The Penal Code Act 1950 (Cap 120) Amendment 1998 63

One of the ways the NRM government has over the years enforced her version of responsible journalism was to invoke the Penal Code Act, which is to date the oldest and most repressive law in Uganda. The Penal Code is a colonial relic that contains a range of offenses that tend to render press practice in Uganda a hazardous undertaking. While two court rulings in 2004 and 2010 have seen some of the penal laws annulled, most provisions still remain in force and the chilling effect the numerous arrests and charges have created on journalists cannot be under-estimated. The provisions that have impacted on journalism practice in Uganda the most relate to sedition in Sections 41 and 42 of the Penal Code Act; while Sections 36 to 39 on importation of seditious publications have hardly been invoked.

Sedition can be committed in a number of ways that include doing acts or uttering words with a seditious intention; dealing in seditious publications that includes printing, publishing, selling, offering for sale, distribution, reproduction or importing. In Section 41(1), a seditious publication is one that has a seditious intention, which includes: (a) “to bring into hatred or contempt or to excite disaffection against the person of the President, the Government as by law established or the Constitution; (b) to excite any person to attempt to procure the alteration, otherwise than by lawful means, of any matter of state as by law established; (c) to bring into hatred or contempt or excite disaffection against the administration of justice; and (h) to subvert or to promote the subversion of the

63 Uganda. (1998). “The Penal Code Act 1950 (Cap 120).” URL in February 2012 at

http://www.ulii.org/ug/legis/consol_act/pca195012096/. Note that the 1998 amendment (Cap 120) has several of the Sections re-arranged e.g. Section 51 in the 1950 law (Cap 106) is Section 50A and so on.

Government or the Administration of a District” (Uganda, 1998). Clause (2) stipulates those instances when an act, speech or publication shall not be deemed to be seditious. A reading of this Section shows the wide latitude the law provided to government to charge journalists on seditious charges. The law of sedition has for years formed the major basis upon which arrests of journalists were made and prosecutions carried out. Sewanyana et al. (2007) for instance provide some cases when the law has been invoked:

“In August 2005, journalist Andrew Mwenda was arrested for making seditious statements against President Museveni and his government relating to the government’s alleged role in the death of Sudanese First Vice President John Garang. He was charged with sedition and promoting sectarianism under the Penal Code. He later filed a petition in the Constitutional Court challenging the constitutionality of the law against sedition as well as the law against promoting sectarianism. The petition was merged with a similar petition from the East Africa Media Institute Limited (EAMIL) in October 2006” (p.31).

“The Editor in Chief of The Red Pepper, Richard Tumusiime was charged with sedition on February 16, 2007, after the publication the previous day of a story alleging that the State House had paid the Kabaka of Buganda $1 million to fire the Katikiiro Dan Muliika. Mr. Tumusiime was released on bond” (Ibid.).

In August 2010, journalist Timothy Kalyegira, the editor of the online news site Uganda Record, was charged with sedition for articles he published that questioned possible Ugandan government involvement in the 11 July 2010 bombings in Kampala, the Ugandan capital (CPJ, 04 August 2010).

In what was held as one of the most significant victories for the media in Uganda, the Constitutional Court on 25 August 2010 declared as unconstitutional the offense of criminal sedition that has been used over the years to prosecute journalists (Clottey, 25 August 2010).The ruling was based on a 2005 constitutional review petition filed jointly

by the East African Media Institute (represented by Haruna Kanaabi) and journalist Andrew Mwenda. The latter is the journalist who has been in Ugandan courts the most and by the time of the ruling he was facing up to 17 charges of sedition over his political radio and newspaper commentaries that are critical of the NRM government (CPJ, 26 August 2010). In the ruling, the panel of five judges, led by Deputy Chief Justice Leticia Mukasa Kikonyogo, unanimously held that sedition was in contravention of Article 29 of the Ugandan Constitution that guarantees the right to free speech. The judges also based their judgement on a precedent of the February 2004 ruling that annulled Section 50 of the Penal Code on "publishing false news". If the petition by the State attorney is unsuccessful and the ruling is upheld, more than a dozen journalists who have been charged with sedition in recent years would stand to benefit.

What was not annulled during the August 2010 ruling, however, was Section 42A (Statute 9 of 1988) of the Penal Code, otherwise known as the “anti-sectarian law”. This law was enacted by the NRM government purportedly to guard against rising discontent and disaffection among a group or body of persons on account of religion, tribe and ethnic origin. One of the first journalists charged under this law was George William Lugalambi, then editor of The Crusader newspaper, who was arrested in December 1998 for publishing an opinion article that questioned government's arming of the Bahima, an ethnic group to which President Museveni belongs (IFEX, 18 December 1998). Lugalambi was charged before Presiding Magistrate Jane Alividza in the Kampala Magistrate Court with "promoting sectarianism contrary to section 42A (i) (d) of the Penal Code Act as amended by Statute 9 of 1988” (Ibid.). The charges were in connection with an article The Crusader newspaper published on 19 November 1998

titled “Karuhanga’s Excuse for Arming Bahima is Nonsense” (Ibid.). Prosecution held that Lugalambi published the article with the intent of promoting ill-will and hostility among the people of Nyabushozi in Mbarara district on the basis of their ethnicity (Ibid.).

Related to the same story, journalist James Mujuni of The New Vision newspaper based in Mbarara was also arrested the same week for a follow up story on the same issue of guns in Bahima hands in Nyabushozi, the home place of President Museveni (Ibid.).

Sewanyana et al. (2007) also recount that in June 2006, two journalists of The Weekly Observer, James Tumusiime and Ssemujju Ibrahim Nganda were charged with promoting sectarianism for having reported in December 2005 on FDC accusations that the President and high ranking military officials were targeting Kizza Besigye for ethnic reasons and the journalists had to report to court on a monthly basis (p.31). During the 25 August 2010 Constitutional Court ruling that declared as unconstitutional criminal sedition, the panel of five judges did not concur with petitioner Andrew Mwenda to annul Section 42A on Sectarianism. In addition to the above journalists charged under this section, Mwenda also faces eight counts of "promoting sectarianism" (CPJ, 2010).

Immediately after the ruling, he filed an appeal before the Supreme Court.

Despite the setback of the ruling on Section 42A, the Supreme Court had also on 11 February 2004 annulled Section 50 on “publication of false news”. The seven justices of the court unanimously agreed that Section 50 was inconsistent with article 29(1) (a) of the 1995 Uganda constitution that guarantees freedoms of expression and of the press.

The Section stipulated that “any person who publishes a false statement, rumour or report which is likely to cause fear and alarm to the public is guilty of a criminal offense”

(Uganda, 1998). The ruling followed a successful appeal by journalists Charles

Onyango-Obbo and Andrew Mwenda. Lugalambi et al. (2010) quote Justice Joseph Mulenga, who gave the lead judgment as having observed that:

“… it is evident that the right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It is not confined to categories, such as correct opinions, sound ideas or truthful information. Subject to the limitation under Article 43, a person’s expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant.

Everyone is free to express his or her views. Indeed, the protection is most relevant and required where a person’s views are opposed or objected to by society or any part thereof, as ‘false’ or ‘wrong’” (p.36).

The above successes notwithstanding, the Penal Code is still replete with sections that criminalize journalism practice. For instance, Section 50A on “incitement to violence”

can be invoked against journalists covering riots. Section 51 on “defamation of foreign princes” has been invoked in the past to convict journalists notably in February 1990 when journalists Festo Ebongu, Alfred Okware and Hussein Abdi were charged for

“defaming” then visiting Zambian President Kenneth Kaunda by asking him

“embarrassing” questions regarding his son accused of murder, his overstaying in power and business dealings with the South African racist regime (Mbaine, 2003, p.45-48).

Many other journalists such as Haruna Kanaabi of the Shariat newspaper and Hussein Musa Njuki of Assalum were also charged in 1995 under the same law; and it remains on the law books to be used anytime the government deems appropriate (Ojambo, 2008, p.13; Mbaine, 2003, p.49-50).

Section 101 on contempt of court holds a potential danger to journalists and limits their freedoms to cover court proceedings; while sections 174 to 181 relating to defamation

and criminal libel have not been often invoked. Section 161 on “trafficking in obscene publications” has been invoked on a few cases against The Red Pepper tabloid newspaper. A newer Section 39A on publication of information prejudicial to security has gained importance given the rampant insecurity in the country and it is now supplemented by the Anti-Terrorism Act 2002.

While the Penal Code Act has recently suffered some setbacks, the GoU has resisted calls to repeal it completely like what Britain and most of her former colonies have done. By keeping most of the media sections in the law books, government is nurturing an environment that promotes censorship and self-censorship.

2.3 Conclusion

In this chapter, I have traced the history of the broadcast mass media in Uganda, with specific focus on radio. From its early years as a colonial project, radio has grown tremendously and now forms a core commercial entity for the country’s economy. As the mass media expanded, however, so did the need by government to control it through a stringent media regulatory regime. Whereas the 1995 Uganda Constitution clearly enshrines media freedoms, the plethora of laws and regulations place undue restrictions on the media’s ability to freely operate; as well as engendering self-censorship among the media (Sewanyana et al. 2007, p.19). In addition to the crowded media law books, the multiplicity of bodies governing media operations with often duplicated roles such as the UCC, Media Council and Broadcasting Council fuel confusion and create a situation where the suppression and manipulation of media has been made easy (Sewanyana et al.

2007, p.27). Media law scholars in Uganda argue for a consolidated law on the media as well as bringing together all media bodies (Ibid.). There is also a growing momentum to

work towards a non-statutory regulatory regime in the form of the Independent Media Council of Uganda (IMCU) to promote professional self-regulation.⁶⁴

While the picture painted by the multiplicity of media laws and regulatory bodies casts a shadow on freedoms of expression and of the media, the 2004 and 2010 precedents of successful litigation to annul sections of the Penal Code Act are a welcome prospect. For journalists covering conflicts and violence in the country, the laws at the disposal of government remain a challenge.

With that in mind, this chapter ends the overview section of the dissertation; whose focus has been provision of background information on the research problem (violence in Uganda and the role radio plays) as well as on the radio broadcast landscape within its regulatory environment. Chapter Three below is the first of three chapters in which I present the key theories and concepts that inform the dissertation; starting with a discussion of journalism and communication theory.

64 UNESCO, “Independent Media Council of Uganda.” URL in January 2012 at

http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Independent%20Media%20Council%20of

%20Uganda.pdf