, perhaps this should be explicitly communicated to all.

Thirdly, Muhoozi’s words constituted both an admission of torture (a crime under national and international criminal law) and an attempt at collectivizing this crime from himself to the entirety of Banyankore. Essentially, he claimed to be torturing Eddy Mutwe on behalf, or in furtherance of the interests, of Banyankore in general.

Evidently, for Muhoozi to have overseen the abduction and torture of a Ugandan citizen (who happens to be a Muganda) under the ostensible rubric of ‘teaching him Runyankore’ was to display a callous disregard for any prospect of national cohesion.

It would thus have been expected that he would be swiftly brought to justice (as was Mugisha before him). Unfortunately, this is yet to happen, and Muhoozi’s words continue to hang over us all – ominous and heavy, all but indelible except by their original author.

Can any ‘Munyankore’ (a term which seems to loosely include any person from Western Uganda) deny the collective guilt so recklessly thrust upon us? And it is on this last point that I return to a point made in previous editions of this column – the absence of clear and definitive guidance from the Constitutional Court in this regard.

Evidently, the relevant constitutional provision is Article 29, which guarantees the right of all persons to freedom of expression. In Charles Onyango Obbo and Andrew Mwenda v Attorney General (Constitutional Appeal No.2 of 2002), the Supreme Court helpfully emphasized the importance of this freedom, particularly in the context of the development of a democratic society.

It was preferable to allow certain forms of offensive speech to be countered by alternative speech, rather than to use the force of the State in this regard. Applying this reasoning, the Court found the offence of ‘publication of false news’ to be unconstitutional. The Constitutional Court similarly applied this reasoning in the subsequent case of Andrew Mwenda and East African Media Institute v Attorney General (Consolidated Constitutional Petitions Numbers 12 of 2005 and 3 of 2006), in which the offences of sedition and promoting sectarianism were challenged.

The Court properly applied the approach in the Onyango Obbo case to find that the offence of sedition was an overreach – since the mischief in question could be countered by additional speech aimed at presenting the government in better light.

However, when it came to the offence of promoting sectarianism, the Court obfuscated, noting: ‘After perusing the relevant provisions of the Constitution and considering, submissions of counsel for the petitioners and respondent together with authorities referred to us, we find nothing unconstitutional about it’ (at page 26).

I think the events of the recent days demonstrate the correctness of the Court’s ultimate conclusion with regard to the offence of promoting sectarianism. At the same time, those events also bring into sharp focus the danger of the Constitutional Court’s failure to authoritatively explain why it upheld the offence of promoting sectarianism, while invalidating that of sedition.

After all, both were ‘speech offences’, and presumably the reasoning (centered on the possibility of counter speech) applied to false news and sedition might have been extended to the promotion of sectarianism.

It might very well be the case that the Court had a ‘feeling’ that the offence of promoting sectarianism was a particularly important one, but lacked the ‘constitutional language’ to properly articulate this instinct. It thus ended up providing a decision without the all-important ratio decidendi (reasons for the decision).

In my humble opinion, the offence of promoting sectarianism can be distinguished from that of sedition or even false news – in terms of the reduced ability of its victims (or other affected persons) to react.

While the State can explain itself or publish the truth to counter false narratives, it is less incentivized, and perhaps less capable, of countering the more insidious and diffuse speech which is often deployed to incite sectarian animus. For example, government can take out a full edition of The New Vision to challenge allegations that it is involved in grand corruption.

On the other hand, what are the several hundred thousand Banyankore who have nothing to do with the utterances of Mugisha and Kainerugaba to do? Can each of them be expected to hang placards around their necks denouncing the offensive words?

Are they expected, individually or collectively, to take out adverts in newspapers of wide publication to disavow those sentiments? Should they convene a meeting in Mbarara to issue a joint statement refuting the utterances?

Clearly, there is a critical difference, in terms of what counter speech is possible, between sedition and false news, on the one hand, and hate speech on the other. Moreover, the imperative of addressing hate speech is especially critical given the several examples, regionally and globally, as to what hate speech can trigger.

This, perhaps, is how the Constitutional Court in Andrew Mwenda and East African Media Institute might have justified its finding as to the offence of promoting sectarianism. Going forward, another – perhaps more complicated approach – might be to consider adopting differential standards (in respect of constitutional review) with regard to measures taken to protect or regulate particularly sensitive issues such as ethnicity and religion.

This would not be without precedent. In the United States, for example, judicial practice has evolved three levels of review of governmental action depending on the nature of the values and interests implicated, that is to say: i) strict scrutiny (where the measure in question involves a fundamental right or a ‘suspect classification’, such as race, national origin and religion); ii) rational basis review (which is more deferential to governmental measures); and iii) intermediate scrutiny (which is higher than rational basis review but lower than strict scrutiny).

Incidentally, there are some shadows of this differential approach in the 1995 Constitution which does contain a distinction, in terms of the constitutional test for legislation, between laws made in ordinary times and those passed under a state of emergency.

Thus, while ordinarily restrictions on human rights must meet the high test stipulated under Article 43 (‘acceptable and demonstrably justifiable in a free and democratic society), in a state of emergency, laws need only meet the significantly lower test under Article 46 (‘reasonably justifiable for dealing with the state of emergency’).

This approach is not free of its problems. However, whether as a matter of judicial determination or as a matter of future constitutional amendment – it is important that the legal system be intentional in terms of recognizing, and responding to, private or governmental action which might imperil the peace, stability or very life of the nation.

The law aside, it is clear that Uganda is tipping into particularly dangerous territory. Now, more than ever, Ugandans need to see through, and resist, all attempts to divide us – in an unprincipled fashion – along ethnic, religious or other lines.

We should collectively decline the invitation to hatred, especially at this time when there appears to be an effort to deliberately prod and goad us into being suspicious of, and hateful towards, each other.

The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.