Uganda: Onyango-Obbo and Mwenda v. AG
11 Feb 2004
Constitutional Appeal No. 2, 2002, 11 February 2004 (not yet published) (Supreme Court of Uganda)
|Test:||Importance of FOE; legitimate aim; necessary in a democratic society|
|Decision:||The offence of false news is incompatible with the right to freedom of expression|
|Jurisdiction:||Uganda (Supreme Court)|
The appeal concerned the question whether the offence of publication of false news was compatible with the constitutionally protected right to freedom of expression. The Constitutional Court had held that it was; its decision was the subject of the current appeal to the Supreme Court.
The Court held that the offence of publishing false news was incompatible with the constitutionally protected right to freedom of expression.
Importance of Freedom of Expression
The Court set out by stressing that the right to freedom of expression does not merely protect expression the truth of which can be proven. The leading speech of Mulenga JSC, with whom all seven other Justices agreed, emphasised that:
[T]he right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It is not confined to categories, such as correct opinions, sound ideas or truthful information ... [A] person's expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant ... 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".
[The prohibition in criminal law on publishing false news] criminalizes conduct that is otherwise legitimate exercise of the constitutionally protected right to freedom of expression. ... [T]he issue is not whether under democracy citizens are required or permitted to make demonstrably untrue and alarming statements under any guise. A democratic society respects and promotes the citizens' individual right to freedom of expression, because it derives benefit from the exercise of that freedom by its citizens. In order to maintain that benefit, a democratic society chooses to tolerate the exercise of the freedom even in respect of "demonstrably untrue and alarming statements", rather than to suppress it.
I should stress that applying the constitutional protection to false expressions is not to 'uphold falsity' as implied in the majority judgment [of the lower court]. The purpose is to avoid the greater danger of 'smothering alternative views' of fact or opinion.
Mulenga JSC stressed that the right to freedom of expression was a constitutionally protected right. The national constitution served a number of aims, amongst the primary ones of which was to uphold fundamental human rights. Freedom of expression occupied a primary position among the rights to be protected:
Democratic societies uphold and protect fundamental human rights and freedoms ... the state has the duty to facilitate and enhance the individual's self-fulfilment and advancement, recognising the individual's rights and freedoms as inherent in humanity. ... Protection of the fundamental human rights therefore, is a primary objective of every democratic constitution, and as such is an essential characteristic of democracy. In particular, protection of the right to freedom of expression is of great significance to democracy. It is the bedrock of democratic governance.
Meaningful participation of the governed in their governance, which is the hallmark of democracy, is only assured through optimal exercise of the freedom of expression. This is as true in the new democracies as it is in the old ones.
Mulenga JSC expained that, under the Ugandan constitution, freedom of expression can be limited only in exceptional circumstances. Moreover, limitations have to be limited to that which is strictly necessary:
[R]estriction on the exercise of the freedom is permitted only in special circumstances ... the limitation must be acceptable and demonstrably justifiable in a free and democratic society ... [The] protection of the guaranteed rights is a primary objective of the Constitution. Limiting their enjoyment is an exception to their protection, and is therefore a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary objective. In that eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstance is permissible.
Turning to the particulars of the offence of publishing false news, Mulenga recalled the colonial history of the offence and expressed his surprise that no-one had been able to explain what purpose the offence served in modern-day society. He stressed that the offence, as stated, was to protect the public against mischief that was 'likely' - though not certain - to follow from the publication of false news reports. This in itself was not a legitimate aim. The constitution allowed for limitations on freedom of expression only insofar as these are necessary to avert a real danger, not a likely danger:
[The prohibition of publishing false news] is directed to a danger, if it is a danger at all, which is remote, and even uncertain. At most, [it] aims at pre-empting danger to the public interest. It is in that regard distinguishable from a law directed to prevent, for example, expressions that amount to threatening or inciting violence...
Mulenga JSC concluded that it followed that the offence of publishing false news would penalise expression even in cases where that expression caused no danger to the public interest. In those circumstances, it could not be compatible with the right to freedom of expression, and could be struck down.
Necessary in a democratic society
Given the importance of the appeal, Mulenga JSC continued to consider whether the false news prohibition could be considered 'necessary in a democratic society.' Counsel for the respondent had put it to the Court that given its specific circumstances, the right to freedom of expression in Uganda could be limited in wider circumstances than in other countries. Mulenga JSC disagreed with this proposition:
The [Constitution] clearly presupposes the existence of universal democratic values and principles, to which every democratic society adheres. It also underscores the fact that by her Constitution, Uganda is a democratic state committed to adhere to those values and principles, and therefore, to that set standard. While there may be variations in application, the democratic values and principles remain the same. Legislation in Uganda that seeks to limit the enjoyment of the right to freedom of expression is not valid under the Constitution, unless it is in accord with the universal democratic values and principles that every free and democratic society adheres to. The court must construe the standard objectively.
Mulenga JSC quoted with approval the following criteria, originally proposed by the Supreme Court of Zimbabwe, to determine whether a restriction could be considered 'necessary in a democratic society':
- the legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right;
- the measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations;
- the means used to impair the right of' freedom must be no more than necessary to accomplish the objective.
With regard to the first question, Mulenga JSC assessed the relative weight accorded to the two competing interests:
In the one balancing scale, are two benefits in real terms that are derived from upholding the right to freedom of expression. First, the individual derives self-fulfilment from the exercise of the freedom, or from receiving information or ideas from those who impart it. This is particularly true of the right to freedom of the press, because the essence of the media's existence is to impart knowledge to the public. Secondly, the country as a democratic society derives the benefit of promoting and maintaining democratic governance. In the second scale to balance against all that, is the non-quantifiable benefit derived from protecting the public, not against real or actual danger, but in effect against the speculative or conjectural danger of "likely public fear, alarm or disturbance of public peace". Clearly, the benefit in the second scale is so obviously outweighed that I have to conclude that it cannot justify overriding the benefit in the first scale.
[T]o criminalize the publication and make it punishable with imprisonment, is akin to the proverbial killing of a mosquito with a sledgehammer.
In addition, the requirement that publishers should be able to prove the truth of everything they publish would be grossly unfair and detrimental to society at large:
This is exacerbated by the special characteristics of the offence whereby the prosecution does not have to prove guilty knowledge but instead, to avoid liability, one has to take 'provable measures to verify' the accuracy of every statement, rumour or report before publishing it. Without in any way condoning reckless or even negligent publications, I think the provision thereby imposes a graver impediment on the freedom of expression than is necessary. The measure is clearly not proportional to the mischief, and that makes it that much less acceptable and/or justifiable in a free and democratic society.
The prohibition of false news was also so void for vagueness. This was, first, because it had a serious chilling effect on those who publish:
[I]ts very wide applicability makes it extremely difficult to determine ahead of publication, what expression will be perceived as likely to cause the mischief guarded against. I have already alluded to the difficulties in determining falsity. Similar, if not worse, difficulties confront those who have to guess before deciding to publish, what perception a publication might evoke ... In practical terms, the broadness can lead to grave consequences especially affecting the media. Because the section is capable of very wide application, it is bound to frequently place news publishers in doubt as to what is safe to publish and what is not. Some journalists will boldly take the plunge and publish, as the appellants did, at the risk of suffering prosecution, and possible imprisonment. Inevitably, however, there will be the more cautious who, in order to avoid possible prosecution and imprisonment, will abstain from publishing. Needless to say, both the prosecution of those who dare, and the abstaining by those who are cautious, are gravely injurious to the freedom of expression and consequently to democracy.
Additionally, the vague nature of the offence placed an acceptably broad discretion on the director of public prosecutions, leaving the offence open to abuse on political grounds:
This unfettered discretion opens the way for those in power to perceive criticism and all expressions that put them in bad light, to be likely to cause mischief to the public. ... Clearly, because of its broad applicability, section 50 lacks sufficient guidance on what is, and what is not, safe to publish, and consequently places the intending publisher, particularly the media, in a dilemma. In my view, given the important role of the media in democratic governance, a law that places it into that kind of dilemma, and leaves such unfettered discretion in the state prosecutor to determine, from time to time, what constitutes a criminal offence, cannot be acceptable, and is not justifiable in a free and democratic society.