Inside Legal Brains Trust’s Case Against New Computer Misuse law At the East African Court of Justice


Legal Brains Trust, a Kampala based human rights and democracy watchdog on Wednesday, 19th October, launched a legal attack in the East Africa Court of Justice against the widely controversial Computer Misuse Act Amendment which was passed by the Parliament of Uganda in September and assented into law by President Yoweri Museveni on 13th October, 2022.

The law, introduced into Parliament by Kampala legislator Hon. Muhammad Nsereko, who the watchdog describes as a “wayward” Member of Parliament apparently seeks to “enhance” or strengthen the pre-existing law, the Computer Misuse Act of 2011 – itself a controversial law.

Nsereko’s law purports to create new offences and tough penalties for offenders. Notably, the law criminalizes; the recording of a person’s voice or video without his/her permission, sharing of information about or that “relates” to another person, the sharing of information about a child without the consent of his/her parent or guardian, the sharing of “unsolicited” information unless in “public interest,” the sharing of “malicious” information, “misuse” of social media, and hate speech. Offenders risk imprisonment of up to ten years and/or fines of up to 15,000,000 UGX.

According to the petition filed against the Attorney General, Legal Brains Trust argues that all provisions of Amendment violate the principles of good governance enshrined under Articles 6 (d) and 7(2) of the East African Community Treaty. And will violate freedom of express on digital platforms.

In particular, the watchdog says the law infringes on the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, as well as the recognition, promotion, protection, and maintenance of universally accepted standards of human rights.

“It is a defectively processed blunt instrument that disproportionately restricts freedom of expression online on vague, overly broad and unfounded pretexts, and will immediately be weaponised by the Ugandan authorities to silence dissent and prevent people from speaking out against bad governance.” The watchdog says in its Petition.

Process

Legal Brains Trust further attacks the manner in which the law was handled and passed saying it was in “haste” and devoid of meaningful public participation. In so doing, the watchdog argues, the government of Uganda abdicated its duties under Articles 9, 13, and 25 of the African Charter on Human and Peoples’ Rights, Article 25 of the International Covenant on Civil and Political Rights and Articles 29 (1)(a), 38, and 43 of the Constitution of Uganda.

Article 38 of the Constitution of Uganda for example provides that: “Every Uganda citizen has the right to participate in the affairs of government, individually or through his or her representatives in accordance with law ” and that: “ Every Ugandan has a right to participate in peaceful activities to influence the policies of government through civic organizations.”

In an affidavit sworn in support of the case, Ms. Isabella Nakiyonga, a legal officer at Legal Brains Trust, says that MP Nsereko was allowed to present his law without adducing any evidence of the ills it purportedly intends to cure and that the Speaker of Parliament Anita Among did not afford ample time for the law to be scrutinized by the Committee on ICT and National Guidance. The Speaker, the lawyer further says, did not afford ample time for the House to scrutinize the Committee’s majority and minority reports.

Ms. Isabella Nakiyonga, who claims to have closely monitored and observed the process of passing the Computer Misuse Amendment Act, further alleges that the Committee on ICT and National Guidance “did not adequately discharge the duty of ensuring public participation in the scrutiny of the bill [ now law], or the new clauses that the committee belatedly sought to insert in the bill after the closure of public hearings.”

“I know, for instance, that the criteria and procedure adopted by the said committee fell short of the requisite diligence, competence, honesty, probity, impartiality, integrity, transparency and accountability as the committee arbitrarily handpicked the stakeholders with whom it interfaced, and unreasonably excluded or sidelined relevant agencies like the Uganda Law Reform Commission which is statutorily mandated to facilitate amendments of this kind” She says, adding that:

“I also know that the committee adopted an unreasonably low or opaque standard in the process of scrutinizing the bill. It did not seek or receive any evidence from the mover of the bill or any other stakeholder showing whether any of the proposed amendments was necessary. Furthermore, the committee unreasonably failed to give adequate weight to the evidence and written submissions of all stakeholders that called for rejection of the repugnant and unnecessary parts of the bill.”

Civil Recourse More than Sufficient

The watchdog further dismisses the necessity of this law arguing that civil recourse to Justice for victims is sufficient and claims that the arguments in support of the Amendment as captured in the Majority report and Hansard of Parliament are illogical, unreasonable, unjustified and out of step with universally accepted standards of human rights.

“ For instance, the repeal of section 30(3) of the Computer Misuse Act, 2011 is not adequately justified, and the criminal penalties imposed by the impugned Law are clearly disproportionate and inappropriate in each of the scenarios at issue because civil recourse is more than sufficient to prevent the apprehended harm from being precipitated” Ms. Nakiyonga states.

Why the East Africa Court of Justice and not local Judiciary? “Maize cannot expect justice in a court composed of chickens”

Several activists and lawyers have already petitioned the Uganda Constitutional Court challenging the constitutionality of the Computer Misuse Amendment Act and the Uganda Law Society, the lawyers’ body has also reportedly expressed interest in doing the same.

As a matter of fact, the Uganda law society already has a case in the same Court pending Judgment that was filed in 2019 challenging certain provisions of the Computer Misuse Act, 2011 on almost similar grounds.

Thus Legal Brains Trust has clearly decided to take the matter to a different forum. Explaining, the philosophy behind this legal strategy, Legal Brains Trust Executive Director, Mr. Isaac Ssemakadde said the Ugandan Judiciary which he describes as “biased, lethargic, and emasculated” cannot be entrusted to handle the case.

“This matter is too important to be left to the biased, lethargic and emasculated local judiciary. At their 23rd annual conference in February this year, the senior judges and justices of Uganda passed an anti-democratic resolution literally urging the government to conduct further surveillance and repression of critical voices on the Internet.” Mr. Ssemakadde said, adding:

“Ugandan security and intelligence operators, prosecutors, magistrates and even High Court judges routinely violate the freedom of internet users with impunity, and the Constitutional Court has abdicated its human rights protection mandate by unreasonably failing to determine a dozen petitions challenging draconian provisions in the pre-existing computer misuse law since its commencement in 2011. Clearly, maize cannot expect justice in a court composed of chickens.”

In February, Ugandan Judges passed a “resolution” during their Conference not to entertain “ cyber bullying” and “cyber harassment” by Mr. Isaac Ssemakadde and Lawyer Male Mabirizi. The resolution came after the two had been very critical of Justices Musa Ssekaana and Phillip Odoki.

Ssemakadde has previously been arrested over remarks made on the internet about the DPP Justice Jane Frances Abodo and more recently, he has been interrogated about remarks made on the internet about Justice Musa Ssekaana.

Ssemakadde said in an interview with NTV Uganda that he has tried over 20 cases touching Computer Misuse and none has involved an ordinary Ugandan as a complainant. Instead, the complainants have all been powerful government officials which he says suggests the law is highly susceptible to abuse by those in power against dissenting or critical voices online.

Legal Brains Trust wants the First Instance Division of the East Africa Court of Justice to nullify the Computer Misuse Amendment Act, order the government of Uganda to cease and desist from implementing any parts of the Amendment, order the government to amend its law in accordance with the findings of the Court and for the government to report back to the Court within 60 days from the date of judgment. They also want costs of the suit.


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