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An Annual
Publication of
Human Rights
Awareness and
Promotion Forum
The Computer Misuse Act, 2011:
Yet Another Legal Fetter to the
Basic Rights and Freedoms of
Marginalised Persons
FOURTH ISSUE - NOVEMBER 2017
SOURCE: hps://www.shuerstock.com
THE
HUMAN RIGHTS
ADVOCATE
FOURTH ISSUE - NOVEMBER 2017
The Computer Misuse Act, 2011: Yet Another Legal Fetter to
the Basic Rights and Freedoms of Marginalised Persons
An Annual Publicaon of Human Rights Awareness and Promoon Forum
NOVEMBER 2017
Copyright: Human Rights Awareness and Promoon Forum (HRAPF), 2017
Human Rights Awareness and Promoon Forum (HRAPF)
Plot 390, Professor Apolo Nsibambi Road,
Namirembe, Kampala
P.O. Box 25603, Kampala – Uganda
Tel: +256-414-530683 or +256-312-530683
Email: info@hrapf.org Website: www.hrapf.org
The Human Rights Advocate | Fourth Issue - November 2017
4
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
EDITOR’S NOTE
It is my pleasure to present to you the fourth issue of
The Human Rights Advocate. This magazine is an annual
publicaon of Human Rights Awareness and Promoon
Forum (HRAPF) that focuses on how parcular laws or bills aect
the rights of Ugandans, especially marginalised persons. Each
issue is dedicated to one law or bill that is analysed by various
writers from dierent angles.
HRAPF is an independent, not-for-prot, non-parsan and non-
governmental organisaon, which aims to raise awareness and
defend the rights of marginalised groups in Uganda. HRAPF
strives to advocate for a legal regime that respects and promotes
the rights of marginalised persons. This is done through legal
research, legislave advocacy, legal and policy analysis, research
and documentaon and strategic ligaon. HRAPF also provides
access to jusce to marginalised groups through legal aid services
provision and legal empowerment.
This fourth issue of The Human Rights Advocate is dedicated to the
Computer Misuse Act, 2011. This law came under the spotlight
recently when the state used its provisions to charge renowned
academic, social media acvist and government cric Dr. Stella
Nyanzi. Through the online social media plaorm, Facebook, Dr.
Nyanzi had used language with sexual imagery to cricise the
government for its failure to live up to its promises to provide
girls with sanitary pads. In one parcular post, she had reportedly
referred to the President as a ‘pair of buocks’ - something that
aracted the charge of cyber harassment under secon 24 of
the Act. Her other posts were met with the charge of ‘oensive
communicaon’ under secon 25 of the same Act. On an earlier
occasion, secon 25 was used to charge Mr. Robert Shaka who
was thought to be the person using the account of Tom Voltaire
Okwalinga (TVO) on Facebook to crique the president and key
government ocials. It was also used against Mr. Swaibu Nsamba
who posted a photoshopped picture of President Museveni in a
con to show how he would celebrate the President’s death.
However, prior to the Dr. Nyanzi, TVO and Swaibu Nsamba cases,
this law was already being implemented, albeit without much
public aenon, against LGBTI persons. HRAPF had registered
two cases where suspected members of the LGBTI community
were charged under secon 25 of the Computer Misuse Act for
sending an SMS and posng photos on Facebook, respecvely. In
the view of HRAPF’s legal team, the communicaons could not
be classied as ‘oensive’ as understood in the context of the
Act. The fact that only members of marginalised communies or
government crics are charged under the Act, and this following
acons to which the applicaon of the Act is quesonable, shows
that the Computer Misuse Act is being implemented in a targeted
way.
The Computer Misuse Act, according to its long tle, was enacted
‘to make provision for the safety and security of electronic
transacons and informaon systems; to prevent unlawful access,
Editorial Team
Editor
Adrian Jjuuko
Sub-editor
Joaninne Nanyange
Reviewer
Linee Du Toit
An Annual
Publication of
Human Rights
Awareness and
Promotion Forum
The Computer Misuse Act, 2011:
Yet Another Legal Fetter to the
Basic Rights and Freedoms of
Marginalised Persons
FOURTH ISSUE - NOVEMBER 2017
Human Rights Awareness and Promoon Forum (HRAPF) 5
www.hrapf.org
abuse or misuse of informaon systems including
computers; to make provision for securing the
conduct of electronic transacons in a trustworthy
electronic environment and to provide for other
related maers.’ The Act has penal sancons on
computer misuse and also deals with the use
of computer programs, references to programs,
data content modicaon, authorised access,
invesgave measures and procedures. It thus
has good intenons, and if applied appropriately,
could adequately deal with cybercrime.
HRAPF’s concern with the law is the vagueness
of some of its provisions and the targeted
prosecuons of unpopular minories, their allies,
and government crics. Secon 25 of the Act is
parcularly problemac. It creates the oense
of oensive communicaons. The provision is
vague and thus open to subjecve interpretaon
by the law enforcers. It is thus becoming the
weapon of choice by prosecutors for use against
marginalised persons, their allies and government
crics. It joins a long list of vague provisions that
are used to jusfy the arrest of LGBTI persons
and other marginalised persons. Such a provision
cannot meet the constuonal requirement that
criminal oences be well-dened, and the limited
condions under which the right to freedom of
expression may be limited.
It is upon this background that HRAPF has decided
to elicit academic reecons and opinions and to
publish them in this fourth issue of The Human
Rights Advocate. The purpose of this issue is to
draw the aenon of the public to the connuing
need to ght the eects of this law, and similar
laws, in order to protect and promote the
enjoyment of human rights in Uganda.
The magazine contains an editorial, an overview
of the Act, a feature, legal and human rights
analyses, opinions, and commentaries. The
editorial discusses the vague nature of secon 25
and calls for a revision of this parcular provision.
It is followed by the overview of the Act, which
discusses the contents and context of the Act.
This is followed by a legal analysis of the dierent
provisions based on freedom of expression and
the right to privacy. A comparave analysis of
similar laws in India, Tanzania and the UK follows.
This is followed by an analysis on how the Act
fares as regards the internaonal human rights
framework. A commentary on the impact of
the Act for sexual minories follows; and then
an opinion on how the Act aects Ugandan
communicators. This is followed by a commentary
on how the Act silences dissenng voices; and
nally, a commentary on the rule of law in today’s
Uganda. Two case updates follow, and the rst
one is uniquely wrien by Dr. Stella Nyanzi, the
subject of the legal processes; and the second
one is on the Robert Shaka case. The Appendix
contains HRAPF’s statement on the Stella Nyanzi
prosecuon and the full text of the Act.
As with the previous issues of this magazine,
arcles have been contributed by a variety of
authors represenng civil society, academia and
the legal profession. The organisaon would like
to give a special word of thanks to the external
authors contribung to this issue: Mr. Edward
Ssemambo of Kizza, Tumwesige & Ssemambo
Advocates and Board Chair, HRAPF; Ms. Linee
du Toit an independent researcher; Dr. Stella
Nyanzi of the Makerere Instute for Social
Research; Ms. Dorothy Mukasa of Unwanted
Witness Uganda; Ms. Arinda Daphine, a story-
teller, lawyer and poet and Mr. Andrew Karamagi,
a lawyer and polical acvist. We also thank
our sta, Jusne Balya, Susan Baluka, Patricia
Kimera, Joaninne Nanyange and Adrian Jjuuko for
contribung arcles.
We hope you nd this edion useful, and that the
arcles herein re-enforce awareness of the need
for deliberate advocacy against the use of the
over-broad provisions of the Computer Misuse
Act as well as such other vague and over-broad
laws to curtail the enjoyment of human rights by
unpopular persons and populaons in Uganda.
It is thus becoming the
weapon of choice by
prosecutors for use against
marginalised persons,
their allies and government
critics.
Adrian Jjuuko
Editor
The Human Rights Advocate | Fourth Issue - November 2017
6
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
Table of Contents
EDITOR’S NOTE 4
EDITORIAL 7
Secon 25 on Oensive Communicaons has no place in the Computer Misuse Act 7
OVERVIEW OF THE ACT 10
The Computer Misuse Act, 2011: Background and Overview 10
HUMAN RIGHTS ANALYSIS 14
The Computer Misuse Act and the Right to Freedom of Expression and Privacy 14
FEATURE 19
In kindred company: The Computer Misuse Act and the other vague and broad laws that threaten
the rights of sexual minories 19
COMPARATIVE PERSPECTIVE 27
Picking a leaf from other jurisdicons: What Uganda can learn from recent developments on oensive
communicaons laws in India, Tanzania and the UK 27
INTERNATIONAL LAW PERSPECTIVE 30
How does the Computer Misuse Act measure up to internaonal standards of privacy and
freedom of expression on the Internet? 30
COMMENTARY 35
Provisions of the Computer Misuse Act and how they violate constuonally protected rights
of LGBTI persons in Uganda 35
OPINION 39
For Ugandan communicators in the wake of Dr. Nyanzi’s arrest: how free is our freedom
of expression?* 39
COMMENTARY 42
How the Computer Misuse Act, 2011 silences dissenng voices 42
OPINION 43
Computer Misuse Act 2011: Rule of by law under pax Musevenica 43
CASE UPDATE 46
#PairOfBuocks: Uganda v. Stella Nyanzi 46
A CASE UPDATE 50
The case of Uganda v Robert Shaka 50
APPENDICES 51
1. HRAPF’ STATEMENT ON THE PROSECUTION OF DR. STELLA NYANZI 51
2. FULL TEXT OF THE COMPUTER MISUSE ACT 53
Human Rights Awareness and Promoon Forum (HRAPF) 7
www.hrapf.org
EDITORIAL
Secon 25 on Oensive Communicaons has no place in the Computer Misuse Act
The Computer Misuse Act, 2011 is an
important and mely law. There was lile
that law enforcers could do without an
eecve legal framework to curb computer cyber
crimes. Its long tle shows that indeed the law
was intended to control the misuse of computers
as it provides that it is an Act
…to make provision for the safety and
security of electronic transacons and
informaon systems; to prevent unlawful
access, abuse or misuse of informaon
systems including computers and to make
provision for securing the conduct of
electronic transacons in a trustworthy
electronic environment and to provide for
other related maers.
As is common with the regulaon of various social
aspects in Uganda, the Act takes the criminalisaon
approach and imposes heavy punishments for
acons that constute oences under the Act.
Most of the criminal oences deal with conduct
that is punishable. These include aspects like:
unauthorised modicaon of the contents of
computer material (secon 14); unauthorised
use or intercepon of electronic communicaons
(secon 15); unauthorised obstrucon of the
use of a computer (secon 16); unauthorised
disclosure of access codes or passwords (secon
17); unauthorised disclosure of informaon
(secon 18); electronic fraud (secon 19); child
pornography through computers (secon 23);
cyber harassment (secon 24); cyber stalking
(secon 26); provision for preservaon orders;
searches and seizures (secon 28); and provision
for the use of electronic evidence in legal
proceedings (secon 29).
SOURCE: hps://www.shuerstock.com
The Human Rights Advocate | Fourth Issue - November 2017
8
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
The only provision that if largely out of place is
secon 25 on oensive communicaon. This
is because whereas all the others focus on
using computers to harm others through fraud,
extoron, interference with systems, violaon
of children, among others, this provision focuses
on criminalising very broad conduct with the
intenon of protecng people (read the powerful)
from being oended. Vague and ineptly dened
provisions violate the right to a fair trial, while
protecon of people from being oended should
not be a legimate reason for the enactment of a
law as that is undue restricon which violates the
internaonal standards pertaining to the right to
freedom of expression.
These two aspects both aect the rights of
marginalised groups who are the ones most likely
to be accused of being oensive to others due
to their conduct or behaviour, and at the same
me they are also the ones most likely to be
targeted by vague provisions that have no clear
denion as this helps to have them arrested and
‘taught a lesson’. HRAPF has in the past, through
previous issues of this magazine and various other
advocacy tools and avenues, strongly opposed
such vague provisions, parcularly: Secon 44 of
the Non-Governmental Organisaons Act, 2016
which imposes undened obligaons upon Non-
Governmental Organisaons;1 provisions of the
now nullied An-Homosexuality Act 2014 on
the promoon of homosexuality and aiding and
abeng homosexuality;2 and the now nullied
secon 15(6)(d) of the Equal Opportunies
Commission Act which prevented the Equal
Opportunies Commission from invesgang
maers regarded as immoral or socially
unacceptable by the majority.3 The reason for
this opposion is the huge potenal and actual
impact of such vague provisions on the rights of
marginalised groups, parcularly LGBTI persons
and sex workers.
Secon 25 criminalises the wilful and repeated
use of ‘electronic communicaon to disturb
or aempt to disturb the peace, quiet or right
of privacy of any person without purpose
of legimate communicaon.’ Although the
head note, describes the oence as ‘oensive
communicaon’, what is indeed covered in
the body of the provision is not oensive
communicaon but rather communicaon that
‘disturbs’ someone else’s peace, quite or right of
privacy. What does it mean to ‘disturb the peace,
quiet or right of privacy’ of another person? Is
it sending many messages or publishing what is
untrue, or insulng them? What is the test? Do we
refer to the subjecve intenon of the accused
to oend or the subjecve experience of ‘being
oended’ by the person on the receiving end?
Which objecve measure should be used? What
it actually means is not clear, and so one cannot
be sure if what they are doing may be regarded
as oensive. This makes acons which can
constute the oence unpredictable and gives
law enforcer the discreon to pick and choose
what qualies as oensive. Indeed, any acon or
communicaon which has a sexual connotaon or
concerns sexuality expressed beyond the neatly-
drawn boundary lines of majoritarian views can
be regarded as ‘oensive’ and this explains why
LGBTI persons and other sexual minories are
most likely to bear the brunt of the law. Indeed,
this provision was used against Dr. Stella Nyanzi
because her Facebook posts had sexual imagery.
1 This was the subject of the third issue of The Human Rights
Advocate. The provision sll remains on the law books.
2 This was the subject of the second issue of The Human
Rights Advocate. The Act was declared unconstuonal on
procedural grounds by the Constuonal Court of Uganda
in the case of Prof. J Oloka Onyango & 9 Others v Aorney
General, Constuonal Peon No. 009 of 2014.
3 This was the subject of the rst issue of The Human Rights
Advocate. The provision was declared unconstuonal
by the Constuonal Court in the case of Jjuuko Adrian v
Aorney General, Constuonal Peon No. 001 of 2009.
HRAPF has in the past,
through previous issues of
this magazine and various
other advocacy tools and
avenues, strongly opposed
such vague provisions,
particularly: Section 44
of the Non-Governmental
Organisations Act, 2016 ...
Human Rights Awareness and Promoon Forum (HRAPF) 9
www.hrapf.org
Arcle 28(12) of the Constuon provides that
Except for contempt of court, no person shall be
convicted of a criminal oence unless the oence
is dened and the penalty for it prescribed by law.
This implies that in as far as what constutes this
oence is undened, it is unconstuonal and it
should not be applied. This provision therefore
violates Arcle 28(12) of the Constuon, as it
violates the fair trial guarantee that a criminal
oence should be well dened.
Besides its vagueness, Secon 25 also violates
the right to freedom of expression as it limits
the right beyond constuonally acceptable
limitaons. The Constuon, in Arcle 29(1)(a)
guarantees freedom of speech and expression,
which includes freedom of the press and other
media. The Supreme Court of Uganda, in Charles
Onyango Obbo & Andrew Mujuni Mwenda v Aorney
General4 made it clear that expression which
oends, shocks or disturbs is also protected. The
Court also made it clear that whereas the right
can be limited, this can only be so under parcular
circumstances, which meet the limitaon test laid
down in Arcle 43. Arcle 43(1) provides that
‘no person shall prejudice the fundamental or
other human rights and freedoms of others or
the public interest.’ Arcle 43(2)(c) provides that
the public interest shall not permit, among others:
polical persecuon, and ‘any limitaon of the
enjoyment of the rights and freedoms prescribed
by Chapter Four of the Constuon beyond what
is acceptable and demonstrably jusable in a
free and democrac society.’ The Supreme Court
found that this provision constuted a ‘limitaon
within a limitaon’ and that it was the right
rather than the limitaon that had to be given
prominence. From this analysis of freedom of
expression, it is quite clear that communicaons
that are oensive are sll protected under the
right to freedom of expression. Secon 25 is
therefore a violaon of this right, as it is a very
wide limitaon that covers very wide grounds,
and is not properly jused. Being oensive is
subjecve and such a subjecve ground should
not be the basis for liming a fundamental right.
The need to balance the protecon of individuals
from oensive communicaons with the freedom
of expression is important. Whereas individuals
should not be allowed to say all they want
without any restricons, the restricons must be
well understood and must serve a purpose that
is in the public interest, and which is jusable
4 Constuonal Appeal No.2 of 2002.
in a free and democrac society. To create this
balance, other countries do not criminalise
oensive communicaons at all, and those
that do, for example the United Kingdom, only
criminalise grossly oensive communicaons and
make it clear that the intenon must be to cause
annoyance, inconvenience, needless anxiety or
distress to the recipient. An example of such a law
is Secon 127 of the UK’s Communicaons Act
2003 which punishes ‘grossly oensive messages’.
However, even then, prosecutors are issued with
guidelines on how to handle such cases and
prosecuon is only allowed if doing so serves
the public interest. To avoid the provisions being
misused, the secon is limited to cases which go
beyond words that are ‘oensive, shocking or
disturbing; or sarical, iconoclasc or rude; or
the expression of unpopular; or unfashionable
opinion about serious or trivial maers, or banter
or humour, even if distasteful to some or painful
to those subjected to it’.5 No such clear denion
of an oensive communicaon is found in the
Computer Misuse Act and no such guidelines to
prosecutors have so far been issued.
Sexuality has always been used as an excuse
for clamping down on people, as it is a sensive
subject for most members of society. However,
this me, this excuse should not be accepted,
and Ugandans should see Secon 25 of the
Computer Misuse Act for what it is: an aempt
to se the voices of marginalised persons and
a connued ploy to deny both sexual minories
and polical opponents their rights and freedoms.
The Stella Nyanzi case should wake all of us up to
the fact that this law can be used against anyone
regardless of their posion in society. It is thus in
the best interests of everyone to oppose it.6
5 See The Crown Prosecuon Service ‘Guidelines on
prosecung cases involving communicaons sent via social
media’ available online at hp://www.cps.gov.uk/legal/a_
to_c/communicaons_sent_via_social_media/ (accessed
15 October 2017).
6 A constuonal challenge against the provision was already
launched in the case of Andrew Karamagi & Robert Shaka
v Aorney General, Constuonal Peon No. 5 of 2016,
which is sll pending before the Constuonal Court of
Uganda. We expectantly await the Constuonal Court ‘s
decision in this maer.
The Human Rights Advocate | Fourth Issue - November 2017
10
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
OVERVIEW OF THE ACT
The Computer Misuse Act, 2011: Background and Overview
Background
The Computer Misuse Act, No. 2 of 2011
started its life as the Computer Misuse Bill,
No. 23 of 2008. The Bill was prepared by
the Uganda Law Reform Commission, and tabled
before Parliament by the Minister of Informaon
and Computer Technology. It was one of the
three laws on computer usage that were later
passed by Parliament in 2011. The other two are:
The Electronic Signatures Act and The Electronic
Transacons Act. These two Acts are concerned
with streamlining and regulang electronic
economic transacons while the Computer
Misuse Act focuses on punishing the use of
computers to commit fraud and other crimes.
According to the Memorandum to the Computer
Misuse Bill, 2008, the Bill was intended to enable
the full ulisaon of the opportunies emanang
from the rise in the use of Informaon and
Communicaon Technologies in the country, and
as such create a conducive environment that
was free of abuse and misuse.1 The long Title to
the Act indeed captures this essence as it shows
that the Act was intended to prevent abuse and
misuse of informaon systems by regulang
the conduct of electronic transacons, and the
safety and security of informaon transmied
electronically.2
This arcle presents the Act as it stands today,
poinng out the salient features of the dierent
parts. It deals with each part of the Act separately:
1 Memorandum to the Computer Misuse Bill, No. 23 of
2008.
2 Long Title of the Computer Misuse Act, 2010.
Adrian Jjuuko
Execuve Director, HRAPF
Jusne Balya
Legal Assistant, HRAPF
Part I of the Act
This part contains commencement informaon
and interpretaon of terms used in the Act. The
Act was to come into force on a date appointed by
the Minister. The interpretaon secon contains
various denions of the key terms used in the
Act. A computer is dened in very wide terms to
refer to
… an electronic, magnec, opcal,
electrochemical or other data processing
device or a group of such interconnected
or related devices, performing logical,
arithmec or storage funcons; and
includes any data storage facility or
communicaons facility directly related
to or operang in conjuncon with such a
device or group of such interconnected or
related devices.
This includes smart telephones, laptops, and
other such devices. Other terms dened include:
access, applicaon, content, data, informaon,
intercept, and program.
Part II of the Act: General Provisions
This part of the Act contains provisions that further
explain the meanings assigned to key terms used
in the Act, parcularly those concerning how data
is accessed or modied on a computer. These
terms include: ‘securing access’;3 using a program;4
authorised access;5 references;6 modicaon of
contents7 and unauthorised modicaon.8
Part III: Invesgaons and Procedures
This part of the Act provides for three orders,
which can be issued by court in relaon to
data on computers. These are: the preservaon
order; the disclosure of preservaon order; and
the producon order. The preservaon order is
issued at the request of an ocer invesgang the
3 The Computer Misuse Act, Sec 3.
4 Sec 4.
5 Sec 5.
6 Sec 6.
7 Sec 7.
8 Sec 8.
Human Rights Awareness and Promoon Forum (HRAPF) 11
www.hrapf.org
commission of any oence, to access, preserve
or procure any computer data necessary for the
invesgaon. The order is issued where data on a
computer is reasonably suspected to be in danger
of modicaon, loss or damage and yet that data
is reasonably necessary for the invesgaon
of an oence.9 The disclosure of preservaon
order is issued for data that has been preserved
to be disclosed to an ocer invesgang the
commission of an oence, no maer how or by
whom such data was stored or transmied.10 The
producon order enforces the giving of data on
a computer to an invesgang ocer in a format
in which it can be taken away and in which it is
visible and legible.11 The process of obtaining the
orders does not give the owner of the data or
the persons against whom the order is issued an
opportunity to appear in court and show cause as
to why the orders should not be issued. They are
issued enrely on the basis of what the person
applying for them says.
Part IV: Computer Misuse Oences
This part is the crux of the Act, as it puts in place
penal measures to punish computer misuse. The
oences created can be categorised based on the
nature of the oence. There are those concerning
fraud and exploitaon through computers; those
concerning access to computers and intercepon
of communicaons; and those involving
harassment of other persons.
The rst category of oences are those involving
fraud and exploitaon through computers, and
these are treated as the most serious oences
in the Act. They are punishable by a ne of
up to Uganda Shillings 7,200,000 Uganda or
imprisonment of up to 15 years, or both such
imprisonment and ne. Where the oence
involves ‘protected computers’, life imprisonment
can be imposed.12 Protected computers are
computers used for or in connecon with naonal
security and diplomac relaons, nancial services
or banking, communicaons infrastructure, public
ulies, public safety and emergency services.
Electronic fraud is one of the oences created. It
is dened as:
‘… decepon deliberately performed
with the intenon of securing an
unfair or unlawful gain where part of a
9 Sec 9.
10 Sec 10.
11 Sec 11.
12 Sec 20.
communicaon is sent through a computer
network or any other communicaon
and another part through the acon of
the vicm of the oence or the acon is
performed through a computer network or
both.’13
The other oences are: unauthorised modicaon,
which is about acts that impair the operaon of
the computer generally or access to the computer
or any of the programs/data on the computer;
14 unauthorised use or intercepon of computer
services which is dened to include, inter alia,
knowingly doing anything on a computer so as
to secure access to a computer service without
authorisaon;15 unauthorised obstrucon of use
of a computer;16 and unauthorised disclosure of
access codes.17
Another important oence that falls under this
category is child pornography. This is dened
to include pornographic materials that depict a
child engaged in sexually suggesve or explicit
conduct; a person appearing to be a child engaged
in sexually suggesve or explicit conduct; or
realisc images represenng children engaged
in sexually suggesve or explicit conduct.18 The
acts that constute the oence include: making
pornographic materials available to a child;19
producing child pornography for the purposes
of its distribuon through a computer; oering
or making available child pornography through
a computer; distribung or transming child
pornography through a computer; procuring child
pornography through a computer; or unlawfully
possessing child pornography on a computer.20
The second category is about unauthorised
access to computers and intercepon of
communicaons. These are punishable with a ne
of 4,800,000 Uganda shillings or imprisonment
for a period not exceeding 10 years, or both such
imprisonment and ne. This category includes
‘unauthorized access’ which is about unlawfully
adapng, producing, distribung, selling or using a
computer program designed to overcome security
13 Sec 19.
14 Sec 14.
15 Sec 15.
16 Sec 16.
17 Sec 17.
18 Sec 23(3).
19 Sec 23(2).
20 Sec 23(1).
The Human Rights Advocate | Fourth Issue - November 2017
12
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
protocols, or denying service to a legimate user.21
The category also includes ‘accessing with the
intent to commit or facilitate the commission
of another oence’;22 unauthorised use or
intercepon of computer data or service,23 and
unauthorised disclosure of informaon on a
computer.24
The third category are oences involving cyber
harassment. These are regarded as less serious
crimes and are punished with smaller nes and
imprisonment of less than ve years.
Secon 24 criminalises cyber harassment. This
is commied when a person uses a computer
to: ‘make any request, suggeson or proposal
which is obscene, lewd, lascivious or indecent’;
or to threaten someone with physical injury or
harm to their person or property; and knowingly
perming another person to use a computer for
any of the purposes listed. The punishment for
this is a ne of Uganda shillings 1,440,000 or
imprisonment not exceeding three years or both.
Secon 25 criminalises oensive communicaons.
Any person who ‘willfully and repeatedly uses
electronic communicaon to disturb or aempt
to disturb the peace, quiet or right of privacy
of any person with no purpose of legimate
communicaon whether or not a conversaon
ensues’ is liable to be convicted under it. It is
regarded as a misdemeanor and a convict is liable
to a ne not exceeding Uganda shillings 480,000
or imprisonment not exceeding one year or both.
It is perhaps the most controversial provision in
the Act as its vague and wide-sweeping provisions
make it a provision that is easy to abuse and to
use to unduly restrict freedom of expression.25
The nal oence under this category is ‘cyber
stalking’. This is commied when a person
‘willfully, maliciously, and repeatedly uses
electronic communicaon to harass another
person and makes a threat with the intent to
place that person in reasonable fear for his or her
safety or to a member of that person’s immediate
family.’ The crime aracts a punishment of
Uganda shillings 2,400,000 or imprisonment not
exceeding ve years or both.
21 Sec 12.
22 Sec 13.
23 Sec 15.
24 Sec 18.
25 For a full discussion of the human rights challenges posed
by this provision, see editorial to this issue above.
Aempts to commit an oence are also
criminalised, and contrary to the usual pracce
where these aract a lesser punishment, they
are punished the same way as the full oence.
Perhaps the reason for this is the conaon of
aempts with abetment in secon 21.
The Act requires compensaon to be ordered in
every case where a person is convicted. This a
mandatory requirement. The convict is supposed
to be ordered to pay the aggrieved party such
sum of money, which in the court’s opinion is
‘just, having regard to the loss suered by the
aggrieved party.’ The order of compensaon is
enforceable under the execuon provisions of the
Civil Procedure Act.
Part V: Miscellaneous Provisions of the Act
This secon contains provisions on enforcement
of the Act. These include: the powers of courts
to issue search and seizure orders; the evidenal
value of electronic informaon; the jurisdicon of
the courts under the Act including extra-territorial
jurisdicon; and the power of the Minister to
amend the schedule to the Act.
For search orders, a magistrate has powers to
issue an order for the search of any premises,
data or copies thereof that may be reasonably
suspected to be necessary, among others, for
the invesgaon of a suspected oence. Once
a search order is issued, the police ocer can
then search and seize any computer system or
applicaons that he/she reasonably believes are
concerned in the commission of a crime. Such an
ocer can demand for informaon from persons
in charge of the computer system or compel
service providers to provide informaon within
their technical abilies. It is a crime to hinder or
prevent the ocer from doing his/her work, and
a person found guilty is liable on convicon to a
ne not exceeding Uganda shillings 240,000 or
imprisonment not exceeding six months or both.26
The secon requires that police ocers execung
such search warrants ‘shall have due regard to the
rights and interests of a person aected by the
seizure to carry on his or her normal acvies.’27
However, it does not in fact give the person
whose data is concerned the opportunity to show
cause why their privacy should not be so limited,
but merely oers the magistrate the right to issue
a carte blanche order of sorts, baring all personal
data of any individual before the state upon a
mere whim or suspicion.
26 Sec 28(7).
27 Sec 28(6).
Human Rights Awareness and Promoon Forum (HRAPF) 13
www.hrapf.org
It is important to note that the Act gives a meline
within which the seized computer system or
applicaon is to be returned and this should not
exceed 72 hours, unless an order extending the
me has been obtained from court.28
Secon 29 suspends the rules of evidence that
would render electronic evidence inadmissible
because it is in electronic form, or because it is
not in its original form. Such evidence should also
allowed where it is the best evidence that could
be obtained in the circumstances. Secon 29(7)
makes it clear that all other rules of evidence
apply without modicaon.
The Act has extra-territorial applicaon, which
means that it applies to anyone regardless of their
naonality or their presence in Uganda,29 provided
they were in Uganda at the me of commission
of the oence or the program used was based in
Uganda at that me.30
A Chief Magistrate or Magistrate Grade 1 has
powers to listen to any oences under the Act,
regardless of what other laws may provide as to
sentencing jurisdicon.31
Finally, the Minister of Informaon and Computer
Technology has powers to amend the only
schedule to the Act, which lays out the value of
a currency point.32 It is surprising that for such a
law, the Minister was not given powers to make
Regulaons for its enforcement.
Conclusion
The Computer Misuse Act, 2011 largely lives
up to its promise of enacng provisions aimed
at ensuring that computers are not abused or
used for fraud. However, some of its provisions
depart from the usual rules on punishments for
aempted oences; the rules of evidence and
those on jurisdicon. Also, it gives wide powers to
the police and courts as regards issuance of orders
under the Act, and yet it does not give the subject
of these orders a chance to show cause as to why
they should not be issued. Such provisions are
likely to be abused by law enforcement ocers.
The punishments, such as mandatory
compensatory orders, are deterrent and thus
28 Sec 28(8).
29 Sec 30(1).
30 Sec 30(2).
31 Sec 31.
32 Sec 32.
help to reduce on incidences of cybercrime.
The provisions on child pornography as well as
those on cyber stalking and cyber harassment are
wide and deterrent. The provision on oensive
communicaons ought to be removed from the
Act as it is vague and also goes against the right
to freedom of expression.
The Act is thus a welcome step in the protecon
of the privacy of personal data stored and shared
electronically, as well as protecon of the integrity
of computer systems and communicaons, but
it also presents enormous potenal for abuse in
the absence of adequate safeguards protecng
the fundamental rights to liberty, administrave
fairness, freedom of thought, conscience, opinion,
belief and expression as well as press freedom in
Uganda.
...it gives wide powers to
the police and courts as
regards issuance of orders
under the Act, and yet it
does not give the subject
of these orders a chance to
show cause as to why they
should not be issued. Such
provisions are likely to be
abused by law enforcement
officers.
The Human Rights Advocate | Fourth Issue - November 2017
14
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
HUMAN RIGHTS ANALYSIS
The Computer Misuse Act and the Right to Freedom of Expression and Privacy
Introducon
The rights to privacy and freedom of
expression are guaranteed in Uganda’s
Constuon1 and other regional and
internaonal human rights instruments that
Uganda is party to. The government of Uganda has
made eorts towards creang a legal and policy
environment to foster and regulate these rights
amidst ever-increasing reliance on technology
for informaon access, sharing and storage. This
is evidenced by the wide range of cyber-related
laws that have been recently enacted.2 While
such eorts are commendable, the exisng cyber
laws pose a grave danger to the enjoyment of
the online freedom of expression and the right to
privacy.3 One law that requires parcular focus is
the Computer Misuse Act, 2011. The long tle to
the Computer Misuse Act spulates that it is
‘an Act meant to make provision for
the safety and security of electronic
transacons and informaon systems; to
prevent unlawful access, abuse or misuse of
informaon systems including computers
1 See Arts 41, 27 and 29 of the Constuon of the Republic
of Uganda, 1995.
2 These include: The An-Terrorism Act, 2002; The Naonal
Informaon Technology Authority Uganda Act, 2010;
The Regulaon of Intercepon of Communicaons Act,
2010; The Electronic Signatures Act 2011; The Computer
Misuse Act 2011; The Electronic Transacons Act 2011;
The Uganda Communicaons Act 2013; and The An-
Pornography Act 2014.
3 Collaboraon on Internaonal ICT Policy in East and
Southern Africa (2014), State of Internet Freedoms in Uganda
2014: An Invesgaon into Policies and Pracces Dening
Internet Freedom in Uganda. Available online at hps://
cipesa.org/?wp_dl=181(accessed on 26 September
2017).
and to make provision for securing the
conduct of electronic transacons in a
trustworthy electronic environment.’4
This is a clear indicaon that the Act was
enacted primarily to provide for privacy and data
protecon rights of internet and computer users.
The Act however has provisions that have the
potenal to infringe upon the right to freedom
of expression to an extent that is not in line with
domesc, regional and internaonal human rights
standards.
This arcle examines certain key provisions of the
Computer Misuse Act 2011 in relaon to the right
to freedom of speech and expression, as well as
the right to privacy.
The Right to Freedom of Expression
Domesc context
Arcle 29(1) of the 1995 Constuon of the
Republic of Uganda spulates that every individual
shall have the right to freedom of expression,
which includes the right to freedom of press and
other media. This right is not absolute and while
it does not have a specic clawback clause, the
parameters for its restricon can be found in
Arcle 43 of the Constuon. The Arcle is to
the eect that in the enjoyment of human rights
and freedoms spulated in Chapter Four of the
Constuon, no person shall prejudice the rights
and freedoms of other individuals or the public
interest. The Arcle further states that public
interest shall not permit polical persecuon or
violaon of a right beyond what is jusable in a
free and democrac society. The Supreme Court
of Uganda in the case of Charles Onyango Obbo
& Andrew Mujuni Mwenda v Aorney General5
discussed this limitaon and found that the
limitaon itself, has a further limitaon showing
clearly that the right has to be given more
prominence than the limitaon, and the limitaon
must be jused, and legimate in order to be in
public interest.
The Regional Context
The African Charter on Human and Peoples’
4 The Uganda Gazee, Acts Supplement No. 2 (2011).
5 Constuonal Appeal No.2 of 2002.
Susan Baluka
Legal Ocer, HRAPF
Human Rights Awareness and Promoon Forum (HRAPF) 15
www.hrapf.org
Rights (African Charter) also provides for
freedom of expression and opinion, as long as
such expression is within the limits of the law.6
The African Charter, limits this right through
the general limitaon clause in arcle 27(2).
The limitaon clause is to the eect that all the
individual rights and freedoms recognised in the
Charter shall be exercised ‘with due regard to the
rights of others, collecve security, morality and
common interest.’ The African Commission on
Human and Peoples’ Rights (African Commission)
adopted the Declaraon of Principles on Freedom
of Expression in Africa. The Declaraon armed
freedom of expression as ‘a fundamental and
inalienable human right and an indispensable
component of democracy.’7 It further stated that
‘Any restricons on freedom of expression shall
be provided by law, serve a legimate interest
and be necessary in a democrac society.’8 The
requirement that the limitaon be provided for by
law does not simply mean that any law qualies. It
must be a law of general applicaon as the African
Commission noted and held in Constuonal
Rights Project and others v Nigeria.9 In that case, the
military government in Nigeria had made decrees
specically naming the newspapers that were
not allowed to operate in Nigeria. The African
Commission found this to contravene Arcle 9
on freedom of expression. On serving legimate
interests, and necessity, the state must show
what those interests are why the law is necessary.
Here the proporonality test is applied. The
extent of the limitaon must be proporonate
to the interests that have to be protected. In
Independent Journalists Associaon of Zimbabwe,
the Zimbabwe Lawyers for Human Rights, the Media
Instute for Southern Africa v Zimbabwe,10 the
African Commission stated that proporonality
is about balancing between the ‘protecon of
the rights and freedoms of the individual and the
interests of the society as a whole.’
The Commission stated that
6 Art 9(2) of the African Charter on Human and Peoples’
Rights.
7 The African Commission on Human and Peoples’ Rights
‘Resoluon on the Adopon of the Declaraon of Principles
on Freedom of Expression in Africa’ Adopted at The African
Commission on Human and Peoples’ Rights, meeng at
its 32nd Ordinary Session, in Banjul, The Gambia, from
17th to 23rd October 2002, Para I(1) hp://www.achpr.
org/sessions/32nd/resoluons/62/ (accessed 21 October
2017).
8 Above, Para II (2).
9 (2000) AHRLR 227 (ACHPR 1999) Para 44
10 Communicaon No.297 of 2005.
‘In determining whether an acon is proporonate,
the Commission will have to answer the following
quesons:
• Were there sucient reasons supporng the
acon?
• Was there a less restricve alternave?
• Was the decision-making process procedurally
fair?
• Were there any safeguards against abuse?
• Does the acon destroy the very essence of the
Charter rights in issue?11
The noon of proporonality was further
discussed by the African Court in Lohe Issa
Konate V Burkina Faso,12 where a sentence of
12 months’ imprisonment, a ne of USD 2,900
and a compensaon fee of USD 7,800 that
were imposed against two editors of a weekly
newspaper in Burkina Faso for publishing a
libelous arcle against an allegedly corrupt state
prosecutor was held to be in contravenon of the
right to freedom of expression as provided for
under Arcle 9 of the African Charter. The Court
reasoned that the sentence was disproporonate
to the purpose that the impugned provisions of
the Informaon and Criminal Codes of Burkina
Faso sought to serve; which was to protect the
honor and reputaon of persons working in public
oces. The Court found that the provisions were
a disproporonate interference with the exercise
of the right to freedom of expression, exceeding
the bounds of necessity and unanimously ordered
Burkina Faso to amend its criminal defamaon
laws by repealing custodial sentences for acts
of defamaon. Indeed, following this decision,
Burkina Faso has since amended its criminal
defamaon laws.13
Therefore from the above analysis, secon 24
and 25 of the Computer Misuse Act have to be
jused by the state and a balance made as to
whether they are proporonate to the mischief
that they seek to address.
11 Above. Para 176.
12 Applicaon No.004 of 2013 available online at hp://
www.ijrcenter.org/2015/02/03/african-court-addresses-
freedom-of-expression-in-burkina-faso-in-landmark-
judgment/
13 The ACTHPR Monitor, Protecng the Safety of Journalists:
The Role of the African Court available at hp://www.
acthprmonitor.org/protecng-the-safety-of-journalists-
the-role-of-the-african-court/(Accessed on 22 October
2017).
The Human Rights Advocate | Fourth Issue - November 2017
16
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
The Internaonal Context
Arcle 19(2) of the Internaonal Covenant on
Civil and Polical Rights provides for the right
to freedom of expression, which includes the
right to seek, receive and impart informaon.
As already menoned, this right can only be
restricted for the purpose of respecng the rights
and reputaons of other individuals, as well as
protecng naonal security, public order and
public morals. The Human Rights Commiee has
stated that the right to freedom of expression
extends to both electronic and internet-based
plaorms.14 It has further stated that aacks on
individuals, including arbitrary arrests, because of
the exercise of their right to freedom of opinion
or expression are not a jusable restricon on
the right to freedom of expression. Addionally,
laws that restrict freedom of expression must be
clear on which sorts of expressions are limited
and which ones are not, and they must not give
unfeered discreon to those charged with their
14 Human Rights Commiee (2011), General Comment No.
34 to Arcle 19 of the Internaonal Covenant on Civil and
Polical Rights, para 23, available online at hp://www2.
ohchr.org/english/bodies/hrc/docs/gc34.pdf (Accessed on
27 September 2017).
execuon to restrict freedom of expression.15
The Computer Misuse Act and the aforemenoned
standards
Secon 25 of the Computer Misuse Act creates
the oence of oensive communicaon.
The Secon is to the eect that any person
who wilfully and repeatedly uses electronic
communicaon to disturb the peace, quiet or right
to privacy of any other person, with no purpose
of legimate communicaon and whether or not
a conversaon ensues, commits a misdemeanor,
and is liable on convicon to a ne not exceeding
24 currency points and 1 year’s imprisonment in
the alternave. This provision does not provide
clear guidance as to what communicaon
amounts to ‘disturbing of the peace,’ neither does
it disnguish between legimate and illegimate
communicaon. As such, the provision gives
leeway to law enforcement ocials to apply
their individual interpretaons on whether a
communicaon is illegimate and amounts to
disturbance of the peace. This is in contravenon
of aforemenoned principles that have been
enunciated by the Human Rights Commiee.16
The danger posed by this provision was
demonstrated when it was used to arrest and
prosecute Dr. Stella Nyanzi, a human rights acvist
that ardently cricised President Museveni, for
repeatedly using the social media plaorm of
Facebook to post messages that were allegedly
meant to ‘disturb the peace of the president’.17 By
not clearly dening what amounts to disturbance
of the peace and illegimate communicaon,
Secon 25 of the Computer Misuse Act gives
unfeered discreon to law enforcement
ocials to unjusably restrict individuals’ right
to freedom of expression and subject them to
arbitrary arrest, contrary to the spirit of Arcle 19
of the Internaonal Covenant on Civil and Polical
Rights and Arcle 29(1) of the 1995 Constuon
of the Republic of Uganda.
The non-compliance of Secon 25 of the
Computer Misuse Act with the standard of
certainty and clarity as a key feature of legislaon
that limits the right to freedom of expression can
further be demonstrated in the decision of the
Constuonal Court in East Africa Media Instute
15 Above, para 15.
16 Above.
17 The Guardian, 23rd April 2017, How Insults and Campaign
Over Sanitary Towels Landed Acvist in Jail, accessed at
hps://www.theguardian.com/world/2017/apr/22/acvist-
uganda-president-buocks-jail-stella-nyanzi (Accessed on 27
September 2017).
Additionally, laws that
restrict freedom of
expression must be
clear on which sorts of
expressions are limited
and which ones are not,
and they must not give
unfettered discretion to
those charged with their
execution to restrict
freedom of expression.
Human Rights Awareness and Promoon Forum (HRAPF) 17
www.hrapf.org
and Andrew Mwenda v Aorney General18, where
similarly broad and vague provisions of Secons
39 and 40 of the Penal Code Act creang the
oence of sedion were held to be too vague
to warrant a jusable limitaon of the right
to freedom of speech and expression. Secon
25 of the Computer Misuse Act is essenally a
recurrence of the nullied sedion provisions, the
vagueness of which was exploited by government
to wantonly subject individuals that voiced
dissenng and crical opinions and issues against
it to criminal prosecuon.19
Secon 24 of the Computer Misuse Act also makes
it an oence for an individual to use a computer
to make a request, proposal or suggeson that
is obscene, lewd, lascivious or indecent. From
the onset, this provision would be within the
protecon of public morals as an excepon to
observance of the right to freedom of expression.
However, the ‘morals’ excepon is not to be
unfeered.20 Any limitaon must be within what is
necessary and jusable in a free and democrac
18 Consolidated Constuonal Peons No. 12 of 2005 and
No. 3 of 2006
19 Human Rights Watch A Media Mineeld: Increased Threats
to Freedom of Expression in Uganda (2010) available online
at hps://www.hrw.org/report/2010/05/02/media-
mineeld/increased-threats-freedom-expression-uganda
(Accessed on 22 October 2017).
20 Arcle 19 Freedom of Expression Handbook (1998)
available online at hps://www.arcle19.org/data/les/
pdfs/publicaons/1993-handbook.pdf (Accessed on 27
September 2017).
society.21 The broad criminalisaon of obscene,
lewd, lascivious and indecent suggesons,
proposals and requests under Secon 24 of the
Computer Misuse Act, without specifying the
circumstances under which it is prohibited leaves
room for it to be applied arbitrarily to limit the
right to freedom of expression.
Addionally, as regards the principle of
proporonality, while both Secons 25 and 24
of the Act seek to protect the quiet enjoyment
of various forms of electronic media by their
users, such an aim, when juxtaposed against
the right to freedom of expression in a free and
democrac society, does not warrant the placing
of criminal sancons on communicaon that some
individuals may or may not nd oensive. Indeed,
as pointed out by the African Court in Lohe Issa
Konate V Burkina Faso,22 criminal sancons are not
a jusable limitaon on the exercise of the right
to freedom expression. The balance between the
individual right to privacy and the right to freedom
of expression is suciently catered for by civil law
in the torts of defamaon and nuisance.
The Right to Privacy
Domesc Context
Arcle 27 of the 1995 Constuon of Uganda
provides for the right to privacy of informaon
wherein it spulates that no person shall be
subjected to interference with the privacy of
21 Art 43(2)(c) of the Constuon of the Republic of Uganda,
1995.
22 n 12 above.
SOURCE: hps://www.shuerstock.com
The Human Rights Advocate | Fourth Issue - November 2017
18
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
their correspondence, communicaon or other
property. The right to privacy, as are other
non-derogable rights provided for in the bill
of rights, is subject to limitaon on grounds of
protecon of the rights of other individuals and
the public interest, as spulated in Arcle 43 of
the Constuon. In Uganda, this right has mainly
been limited on the basis of protecng the public
interest, specically, the need to ensure naonal
security.23 According to the Supreme Court in
Aorney General v Maj. General David Tinyefuza24,
an asseron that the infringement upon the right
to informaon is necessary to ensure naonal
security is not sucient, as the state must
adduce evidence to prove it. While this case was
primarily about the right to access to informaon,
in the absence of elaborate case law on the right
to privacy of communicaon and informaon
in Uganda, its rao decidendi is very helpful in
demonstrang that infringement on a right by the
state, including the right to privacy, on grounds
of naonal security, is only permissible where
evidence of the necessity of such infringement to
the protecon of naonal security is adduced by
the state.
Regional and Internaonal Context
While at the regional level, the African Charter
does not address the right of the privacy of
communicaon, it has been addressed at the
internaonal level by the Internaonal Covenant
on Civil and Polical Rights (ICCPR), as well as the
Commiee on Civil and Polical Rights.
Arcle 17 of the ICCPR spulates that the no
one shall be subjected to unlawful and arbitrary
interference with their privacy, family, home or
correspondence. The Commiee on Civil and
Polical Rights oers great guidance on what
amounts to ‘unlawful and arbitrary interference.’
According to the Commiee, unlawful interference
with the right to privacy is that which is not
provided for by law, while arbitrary interference
is that which may be provided for by law, but is
not in line with the objecves of the ICCPR and is
unclear and unreasonable in the circumstances.25
23 K Mayambala, Phone Tapping and the Right to Privacy
in Uganda (2008) accessed at hp://www.bileta.ac.uk/
content/les/conference%20papers/2008/Phone-
tapping%20and%20the%20Right%20to%20Privacy%20
[Ronald%20Kakungulu].pdf
(Accessed on 24 October 2017).
24 Constuonal Appeal No. 1 of 1997.
25 Commiee on Civil and Polical Rights (1988), General
Comment No.16 on the Right to Privacy, Family, Home and
Correspondence, and Protecon of Honour and Reputaon,
paras 3-4 accessed at hp://www.refworld.org/
docid/453883f922.html (Accessed on 24 October 2017).
Reasonableness has been interpreted by the
Human Rights Commiee in Toonen v Australia26
to mean that any interference with privacy must
be proporonal to the end sought and must be
necessary in the circumstances of any given case.
The Computer Misuse Act and Domesc, Regional
and Internaonal Standards on the Right to Privacy
Secon. 9 of the Computer Misuse Act spulates
that an invesgang ocer may apply to court
for an order to preserve data that he or she
reasonably believes to be in danger of geng
lost or modied. According to subsecon 2, data
includes subscriber informaon. The danger with
this provision is that, contrary to the constuonal
requirement that a right can only be limited
according to what is acceptable and demonstrably
jusable in a free and democrac society, it does
not clearly address the issue of the relevance of
the data that is to be the subject of the court
order to the case being invesgated. This gives
leeway to the invesgang ocer to intercept
personal communicaon and correspondences of
subscribers, even in circumstances where it is not
jusable.
Secon 10 of the Act provides for the applicaon
of an order for disclosure of data that had been
preserved by the invesgang ocer. The danger
with this provision is that it is not clear on the
persons or authories to whom such informaon
is to be disclosed, and what the envisioned
purpose of the disclosure will be. While clause (b)
of the Secon makes reference to interpretaon of
data as a ground for disclosure, it does not clearly
make the linkage as to the ulmate objecve of
such interpretaon. This again leaves room for
violaon of the right to privacy of the subscribers,
whose personal informaon may be disclosed to
unauthorised persons, and without good cause.
Conclusion
As evidenced from its long tle, the enactment
of the Computer Misuse Act was well intenoned
in as far as protecon of individual rights of
computer and Internet users, as well as data
protecon are concerned. Unfortunately, the
Act has provisions that are too broad and do not
provide for specic and well-dened restricons
on the right to freedom of expression and privacy.
As such, there is a denite need to have most of
the provisions in the Act amended to bring them
in line with domesc, regional and internaonal
standards on informaon and expression rights
and freedoms.
26 Communicaon No. 488 of 1992.
Human Rights Awareness and Promoon Forum (HRAPF) 19
www.hrapf.org
Introducon
The Computer Misuse Act, with its
vague and overly broad provisions,
joins ranks with a number of laws in
Uganda that suer the same deciency. While
some laws with ambiguous provisions have
existed since colonial mes, the most recent
laws have been strategically enacted over the
past decade or so with the specic intenon
of reducing dissent, criminalising diversity,
liming free thought and sing opposing
voices. These vague laws however have the
eect of restricng the rights of marginalised
persons, parcularly sexual minories, much
more than other persons. This arcle puts into
context the vague provisions of the Computer
Misuse Act by showing how it simply joins
the other laws to further restrict the rights
of sexual minories. It analyses some of the
laws in Uganda that contain vague provisions,
which have been used or have the potenal
to be used discriminately against marginalised
persons. The focus will be on sexual minories
as they face the harshest marginalisaon
because of prejudices, and there are specic
laws that aempt to criminalise their conduct.
Vagueness an d broadness: A co nc eptual
analysis
Vagueness and broadness of laws are two
related but dierent concepts, with dierent
meanings and dierent framings. The two
concepts of ‘void for vagueness’ and ‘void for
overbreadth’ help to disnguish them:
FEATURE
In kindred company: The Computer Misuse Act and the other vague and broad
laws that threaten the rights of sexual minories
Joaninne Nanyange
Ag. Deputy Execuve
Director, HRAPF
The Void for vagueness Doctrine
Vagueness of criminal laws in Uganda is dealt
with under Arcle 28(12) of the Constuon,
which provides that except in cases of contempt
of court, no person shall be convicted of a
criminal oence unless that oence is dened
and a punishment prescribed by law. This is the
‘Void-for-Vagueness’ Doctrine.
Arcle 28(12) has however not been fully
interpreted in Ugandan jurisprudence and
legislaon, and therefore the ‘void-for
vagueness’ doctrine has not fully taken root.
As a result, many vague provisions remain
on the law books and are used to prosecute
people despite Arcle 28(12). This is what the
state has exploited to further ostracise already
marginalised groups.
In the United States legal system, the doctrine
of ‘Void-For-Vagueness’ has been developed
extensively. The doctrine, in as far as the United
States is concerned, is derived from their due
process clauses of the h and fourteenth
amendments to the US Constuon that
require criminal laws to be draed in language
that is clear enough for the average person
to comprehend.1 The doctrine is to the eect
that if a person of ordinary intelligence cannot
determine which persons are regulated, what
conduct is prohibited, or what punishment may
be imposed under a parcular law, then the
law will be deemed unconstuonally vague.
The void-for-vagueness doctrine has four
underlying principles, which will be discussed
in turn.2 These tested principles can be
extrapolated to Uganda’s context.
1 AE Goldsmith ‘The Void-For-Vagueness Doctrine in
the Supreme Court, Revisited’ 30 American Journal of
Criminal Law (2003) 282; Encyclopedia, American Law
and Legal Informaon ‘Void for vagueness doctrine’
available online at hp://law.jrank.org/pages/11152/
Void-Vagueness-Doctrine.html (accessed 20 October
2017).
2 As above.
The Human Rights Advocate | Fourth Issue - November 2017
20
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
First, it requires legislators and government to
disnguish between conduct that is lawful and
that which is unlawful. This principle exists to
ensure that people are given adequate noce of
what conduct is criminalised and what conduct is
not. When the populace is given adequate noce,
they know how to conduct themselves within the
legal framework. Vague and unclear laws that do
not give people fair warning and noce become
a trap for marginalised groups that suer under
societal prejudices.
Second, the doctrine requires that laws are
precise, clear and discernible not just to the
people that are required to obey them, but also
to those that are required to enforce them.3
This is intended to curb the arbitrary and
discriminatory enforcement of such laws. In a
study conducted by Human Rights Awareness
and Promoon Forum in 2016 for example, it
was found that ‘vagrancy oences’ in Uganda are
mainly enforced against marginalised groups like
LGBTI persons, sex workers and drug users.4 Such
laws give enforcement ocers wide discreon to
implement the law as they think t. When such
ocers interface with groups of persons that are
marginalised and suer prejudice, they exploit the
vagueness of the provisions and enforce the laws
discriminately.
Third, the doctrine requires judicial ocers not
to apply vaguely worded laws.5 This principle is
to the eect that if such laws are to be applied
by courts and tribunals, judicial ocers should
give them very narrow interpretaons. It further
provides that those that are too vague to be
narrowly interpreted by judicial ocers should be
struck down as unconstuonal.
Fourth, the doctrine cauons against vague laws
aecng the enjoyment of rights.6 Since vague
and ambiguous laws create uncertainty as to
what conduct is prohibited and what is not, they
have the eect of creang self-censorship among
cizens, who are conscious that they might
engage in something that could be interpreted
as criminal. Addionally, the wide discreon
3 Goldsmith (n 1 above) 285.
4 See Human Rights Awareness and Promoon Forum ‘The
Implicaons of the Enforcement of ‘Idle and Disorderly’ Laws
on the Human Rights of Marginalised Groups in Uganda’ 2016
5 Goldsmith (n 1 above) 285.
6 For a discussion on the level of certainty which criminal
laws were historically required to provide, see CD
Lockwood ‘Dening indeniteness: Suggested revisions
to the Void for Vagueness Doctrine’ 8 Cardozo Public Law,
Policy and Ethics Journal (2009) 171-2.
given to law enforcers by vague laws creates an
opportunity for them to use these laws to clamp
down on the legimate enjoyment of rights. Such
laws have for example been used to violate the
right to liberty of marginalised groups in Uganda
through arbitrary arrests and rights to freedoms
of associaon and assembly through police raids
on legimate events and organising.
As already noted, marginalised and unwanted
populaons bear the brunt of vague and ambiguous
laws. In Uganda, some of these populaons
include drug users, sex workers, LGBTI persons,
pey traders, market vendors, unemployed and
homeless persons, street children and polical
crics. The reason for this is that somemes the
typical behavior or characteriscs of unpopular
groups (such as unemployed or homeless persons)
are not criminalised and yet society wants to use
the law to repress them or remove them from
the public eye. In many cases where the acons
of undesirable minories are criminalised, the
oences they could be charged with are hard
to prosecute and prove as in the case of sexual
minories. Enforcers subsequently resort to
the vague and broad laws that give them wide
discreonary powers to decide what conduct is
prohibited.
The over-breadth doctrine
This doctrine is by and large related to the void-
...marginalised and unwanted
populations bear the brunt of
vague and ambiguous laws.
...some of these populations
include drug users, sex
workers, LGBTI persons, petty
traders, market vendors,
unemployed and homeless
persons, street children and
political critics.
Human Rights Awareness and Promoon Forum (HRAPF) 21
www.hrapf.org
for-vagueness doctrine. Over-breadth however
concerns oences that sweep up into their
prospecve net both constuonally protected
and constuonally unprotected acvity.7 As
developed in the United States, this doctrine is
mainly used against provisions or laws that are
so broad that they extend to acvies and rights
that are protected by the constuon.8
This doctrine has been explored in the Ugandan
case of Charles Onyango Obbo and Andrew
Mwenda v Aorney General9 where the appellants
challenged secon 50 of Uganda’s Penal Code Act
that created the oence of publicaon of false
news. In declaring the secon unconstuonal,
Uganda’s Supreme Court noted that the secon
was too broad and capable of very wide applicaon
and the eect of this was to perpetually place
the aected persons in a dilemma over what
was criminalised and what was not. The court
noted that the secon would have the eect of
either some people taking the plunge and geng
prosecuted or create self-censorship among those
that were cauous enough to avoid prosecuon.
In any case, the court noted that the eects
were injurious to enjoyment of the freedom of
expressions and democracy. Addionally, the
court also noted that the broadness of the secon
had the eect of giving prosecutors unfeered
discreon to determine, from me to me,
what was criminalised and what was not, which
cannot be acceptable or jusable in a free and
democrac society.
7 Roenstein Group ‘What does it mean when a law is “void
for vagueness” or “overbroad”? hp://www.rotlaw.com/
legal-library/what-does-it-mean-when-a-law-is-void-for-
vagueness-or-overbroad/ (accessed 23 October 2017)
8 As above.
9 Constuonal Appeal No. 2 of 2002.
The Onyango Obbo case highlights the most
glaring shortcomings of broad laws, namely they
put the public in a dilemma as to what conduct
is criminalised and give law enforcers unfeered
discreon to make that decision. As noted,
this either leaves many people suscepble to
persecuon in the form of prosecuon, or creates
a chilling eect on the public where people avoid
engagement in legimately protected conduct
because they are wary of being caught up in the
ambit of the criminal provisions. Needless to
emphasise, both situaons are catastrophic to
the enjoyment of rights and are claw backs to the
aspiraons of a free and democrac society.
It should, however, be noted that courts
acknowledge the fact that almost all laws aect
conduct that is ordinarily protected in Bills of
Rights, and that striking down every law that
seems to aect protected conduct would be
problemac. Courts have therefore created space
to allow existence of laws that are wrien in
general terms by introducing the substanality
test.10 In essence, this test requires that for a law
to be struck down as overly broad, one must show
that it not only aects conduct that is protected,
but that it aects such conduct in a substanal
manner as to make the protecon of the conduct
illusory.
Vague an d overly br oa d la ws i n Ug anda an d
their impact on Sexual minories
The following laws contain vague and/or overly
broad provisions that disproporonately aect
sexual minories. They are classied between
those that directly aect sexual minories and
those that indirectly aect sexual minories:
10 Ashcro v Free Speech Coalion 535 U.S 234 (2002).
SOURCE: hps://www.shuerstock.com
The Human Rights Advocate | Fourth Issue - November 2017
22
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
Vague and broad laws that directly aect
sexual minories
Unnatural Oences under the Penal Code Act
The Penal Code Act is Uganda’s cardinal criminal
law. Secons 145 and 146 of the Penal Code
Act criminalise carnal knowledge against the
order of nature, which has been (mis)interpreted
as criminalising homosexuality.11 This common
misunderstanding of this provision by law
enforcement ocers and various duty bearers
is not accidental. It is a result of the vagueness
of the provision. The provision does not dene
the term ‘order of nature’ and neither does
the Act. As a result, the provisions are oen
subjecvely interpreted and what ‘against order
of nature’ means more oen than not, depends
on whom you ask. The provisions have not been
the subject of extensive ligaon. However, a
few cases have shed light on its meaning. In the
case of Kasha Jacqueline Nabagesera & Others
v Rolling Stone Newspaper & Another12 the judge
stated that secon 145 is limited to sexual acts
and not identy and orientaon. However, in the
subsequent case of Kasha Jacqueline Nabagesera
& Others v Aorney General & Another,13 the High
Court held that holding a skills training workshop
for LGBTI persons is against the law as it amounts
to conspiracy to commit the oences created in
secons 145 and 146. This case disnguished
the earlier decision on the basis that it dealt with
dierent circumstances. The rst interpretaon
is the one employed by organisaons working to
protect the rights of LGBTI persons, for example
HRAPF,14 while some state agencies such as the
Uganda Registraon Services Bureau (URSB)
choose to use the second wider interpretaon
to refuse incorporaon of organisaons whose
names or objecves explicitly menon working
with sexual minories.15
From the above, the posion of the law remains
vague. This vagueness, coupled with the prevalent
homophobia in Uganda, connue to be leading
11 Human Rights Awareness and Promoon Forum and the
Civil Society Coalion on Human Rights and Constuonal
Law Protecng ‘Morals’ by Dehumanising Suspected
LGBTI Persons? A Crique of the Enforcement of the Laws
Criminalisng Same-sex Conduct in Uganda (2013) 43.
12 Miscellaneous Cause No. 163 of 2010.
13 High Court Miscellaneous Cause No. 33 of 2012.
14 See Human Rights Awareness and Promoon Forum
(HRAPF) A Guide to the Normave Legal Framework on the
Human Rights of LGBTI Persons in Uganda 25.
15 The case of Frank Mugisha & Others v URSB High Court
Miscellaneous Cause No. 96 of 2016.
causes of violaons of rights of LGBTI persons.
The An-Homosexuality Act, 2014 (now nullied)
The An Homosexuality Act was passed by
Uganda’s Parliament in December 2013 and
signed into law by the President in February
2014. The Act remains Uganda’s greatest aempt
at comprehensively and directly criminalising
homosexuality. As previously discussed, the
current criminal framework only criminalises
carnal knowledge against the order of nature. The
An-Homosexuality Act expressly criminalised
same sex sexual conduct and extended to
aiding and abeng homosexuality and what
was termed ‘promong homosexuality’. In March
2014, the Civil Society Coalion on Human
Rights and Constuonal Law led a peon
in Uganda’s Constuonal Court16 challenging
the constuonality of some of the provisions
of the Act and the manner of its passing (that it
was passed without quorum). The Constuonal
Court heard the case and on 1st August 2014,
declared the Act unconstuonal as it had been
passed without quorum. Aempts to re-table a
similar Bill in Parliament have not materialised.
The Act is currently not in force but its eects
remain.
16 Constuonal Peon No. 008 of 2014.
Sections on aiding and
abetting and promoting
homosexuality were
unconstitutionally
broad in as far as they
prohibited legitimate and
constitutionally protected
work like health service
provision and human rights
advocacy.
Human Rights Awareness and Promoon Forum (HRAPF) 23
www.hrapf.org
The environment in Uganda is permeated with
an undeniable phobia for LGBTI persons, and
since the early 2000s when the debate on
homosexuality truly gained tracon in Uganda, the
general feeling has been that there is not enough
restricon in the law to ‘curb’ homosexuality.
This feeling manifested itself in various events
occurring between 2005 and 2014 in Uganda,
both on the legislave and law enforcement
fronts and in social circles in Uganda, which
culminated in the passing of the highly publicised
and controversial An-Homosexuality Act.
During its existence, the law posed a grave
threat to the very lives of suspected LGBTI
persons in Uganda as it occasioned such
intense discriminaon and homophobia.
Among others, the law created oences of
‘aempt to commit homosexuality’,17 ‘aiding
and abeng homosexuality’18 and ‘promoon
of homosexuality.19 Secons like aempt to
commit homosexuality were so vague in nature
in as far as they did not criminalise specic
conduct. Secons on aiding and abeng and
promong homosexuality were unconstuonally
broad in as far as they prohibited legimate
and constuonally protected work like health
service provision and human rights advocacy.
As a maer of fact, during the existence of the
Act, organisaons were raided20 and suspended,
21 individuals arrested and a number of other
violaons commied. If the law had stood the
test of constuonal muster, these provisions
would have posed a grave danger to the lives
and well-being of LGBTI persons and would
have hampered service provision to them. Even
when the law was annulled, its halo remains and
is exhibited in instances when LGBTI persons are
arrested and charged with oences under it, and
the persistence of ‘promoon of homosexuality/
recruitment into homosexuality’ propaganda by
an-gay groups and acvists. The eects of this
law remain visible in the enforcement of exisng
legislaon, and in the development of new
legislaon,22 which are being used to clamp down
17 Sec 4.
18 Sec 7.
19 Sec 13.
20 hps://2009-2017.state.gov/r/pa/prs/ps/2014/04/
224431.htm (Accessed 23 October 2017).
21 hps://76crimes.com/2015/01/23/uganda-refugee-
project-survives-an-gay-aacks-of-2014/ (Accessed 23
October 2017).
22 For example some provisions of the NGO Act 2016 were
included to curb against organisaons that ‘promote
homosexuality’ since the An-Homosexuality Act was
annulled.
Laws that indirectly aect sexual minories
The Non-Governmental Organisaons Act, 2016
The NGO Act of 201623 is the law that governs
the registraon and operaon of NGOs in
Uganda. Among others, the Act puts special
obligaons on all NGOs to refrain from engaging
in acvies that are prejudicial to the ‘security
and laws of Uganda’ and the ‘interests and dignity’
of the people of Uganda.24 As expected, the Act
does not dene ‘security’, ‘interests’ or ‘dignity’ of
Ugandans. The Act does not state the status of
the ‘special obligaons’ and what would happen if
an organisaon breaches any of the obligaons.25
These obligaons seem to be core requirements
for organisaons operang in Uganda and
since there is no guidance as to their eect or
implicaons, law enforcers can implement them
23 See Human Rights Awareness and Promoon Forum Legal
Analysis of the NGO Bill, 2015 (2016) and Human Rights
Awareness and Promoon Forum ‘The Likely Implicaons
of the Non-Governmental Organisaons Act 2016 on
Marginalised Groups’ 3 The Human Rights Advocate (2016)
for detailed discussions of the provisions of this law,
available online at www.hrapf.org.
24 Sec 44 of the Act lays out the special obligaons of NGOs.
25 Sec 40(1)(d) provides that an organisaon commits an
oence that engages in any acvity prohibited by the
Act. However, it is debatable whether the breach of a
special obligaon would amount to engaging in an acvity
prohibited by the Act.
enjoyment of rights by sexual minories.
SOURCE: hps://www.shuerstock.com
The Human Rights Advocate | Fourth Issue - November 2017
24
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
in any way they deem t.
Considering the backdrop against which the
Act was enacted, its overly broad and almost
unenforceable provisions create a potenal threat
for organisaons that work on unpopular issues or
with unpopular persons such as sexual minories.
These provisions could be used to close down
organisaons or even impose criminal liability on
directors of such organisaons. The provisions
are too vague for a person to understand what is
really prohibited and too broad to the extent that
they substanvely limit legimately protected
rights of associaon, assembly and expression.
While the impact of these secons has not yet
materialised with sexual minories, the Act is
already being used to close down operaons of
organisaons involved in polical dissent and it
is a maer of me before this enforcement is
extended to organisaons working with unpopular
populaons like sexual minories.
The Public Order Management Act, 2013
This Act was adopted to regulate the exercise
of the freedom to assemble and to demonstrate
together with others in a peaceful and unarmed
manner and to peon in accordance with Arcles
29(1)(d) and 43 of the Constuon.26 The Act
however has been unnecessarily restricve and
has led to the arbitrary limitaon of the freedoms
it sought to operaonalise. One of the reasons
for this is that some of the Act’s provisions are so
vague and ambiguous and grant extremely wide
discreonary powers to implemenng ocers to
interpret the Act as they deem t.
Secon 4 denes a public meeng to mean ‘a
gathering…held for the purposes of discussing…a
maer of public interest’. The Act however does
not dene what would amount to a maer of
public interest, yet this denion determines the
types of meengs that should be subjected to the
requirements laid down in the Act. Any maer
can be said to be a maer of public interest,
depending on the implemenng ocer. It should
be noted that under the Act, there are restricons
on the holding of meengs that qualify as public
meengs, with the Act establishing requirements
of nocaon of the police three days before
such a meeng is held,27 and giving powers
to law enforcement authories to refuse the
holding of such meengs. Since such restricons
substanvely aect the enjoyment of protected
freedoms, it would be prudent to ensure that the
enabling law is as precise as possible regarding
26 Sec 2.
27 Sec 5.
the extent to which the law can be applied.
While the secon goes ahead to provide for what
a public meeng is not, this list is not all-inclusive,
as the legislature could not be reasonably expected
to foresee all types of meengs. What would be
easier would be a much more precise denion of
what a public meeng is, and not what it is not.
The eect of the ambiguous denion of a public
meeng is that it leaves the decision of which
meengs should be brought under the operaon
of this law and which ones should not be in the
hands of law enforcement ocers. As discussed
above on the populaons that oen bear the
brunt of such laws, it is marginalised groups that
are likely to be aected by such wide discreon.
In August 2016, a beauty pageant held during
the LGBTI pride week was raided and stopped
on the grounds that it was a public meeng and
that the requisite noce had not been sought
from police. From the denion given in the Act,
one could say that this was a social event that
excluded it from being a public meeng, or that
the event was never intended to discuss any
maer of public interest, as it was merely a beauty
pageant for the pride celebraons. However, all
these arguments could not be validly made as
one can not tell for sure whether this was a public
meeng or not. Even if one could, the law leaves
the discreon with the enforcement ocer to
decide what is a public meeng and what is not.
As a result, organisers and acvists were arrested
at that event and brutalised, simply because the
In August 2016, a beauty
pageant held during the
LGBTI pride week was raided
and stopped on the grounds
that it was a public meeting
and that the requisite notice
had not been sought from
police.
Human Rights Awareness and Promoon Forum (HRAPF) 25
www.hrapf.org
ocers had the power to decide whether the
Public Order Management Act applied or not. This
law therefore presents high potenal for abuse,
especially against criminalised and prejudiced
minories like LGBTI persons and sex workers.
The Companies Act, 2012
Many organisaons working on issues of sexual
minories have up to now elected to register
as companies limited by guarantee. Even under
the new NGO regime, all organisaons seeking
to operate as NGOs will be required to rst be
incorporated as companies limited by guarantee.
The Companies Act gives the Registrar of
Companies powers to refuse the reservaon of
a company name that is regarded as undesirable.28
The Act does not dene what ‘undesirable’ means
and neither do the Regulaons to the Act. This
provision gives the Registrar much discreon to
decide which name is desirable and which one is
not. This provision has been used before to refuse
the reservaon of the name Sexual Minories
Uganda (SMUG), on grounds that the name was
undesirable.
The reasons given by the Registrar of Companies
for deciding that the name ‘Sexual Minories
Uganda’ was undesirable was that the objecves
of the organisaon showed that it intended
to work with LGBTI persons whose perceived
behaviour is criminalised under secon 145 of
the Penal Code Act. Although the case is currently
in the High Court pending determinaon,29 it was
dicult to contest the legimacy of this decision
because the Act does not provide clear guidance
to the Registrar’s exercise of these powers. It is
important to note that failure to reserve a name
puts a halt to the incorporaon exercise of an
organisaon. While a name can be changed, the
decision made in the SMUG case was not merely
based on a name, but rather on the objecves
of the organisaon. The refusal to reserve the
name based on the objecves of the organisaon
was essenally a refusal to incorporate the
organisaon, except if the organisaon changed
its objecves.
Due to the wide discreon granted under
the provision, it was used by the Registrar of
Companies to not only refuse the reservaon
of the name of an intending organisaon, but
also essenally to stop the incorporaon of an
organisaon. This interpretaon would arguably
go beyond the applicaon of secon 36, but this
would be a queson of interpretaon for the
28 Sec 36 of the Act.
29 The Frank Mugisha Case (n 16 above).
courts to determine as the secon is quite broad
and undened. Such a secon has aected, and
carries the risk of connuing to aect, the rights
of associaon for organisaons intending to work
with unpopular groups like sexual minories.
The Vagrancy and nuisance laws in the Penal Code
Act
The vagrancy and nuisance laws are found in
secons 167 and 168 of the Penal Code Act.
These provisions create the oences of being idle
and disorderly and being a rogue and vagabond
respecvely. The oence of being idle and
disorderly among others criminalises any person
who publicly conducts himself or herself in a
manner likely to cause a breach of the peace and
any person who in any place solicits or loiters for
immoral purposes. The oence of being a rogue
and vagabond on the other hand criminalises a
suspected person who has no visible means of
subsistence and cannot give a good account of
himself or herself and persons found wandering
in or upon or near any premises or in any road
or highway or any place adjacent thereto or in
any public place at such me and under such
circumstances as to lead to the conclusion that
such person is there for an illegal or disorderly
purpose, among others.
Many sexual minories who come into conict
with the law are charged with these oences
instead of the actual oences for which they
are arrested i.e. suspicions of homosexuality
(carnal knowledge against the order of nature)
and sex work. In a few instances, parcularly
for transgender women, police have used the
oence of being a common nuisance, which is
created under secon 160.30 This secon provides
that any person who does an act not authorised
by law or omits to discharge a legal duty and
thereby causes any common injury, or danger or
annoyance or obstructs or causes inconvenience
to the public in the exercise of common rights
commits an oence of common nuisance. In
a study conducted in 2016, it was found that
these oences were generally favoured by the
Uganda Police Force for charging and prosecung
suspected sexual minories because they were
broad enough to cover a wide range of innocuous
behavior and were far easier to prove than the
unnatural oences or prostuon charges.31
It has indeed been shown that convicons on
30 HRAPF (n 14 above) 26.
31 See Human Rights Awareness and Promoon Forum The
Implicaons of the Enforcement of ‘Idle and Disorderly’ Laws
on the Human Rights of Marginalised Groups in Uganda
(2016) 25; Also see Lanzea v New Jersey 306 US 451.
The Human Rights Advocate | Fourth Issue - November 2017
26
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
charges of having carnal knowledge against
the order of nature or prostuon are almost
impossible to obtain, so in most cases suspected
sexual minories will be charged under these
vagrancy laws.32 The oences are broad enough
to cover conduct as harmless as moving around,
but not so broad as to make it impossible to
prosecute cases under them. The implicaon
this has had is that sexual minories in Uganda
essenally have no right to liberty and freedom
of movement except as granted by the arresng
ocer. Also, the provisions have been used to
extort money from sexual minories, punish them
for their behaviour and subject them to unlawful
detenon. These provisions are a classic example
of laws that oend the over-breadth doctrine
discussed above, as they limit conduct that is
protected by Uganda’s Constuon in Arcle 23
in a substanal and unjused manner.
Conclusion
The Computer Misuse Act is part of a series of
laws that seek to limit the rights of unpopular
minories through legal sancons based on
provisions that are far too vague and broad to
pass constuonal muster.33 It has therefore
become necessary to examine the eect of this
law in the general scheme of such legislaons and
the likely implicaons of its enforcement on the
basic rights of marginalised persons in Uganda.
With the annulment of the An-Homosexuality
Act, connued absence of the tabling of a
new law akin to the An-Homosexuality Act
32 See HRAPF and CSCHRCL (n 11 above) 21-2.
33 Art 28(1) of the Constuon, Salvatori Abuki & Another v
Aorney General, Supreme Court Case No. 1 of 1998.
and the apparent reluctance for the oences
on sex work to be enforced, vague and broad
oences have become the most obvious choice
for law enforcers when dealing with unpopular
populaons like sexual minories. They cast a net
wide enough to cover a broad range of conduct,
and do not present considerable challenges to
prosecuon, as they require minimal evidence.
However, their connued selecve enforcement
is a cause for concern as it grossly violates the
human rights of targeted populaons. Advocacy
eorts should be engaged in to ensure that these
laws are amended, or at the very least, that they
are not enforced in a manner that is deliberately
discriminatory, opportunisc and marginalising to
minority groups.
The Computer Misuse Act is
part of a series of laws that
seek to limit the rights of
unpopular minorities through
legal sanctions based on
provisions that are far too
vague and broad to pass
constitutional muster.
SOURCE: hps://www.shuerstock.com
Human Rights Awareness and Promoon Forum (HRAPF) 27
www.hrapf.org
COMPARATIVE PERSPECTIVE
Picking a leaf from other jurisdicons: What Uganda can learn from recent
developments on oensive communicaons laws in India, Tanzania and the UK
Introducon
The use of computers has undoubtedly
made communicaon and research
easier, connecon simpler, business
cheaper, security stronger and data storage
cheaper. It has promoted entertainment,
educaon, and made history more accessible
in real me with just the click of a buon. The
internaonal network is generally linked to
computers and other computer based devices
such as smart phones and smart televisions.
Whereas these gadgets have made life seem
much easier, they have also brought up a new
era of virtual crime which was probably never
envisaged in the earlier years. The ability to
achieve what one wants no maer where they
are without having to be physically be present
has made it easy for certain unique crimes.
Various countries’ legislatures have come up
with legislaon to try and curb such crimes and
deter persons from misusing computers.
In Uganda the Computer Misuse Act, 2011 was
enacted purposely to handle, among others,
crimes that arise from the use of the computer.1
The Act denes a computer to mean an
electronic, magnec, opcal, electrochemical
or other data processing device or a group
of such interconnected or related devices,
1 The purpose of the Act is to make provision for the
safety and security of electronic transacons and
informaon systems; to prevent unlawful access, abuse
or misuse of informaon systems including computers
and to make provision for securing the conduct of
electronic transacons in a trustworthy electronic
environment and to provide for other related maers.
Edward Ssemambo
Lawyer,
Kiiza, Tumwesige &
Ssemambo Advocates
performing logical, arithmec or storage
funcons; and includes any data storage
facility or communicaons facility directly
related to or operang in conjuncon with
such a device or group of such interconnected
or related devices.2 It should be noted that
the computer is merely a means or a plaorm
for comming oences already prohibited by
other legislaons; and most if not all these
oences predate the invenon and adopon
of computers and social media in Uganda.
In this era of the increasing access to the internet
and access to computers and mobile devices,
Secon 25, which criminalises ‘oensive
communicaons’, is of parcular interest as it
can essenally aect the diverse social media
plaorms including facebook, twier, linked-
in, and google. These modes have been used
to communicate, do business, and generally
to inuence society and any law which curbs
the use of these mediums have to be assessed
crically. This arcle considers Secon 25 of
the Act, in light of similar provisions regulang
oensive communicaon in other jurisdicons
in various parts of the world.
A comparison on the restricon of oensive
communicaon
The Act of 2011 creates several computer
misuse oences,3 their punishments,
jurisdicon, invesgaon procedure,
admissibility of evidence and the burden of
proof among others. It applies to both natural
and arcial persons such as corporaons.
Under Secon 25, it’s an oence to willfully
and repeatedly use electronic communicaon
to disturb or aempt to disturb the peace,
quiet or right to privacy of any person with
no purpose of legimate communicaon
whether or not a conversaon ensues. The
person found guilty commits a misdemeanor
and upon convicon the penalty is either a
ne not exceeding Ug.Shs 480,000 (Uganda
Shillings Four Hundred Eighty Thousand) or
2 See Sec 2.
3 All of which are felonies save for one.
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
imprisonment not exceeding one year or both.
It should be noted that, just like it is in other parts
of the world especially the developing world, the
internet has proved to be the most cost eecve,
easy entry way of sharing ideas and informaon.
In fact, computers are increasingly replacing the
tradional means of communicaon. In light
of the broad and vague nature of Secon 25,
communicaon via the internet has to be done
with cauon not to amount to a breach of the
law. This Secon is comparavely assessed in
light of similar laws in the United Kingdom, India
and Tanzania. These countries were selected
because they share a common heritage of
inuence of Brish Law with Uganda and,
though their socio-polical contexts vary, are
appropriate comparators to Uganda. Their levels
of development dier, with the UK being the most
developed, followed by India and then Tanzania,
which is almost comparable to Uganda in terms of
development, and consequently computer access
and penetraon. The countries will be discussed
in this order.
The United Kingdom
The United Kingdom (UK) has many laws that
are sensive to human rights. The UK’s criminal
law provision against oensive communicaon
is found in the Communicaons Act of 2003
which in Secon 127(1)(a) provides that ‘a
person is guilty of an oence (a) if he sends by
means of a public electronic communicaons
network a message or other maer that is grossly
oensive or of an indecent, obscene or menacing
character’. The Malicious Communicaons Act
19884 furthermore, under Secon 1 provides
that a person is guilty of an oense if they send
an electronic communicaon or arcle of any
descripon which is grossly oensive and if
their purpose in sending it is that it should cause
distress or anxiety to the recipient.
Laws against oensive communicaon have
a direct impact on the right to freedom of
expression, and for this reason the standard in
relaon to the oense is high, requiring that the
statement must be ‘grossly oensive’. The UK is
party to a number of internaonal instruments
including The European Convenon on Human
Rights (ECHR) whose provisions on the right to
freedom of associaon clearly protect expression
of views that may shock, annoy, disturb or
oend the deeply held beliefs of others.5 The
4 As amended by S.43 (1) of The Criminal Jusce and Police
Act 2001
5 See Art 10 of the European Convenon on Human Rights.
term ‘grossly oensive’ has also been dened
narrowly by the courts in order to limit the level
of infringement which it makes on the right to
freedom of expression. In the case of Director of
Public Prosecuons v McConnell6 the court held that
it was for the court to determine as a queson
of fact whether or not a message was ‘grossly
oensive’ by applying the standards of an open
and just society, taking into account the context
of the words and all relevant circumstances. There
is furthermore an intent requirement on the part
of the sender. In this case, a Chrisan pastor had
made negave remarks on Islam during a sermon
which was later streamed on the internet. The
court, taking into consideraon the accused’s
right to freedom of expression as protected under
the ECHR held that his expression was merely
oensive. The court also reiterated that courts
must be careful not to allow the criminal law to
censor speech which is merely oensive.7 In an
earlier case, the House of Lords had held that the
oense in Secon 127 of the Communicaons
Act went no further than necessary in restricng
the right to freedom of expression.8 The secon
has the legimate aim of protecng the rights and
reputaons of others from aack through the use
of the public electronic communicaons network
without making unnecessary inroads into the
rights of the communicator.
Indeed the UK’s Crown Prosecuon Service has
gone ahead and issued guidance to prosecutors
on how to handle cases arising out of computer
misuse, including those involving oensive
communicaon. The Guidelines rst note that
cases may be more appropriately prosecuted
under other laws. Prosecutors are expressly
required to balance between the right to freedom
of expression and the public interest. The context
within which the communicaon as made must
also be considered and the provisions of arcle
10 of the European Charter on Human Rights.
The prosecuon must both be necessary and
proporonate to what was done.9
The UK’s oensive communicaon provisions sets
a good example for Uganda and other countries
in that only grossly oensive communicaons are
6 [2016] NIMag 1.
7 F Cranmer ‘”Grossly oensive” or merely “oensive”? DPP v
McConnell: A note’ Law and Religion UK 5 January 2016.
8 Director of Public Prosecuons v Collins [2006] UKHL 40.
9 The Crown Prosecuon Service ‘Guidelines on prosecung
cases involving communicaons sent via social media’
available online at hp://www.cps.gov.uk/legal/a_to_c/
communicaons_sent_via_social_media/ (accessed 15
October 2017).
Human Rights Awareness and Promoon Forum (HRAPF) 29
www.hrapf.org
criminalised and that there has to be intent to
insult on the part of the sender. The provisions,
and the way they have been applied by the courts,
strikes a balance between protecon of the right
to dignity and the right to freedom of expression.
Such provisions cannot easily be used for ulterior
purposes such as clamping down on vulnerable
minories and quieng polical dissent.
India
India has recently taken a bold step toward the
protecon of the freedom of expression by declaring
unconstuonal its oensive communicaon
provision. Oensive communicaon was
provided for in the Informaon Technology Act
2000. Secon 66 A thereof makes it an oense
to send informaon that is grossly oensive or of
a menacing character or to send any informaon
which the sender knows to be false, for the
purpose of causing annoyance, inconvenience,
danger, obstrucon, insult, injury, criminal
inmidaon, enmity, hatred or ill will by making
use of a computer resource or a communicaon
device. The secon further criminalised sending
an electronic mail message for the purpose
of causing annoyance or inconvenience or to
deceive or mislead the recipient about the origins
of the message. The punishment imposed for this
oense was imprisonment for up to three years
with a ne.
This secon was challenged in the Supreme
Court in the case of Shreya Singhal v Union of
India.10 The Court considered the provision in
light of Arcle 19 of India’s Constuon, which
guarantees the right to freedom of expression.
Arcle 19(2) provides that the freedom of speech
and expression may be restricted by a law where
this serves ‘the sovereignty and integrity of India,
the security of the State, friendly relaons with
other States, public order, decency or morality
or in relaon to contempt of court, defamaon
or incitement to an oence.’ The Court held that
Secon 66A was unconstuonal on the basis
that it was over-broad and vague. The Act failed
to dene and delineate clearly the instances in
which the Act would apply.
Tanzania
Tanzania has recently adopted the Cybercrimes
Act, 2015 to make provision for the criminalisaon
of oences related to computer systems and
Informaon Communicaon Technologies. The
Act has two provisions that are comparable to
the ‘oensive communicaon’ provisions in the
legislaon of Uganda, the United Kingdom and
10 See Writ Peon No.167 Of 2012.
India. Secon 18 of the Act prohibits insults
through a computer system on the basis of
race, colour, descent, ethnicity, naonality or
religion. The oence is punishable with a ne
or imprisonment of not less than one year.
This provision delineates more clearly the kind
of communicaon that is prohibited than the
Ugandan legislaon which merely states that
‘oensive’ communicaon is prohibited. It also
makes a point to criminalise communicaons
which have the potenal to have serious harmful
consequences to naon building as opposed to
communicaons which are merely ‘oensive’.
The Ugandan Act could perhaps be amended
to deal with specic, dened oensive
communicaons, transmied through a computer
system, which are known to be likely to feed into
volale situaons such as tribal conict. Uganda
may draw a lesson from its neighbor in avoiding
the use of criminal law to regulate and address
the communicaon of expressions which are
merely oensive to individuals.
Conclusion
Along with technological advancement, there is a
connuous need for legislaon which keeps up
with evolving means of comming crimes. The
four jurisdicons considered have each dealt
dierently with communicaons transmied
through computer systems and which are
oensive to the recipient. A ne line has to be
drawn between the regulaon of oensive
communicaon through the use of computers
and unwarranted limitaon of the right to
freedom of expression. The UK puts in place
enough safeguards so that the right to freedom
of expression is protected while also protecng
persons from very oensive communicaon. India
on the other hand has it oensive communicaons
law struck down for being unconstuonal, while
Tanzania does not use vague and broad language
but clearly denes what it criminalises. Thus
of the three countries at the dierent levels of
development that have been discussed here,
Uganda stands alone in maintaining such a vague
provision. Secon 25 of Uganda’s Computer
Misuse Act, 2011 is undoubtedly suscepble
to constuonal challenge due to its broad
and vague nature and would benet from an
amendment which either limits criminalisaon to
‘grossly oensive’ communicaons or delineates
the oence to only apply to communicaons
which are likely to incite violence and hatred
through the use of a computer system. The
decision of the Constuonal Court in the case of
Andrew Karamagi & Robert Shaka is thus eagerly
awaited.
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
INTERNATIONAL LAW PERSPECTIVE
How does the Computer Misuse Act measure up to internaonal standards of privacy
and freedom of expression on the Internet?
Introducon
This arcle analyses the Computer Misuse
Act, 2011 from an internaonal law
perspecve. It focuses on the internet, a key
aspect of computer communicaons. It analyses
the compability of the Act with internaonal
human rights standards on privacy and freedom of
expression on the internet. In the rst part of the
arcle, the applicable principles provided under
internaonal law will be set out and discussed. In
the second part, selected provisions of the Act will
be analysed and considered in light of the stated
recognised principles in order to determine their
level of compability with internaonal human
rights law. The purpose of the Act is ‘to make
provision for the safety and security of electronic
transacons and informaon systems’, ‘to
prevent unlawful access, abuse or misuse of
informaon systems including computers’ and
‘to make provision for securing the conduct of
electronic transacons’.1 It is expected that the
objecves of securing informaon systems and
prevenng the misuse of informaon should be
carefully balanced against the rights to privacy
and the right to freedom of expression.
1. The internaonal legal framework on the
right to privacy and freedom of expression
on the internet
The rights applicable generally also apply to
the internet. Therefore, the internaonal legal
framework on the right to privacy and freedom of
expression applies to the internet too.
a) The right to privacy
The right to privacy is protected under Arcle
17 of the Internaonal Covenant on Civil and
1 According to the long tle of the Act.
Linee du Toit
Researcher, HRAPF
Polical Rights (ICCPR)2:
1. No one shall be subjected to arbitrary or
unlawful interference with his privacy,
family, home or correspondence, nor
to unlawful aacks on his honour or
reputaon.
2. Everyone has the right to the protecon
of the law against such interference or
aacks.
The right is also protected under Arcle 12 of the
Universal Declaraon of Human Rights:
No one shall be subjected to arbitrary
interference with his privacy, family, home
or correspondence, nor to aacks upon his
honour and reputaon. Everyone has the
right to the protecon of the law against
such interference or aacks.
This right is furthermore protected in the United
Naons Convenon on Migrant Workers3 and the
United Naons Convenon on the Protecon of
the Child.4
The United Naons Human Rights Commiee, in
interpreng Arcle 17 of the ICCPR, has stated
that any interference with privacy have to be
envisaged by law and that the law on which such
an interference is based has to comply with ‘the
provision, aims and objecves of the Covenant’,
otherwise the interference will nevertheless be
unlawful.5 The Commiee has expressed that
even an interference provided for under the law
can be classied as an ‘arbitrary interference’ if
it is not reasonable to interfere with the privacy
of the individual in the parcular circumstances
of the case.6 The Commiee recognises that
2 Adopted by the General Assembly of the United Naons in
1966 and raed by Uganda in 1995.
3 Art 14.
4 Art 16.
5 Human Rights Commiee General Comment No. 16, U.N.
Doc CCPR/C/CG/16 (8 April 1988) (Arcle 17: Right to
Privacy: The right to respect of privacy, family, home and
correspondence, and protecon of honour and reputaon)
at para 3.
6 n 5 above at para 4.
Human Rights Awareness and Promoon Forum (HRAPF) 31
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competent public authories should be able to
access informaon relang to the private lives
of individuals if such knowledge is essenal for
the protecon of the ‘interests of society’ as
protected under the Covenant.7 Interference
in private life needs to be governed by law and
needs to specify in detail the exact circumstances
under which interferences would be permied.8
State pares are under a duty to provide a legal
framework prohibing interferences inconsistent
with the ICCPR.9 Importantly, the Commiee
states that the gathering and holding of personal
informaon on computers and other devices must
be regulated by law and that States have to take
eecve measures to ensure that informaon
concerning a person’s private life does not reach
the hands of an unauthorised person.10
b) The right to freedom of expression on the
internet
The right to freedom of expression is protected
under the ICCPR as well as the Universal
Declaraon. Arcle 19 of the ICCPR provides:
1. Everyone shall have the right to hold
opinions without interference.
2. Everyone shall have the right to
freedom of expression; this right shall
include freedom to seek, receive and
impart informaon and ideas of all kinds,
regardless of froners, either orally, in
wring or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for
in paragraph 2 of this arcle carries with
it special dues and responsibilies.
It may therefore be subject to certain
restricons, but these shall only be
such as are provided by law and are
necessary:
(a) For respect of the rights or
reputaons of others;
(b) For the protecon of naonal security
or of public order (ordre public), or of
public health or morals’
7 n 5 above at para 7.
8 n 5 above at paras 7-8.
9 n 5 above at para 9.
10 n 5 above at para 10.
Arcle 19 of the Universal Declaraon provides:
Everyone has the right to freedom of
opinion and expression; this right includes
freedom to hold opinions without
interference and to seek, receive and
impart informaon and ideas through any
media and regardless of froners.
The United Naons Human Rights Commiee, the
body that oversees the ICCPR, has stated that the
right to freedom of expression includes electronic
and internet-based modes of expression.11 Arcle
19(2) explicitly extends beyond the content and
also cover the means of communicaon.12 It
includes ‘any other media’, which is interpreted to
extend to the internet.13
The Human Rights Commiee has also made it
clear that in order for a norm to be characterised
as ‘law’, it is essenal for the provision to have
been expressed with the necessary precision
that would enable members of the public to
adapt their conduct accordingly.14 Laws must also
provide sucient guidance to those responsible
for their enforcement in order to know with
certainty which conduct is restricted.15
In 2011, representaves of three regions - Africa,
the Americas and Europe16, as well as the UN Special
Rapporteur on Freedom of Expression and leading
internaonal Non-Governmental Organisaons
advocang for freedom of expression17 agreed
on the internaonal law principles concerning
the internet and freedom of expression. The
Joint Declaraon on Freedom of Expression and
the Internet (JDFEI) was subsequently adopted.
The Declaraon summarises the internaonal
11 Human Rights Commiee General Comment No. 34, U.N.
Doc. CCPR/C/GC/34 (12 September 2011) (describing
the applicaon of art. 19 of the ICCPR on freedoms of
opinion and expression).
12 See M Land ‘Toward an Internaonal Law on the Internet’
(2013) 54 Harvard Internaonal Law Journal 401.
13 As above.
14 As above.
15 As above.
16 These representaves were the African Commission
on Human and Peoples’ Rights’ Special Rapporteur
on Freedom of Expression; the Special Rapporteur for
Freedom of Expression of the Inter-American Commission
for Human Rights of the Organizaon of American States
and the Organisaon for Security and Cooperaon in
Europe Representave on Freedom of the Media.
17 ARTICLE 19, Global Campaign for Free Expression and The
Centre for Law and Democracy.
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
law principles pertaining to the exercise of the
freedom of expression in an online context
and will therefore be used as the standard for
considering the compability of the Computer
Misuse Act, 2011 with the internaonal law
standards in respect of this right.
The principles stress that the internet has a
transformave nature which enhances the ability
of billions of people to express themselves and
to access informaon. They also acknowledge
that some governments have taken acon which
unduly restricts the freedom of expression on the
Internet and which fails to take into consideraon
the parcular characteriscs of the Internet,
resulng in an undue restricon of the right to
freedom of expression.
The JDFEI covers the following six aspects:
i) General principles
The Declaraon makes it clear that restricons on
freedom of expression on the internet are only
acceptable if they are provided for by law which
is clear and accessible and is necessary to protect
an interest recognised under internaonal law.
According to the ICCPR, such ‘interests’ recognised
under internaonal law include the respect of the
reputaon and rights of others and the protecon
of public health and morals, naonal security or
public order.18 The principles state that the interest
that a restricon is protecng must be weighed
against its impact ‘on the ability of the internet to
deliver posive freedom of expression outcomes’.19
The principles suggest self-regulaon as a tool for
addressing harmful speech and promote internet
literacy.20
ii) Intermediary liability
Providers of technical internet services should not
be held accountable for the content generated
and transmied, unless they had intervened in
the content or have failed to carry out a court
order requiring them to remove the content.
iii) Filtering and blocking
The blocking of enre websites and types of
uses – such as social networking – is an extreme
measure which can only be jused in accordance
with internaonal standards.
iv) Criminal and civil liability
18 Art 19(3).
19 General Principle 1(b).
20 General Principle 1(e).
The principles suggest that legal cases relang
to internet content should be undertaken in
the States to which the cases have a real and
substanal connecon. Private pares should
bring cases in a jurisdicon where they can
establish they have suered substanal harm.
Standards of liability should consider the overall
public interest in protecng both the expression
and the forum in which it is made.
v) Network neutrality
This aspect of the principles provide that there
should be no discriminaon in the treatment of
internet data and trac, based on factors such
as the author or the origin and desnaon of
the content. Internet intermediaries should
furthermore be required to be transparent
in respect of their informaon management
pracces.
vi) Access to the internet
According to this aspect of the principles, States
are obliged to promote universal access to internet
in order to give eect to the right to freedom of
expression. It is recognised that access to internet
is necessary in order to promote respect for other
rights and that cung o access to the internet
can never be jused. To deny individuals access
to internet as a form of punishment is also an
extreme measure. Other limitaons, such as
requiring providers to register, have to comply
with internaonal standards in order to be
legimate.
2. Compability of the Computer Misuse
Act, 2011 with internaonal human rights
standards
In this secon, selected provisions of the Act
will be discussed in terms of compliance with
the internaonal human rights standards set out
above.
a) The right to privacy
The Act fails to meet the internaonal standards
in respect of the right to privacy in various ways.
Firstly, Secon 9 of the Act allows an invesgave
ocer to obtain an order for the preservaon of
data, stored or processed by means of a computer
system or other informaon and communicaon
technologies. The only grounds detailed to jusfy
such an order being granted is that there should
be ‘reasonable grounds’ to believe that data is
‘vulnerable to loss or modicaon’. Contrary to
the requirements of the internaonal law regime,
the law does not specify in detail the precise
circumstances under which an interference in the
Human Rights Awareness and Promoon Forum (HRAPF) 33
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right to privacy will be permied.21
Secon 9(3) of the Act suggests that the purpose
of the preservaon order would be to retain
data which could serve as evidence in the case
of suspected criminal acvity. The Act, however,
omits providing details on the seriousness of
the crimes involved and the importance of the
evidence, held on a computerised system, for the
prosecuon of the crime. As it stands, suspicion
of any oence would fall within the ambit of the
secon. The ocer would need to meet a very
low standard of proof in jusfying the granng of
the preservaon order. Even though internaonal
law requires that private informaon of individuals
ought to only be accessed where this is essenal
for the protecon of the interests of society
(as recognised under the ICCPR), this provision
provides for such an infringement on the mere
suspicion that an oence of negligible gravity had
been commied.22 The Act is furthermore unclear
in as far as the meaning of ‘retenon of data’ is
concerned. The Act does not set out whether the
order is against the owner or controller of the data
to prevent them from destroying or modifying the
data or whether it gives someone else the right
to preserve the data. It is also not made clear
whether the Act intends for the relevant data
to be taken o the device or whether the whole
device ought to be retained. The Act furthermore
fails to create safeguards for ensuring that the
private data is accessed in the process of taking
the relevant data o the device.
21 n 5 above at para 7-8.
22 Unwanted Witness & Civil Rights Defenders ‘Analyzed
Cyber Laws of Uganda 2016’ (2016).
Along the same vein, the Act in Secon 10
provides that an invesgave ocer may apply
to a court of law for an order for the disclosure
of all preserved data and the path through which
the data was submied. Secon 11 of the Act
provides that an invesgang ocer may apply
to court for an order compelling any person to
submit specied data in that person’s possession
or control, which is stored in a computer system
and any services provider to submit subscriber
informaon in its possession or control. Once
again, the Act does not require any prima facie
evidence on the part of the invesgang ocer
in order to jusfy the granng of such an order.
The Act does not provide for the interference
with the right to privacy to be weighed up against
the interests which such an interference aims to
achieve and falls short of ‘the provisions, aims
and objecves of the Covenant’ in that regard.23
The interference with privacy detailed in secon
9 to 11 of the Act can therefore be regarded as
unlawful under internaonal law standards.
In Secon 28 of the Act, police ocers are given
broad powers of search and seizure where they
suspect that an oence has been commied
under the Act. A Magistrate may grant an order
to enter and search premises if the police ocer
can provide reasonable grounds for believing that
an oence has been commied or is about to be
commied under the Act. An authorised ocer
is furthermore permied to seize computer
systems or take samples or copies of applicaons
or data which are believed to have been used or is
intended for use in the commission of an oence.
‘Reasonable grounds’ does not require a high
level of evidence for the granng of an extremely
invasive order. Considering the vagueness of
many of the oences provided for in the Act,
as will be discussed in greater detail below, this
secon seems to make provision for the granng
of invasive orders on imsy grounds.
b) The right to freedom of expression
As discussed elsewhere in this issue, there are
a number of provisions in the Act that create
oences, punishable with imprisonment, but are
not clearly and unambiguously dened. These
oences appear in Secon 24 and Secon 25 of
the Act and criminalise ‘Cyber harassment’ and
‘Oensive communicaons’ respecvely. Apart
from the constuonal standard for the limitaon
of the right to freedom of expression which
these oences fail to meet, they also represent
violaons of the right in terms of internaonal law
23 n 5 above at para 4.
The Act, however, omits
providing details on the
seriousness of the crimes
involved and the importance
of the evidence, held on a
computerised system, for the
prosecution of the crime.
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
standards.
Firstly, the ICCPR makes is clear that it is only
‘arbitrary’ and ‘unlawful’ interferences with a
person’s privacy that are prohibited.24 The right to
freedom of expression may be limited by a ‘law’.25
The Human Rights Commiee has expressed
that a norm can only be characterised as ‘law’
if it is expressed with the necessary precision
that would inform members of the public about
exactly which conduct is prohibited.26 Under the
crime of ‘Cyber harassment’, the terms ‘obscene,
lewd, lascivious or indecent’ are not dened,
yet requests or proposals qualifying as such are
regarded as oences punishable by law. Equally,
under the oence of ‘Oensive communicaons’,
the term ‘breach of peace’ is not dened and can
be taken to apply to a very broad range of acons.
The undened oences create uncertainty
Secondly, internaonal law provides that laws
must also provide sucient guidance to those
responsible for their enforcement in order to
know with certainty which conduct is restricted.27
In the same way that the undened terms in the
oences create uncertainty to those to which the
law applies, it also grants unguided discreon to
the implementers of the law. Enforcement ocers
can only rely on their subjecve understanding of
the oence and may easily be swayed by their
24 Art 19(1) of the ICCPR.
25 Art
26 As above.
27 As above.
personal prejudices and preconceived ideas in
applying the law.
Finally, contrary to the principle of ‘Network
neutrality’ as agreed to under the JDFEI, Secon
24 and 25 have been applied to target parcular
individuals.28 This principle provides that there
should be no discriminaon in the treatment of
internet data and trac, based on factors such as
the author of the content.29 Charges have rarely
been laid under these provisions apart from in
cases where the author of the content are known
crics of the leadership of the country.30 It is
clear that these provisions are not in line with the
safeguards imposed and expected by internaonal
human right law and that the right to freedom of
expression is arbitrarily infringed by this Act.
3. Conclusion
The Computer Misuse Act misses the mark as far
as internaonal standards of privacy and freedom
of expression are concerned. Internaonal human
rights law recognises the infringement of rights
which the Act facilitates and its failure to give
expression to the rights as required by the various
treaes. The Act is in need of urgent amendment
in order for Uganda to comply with its obligaons,
freely taken on as a member of the internaonal
community.
28 See discussion above under ‘Freedom of Expression’.
29 As above.
30 Notably, two of the persons to have been charged
under these provisions are two well-known crics of the
Museveni regime: Stella Nyanzi and Robert Shaka. See
details of these cases in case updates below.
SOURCE: hps://www.shuerstock.com
Human Rights Awareness and Promoon Forum (HRAPF) 35
www.hrapf.org
COMMENTARY
Provisions of the Computer Misuse Act and how they violate constuonally
protected rights of LGBTI persons in Uganda
Introducon
Even though there have been
improvements in the treatment of LGBTI
people across some parts of the world as
well as legal recognion of their basic humanity,
dignity and fundamental rights and freedoms,
it remains a fact that a number of countries in
the world, Uganda being one of these, are sll
quite hosle toward LGBTI people. In 2011,
the government enacted the Computer Misuse
Act, 2011 for the preservaon and protecon
of computer data and programs from unlawful
interference and access, as well as protecng
private individuals from interference with their
privacy and aacks on their character through
oensive communicaons, cyber stalking and
harassment and unauthorised access to and
modicaon of computer data and programs.
The basic idea was to protect the privacy of
individuals, to preserve data for purposes
of law enforcement and to protect vital data
from wanton distracon. Unfortunately,
this Act is likely to be problemac for LGBTI
persons because it has some secons which,
if interpreted and enforced against Uganda’s
homophobic, transphobic, and biphobic
background, will have catastrophic eects for
the constuonally protected rights of LGBTI
persons in Uganda. Some of these secons
are inherently harmful whereas others merely
have the potenal to be harmful given the
context in which they are likely to be enforced.
This arcle considers the likely implicaons of
some provisions of this Act for the rights of
sexual minories in Uganda, and also the real
implicaons as already recorded by HRAPF.
Patricia Kimera
Head, Access to Jusce
Division, HRAPF
The Constuon of Uganda and the
rights of LGBTI persons
The Constuon of the Republic of Uganda
is the supreme law of the country to which
any other law must conform and derive its
validity1 and any other law that is inconsistent
to it is void to the extent of its inconsistency.
Despite the absence of a specic provision
in the Constuon that expressly recognises
rights of LGBTI persons, the High Court and
the Constuonal Court in Uganda have
armed the universality of Human Rights as
entlements to every one irrespecve of their
sexual orientaon and gender identy and
percepons of the majority of the populace.
These pronouncements have been made in
various cases as discussed below.
Victor Juliet Mukasa and Yvonne Oyo v AG2: The
case involved the unlawful interference with
the applicants’ privacy through unauthorised
search. The unlawful search was conducted by
the police and local authories on suspicions
that the applicants were homosexuals. The
search was allegedly intended to unearth
evidence of homosexuality. In the process,
one of the applicants was arrested, fondled
and denied access to toilets by the police
ocers. Upon hearing the case, the High Court
found that the acons amounted to breach
of fundamental human rights and were a
violaon of various human rights instruments.
It was emphasised that it did not maer that
the applicants were actual or suspected
homosexuals. The ruling was a landmark in
clarifying the principle of universality of human
rights that accrue to all irrespecve of their
sexual orientaon or Gender Identy and as a
bar to arbitrary police intrusion into the private
lives of persons.
Kasha Jacqueline and 3 others v Rolling Stone
Newspaper3: In this case, the respondent tabloid
1 Art 2 of the Constuon of the Republic of Uganda,
1995 as amended.
2 Miscellaneous Applicaon No. 24 of 2006.
3 Miscellaneous Applicaon No. 163 of 2010.
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
published the photos, names and addresses of
suspected homosexuals including the applicants,
calling upon the public to hang them, as they
were aer children (allegedly recruing children
into homosexuality). In court, the applicants
argued that their rights to privacy and dignity
were violated, and the respondents contended
that that was not the case as the applicants were
openly homosexual. The judge claried that the
case was not about homosexuality but about
fundamental rights and freedoms. The court
further held that the scope of Secon 1454 was
narrower than gayism generally and that one
had to commit an act prohibited under Secon
145 in order to be regarded criminal. The court
therefore agreed with the applicants that there
was a violaon of rights.
The case of Jjuuko Adrian v AG5 challenged the
constuonality of secon 15(6)(d) of the Equal
Opportunies Commission Act, which barred
the Commission from handling and invesgang
maers which are considered immoral and socially
harmful and unacceptable by the majority of the
cultural and social communies in Uganda. The
Constuonal Court struck down the secon as
being unconstuonal for seeking to create a class
of social mists undeserving of the protecon of
the law in violaon of Arcle 21. The import of
the judgment is that every person in Uganda is
deserving of protecon of the law, and no-one
should be discriminated against or suer prejudice
on grounds of morality or public opinion.
The above cases directly and indirectly forfy the
posion that LGBTI persons are entled to the
same rights as everyone else. It should however
be noted that enjoyment of the rights provided
for under the Constuon can be limited within
the bounds of Arcle 43. This limitaon should
however not be beyond what is acceptable and
demonstrably jusable in a free and democrac
society.6 As far as LGBTI persons are concerned,
same sex conduct is criminalised in the Penal Code
Act and this was interpreted as a liming factor on
the enjoyment of their rights in the case of Kasha
J. Nabagesera and 3 Others v AG and Rev. Fr. Simon
Lokodo,7 in which the High Court acknowledged
the applicants’ rights to associate, express and
assemble, but noted that this was limited by the
Penal Code’s criminalisaon of same sex conduct.
The case is however subject of an appeal.
4 Penal Code Act Cap 120.
5 Constuonal Peon No. 1 of 2009.
6 Art 43(2)(c).
7 Miscellaneous Cause No. 33 of 2012.
In conclusion, although the majority of the
populaon in Uganda does not recognise LGBTI
persons as entled to the same rights as everyone
else, the legal regime is protecve of their
rights and oers various mechanisms for their
enforcement. Beyond Uganda’s legal framework,
the sub-regional, regional and internaonal
frameworks are also extensively protecve and
cognisant of the rights of LGBTI persons and have
taken deliberate steps to enforce them.8
Key Rights that are violated/threatened by
provisions of the Computer Misuse Act
i) The right to privacy
The right to privacy is guaranteed by Arcle
27 of Uganda’s Constuon9 as well as other
internaonal human rights instruments10. The
Arcle prohibits unlawful search of a person, their
property or home; and also prohibits unlawful
entry by others on the premises of another
person. This right underpins human dignity and
other key values such as freedom of associaon
and freedom of speech, and has become one of
the most important issues in the modern age of
technological advancement.
In relaon to LGBTI persons, privacy of body, home
and correspondence is crucial to them parcularly
those who idenfy as transgender. The violaon
8 Human Rights Awareness and Promoon Forum A Guide
to the Normave Legal Framework on the Human Rights of
LGBTI Persons in Uganda (2015).
9 Constuon of the Republic of Uganda, 1995.
10 See Art 12 of the UDHR, Art 17 of the ICCPR and General
Comment No 16 on the right to privacy.
The violation of this right
[to privacy] is often rooted
in simple curiosity by law
enforcement officers and the
general public but they are
perpetrated in such a way as
to give the process a cloak of
legitimacy, thereby allowing
egregious abuses of this right.
Human Rights Awareness and Promoon Forum (HRAPF) 37
www.hrapf.org
of this right is oen rooted in simple curiosity by
law enforcement ocers and the general public
but they are perpetrated in such a way as to give
the process a cloak of legimacy, thereby allowing
egregious abuses of this right. Some of the more
common violaons of the right to privacy faced
by LGBTI people in Uganda include unlawful/
unnecessary body searches, being forced to
undress in order to ascertain one’s gender/sex,
being spied on by neighbours upon suspicion of
one’s sexual orientaon or gender identy as well
as invasions of their homes and oces to search
through their properes and correspondences for
evidence of unnatural oences upon suspicion of
their sexual orientaon and gender identy.11
The Computer Misuse Act provides in Part II for
orders of court to preserve any data, disclose such
data or produce it for purposes of invesgang an
oence, and this order can be obtained without
the knowledge of the data subject since there
is no requirement in the law that the subject be
noed of such an order or applicaon for it.
Although sexual orientaon and gender identy
are not actually criminalised in Uganda with the law
focusing on sexual acts, the ruse of ‘invesgang
unnatural oences’ is oen used to harass,
inmidate and dehumanise suspected LGBTI
persons by both state and non-state actors.12 This
mode of enforcement has been transferred to
the enforcement of the Computer Misuse Act,
and was witnessed in a case where a transgender
woman was charged under Secon 24 of the
Act13 and the invesgang ocer admied to
having checked her Facebook account and found
some ‘strange pictures of her wearing dresses
that insgated him to further probe about her
gender identy’. Although the charges were later
dropped, her right to privacy had been violated.
This was done without obtaining the requisite
court order. Even then, the order can easily be
obtained as there is not much to prove besides
‘reasonable suspicion’ and the other party is not
given a chance to oppose the applicaon.
This is the same mischief likely to be occasioned
11 See Human Rights Awareness and Promoon Forum and
the Consorum on Monitoring Violaons Based on Sexual
Orientaon, Sex Determinaon and Gender Identy
Uganda Report of Violaons Based on Sexual Orientaon and
Gender Identy (2015).
12 Refer to the Civil Society Coalion on Human Rights
and Constuonal Law (SCCHRCL) and Human Rights
Awareness and Promoon Forum (HRAPF) Protecng
morals by dehumanizing LGBTI persons? A crique of the
enforcement of the laws criminalising same sex conduct in
Uganda (2013).
13 HRAPF/T/27/02/2017.
by Secon 28 of the Act which authorises a
magistrate, upon an applicaon by an invesgang
ocer, to order the search of any premises and
the seizure of any data, program, copies of data
or any computers ‘reasonably believed’ to be
evidence of the commission of an oence under
the Act. This provision in much the same way as
the foregoing provisions will impact negavely on
the right to privacy of LGBTI persons in Uganda as
it may be used injudiciously by law enforcement
agencies to target them for the simple fact that
they are an unpopular minority.
ii) The right to freedom of conscience, expression
and belief
This right is protected under Arcle 29 of
the Constuon of Uganda and in various
internaonal legal instruments which Uganda
has raed.14 It is a right that has connually
come under threat in Uganda of recent, with
various persons who have expressed strong
opinions cricising the government coming
under scruny and even being dragged to court
by the government in an aempt to curtail this
freedom.15 This Act now goes further to criminalise
some forms of expression in Secon 24 of the
Act, which criminalises cyber harassment. Part of
this secon denes cyber harassment to include,
among others, ‘making any request, suggeson
or proposal which is obscene, lewd, lascivious
or indecent.’ As always with laws alluding to
decency, morality or public dignity and interest,
these concepts remain nebulous and ambiguous,
giving wide discreon to the enforcing ocer to
determine what communicaon may qualify as
‘lewd’ or ‘lascivious’ or ‘indecent’. This will expose
suspected LGBTI persons to possible abuse
when communicaons such as texts and emails
between lovers are interpreted by law enforcers,
because of the fact that such communicaons
are between two persons of the same sex, to
be indecent or lewd. The same criteria would of
course not automacally apply to heterosexual
couples in the same situaon, unless there is a
reason to target that person specically.
14 Art 9 of the African Charter on Human and Peoples’ Rights;
Art 18 of the Internaonal Covenant on Civil and Polical
Rights.
15 Obbo and Another v Aorney-General Supreme Court
of Uganda, Constuonal Appeal No. 002 of 2002
at paragraph 62; See also N Slawson ‘Fury over arrest
of academic who called Uganda’s president a pair of
buocks’ The Guardian 13 April 2017 available online at
hps://www.theguardian.com/global-development/2017/
apr/13/stella-nyanzi-fury-arrest-uganda-president-a-pair-
of-buocks-yoweri-museveni-cyber-harassment about the
arrest of Dr. Stella Nyanzi.
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
iii) The right to equality and freedom from
discriminaon
This right is provided for under Arcle 21 of the
Constuon and provides that all persons are
equal before and under the law and that a person
shall not be discriminated against on grounds
spulated under Arcle 21(3). Although sexual
orientaon and gender identy are not protected
grounds under the Constuon, Uganda is a
signatory to the Internaonal Covenant on Civil
and Polical Rights (ICCPR). The Human Rights
Commiee,16 which oversees this instrument, has
declared sex as a protected ground, by implicaon
binding Uganda which is a state party. In addion,
as discussed above, all rights in the Constuon
apply to persons equally, including LGBTI persons.
Given the homophobic nature of the enforcement
of the various laws that aect LGBTI persons, it
is quite plausible that this Act will result in the
infringement of the right to equality of sexual
minories in Uganda in as far as there is great
potenal to use it to target unpopular minority
groups.17 These acts of unfair discriminaon on
the basis of sexual orientaon or gender identy
are given a kind of legimacy on the grounds that
same-sex sexual acvity is prohibited in Uganda.
In one of the cases handled at the legal aid clinic18
a client was terminated from employment aer
being charged with the oence of cyber stalking
which charges were later dismissed for want of
prosecuon. The charges were based on text
messages that the person sent to a fellow woman,
seeking a romanc relaonship. It is arguably
correct that if a person was sending the same text
messages to someone of the opposite sex, these
charges would not suce. It is therefore plausible
that secons of the Computer Misuse Act will
be used to witch hunt persons of the same
sex who innocently exchange sexual/romanc
communicaons with others, merely on grounds
that same sex expression of love is frowned upon.
iv) The right to a fair trial
This right is protected under Arcle 28 of the
Constuon. Arcle 28(12) of the Constuon
requires that every criminal oence be stated
in clear and unambiguous terms for it to be an
oence valid under the law. Vague and broadly
dened oences are not constuonal despite
their presence on the books of law and every
16 Toonen v Australia Communicaon 488/1992, UN Doc
CCPR/C/50/D/488/1992(1994).
17 See Human Rights Awareness and Promoon Forum The
Implicaons of the Enforcement of Idle and Disorderly Laws on
the Human Rights of Marginalised Groups in Uganda (2016).
18 NAK-C 200/2015.
arrest under such a law is a violaon of the right
to liberty. The Computer Misuse Act has various
provisions that are broad and vague and would
not pass the constuonality test. Secons 24
and 25 of the Act that create the oences of
cyber harassment and oensive communicaon
respecvely create broad undened oences.
These secons broadly prohibit ‘indecent’
‘lewd’ and ‘lascivious’ conduct, and prohibit
communicaon that ‘aempts to disturb the
peace’ of another person, among others. These
terms are not dened and it becomes hard to
know what conduct exactly is criminalised.
Considering the prejudice faced by LGBTI persons
in Uganda, these provisions are ferle ground for
abuse, as has been seen in the above case where
a woman sending text messages to another was
considered a criminal oence under the Act. As
was seen in that case, there was no evidence
adduced by the state and it was dismissed for
want of prosecuon.
Conclusion
The LGBTI movement in Uganda has fought for
and connues to ght for legal recognion of
the rights and dignity of LGBTI persons on the
same foong as all other persons. The Computer
Misuse Act with its vague provisions can be
abused if there are no safeguards for the respect
and protecon of fundamental rights. Whereas
the government is allowed to limit the enjoyment
of rights and freedoms, these limitaons must
be narrowly dened and must conform to the
internaonal standards to which Uganda has
agreed. The Computer Misuse Act falls short of
these accepted standards. As always, we sll have
great need to focus on advocacy for legal reform
to do away with all legal provisions, parcularly
those that impose criminal sancons, that are
over-broad or vague and that can therefore
be used to target LGBTI persons and legimise
homophobia and transphobia in Uganda.
...despite their [offences]
presence on the books of law
and every arrest under such
a law is a violation of the
right to liberty.
Human Rights Awareness and Promoon Forum (HRAPF) 39
www.hrapf.org
OPINION
For Ugandan communicators in the wake of Dr. Nyanzi’s arrest: how free is our freedom
of expression?*
In March 2017 Stella Nyanzi; a ‘thinker,
scholar, poetess, lyricist, writer, Facebooker
and creave producer’1 was charged by
the Uganda Police, for oensive communicaon
contrary to secon 25 of the Computer Misuse
Act 2011.
The parculars of the oense read as follows:
‘Stella Nyanzi … made a suggeson or
proposal referring his Excellency Yoweri
Kaguta Museveni as among others ‘A pair
of Buocks’ which suggeson/proposal is
obscene or indecent.’2
Since Nyanzi’s arrest, Ugandan communicators
including those who ulize social media
plaorms such as Blogs, Facebook and Twier
have been debang the queson, ‘How free is
* An earlier version of this arcle was rst published on
Arinda Daphine’s blog ‘EVABella’ on 20th April, 2017.
It can be found at hps://arindaphine.wordpress.
com/2017/04/20/for-ugandan-communicators-in-the-
wake-of-nyanzis-arrest-when-do-we-cross-the-line-
of-freedom-of-expression/ (Accessed on 20th October,
2017).
1 Aljazeera and News Agencies, Museveni cric Stella Nyanzi
to Appear in Court, 10th April, 2017, Available online hp://
www.aljazeera.com/news/2017/04/museveni-cric-
stella-nyanzi-court-170410074726763.html (Accessed
on 20th October, 2017).
2 Bwesigye Bwa Mwesigire, African Arguments, Uganda:
Stella Nyanzi Charged for Calling President Museveni
a “Pair of Buocks”, April 10, 2017. Available online
hp://africanarguments.org/2017/04/10/uganda-
stella-nyanzi-charged-calling-president-museveni-pair-
buocks/ (Accessed on 26th October, 2016).
Arinda Daphine
Story teller, Lawyer and
Poet
our freedom of expression and when does
oensive language become criminal?’ This
arcle seeks to contribute to that debate.
The freedom of expression is guaranteed
under Arcle 29(1) (a) of the 1995 Constuon
of the Republic of Uganda. This provision
states that ‘every person shall have the right
to freedom of speech and expression which
shall include freedom of the press and other
media.’ ‘Other media’ in this context includes
social media plaorms like Facebook that
Stella Nyanzi ulized to voice her crique on
how Uganda is being governed.
While the current Constuon is lauded
for being progressive and democrac3, it
gives no denion of the right to freedom
of expression. The old 1962 and 1967
Constuons dened the right to freedom of
expression as ‘Freedom to hold opinion and
to receive and impart ideas and informaon
without interference.’ This denion is sll
relevant today as was held by the Supreme
Court of Uganda.4
Every person therefore has a right to hold
an opinion as well as the right to decide
whether to express it or not. An opinion can
be disseminated through polical discourse,
canvassing, cultural and arsc expression,
religious discourse, teaching, and through
commercial adversing.5 Stella Nyanzi
3 JP Muto-Ono P ‘Freedom of Expression “Uganda
Laws Best in Africa”’ Black Star News 23rd July
2015. Available online hp://www.blackstarnews.
com/global-polics/africa/freedom-of-
expression-%E2%80%9Cuganda-laws-best-in-
africa%E2%80%9D-media (Accessed 11 November
2017).
4 Obbo and Another v Aorney General 20040 AHRLR
256 9ugSc 2004 available online hp://www.chr.
up.ac.za/index.php/browse-by-subject/486-uganda-
obbo-and-another-v-aorney-general-2004-ahrlr-
256-ugsc-2004.html (Accessed 11 November 2017).
5 Human Rights Commiee, General Comment No. 34,
12th September 2011. Available online hp://www.
refworld.org/docid/4ed34b562.html (Accessed 11
November 2017).
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
prefers cultural and arsc expression. In 2016 she
staged an undress protest at Makerere University
and while her acons were misconstrued as lewd,
she was making a strong cultural statement that
resonates with what Aili Mari Tripps said:
‘Women give life, and so to put the most
private symbols of motherhood into the
public arena is to negate that life, and say
those in power are dead to Society’6.
‘Pair of Buocks’ is an arsc and cultural
expression. Charles Onyango Obbo explains the
connecon between Nyanzi’s words and culture
when he writes,
‘… the derriere … is also where we get rid
of the waste in our bodies, and the most
snging source of African insult. Nyanzi
drew from the laer.’7
The term ‘oensive’ should only be accorded
to grave expressions such as those that incite
discriminaon on the basis of race, religion
6 The real African Undress for Redress: The Rise of Naked
Protests in Africa 15th June 2016.
7 C Onyango Obbo, Uganda: ‘A pair of Buocks” and the
Big Silent War Over the Museveni Years. The Monitor
19th April , 2017. Available online hp://allafrica.com/
stories/201704190015.html (Accessed 11 November
2017).
or naonality. In Malcom Ross v Canada,8 a
teacher lost his teaching posion because of
the expression of his views as an author. The
Human Rights Commiee stated that this was
a restricon on his freedom of expression that
had to be jused. It was held that the author’s
statements were discriminatory against persons
of the Jewish faith and ancestry and therefore the
restricon was jused on those grounds.
Recent developments in Uganda reveal that most
of what is referred to as ‘oensive language’ by
the state is usually personal opinions against the
8 Malcom Ross v Canada The Human Rights Commiee,
Communicaon No. 736/1997, UN DOC. Available
online hp://hrlibrary.umn.edu/undocs/736-1997.html
(Accessed 11 November 2017).
SOURCE: www.washingtonpost.com
Dr. Stella Nyanzi
Besides Stella Nyanzi, other
Ugandans have had their right
to freedom of expression
gagged on grounds of
‘offensive language’.
Human Rights Awareness and Promoon Forum (HRAPF) 41
www.hrapf.org
regime and does not qualify to be categorised as
‘oensive’.
Besides Stella Nyanzi, other Ugandans have had
their right to freedom of expression gagged on
grounds of ‘oensive language’. In October 2016,
the Uganda Communicaons Commissions (UCC)
issued a direcve against NTV compelling the
TV staon to stop broadcasng programmes
featuring Frank Gashumba as a guest speaker
because the polical analyst was allegedly using
profane and abusive language.9 In November
2015, the UCC issued a similar direcve against
ve radio staons as well as four television
staons, which rounely hosted Mirundi Tamale,
a renowned polical analyst.10
The pernent queson to pose here is: in what
circumstances is the state jused to restrict the
right to freedom of expression?
The right to hold opinions and to impart ideas and
informaon’ is not an absolute one and according
to Arcle 43 of the Constuon, it can be limited
if its enjoyment will prejudice the freedoms of
others or if public interest demands so. Ugandan
communicators only cross the line of freedom of
expression if their expressions threaten naonal
security, or, public health, or, public order, or,
public morals, or, amount to an infringement of the
rights of others. Only then, can the State restrict
the Communicator’s freedom of expression.
However before being imposed, the restricon
must be subjected to the three tests:11 it must for
be provided by the law, have a legimate aim and
must be necessary.
Regarding the rst test, the law that was relied
on in the case of Stella Nyanzi is the Computer
Misuse Act 2011 which creates the crime of
‘oensive communicaon’. Secon 25 of that law
provides that a person commits the crime when
he/she willfully and repeatedly uses electronic
communicaon to disturb or aempts to disturb
the peace, quiet or right of privacy of any person
with no legimate purpose. Determining what
amounts to ‘disturbing the peace and quiet’ is
9 UCC Statement to NTV Uganda, 10th October 216. Available
online hps://www.scribd.com/document/329243268/
UCC-statement-to-NTV-Uganda (Uploaded by African
Centre for Media Excellence) (Accessed 11 November
2017).
10 N Bwire & N Wesonga, UCC Blocks Mirundi from TV, Radio,
Daily Monitor, 2nd December, 2016. Available online
hps://www.scribd.com/document/329243268/UCC-
statement-to-NTV-Uganda
11 Art 19(3) of the Internaonal Convenant on Civil and
Polical Rights.
a legal queson that must be answered before
convicng the individual.
In 1985 Yong-Joo Kang of Korea was arrested
and detained under allegaons of contravening
the Naonal Security Law because he wrote
publicaons that were said to be aimed at
destroying the free and democrac basic order
of Korea. The Human Rights Commiee heard
his case and found that any law that compels
an individual to alter his/her polical opinion
restricts the freedom of expression.12 Holding a
dissenng view about the ruling party does not
amount to ‘disturbing the peace’ and therefore
Ugandan communicators are entled by right to
hold opposing opinions against the government
and to express these opinions through various
mediums.
Secondly, the restricon must have a legimate
aim. The law should be aimed at protecng
naonal security, or, public health, or, public
order, or, public morals, or, the rights of others. A
desire to shield a government from cricism can
never jusfy restricons on free speech as was
enunciated in the case of Yong-Joo Kang above.
Thirdly, the restricon must be necessary. In Obbo
and Another V Aorney General13, a case challenging
the law criminalizing the ‘publicaon of false news’,
the Supreme Court of Uganda expounded that
this test has three elements; it requires that the
objecve of the restricon should be suciently
important to override a fundamental right, that
the measures set to achieve the objecve must
not be arbitrary, unfair or based on irraonal
consideraons, and, that those measures must
be proporonate and necessary to achieve the
objecve of the restricon.
Ugandan Communicators should boldly hold and
express their views, plainly or metaphorically.
We should not be inmidated when the State
threatens us, as has been done to some of
the vocal polical analysts. If we know when
the restricons on our rights apply, then we
can comfortably speak our minds. Cricism of
government is pernent in aaining a free and
democrac Uganda and we can legally do this
using our art, our words and our bodies as long as
we keep within the permissible boundaries set by
both naonal and internaonal laws.
12 Yong-Joo Kang v Republic of Korea, Communicaon Number
878/1999 U.N. Doc. Available online hp://hrlibrary.umn.
edu/undocs/878-1999.html (Accessed 11 November
2017).
13 Supra, note 4.
The Human Rights Advocate | Fourth Issue - November 2017
42
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
COMMENTARY
How the Computer Misuse Act, 2011 silences dissenng voices
In 2011, the President of Uganda assented
to the Computer Misuse Act, 2011. He thus
added to the number of already exisng
cyber laws in the country. The legislaon was
introduced due to an increase in the number of
cizens ulising the internet and thus the need
to control the internet more. However, rather
than introducing it for real protecon reasons, the
Act was introduced more as a way of controlling
the internet, as the state saw it as one of the
remaining independent plaorms where a decent
and sound debate can take place and where ideas
can be shared without polical interference.
As a result, the online space is increasingly
shrinking as acons that threaten the enjoyment
of online freedoms and rights in Uganda are
stemming from the exisng cyber legal framework,
including the Computer Misuse Act, 2011. The
Act is responsible for creang oences related
to computers and introducing heavy penales.
The oences include: as cyber harassment, child
pornography, oensive communicaons and
cyber stalking. The maximum penales for these
oences range from 1 to 5 years of prison with the
excepon of child pornography, which generates
a maximum sentence of 15 years.
In the framers’ perspecve, the Act makes
provision for safety and security of electronic
transacons and informaon systems, to prevent
unlawful access, abuse or misuse of informaon
systems including computers. This presents a rosy
picture of the Act while its deeper analysis reveals
the violaon of cizens’ rights to privacy, freedom
of expression and access to informaon.
Indeed, the Act is commonly used by security
agencies to criminalise freedom of expression
Dorothy Mukasa
Research Ocer,
Unwanted Witness
online, parcularly Secon 25 of the Act, which
has been repeatedly invoked to charge users with
oensive communicaon. Notably, individuals
charged had expressed dissenng polical views.
Individuals like former Makerere research fellow,
Dr. Stella Nyanzi and polical acvists Swaibu
Nsamba are among those that have faced the
wrath of this secon.
In describing liability for oences related to
computers, the Act sets vague denions for
condions required for the oences to be at
hand thus contravening the requirement of
both unambiguous and foreseeable provisions
in Internaonal law and can have a hampering
eect on freedom of expression. The Act also
gives police ocers wide discreonary powers to
search and seize if they suspect commission of an
oence and yet the level of evidence required is
low, only amounng to the reasonable grounds
in order for the extensive search powers to be
triggered. These far reaching powers of search
and seizure combined with the low threshold of
evidence required constute a threat to privacy
and freedom of expression.
Notwithstanding, the awareness of these
extensive powers can have a chilling eect on
the use of freedom of expression in the digital
environment as people can be afraid of risking a
police search on loose grounds.
... the Act sets vague definitions
for conditions required for the
offences to be at hand thus
contravening the requirement
of both unambiguous and
foreseeable provisions in
International law and can have a
hampering effect on freedom of
expression.
Human Rights Awareness and Promoon Forum (HRAPF) 43
www.hrapf.org
OPINION
Computer Misuse Act 2011: Rule of by law under pax Musevenica
Argument
There is no humane way to rule people
against their will.
‘To protest in the name of morality against
“excesses” or ‘’abuses’’ is an error which hints at
acve complicity…” wrote Simon de Beauvoir.1
It is in the same spirit that I invite the reader
to think about and interpret the Computer
Misuse Act of 2011. It is one of a series of
incessant excesses that have been visited
onto civic space in Uganda by the Museveni
Administraon.
It is neither an aberraon nor is it a mistake;
it is a logical progression (or more accurately,
a natural regression) of a hybrid regime that
is increasingly intolerant of both alternave
thought and dissent.
Substanve Arcle
In addion to coloured water cannons,
stockpiles of teargas, batons and pepper spray
to quell demonstraons and protests, a regime
such as the one that Gen. Yoweri Museveni
leads must naturally enact laws like the
anquated Polical Pares and Organisaons
(Amendment) Act Number 2 of 2010, the
infamous Public Order Management Act 2013,
the dubious An-Money Laundering Act 2013,
the annulled An-Homosexuality Act of 2014,
1 N Klein Shock Doctrine: The Rise of Disaster Capitalism
(2008) 132.
Andrew Karamagi,
Lawyer and Polical
Acvist
the misogynist An-Pornography Act of 2014,
the Non-Governmental Organisaons Act
2016 and the latest amendments to the An-
Terrorism (Amendment) Act of 2017.
Oppression is a sine qua non for regime
longevity.
Put in other words, oppression must become
legal. Suce it to say that the legislave
agenda of the long-standing Museveni
Regime over the past decade has le a clear
and unmistakable footprint that aspires to
criminalise constuonally-protected liberes
and freedoms like assembly, associaon and
expression.
This can be gleaned by a cursory perusal of
the Hansard, as the foregoing litany of Acts
shows. This is the backdrop against which
the Computer Misuse Act of 2011 should be
viewed and understood. It is not a stand-alone
legislaon but a natural evoluon of a polical
establishment that brooks no dissent.
Far from the rosy wording of the Act’s objecve
which purports to have been enacted to make
provision for the safety and security of electronic
transacons and informaon systems; to
prevent unlawful access, abuse or misuse of
informaon systems including computers and
to make provision for securing the conduct
of electronic transacons in a trustworthy
electronic environment, Secons 9 through 11
of the law as a maer of fact aspire to enable
state intelligence agencies to overstep privacy
rights without restricon and proer charges
on the basis of an individual’s refusal to so
disclose ‘data’ which has been broadly, vaguely
and disproporonately dened to mean and
include electronic representaons of any form.
Under these three secons (9-11) any person
can be compelled to hand over any ‘data’ for
purposes of assisng with invesgaons. It
doesn’t maer if my tablet computer’s memory
card contains my private health informaon,
bank statements or privileged communicaons:
I must hand it over and trust(!) the state to
behave prudently with my informaon as it
The Human Rights Advocate | Fourth Issue - November 2017
44
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
pursues whatever invesgaon.
Telecom service providers are equally compellable.
Contrary to the tenets of criminal law which
requires specicity, Secon 12 creates
indeterminate oences that are open to overly
broad and arbitrary denions given the unique
and evolving nature of informaon and compung
technologies.
Secon 13 concerns itself with ‘access with intent
to commit or facilitate the commission of a further
oence.’ It is not clear how the State will lead
evidence insofar as the intenon of an accused
person to commit or facilitate the commission of
a further oence will be proved or disproved.
Secon 14 worsens an already bad situaon by
(potenally) enacng to the eect that private
informaon stored on a computer may not be
concealed, protected or modied for whatever
reason, notwithstanding that the user is the
owner of the said device. The Secon does not
take into consideraon the work of the broad
range of arsts whose work revolves around use
of informaon to convey a parcular message.
This provision is equally ripe for abuse and misuse.
Secon 18 and 20 are not accommodave of
the place of whistleblowers who by their very
nature engage in the disclosure of unauthorised
informaon of the kind that is enumerated under
sub-secons (2)(a) to (d).
The most egregious enactment under this law
is arguably Secons 24 and 25 which create
the crimes of cyber harassment and oensive
communicaons respecvely. As I have argued
in a yet-to-be-heard peon that I led with
another cizen, Robert Shaka, before the
Constuonal Court, I nd the impugned Secon
to be an excessive restricon on my freedom of
speech and expression.2 It provides the Director
of Public Prosecuon unbridled administrave
and prosecutorial discreon which has indeed
resulted in several cases of selecve prosecuon
of Internet users based on certain views deemed
objeconable by the Government or high ranking
policians and public ocers.
Two recent cases stand out: the arrest, detenon
without charge and later prosecuon of my co-
2 Andrew Karamagi & Robert Shaka v Aorney General,
Constuonal Peon No. 5 of 2016.
peoner, Robert Shaka and my co-author,3
Dr Stella Nyanzi. In the former case, the
prosecuon alleges that Shaka disguised himself
as ‘Tom Voltaire Okwalinga’—a popular an-
Establishment Facebook page—between 2011
and 2015, Kampala, of willfully and repeatedly
using a computer with no purpose of legimate
communicaon, disturbed the right to privacy
of President Museveni by posng statements
regarding his health condion on social media.4
For her part, Nyanzi, who is an academic and cric
of the Museveni Administraon, was violently
arrested, detained and slapped with a litany of
charges, among them oensive communicaons,
especially for referring to President Museveni as a
‘pair of buocks’.5
An erstwhile Police spokesperson, Fred Enanga,
once circulated a warning about the dangers of
making posng polically-related informaon or
content on social media because of the likelihood
of being prosecuted for the same. Indeed, a few
people were interrogated by Police over such
posngs. This kind of behaviour and conduct by
the Police is most reprehensible, amounts to an
abuse of its civilian mandate and an aront to the
Constuon.
3 S Nyanzi & A Karamagi ‘The socio-polical dynamics of
an-homosexuality legislaon in Uganda’ 29:1 Agenda
(2015) 24-38.
4 n 3 above.
5 S Allison ‘Uganda: Stella Nyanzi, the vulgar acvist, takes
on the Pair-of-Buocks-in-Chief’ Daily Maverick 11th April
2017 available online at hps://www.dailymaverick.co.za/
arcle/2017-04-11-uganda-stella-nyanzi-the-vulgar-
acvist-takes-on-the-pair-of-buocks-in-chief/#.WO8-
AGz9ly0 (Accessed 21 October 2017); N Slawson ‘Fury
over arrest of academic who called Uganda’s president a pair
of buocks’ The Guardian 13 April 2017 available online at
hps://www.theguardian.com/global-development/2017/
apr/13/stella-nyanzi-fury-arrest-uganda-president-a-
pair-of-buocks-yoweri-museveni-cyber-harassment
(Accessed 21 October 2017).
Section 25 has placed
journalists, artists, students
and academics as well as the
broader public in constant
fear of violating the law.
Human Rights Awareness and Promoon Forum (HRAPF) 45
www.hrapf.org
Secon 25 has placed journalists, arsts, students
and academics as well as the broader public in
constant fear of violang the law. This fear is
obviously one of the intended consequences
of the law. Without a doubt, this amounts to
a violaon of the right to free thought (and
ulmately expression) which is the foundaon of
Arcle 29(1)(a) of the 1995 Constuon of the
Republic of Uganda.
Needless to say, both Secons are also vague
and overly broad. They fall short of giving proper
noce of the conduct that they seek to proscribe
and terms such as ‘disturb or aempt to disturb
the peace, quiet or right of privacy’ are not dened
in the Act, and cannot be conclusively dened
by a regular user of the internet. Consequently,
and consistent with the repressive agenda that
is reected by the laws preceding and coming
aer the Computer Misuse Act of 2011, the
Police and governmental authories will arrest
and prosecute otherwise confused cizens in an
arbitrary and whimsical manner.
Secon 28 is, as with previously highlighted
provisions, prone to abuse and selecve
applicaon to the extent that it aords the State
an unbridled ability to conduct searches and
seizures on homes, oce premises (especially
media house), vehicles or cras and any other
locaon on the ostensible claim that there
are reasonable grounds for believing that an
oence under the Act has been or is about to be
commied in any premises. This would embolden
and provide ‘legal’ grounds for outrages like the
police raid on The Monitor Publicaons in May
2013 which was executed on the imsy grounds
that a leer wrien (and already published) by
the same newspaper, aributed to renegade Gen.
David Sejusa was a threat to naonal security!6
What is to stop the regime from raiding, searching
and seizing especially media houses on the pretext
of the belief that an oence has or is about to be
commied under the said Act?
Before the enactment of the Public Order
Management Act in 2013, the Police rounely
clobbered and dispersed peaceful demonstraons
and protests arguing that they were illegal. This
notwithstanding the Supreme Court decision
to the eect that the Police had no power to
prohibit public gatherings but only to regulate
6 S Kafeero ‘Sejusa Leer: How we were closed, reopened’
Daily Monitor 5th August 2017 available online at hp://
www.monitor.co.ug/News/Naonal/Sejusa-leer-
Monitor-Kayihura-Muhoozi-Grace-Akullo/688334-
4044870-13my9qn/index.html (Accessed 21 October
2017).
and provide security when such gatherings (about
which the Police has been noed not requested
to authorise) are so convened. The enactment
of that law legalised what the Police was already
doing but wanted to do with legal cover. The
same can be said of the fortunately annulled An-
Homosexuality Act of 2014 which aorded the
regime the short-lived latude to harass persons
of sexual orientaons that individual higher-ups
within the regime nd ‘disgusng and unnatural’.
The perennial harassment of Non-Governmental
Organisaons, parcularly those involved in
governance-related work, had to be codied in
the NGO (Registraon) Act of 2016 so that it
connues under a veneer of legality. Similarly,
the targeng of dissenng voices under the An-
Money Laundering or An-Terrorism Acts had to
be sanised through the enactment of a law.
At the me of wring this piece, everybody is
talking about the proposed amendment to Arcle
26 of the Constuon to allow for compulsory
acquision of land for public purposes—contrary
to the current spulaon of the said Arcle
which enacts to the eect that acquision of
private land by government must be done aer
prior and adequate compensaon.7 Yet several
parcels of private (and in other cases public) land
have been acquired without prior and adequate
compensaon. This has led to a phenomenon that
is referred to as ‘land grabbing’. It has occurred
for years and is now commonplace—almost
always perpetrated by those with possession or
access to arms and/or ‘polical connecons’ that
enable this criminality with absolute impunity.
Amending Arcle 26 will in essence legalise land
grabbing. Like the Public Order Management
Act sought to criminalise the rights to assembly;
the An-Homosexuality Act butchered equality
before and under the law regardless of one’s
sexual orientaon or other such disncon;
the Computer Misuse Act was enacted for the
sole purpose of proscribing dissent and contra-
Establishment opinions as conveyed on social
media sites and plaorms.
It is a legislave agenda that is predicated on
the unsustainable premises of subjugaon and
inmidaon.
Yet, as history and current events connually
remind us, a land ruled by fear can never be happy
or secure.
7 Constuonal (Amendment) Bill No. 13 of 2017.
The Human Rights Advocate | Fourth Issue - November 2017
46
The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
respecvely contravene sub-secons 24(1)(2)
(a) and 25 of this legislaon. The wording of this
charge sheet, perhaps, heightened the notoriety
of this case to its fever-pitch levels. Specifying the
parculars of the rst count of cyber harassment,
the verbam statement reads:
Stella Nyanzi on the 28th January 2017
at Kampala district or thereabout used a
computer to post on her Facebook page
‘Stella Nyanzi’ wherein she made a suggeson
or proposal referring his Excellency Yoweri
Kaguta Museveni as among others ‘a pair
of buocks’ which suggeson/ proposal is
obscene or indecent.
The air waves, television screens, and newspapers
comprising tradional public media and diverse
social media plaorms went into overdrive mode
discussing the wording of ‘a pair of buocks’.
Comedians, cartoonists, musicians, poets,
dramasts and computer graphics designers
produced creave works using this reference.
Consequently #PairOfBuocks was organically
created, circulated and trended for weeks on
end on the World Wide Web – parcularly on
Twier, Facebook and Instagram. Rather than
arresng its further circulaon, my arrest and pre-
trial detenon instead refueled the currency of
this tongue-in-cheek metaphor that I applied to
describe the president of Uganda. Copies of this
charge sheet were shared widely on social media
plaorms – parcularly Whatsapp, Facebook and
Twier.
On the charge sheet, the parculars of the second
count - namely oensive communicaon – were
stated verbam as follows:
Stella Nyanzi between January 2017 and
March 2017 in Kampala district willfully and
repeatedly used electronic communicaon
to post messages oensive in nature via
Facebook, transmied over the internet to
disturb or aempted to disturb the peace,
quiet or right of privacy of His Excellency
the President of Uganda Yoweri Kaguta
Museveni with no purpose of legimate
communicaon.
On the night of 7th April 2017, I was abducted
from a car by eight men and two women who
Considering that I am the accused party
in the most notorious local case based
on the Computer Misuse Act (2011), it
is a wonderful opportunity for me to provide an
insight into Buganda Road Criminal Case No.
319 of 2017, Uganda v. Stella Nyanzi. I am wring
in direct response to the intensity and volume
of widespread local, regional and internaonal
interest in the case proceedings; arising from
the lay public, legal praconers, human rights
advocates, academics, journalists and other public
media workers, members of the opposion in
Uganda, and social media users. Although several
narraves have been told about this case, I value
the opportunity to add my own interjecon
in which I tell my own story. However, it is
noteworthy that in a bid to cancel my bail, the
State Prosecutor has already alleged before court
that my social media posts wrien subsequent to
my release contravene the subjudice rule and are
thereby in contempt of court. Thus, in this arcle,
I will self-censor by desisng from discussing the
merits and limitaons of the arguments of the
case. Rather, I will focus on providing the facts of
the case, as well as detail the progress so far to the
present me.
The Polics of Naming Cases
The charges leveled against me arise out of the
Computer Misuse Act (2011). In a revised charge
sheet from the headquarters of the Criminal
Invesgaon Department dated 23rd March
2017, bearing reference number E/79/2017 and
prepared by Deputy Assistant Superintendent
of Police (D/ASP) Kayiza Henry, two counts of
oences are stated – namely cyber harassment
and oensive communicaon. These crimes
CASE UPDATE
#PairOfBuocks: Uganda v. Stella Nyanzi
Stella Nyanzi (PhD),
Makerere Instute of
Social Research
Email:
snyanzi@misr.mak.ac.ug
Human Rights Awareness and Promoon Forum (HRAPF) 47
www.hrapf.org
were not wearing uniforms. My immediate captor
was wearing a woolen mask over his face. They
neither had idencaon papers, nor an arrest
warrant. They neither explained my alleged crime,
nor revealed where they were taking me. Although
they proceeded to search the vehicle from which
they bundled me, they did not produce a search
warrant. They dumped me into one of their three
vehicles and drove circuitously around Kampala
city; somemes stopping adjacent to police staons
and then moving on. Aer three hours of aimless
driving, they sped to Kira Division Police Staon
where I was locked up in a cell for three nights.
On the evening of 9th April 2017, in the presence
of my legal team (comprising Nicholas Opiyo,
Sheillah Nyanzi, Lilian Drabo and Shawn Mubiru),
I underwent the roune Charge and Cauon
procedure in which the rst charge sheet read to
me was solely focused on the crime of solicing
for money from the public using the internet in
contravenon to the law which requires nofying
the police before undertaking any fundraising.
These allegaons were based on a fundraising
drive that I started on my Facebook meline,
inving concerned cizens to contribute nancially
and in kind towards the #Pads4GirlsUg campaign
aimed at distribung menstrual hygiene materials
(including soap, re-useable and disposable sanitary
pads) to school-girls in Uganda. The campaign to
collect and distribute sanitary pads was a direct
challenge to both President Museveni’s failed
promise made during elecons campaigns, and the
First Lady’s declaraon that government lacked
money to provide the promised sanitary pads.
Aer the charges were read to me, I chose not to
say anything in my statement to the police ocers.
On 10th April 2017, amidst ght security, I was
arraigned before the chief magistrate at Buganda
Road Court to begin my incredible experience
with the judicial system in a repressive military
dictatorship.
Twists and Turns of #PairOfBuocks
Criminal Case
This criminal case was allocated to Chief Magistrate
James Ereemye Mawanda. The state (oce of the
Director of Public Prosecuons) was represented
by Resident State Aorney Jonathan Muwaganya.
My defense counsel comprised Nicholas Opiyo,
Isaac Semakadde, Julius Galisonga, Lilian Drabo
and Eron Kiiza. Within a courtroom jam-packed
with local and foreign journalists, uniformed and
plain-clothed security personnel, human rights
defenders, social media acvists, family, friends
and supporters, the revised charges of cyber
harassment and oensive communicaon were
read to me. However, before the Chief Magistrate
proceeded to ask me about how I pleaded, the
SOURCE: hps://cs.mg.co.za
Dr. Stella Nyanzi in court.
state prosecutor hijacked the court processes
by introducing what he termed as a pre-plea-
taking applicaon for the court to subject me to
involuntary mental examinaon in accordance
with the Mental Treatment Act (1938). Court
adjourned for a short interlude, in order for the
magistrate to examine the new applicaon for
mental examinaon. Thereaer, I pleaded ‘Not
Guilty’ to both charges of cyber harassment and
oensive communicaon of the president. My legal
team expected to proceed with the applicaon for
release on bail. However, under undue pressure
to impress the state, the magistrate refused to
hear my applicaon for bail. Instead, he proceeded
to remand me to maximum security prison unl
25th April 2017. In uer disbelief, I boarded the
maroon prison bus – with several other accused
and sentenced persons – and made my way to
Luzira Women’s Prison where I was to spend the
next thirty-three days of my life.
Unbeknownst to me, on 11th April 2017, my legal
team wrote an applicaon to the Registrar of the
High Court, seeking for revision of the proceedings
against me in the lower court – specically
quesoning the jusce in the magistrate’s refusal
to hear my bail applicaon, as well as seeking
guidance about whether the trial should proceed
under the Magistrates Courts Act and the
Computer Misuse Act, rather than relying on an
applicaon invoking the archaic Mental Treatment
Act. The deputy registrar of the Criminal Division
of the High Court, Eleanor Khainza, summoned
for my case le, as well as updated notes of the
trial proceedings. The case was assigned to Jusce
Elizabeth Kabanda and scheduled for 26th April
2017.
On 24th April 2017, Nicholas Opiyo of Chapter
Four Uganda and Wade McMullen of Robert F.
Kennedy Human Rights submied a joint peon
to the United Naons Working Group on Arbitrary
Detenon regarding this case.
The Human Rights Advocate | Fourth Issue - November 2017
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The Computer Misuse Act, 2011: Yet Another Legal Fetter
to the Basic Rights and Freedoms of Marginalised Persons
On 25th April 2017, when I appeared before the
lower court, all pares agreed that in light of the
pending guidance and ruling from the High Court,
the case would only come up for menon. Court
was adjourned to 10th May 2017.
Drumming up the most elaborate drama and
fanfare, Jusce Elizabeth Kabanda ordered all
journalists and other public media workers to be
barred from aending the proceedings in the High
Court. Rather than hear the submissions of my legal
team in a courtroom open to the public, she chose
to hold closed-door hearings in her ny chambers
which could hardly accommodate the enrety of
my enlarged legal team which was buered up
by addional counsel. In the absence of wrien
submissions, she allocated the lawyers only ve
minutes in which to make their oral submissions.
In spite of their elaborate preparaons, only two
of the lawyers were allowed the opportunity to
speak in that me. She adjourned the session unl
03:30PM, when she would give her ruling. Given
the congeson of the session in her chambers, as
well as the public interest in the proceedings, the
defense team requested for relocaon to one of
the many available open courtrooms. In her High
Court Ruling No. 9 of 2017, Jusce Elizabeth
Kabanda sent the case back to the lower court,
directed the magistrate to expediously handle
my bail applicaon, and also insisted that the
magistrate has power to hear the applicaon for
mental examinaon under the Mental Treatment
Act. I returned to maximum security prison.
Although I was physically weak from illness,
diagnosed with and treated for severe malaria by
the prison health workers, I appeared at Buganda
Road Magistrates Court on 10th May 2017. This
me around, the magistrate entertained my
applicaon for bail and was physically introduced
to my ve surees – namely Dr. Moses Khisa, Ms.
Solome Nakaweesi-Kayondo, Ms. Sheillah Nyanzi,
Mr. Georey Wokulira Ssebaggala, and Ms. Annet
Nana. The state prosecutor belaboured to make a
case for the need for the court to subject me to
mental examinaon and requisite mental treatment,
prior to granng me bail. The prosecutor also
aempted to advise the magistrate to condion
my release on bail upon restricng my freedom of
expression and social media wrings parcularly
insisng that I should be barred from wring about
members of the president’s household. Ignoring
these arguments, I was released on bail and
given non-cash court bond of ten million Uganda
Shillings. Court was adjourned to 25th May 2017.
In the period immediately aer my release on
bail, a new legal team was constuted upon
receiving my wrien instrucons to 1) peon
the Constuonal Court against arcles in the
Mental Treatment Act that contravene several
rights provided for in the constuon, 2) submit
an applicaon to the Chief Magistrate to halt the
mental examinaon procedure arising out of the
Mental Treatment Act – pending the ruling on the
peon, and 3) proceed with the hearing and trial
of the criminal case arising out of the Computer
Misuse Act. On 25th May 2017, my new legal team
under the leadership of Constuonal Law expert
Peter Walubiri introduced Constuonal Court
Peon No. 18 of 2017, Stella Nyanzi v. Aorney
General and applied to the lower court to stay
the state prosecutor’s applicaon to subject me
to mental examinaon. Furthermore, my lawyers
prayed that court proceeds with the hearing and
trial of the criminal case in which I am charged with
cyber harassment and oensive communicaon
against the president. Court was adjourned to 7th
June 2017.
Although copies of our submissions were
previously given to the state prosecutor, on 7th
June 2017 Resident State Aorney Jonathan
Muwaganya denied having received the same
documents, and asked the court to give him more
me to examine both the Constuonal Peon
and the applicaon to the lower court to halt the
proceedings of the mental examinaon applicaon.
In spite of protestaons from my defense lawyers,
the Chief Magistrate agreed to give the state
prosecutor two weeks to read the documents
and prepare his rebual. Disappointed about the
gimmicks of legal professionals wasng the me
of court, I wrote about the state prosecutor’s
The prosecutor also attempted
to advise the magistrate to
condition my release on bail
upon restricting my freedom
of expression and social media
writings particularly insisting
that I should be barred from
writing about members of the
president’s household.
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sloppiness, tardiness and underhandedness on my
Facebook meline. I decried the blatant waste of
public resources contained within the audacity of
a public ocial coming to court without preparing
by reading documents provided for a hearing.
A new twist was introduced into the court hearing
on the morning of 20th June 2017. Full of renewed
gusto, the state prosecutor asked the Chief
Magistrate to cancel my release on bail because
he alleged that I violated the subjudice rule in my
social media wrings about the case. Subming
copies of my Facebook posts about his previous
performance in court, he argued that I had violated
a condion of my bail – namely that I should not
publicly discuss the merits and weaknesses of
the case. My legal team combated all the new
allegaons. Aer a break, the Chief Magistrate
gave his ruling in which he maintained my bail
and also temporarily stayed the state prosecutor’s
applicaon for me to be subjected to mental
examinaon pending the Constuonal Court’s
ruling on my peon against the constuonality
of the provisions of the Mental Treatment Act.
Importantly, in this ruling, the Chief Magistrate
disnguished between violang the subjudice rule
and wring to complain about the inadequacies of
court procedures or personnel.
In the following court session of 21st July
2017, my defense lawyers requested that the
state prosecutor produces both the evidence
and witnesses to my alleged crimes of cyber
harassment and oensive communicaon against
the president. The state prosecutor insisted that
it was his understanding that court was waing
for the ruling of the Constuonal Court about
my peon against the Mental Treatment Act.
Furthermore, he insisted again about the need for
me to be subjected to mental examinaon and
requisite treatment before proceeding with the
court hearing. My defense lawyers countered this
by disnguishing between the mental healthcare
procedures arising out of the Mental Treatment
Act, on the one hand, and the court hearing
procedures arising out of the Computer Misuse Act.
We asked court to proceed with the examinaon
and cross-examinaon of witnesses and their
evidence, or else dismiss the charges as baseless.
In response, the state prosecutor asked for more
me to consult the Director of Public Prosecuons
(DPP) about how to proceed. Given that the state
prosecutor received his instrucons from the DPP,
the Chief Magistrate granted him the me for
these consultaons. Court was adjourned to 21st
August 2017.
On two consecuve pre-scheduled dates of 21st
August 2017 and 21st September 2017, in spite
of the state prosecutor and my defense counsel
aending on me, the Chief Magistrate neither
showed up to court nor gave any explanaons for
this absence. The hearing was adjourned to 23rd
October 2017 – a day when state prosecutors were
on strike against poor working condions. Thus
courts were not working. Court was adjourned to
24th November 2017.
Although the ongoing local court proceedings
have been drawn out because of undue delays
caused by either an absent Chief Magistrate or
an absent state prosecutor, the case received a
decision at the internaonal level. The United
Naons Working Group on Arbitrary Detenon
gave a decision in favour of freedom of expression
online, determined that I was arbitrarily detained
for my Facebook posts cricizing the president,
and proposed several remedies1.
Conclusion
Although the #PairOfBuocks case was not the
rst criminal case in Uganda to arise out of the
Computer Misuse Act, it gained notoriety because
of the colourful language of discussion and debate
that it generated on both the public and social
media in Uganda, Africa and the world at large. The
disproporonate severity of reprisals and pre-trial
penales meted out by the state – specically the
arbitrary pre-trial detenon on remand for thirty-
three days, denial to hear an applicaon for bail,
and applicaon for involuntary mental examinaon
of the accused – highlighted how this was polical
scape-goang aimed at controlling, inmidang
and deterring other opposional voices cricising
the leadership of President Yoweri Museveni.
However, rather than halt the cricisms on the
internet and in the public media, this criminal
case generated new froners of further engaged
crique. Arising out of this criminal case, a peon
was led challenging the constuonality of some
of the provisions of the Mental Treatment Act.
Although it was led in June 2017, no hearing date
has yet been assigned to this Constuonal Court
peon. It is good that another Constuonal
Peon was led challenging provisions of the
Computer Misuse Act that are being employed
by the state to quell dissent (Andrew Karamagi &
Robert Shaka v Aorney General).2 Furthermore, a
peon was led to the United Naons Working
Group on Arbitrary Detenon which decided that
I was arbitrarily detained using a veneer of law
which is in conict with internaonal human rights
that protect freedom of expression.
1 A/HRC/WGAD/2017/57 Opinion no. 57/2017 concerning
Stella Nyanzi (Uganda).
2 Andrew Karamagi&Robert Shaka v Aorney
General,Constuonal Peon No. 5 of 2016.
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On June 8th 2015, Mr. Robert Shaka was
arrested by a group of about 10 policemen.
He was taken to the Special Invesgaons
Unit headquarters and told that the reasons for
his arrests were the following:
i) That using computers and other
electronic devices, he issued oensive
communicaons against the sovereign
state of Uganda, bringing it into hatred
and contempt and accordingly comming
the oence of promoon of sectarianism
contrary to secon 41 of the Penal Code
Act.
ii) That using computers and other electronic
devices, he used oensive communicaon
against President Yoweri Museveni, Janet
Museveni, Kale Kayihura, a one “Mbabazi”
and a one “Kelen” thereby comming
the oence of oensive communicaon
contrary to Secon 25 of the Computer
Misuse Act.
For a long me, it has been suspected that
Mr. Shaka is Tom Voltaire Okwalinga. He has
been persistently persecuted by police since
February 2015. On June 11th 2015, Mr. Shaka
was produced before Buganda Road Magistrates
Court and charged with the oence of oensive
communicaon under Secon 25 of the Computer
Misuse Act. The parculars of the charge were
that:
‘Mr. Shaka, disguising himself as Tom Voltaire
Okwalinga (TVO), between 2011 and 2015,
willfully and repeatedly using a computer,
with no purpose of legimate communicaon,
disturbed the right of privacy of President
Museveni by posng statements as regards to
his health condion on social media, to wit,
Facebook.’
Mr. Shaka was granted bail by the Magistrates
Court but the hearing of the case never took place.
On February 3rd 2016, Robert Shaka and Andrew
Karamagi led a Peon in the Constuonal
Court challenging the constuonality of Secon
25 of the Computer Misuse Act, the Secon Mr.
Shaka was charged under. His lawyers applied
to court for a stay of the criminal proceedings,
which was granted on 22nd April 2016, pending
determinaon of the Constuonal Peon.
The Constuonal Peon
On February 3rd 2016, Robert Shaka and
Andrew Karamagi led a peon challenging the
constuonality of Secon 25 of the Computer
Misuse Act.1 In their Peon, the two contend that
the secon, which declares it an oence for any
person to ‘willfully and repeatedly use electronic
communicaon to disturb or aempt to disturb
the peace, quiet or right of privacy of any person
with no purpose of legimate communicaon’ is
inconsistent with and in contravenon of Arcle
29(1)(a) of the Constuon. They also state that
the secon is an insidious form of censorship,
which restricts the free ow of opinions and
ideas essenal to sustain the collecve life of
the cizenry in the digital age; it is vague and
overly broad; and that there is no evidence that
Government could not achieve the intended
purpose with less drasc measures.
They then ask court to make a declaraon that the
secon is inconsistent with or in contravenon of
Arcle 29(1)(a) of the Constuon and is to that
extent null and void. They also ask the Court to
direct the Director of Public Prosecuons to stay
the prosecuon of all and any cizens currently
on trial for violang the secon and an order
staying the enforcement of the secon or similar
provisions of the law, which disproporonately
curtail enjoyment of the freedom of speech and
expression by cizens.
The Aorney General led a response to the
Peon and contended that the Peon does
not raise any quesons for Constuonal
interpretaon and is thus devoid of any merit.
The response also argues that secon 25 of the
computer Misuse Act is not inconsistent with
or in contravenon of Arcles 29(1)(a) of the
Constuon, and that the Peoners are not
entled to the declaraons sought.
1 Andrew Karamagi & Robert Shaka v Aorney General,
Constuonal Peon No. 5 of 2016.
CASE UPDATE
The case of Uganda v Robert Shaka
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APPENDICES
1. HRAPF’ STATEMENT ON THE PROSECUTION OF DR. STELLA NYANZI
Plot 390 Prof. Apolo Nsibambi Road, Namirembe, Kampala.
P. O. Box 25603, Kampala.
Tel: +256-414-530683/+256-312-530683
Email: info@hrapf.org. Website: www.hrapf.org
Kampala, Thursday 13 April 2017
THE COMPUTER MISUSE ACT SHOULD NOT BE MISUSED TO GAG FREE EXPRESSION
IN UGANDA
On the night of 7th April 2017, Makerere University researcher Dr. Stella Nyanzi was kidnapped by state
agents who aer driving her around the city for hours eventually took her to Kiira Police Division where
she was detained. She was then produced before the Buganda Road Chief Magistrate on 10th April, and
charges of cyber harassment and oensive communicaons under secons 24(1) and (2)(a), and 25 of
the Computer Misuse Act of 2011 respecvely were read to her. She pleaded not guilty to both charges,
and was remanded to Luzira Prison unl 25th April 2015.
Dr. Nyanzi’s arrest and prosecuon arises from her posts on the social media site Facebook, in which
she used colourful and poec language with sexual metaphors to cricise the President, his wife and
the government for misrule, and for failed pledges. This aracted the oensive communicaons charge.
Her 28th January 2017 post in which she referred to the President as a ‘pair of buocks’ was specically
pointed out and used as the basis for the oensive communicaons charge.
The Computer Misuse Act, 2011 was enacted partly to ensure the ‘safety and security of electronic
transacons and informaon systems’ and to prevent ‘abuse or misuse of informaon systems including
computers’ which are both noble objecves. However, secon 24(1) and (2)(4) and secon 25 are
being misused. Secon 24(1) criminalises cyber harassment which is in part dened in secon 24(2)
(a) as ‘making any request, suggeson or proposal which is obscene, lewd, lascivious or indecent’.
These provisions are becoming increasingly popular to deal with any behaviour regarded as morally
inappropriate. Since the Act came into force, HRAPF has recorded two cases where these provisions
were used against people regarded as ‘immoral’ because of their behaviour, work, sexual orientaon
or gender identy. The Constuon, which is Uganda’s supreme law in Arcle 29(1)(a) guarantees the
freedom of speech and expression which includes freedom of the press and other media. According to
the Supreme Court of Uganda, the speech and expression protected extends to that which oend, shock
and disturb. Indeed, the Constuon provides for a limitaon on all rights including the right to freedom
of expression. Arcle 43(5) provides that ‘no person shall prejudice the fundamental or other human
rights and freedoms of others or the public interest.’ However, arcle 43(6) provides that the public
interest shall not permit, among others: polical persecuon, and any limitaon of the enjoyment of the
rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably jusable
in a free and democrac society. In interpreng this provision, the Supreme Court found that it was a
‘limitaon within a limitaon’ and that it is the right that had to be given prominence. Therefore, speech
that involves discussion of sex, sexual orientaon or gender identy or sexual acts should not necessarily
be limited simply because it is regarded by the majority as being ‘obscene, lewd, lascivious or indecent.’
Again, these statements were made by a self-declared supporter of the polical opposion in the context
of cricising government decisions. All the messages menoned in the charge contain legimate polical
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concerns despite the choice of language. Therefore arresng her for such speech amounts to polical
persecuon. This provision therefore falls short of constuonal standards, and ought to be repealed.
Secon 25 criminalises the wilful and repeated use of ‘electronic communicaon to disturb or aempts to
disturb the peace, quiet or right of privacy of any person without purpose of legimate communicaon.’
The facts of Dr. Nyanzi’s case do not support such a charge. The statement cannot be said to have
disturbed the ‘peace, quiet or right of privacy’ of any person and more so the President. The President is
in a posion where cricism and public discussion of all aspects of his personal and polical life can be
expected. The communicaon was clearly made with a purpose of polical comment, and so cannot be
said to have been made ‘without purpose.’
Therefore the Computer Misuse Act, which has such good intenons, is now becoming the new legal
basis for policing morals and sacricing the gem of freedom of expression. Usually, issues of defamaon
are dealt with under the realm of tort law. A person who feels that he or she has been harassed or
defamed is free to instute civil proceedings against the perpetrator. Using the criminal law to ght
polical bales and to save face by public gures is an abuse of court process and a waste of scarce state
resources. Nothing stops the President from bringing a civil acon against Dr. Nyanzi if he feels insulted
and defamed.
HRAPF therefore calls upon the state to:
1. Stop the misuse of the Computer Misuse Act by applying it only where it is appropriate and not
for harassing polical opponents and unpopular minories.
2. Review secon 24(2)(a) of the Computer Misuse Act which only restricts speech and expression
on the basis that it is ‘obscene, lewd, lascivious or indecent’; something that limits freedom of
speech beyond the constuonal parameters.
3. Drop the unconstuonal and trumped up charges against Dr. Stella Nyanzi.
Taking human rights to all
Human Rights Awareness and Promoon Forum (HRAPF) 53
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2. FULL TEXT OF THE COMPUTER MISUSE ACT
ACTS
SUPPLEMENT No. 2 14th Febuary, 2011.
ACTS SUPPLEMENT
to The Uganda Gazette No. 10 Volume CIV dated 14th February, 2011.
Printed by UPPC, Entebbe, by Order of the Government.
Act 2 Computer Misuse Act 2011
THE COMPUTER MISUSE ACT, 2011.
_________
ARRANGEMENT OF SECTIONS.
PART I—PRELIMINARY.
Section.
1. Commencement.
2. Interpretation.
PART II—GENERAL PROVISIONS.
3. Securing access.
4. Using a program.
5. Authorised access.
6. References.
7. Modification of contents.
8. Unauthorised modification.
PART III—INVESTIGATIONS AND PROCEDURES.
9. Preservation Order.
10. Disclosure of preservation Order.
11. Production Order.
PART IV—COMPUTER MISUSE OFFENCES.
12. Unauthorised access.
13. Access with intent to commit or facilitate commission of further
offence.
14. Unauthorised modification of computer material.
15. Unauthorised use or interception of computer service.
16. Unauthorised obstruction of use of computer.
17. Unauthorised disclosure of access code.
1
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Section.
18. Unauthorised disclosure of information.
19. Electronic fraud
20. Enhanced punishment for offences involving protected computers.
21. Abetments and attempts.
22. Attempt defined.
23. Child pornography.
24. Cyber harassment.
25. Offensive communication.
26. Cyber stalking.
27. Compensation.
PART V—MISCELLANEOUS.
28. Search and seizure.
29. Administratively and evidential weight of a data message or an
electronic record.
30. Territorial jurisdiction.
31. Jurisdiction of courts.
32. Power of Minister to amend Schedule to this Act.
SCHEDULE.
Currency point.
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THE COMPUTER MISUSE ACT, 2011
An Act to make provision for the safety and security of electronic
transactions and information systems; to prevent unlawful
access, abuse or misuse of information systems including
computers and to make provision for securing the conduct of
electronic transactions in a trustworthy electronic environment
and to provide for other related matters.
DATE OF ASSENT: 1st November, 2010.
Date of Commencement: See Section 1.
BE IT ENACTED by Parliament as follows:
PART I—PRELIMINARY.
1. Commencement.
This Act shall come into force on a date appointed by the Minister by
statutory instrument
2. Interpretation.
In this Act, unless the context otherwise requires—
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“access” means gaining entry to any electronic system or data held
in an electronic system or causing the electronic system to
perform any function to achieve that objective;
“application” means a set of instructions that, when executed in
a computer system, causes a computer system to perform a
function and includes such a set of instructions held in any
removable storage medium which is for the time being in a
computer system;
“authorised officer” has the meaning assigned to it in section 28;
“child” means a person under the age of eighteen years;
“computer” means an electronic, magnetic, optical, electrochemical
or other data processing device or a group of such
interconnected or related devices, performing logical,
arithmetic or storage functions; and includes any data storage
facility or communications facility directly related to or
operating in conjunction with such a device or group of such
interconnected or related devices;
“computer output” or “output” means a statement, information
or representation, whether in written, printed, pictorial,
graphical or other form—
(a) produced by a computer; or
(b) accurately translated from a statement or
representation so produced from a computer;
“computer service” includes computer time, data processing and
the storage retrieval of data;
“content” includes components of computer hardware and
software;
“currency point” means the value of a currency point specified
in the Schedule;
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“damage” means any impairment to a computer or the integrity or
availability of data, program, system or information that—
(a) causes any loss;
(b) modifies or impairs or potentially modifies or impairs
the medical examination, diagnosis, treatment or care
of one or more persons;
(c) causes or threatens physical injury or death to any
person; or
(d) threatens public health or public safety;
“data” means electronic representations of information in any
form;
“data message” means data generated, sent, received or stored
by computer means; and includes—
(a) voice, where the voice is used in an automated
transaction; and
(b) a stored record;
“electronic device”, “acoustic device”, or “other device” means
any device or apparatus that is used or is capable of being
used to intercept any function of a computer;
“electronic record” means data which is recorded or stored on
any medium in or by a computer or other similar device,
that can be read or perceived by a person or a computer
system or other similar device and includes a display,
printout or other out put of that data;
“function” includes logic, control, arithmetic, deletion, storage,
retrieval and communication or telecommunication to,
from or within a computer;
“information” includes data, text, images, sounds, codes,
computer programs, software and databases;
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“information system” means a system for generating, sending,
receiving, storing, displaying or otherwise processing data
messages; and includes the internet or any other
information sharing system;
“information system services” includes a provision of
connections, operation facilities, for information systems,
the provision of access to information systems, the
transmission or routing of data messages between or among
points specified by a user and the processing and storage of
data, at the individual request of the recipient of the service;
“intercept”, in relation to a function of a computer, includes
listening to or recording a function of a computer or acquiring
the substance, meaning or purport of such a function;
“Minister” means the Minister responsible for information and
communications technology;
“person” includes any company or association or body of
persons corporate or unincorporate;
“program” or “computer program” means data representing
instructions or statements that, when executed in a
computer, causes the computer to perform a function;
“traffic data” means any computer data relating to
communication by means of a computer system generated
by a computer system that formed a part in the chain of
communication, indicating the communication’s origin,
destination, route, time, date, size, duration or type of
underlying service.
PART II—GENERAL PROVISIONS.
3. Securing access.
A person secures access to any program or data held in a computer if
that person—
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(a) views, alters or erases the program or data;
(b) copies or moves it to any storage medium other than that in
which it is held or to a different location in the storage
medium in which it is held;
(c) uses or destroys it; or
(d) causes it to be output from the computer in which it is held
whether by having it displayed or in any other manner.
4. Using a program.
A person uses a program if the function he or she causes the computer
to perform—
(a) causes the program to be executed; or
(b) is itself a function of the program.
5. Authorised access.
Access by a person to any program or data held in a computer is
authorised if—
(a) the person is entitled to control access to the program or
data in question; or
(b) the person has consent to access that program or data from
any person who is charged with giving that consent.
6. References.
(1) A reference to a program or data held in a computer includes
a reference to any program or data held in any removable storage
medium and a computer may be regarded as containing any program
or data held in any such medium.
(2) A reference to a program includes a reference to part of a
program.
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7. Modification of contents.
A modification of the contents of any computer takes place if, by the
operation of any function of the computer concerned or any other
computer connected to it result into—
(a) a program, data or data message held in the computer
concerned being altered or erased; or
(b) a program, data or data message being added to its contents.
8. Unauthorised modification.
Modification is unauthorised if—
(a) the person whose act causes it, is not entitled to determine
whether the modification should be made; and
(b) he or she does not have consent to the modification from a
person who is entitled.
PART III—INVESTIGATIONS AND PROCEDURES.
9. Preservation Order.
(1) An investigative officer may apply to court for an order for
the expeditious preservation of data that has been stored or processed
by means of a computer system or any other information and
communication technologies, where there are reasonable grounds to
believe that such data is vulnerable to loss or modification.
(2) For the purpose of subsection (1), data includes traffic data
and subscriber information.
(3) An order made under subsection (1) shall remain in force—
(a) until such time as may reasonably be required for the
investigation of an offence; or
(b) where prosecution is instituted, until the final determination
of the case or until such time as the court deems fit.
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10. Disclosure of preservation Order.
The investigative officer may, for the purpose of a criminal
investigation or the prosecution of an offence, apply to court for an
order for the disclosure of—
(a) all preserved data, irrespective of whether one or more
service providers were involved in the transmission of such
data; or
(b) sufficient data to identify the service providers and the path
through which the data was transmitted; or electronic key
enabling access to or the interpretation of data.
11. Production Order.
(1) Where the disclosure of data is required for the purposes of
a criminal investigation or the prosecution of an offence, an
investigative officer may apply to court for an order compelling—
(a) any person to submit specified data in that person's possession
or control, which is stored in a computer system; and
(b) any service provider offering its services to submit
subscriber information in relation to such services in that
service provider's possession or control.
(2) Where any material to which an investigation relates consists
of data stored in a computer, computer system or preserved by any
mechanical or electronic device, the request shall be deemed to
require the person to produce or give access to it in a form in which
it can be taken away and in which it is visible and legible.
PART III—COMPUTER MISUSE OFFENCES.
12. Unauthorised access.
(1) A person who intentionally accesses or intercepts any program
or data without authority or permission to do so commits an offence.
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(2) A person who intentionally and without authority to do so,
interferes with data in a manner that causes the program or data to be
modified, damaged, destroyed or rendered ineffective, commits an offence.
(3) A person who unlawfully produces, sells, offers to sell,
procures for use, designs, adapts for use, distributes or possesses any
device, including a computer program or a component which is
designed primarily to overcome security measures for the protection
of data or performs any of those acts with regard to a password,
access code or any other similar kind of data, commits an offence.
(4) A person who utilises any device or computer program
specified in subsection (3) in order to unlawfully overcome security
measures designed to protect the program or data or access to that
program or data, commits an offence.
(5) A person who accesses any information system so as to
constitute a denial including a partial denial of service to legitimate
users commits an offence.
(6) The intent of a person to commit an offence under this
section need not be directed at—
(a) any particular program or data;
(b) a program or data of any particular kind; or
(c) a program or data held in any particular computer.
(7) A person who commits an offence under this section is liable
on conviction to a fine not exceeding two hundred and forty currency
points or imprisonment not exceeding ten years or both.
13. Access with intent to commit or facilitate the commission of
a further offence.
(1) A person who commits any acts specified under section 12
with intent to—
(a) commit any other offence; or
(b) facilitate the commission of any other offence,
commits an offence.
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(2) The offence to be facilitated under subsection (1)(b) may be
one committed by the person referred to in subsection (1) or by any
other person.
(3) It is immaterial for the purposes of this section whether the
act under this section is committed on the same occasion as the
offence under section 12 or on any future occasion.
(4) A person who commits an offence under this section is liable
on conviction to a fine not exceeding two hundred and forty currency
points or imprisonment not exceeding ten years or both.
14. Unauthorised modification of computer material.
(1) A person who—
(a) does any act which causes an unauthorised modification of
the contents of any computer; and
(b) has the requisite intent and the requisite knowledge at the
time when he or she does the act,
commits an offence.
(2) For the purposes of subsection (1)(b) the requisite intent is an
intent to cause a modification of the contents of any computer and by
doing so—
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in
any computer; or
(c) to impair the operation of any such program or the
reliability of any such data.
(3) The intent under subsection (1)(b) need not be directed at—
(a) any particular computer;
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(b) any particular program or data or a program or data of any
particular kind; or
(c) any particular modification or a modification of any
particular kind.
(4) For the purposes of subsection (1)(b) the requisite knowledge
is knowledge that any modification that the person intends to cause is
unauthorised.
(5) It is immaterial for the purposes of this section whether an
unauthorised modification or any intended effect of it of a kind
specified in subsection (2) is intended to be permanent or temporary.
(6) A person who commits an offence under this section is liable
on conviction, to a fine not exceeding three hundred and sixty
currency points or imprisonment not exceeding fifteen years or both.
15. Unauthorised use or interception of computer service.
(1) Subject to subsection (2), a person who knowingly—
(a) secures access to any computer without authority for the
purpose of obtaining, directly or indirectly, any computer
service;
(b) intercepts or causes to be intercepted without authority,
directly or indirectly, any function of a computer by means
of an electro-magnetic, acoustic, mechanical or other
device whether similar or not; or
(c) uses or causes to be used, directly or indirectly, the
computer or any other device for the purpose of committing
an offence under paragraph (a) or (b),
commits an offence and is liable on conviction to a fine not exceeding
two hundred and forty currency points or to imprisonment not
exceeding ten years or both; and in the case of a subsequent
conviction, to a fine not exceeding three hundred and sixty currency
points or imprisonment not exceeding fifteen years or both.
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(2) If any damage is caused as a result of an offence under this
section, a person convicted of the offence is liable to a fine not
exceeding one hundred and sixty eight currency points or
imprisonment not exceeding seven years or both.
(3) For the purposes of this section, it is immaterial that the
unauthorised access or interception is not directed at—
(a) any particular program or data;
(b) a program or data of any kind; or
(c) a program or data held in any particular computer.
16. Unauthorised obstruction of use of computer.
A person who, knowingly and without authority or lawful excuse—
(a) interferes with or interrupts or obstructs the lawful use of, a
computer; or
(b) impedes or prevents access to or impairs the usefulness or
effectiveness of any program or data stored in a computer,
commits an offence and is liable on conviction to a fine not exceeding
two hundred and forty currency points or to imprisonment not
exceeding ten years or both; and in the case of a subsequent
conviction, to a fine not exceeding three hundred and sixty currency
points or imprisonment not exceeding fifteen years or both.
17. Unauthorised disclosure of access code.
(1) A person who knowingly and without authority discloses any
password, access code or any other means of gaining access to any
program or data held in any computer knowing or having reason to
believe that it is likely to cause loss, damage or injury to any person
or property, commits an offence.
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(2) A person who commits an offence under subsection (1) is liable
on conviction to a fine not exceeding two hundred and forty currency
points or to imprisonment not exceeding ten years or both; and in the case
of a subsequent conviction, to a fine not exceeding three hundred and sixty
currency points or imprisonment not exceeding fifteen years or both.
18. Unauthorised disclosure of information.
(1) Except for the purposes of this Act or for any prosecution for
an offence under any written law or in accordance with an order of
court, a person who has access to any electronic data, record, book,
register, correspondence, information, document or any other
material, shall not disclose to any other person or use for any other
purpose other than that for which he or she obtained access.
(2) A person who contravenes subsection (1) commits an offence
and is liable on conviction to a fine not exceeding two hundred and forty
currency points or imprisonment not exceeding ten years or both.
19. Electronic fraud.
(1) A person who carries out electronic fraud commits an
offence and is liable on conviction to a fine not exceeding three
hundred and sixty currency points or imprisonment not exceeding
fifteen years or both.
(2) For the purposes of this section “electronic fraud” means
deception, deliberately performed with the intention of securing an
unfair or unlawful gain where part of a communication is sent
through a computer network or any other communication and another
part through the action of the victim of the offence or the action is
performed through a computer network or both.
20. Enhanced punishment for offences involving protected
computers.
(1) Where access to any protected computer is obtained in the
course of the commission of an offence under section 12, 14, 15 or
16, the person convicted of an offence is, instead of the punishment
prescribed in those sections, liable on conviction, to imprisonment for
life.
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(2) For the purposes of subsection (1), a computer is treated as a
“protected computer” if the person committing the offence knows or
ought reasonably to have known, that the computer or program or
data is used directly in connection with or necessary for—
(a) the security, defence or international relations of Uganda;
(b) the existence or identity of a confidential source of
information relating to the enforcement of a criminal law;
(c) the provision of services directly related to communications
infrastructure, banking and financial services, public
utilities or public key infrastructure; or
(d) the protection of public safety including systems related to
essential emergency services such as police, civil defence
and medical services.
(3) For the purposes of any prosecution under this section, it shall be
presumed, until the contrary is proved, that the accused has the requisite
knowledge referred to in subsection (2).
21. Abetment and attempts.
(1) A person who abets another person in committing an offence
under this Act, commits that offence and is liable on conviction to the
punishment prescribed for the offence.
(2) Any person who attempts to commit any offence under this
Act commits that offence and is liable on conviction to the
punishment prescribed for the offence.
22. Attempt defined.
(1) When a person, intending to commit an offence, begins to put
his or her intention into execution by means adapted to its fulfillment,
and manifests his or her intention by some overt act, but does not
fulfill his or her intention to such an extent as to commit the offence,
he or she is deemed to attempt to commit the offence.
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(2) It is immaterial—
(a) except so far as regards punishment, whether the offender
does all that is necessary on his or her part for completing
the commission of the offence, or whether the complete
fulfillment of his or her intention is prevented by
circumstances independent of his or her will, or whether the
offender desists of his or her own motion from the further
prosecution of his or her intention; or
(b) that by reason of circumstances not known to the offender it
is impossible in fact to commit the offence.
23. Child pornography.
(1) A person who—
(a) produces child pornography for the purposes of its
distribution through a computer;
(b) offers or makes available child pornography through a
computer;
(c) distributes or transmits child pornography through a
computer;
(d) procures child pornography through a computer for himself
or herself or another person; or
(e) unlawfully possesses child pornography on a computer,
commits an offence.
(2) A person who makes available pornographic materials to a
child commits an offence.
(3) For the purposes of this section “child pornography” includes
pornographic material that depicts—
(a) a child engaged in sexually suggestive or explicit conduct;
(b) a person appearing to be a child engaged in sexually
suggestive or explicit conduct; or
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(c) realistic images representing children engaged in sexually
suggestive or explicit conduct.
(4) A person who commits an offence under this section is liable
on conviction to a fine not exceeding three hundred and sixty
currency points or imprisonment not exceeding fifteen years or both.
24. Cyber harassment.
(1) A person who commits cyber harassment is liable on
conviction to a fine not exceeding seventy two currency points or
imprisonment not exceeding three years or both.
(2) For purposes of this section cyber harassment is the use of a
computer for any of the following purposes—
(a) making any request, suggestion or proposal which is
obscene, lewd, lascivious or indecent;
(b) threatening to inflict injury or physical harm to the person
or property of any person; or
(c) knowingly permits any electronic communications device
to be used for any of the purposes mentioned in this section.
25. Offensive communication.
Any person who willfully and repeatedly uses electronic
communication to disturb or attempts to disturb the peace, quiet or right
of privacy of any person with no purpose of legitimate communication
whether or not a conversation ensues commits a misdemeanor and is
liable on conviction to a fine not exceeding twenty four currency points
or imprisonment not exceeding one year or both.
26. Cyber stalking.
Any person who willfully, maliciously, and repeatedly uses electronic
communication to harass another person and makes a threat with the
intent to place that person in reasonable fear for his or her safety or to
a member of that person's immediate family commits the crime of
cyber stalking and is liable on conviction to a fine not exceeding one
hundred and twenty currency points or imprisonment not exceeding
five years or both.
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27. Compensation.
Where a person is convicted under this Act, the court shall in addition
to the punishment provided therein, order such person to pay by way
of compensation to the aggrieved party, such sum as is in the opinion
of the court just, having regard to the loss suffered by the aggrieved
party; and such order shall be a decree under the provisions of the
Civil Procedure Act, and shall be executed in the manner provided
under that Act.
PART V—MISCELLANEOUS.
28. Searches and seizure.
(1) Where a Magistrate is satisfied by information given by a
police officer that there are reasonable grounds for believing—
(a) that an offence under this Act has been or is about to be
committed in any premises; and
(b) that evidence that such an offence has been or is about to be
committed is in those premises,
the Magistrate may issue a warrant authorising a police officer to enter
and search the premises, using such reasonable force as is necessary.
(2) An authorised officer may seize any computer system or take
any samples or copies of applications or data—
(a) that is concerned in or is on reasonable grounds believed to
be concerned in the commission or suspected commission
of an offence, whether within Uganda or elsewhere;
(b) that may afford evidence of the commission or suspected
commission of an offence, whether within Uganda or
elsewhere; or
(c) that is intended to be used or is on reasonable grounds believed
to be intended to be used in the commission of an offence.
(3) A computer system referred to in subsection (2) may be
seized or samples or copies of applications or data may be taken, only
by virtue of a search warrant.
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(4) The provisions of section 71 of the Magistrates Court’s Act
apply with the necessary modifications to the issue and execution of
a search warrant referred to in subsection (3).
(5) An authorised officer executing a search warrant referred to
in subsection (3), may—
(a) at any time search for, have access to and inspect and check the
operation of any computer system, application or data if that
officer on reasonable grounds believes it to be necessary to
facilitate the execution of that search warrant;
(b) require a person having charge of or being otherwise
concerned with the operation, custody or care of a
computer system, application or data to provide him or her
with the reasonable assistance that may be required to
facilitate the execution of that search warrant; and
(c) compel a service provider, within its existing technical
capability—
(i) to collect or record through the application of
technical means; or
(ii) to co-operate and assist the competent authorties in the
collection or recording of traffic data in real time,
associated with specified communication transmitted
by means of a computer system.
(6) In seizing any computer system or taking any samples or
copies of applications or data or performing any of the actions
referred to in subsection (5), an authorised officer shall have due
regard to the rights and interests of a person affected by the seizure to
carry on his or her normal activities.
(7) A person who obstructs, hinders or threatens an authorised
officer in the performance of his or her duties or the exercise of his or
her powers under this section commits an offence and is liable on
conviction to a fine not exceeding twelve currency points or
imprisonment not exceeding six months or both.
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(8) A computer system seized or samples or copies of applications
or data taken by the authorised officer shall be returned within seventy
two hours unless the authorised officer has applied for and obtained an
order in an inter party application for extension of the time.
(9) In this section—
“authorised officer” means a police officer who has obtained an
authorising warrant under subsection (1); and
“premises” includes land, buildings, movable structures,
vehicles, vessels, aircraft and hover craft.
29. Admissibility and evidential weight of a data message or an
electronic record.
(1) In any legal proceedings, the rules of evidence shall not be
applied so as to deny the admissibility of a data message or an
electronic record—
(a) merely on the ground that it is constituted by a data
message or an electronic record;
(b) if it is the best evidence that the person adducing it could
reasonably be expected to obtain; or
(c) merely on the ground that it is not in its original form.
(2) A person seeking to introduce a data message or an
electronic record in any legal proceeding has the burden of proving
its authenticity by evidence capable of supporting a finding that the
electronic record is what the person claims it to be.
(3) Subject to subsection (2), where the best evidence rule is
applicable in respect of an electronic record, the rule is satisfied upon
proof of the authenticity of the electronic records system in or by
which the data was recorded or stored.
(4) When assessing the evidential weight of a data message or an
electronic record, the court shall have regard to—
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(a) the reliability of the manner in which the data message was
generated, stored or communicated;
(b) the reliability of the manner in which the authenticity of the
data message was maintained;
(c) the manner in which the originator of the data message or
electronic record was identified; and
(d) any other relevant factor.
(5) The authenticity of the electronic records system in which an
electronic record is recorded or stored shall, in the absence of
evidence to the contrary, be presumed where—
(a) there is evidence that supports a finding that at all material
times the computer system or other similar device was
operating properly or, if it was not, the fact of its not operating
properly did not affect the integrity of the electronic record
and there are no other reasonable grounds on which to doubt
the authenticity of the electronic records system;
(b) it is established that the electronic record was recorded or
stored by a party to the proceedings who is adverse in
interest to the party seeking to introduce it; or
(c) it is established that the electronic record was recorded or
stored in the usual and ordinary course of business by a
person who is not a party to the proceedings and who did
not record or store it under the control of the party seeking
to introduce the record.
(6) For the purposes of determining whether an electronic record
is admissible under this section, evidence may be presented in respect
of any set standard, procedure, usage or practice on how electronic
records are to be recorded or stored, with regard to the type of
business or endeavours that used, recorded or stored the electronic
record and the nature and purpose of the electronic record.
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(7) For the avoidance of doubt, this section does not modify the
common law or a statutory rule relating to the admissibility of
records, except the rules relating to authentication and best evidence.
30. Territorial jurisdiction.
(1) Subject to subsection (2), this Act shall have effect, in
relation to any person, whatever his or her nationality or citizenship
and whether he or she is within or outside Uganda.
(2) Where an offence under this Act, is committed by any person
in any place outside Uganda, he or she may be dealt with as if the
offence had been committed within Uganda.
(3) For the purposes of this Act, this section applies if, for the
offence in question—
(a) the accused was in Uganda at the material time; or
(b) the computer, program or data was in Uganda at the
material time.
31. Jurisdiction of courts.
A court presided over by a chief magistrate or magistrate grade I has
jurisdiction to hear and determine all offences in this Act and,
notwithstanding anything to the contrary in any written law, has
power to impose the full penalty or punishment in respect of any
offence under this Act.
32. Power of Minister to amend Schedule
The Minister may by statutory instrument with the approval of the
Cabinet, amend the Schedule to this Act.
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SCHEDULE
Section 2.
Currency point
One currency point is equivalent to twenty thousand shillings.
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Cross reference
Magistrates Courts Act, Cap.16.
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