Article 41 (1) states that;
“Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to privacy of any other person”.
Article 20(1) of the some constitution acknowledges that;
“Fundamental rights and freedoms of the individual are inherent and not granted by the State”.
In addition, Article 20(2) enjoins all organs and agencies of Government and all persons to respect, uphold and promote the rights and freedoms of the individuals and groups enshrined in the constitution.
It is however worth noting that the right to freedom of speech and expression is not absolute. They may be restricted. However, any such restriction or limitation must be within strictly and narrowly defined parameters.
Article 43 of the constitution provides general limitations on fundamental and other human rights and freedoms which include freedom of speech and expression. It states that;
“(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.
(2) Public interest under
(a) political persecution
(b) detention without trial;
(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.”
The co-existence in the same constitution, of protection and limitation of the rights, necessarily generates two competing interests. On the one hand, there is the interest to uphold and protect the rights guaranteed by the Constitution. On the other hand, there is the interest to keep the enjoyment of the individual rights in check, on social considerations, which are also set out in the Constitution. Where there is conflict between the two interests, the courts have and will continue to come up to resolve it having regard to the different objectives of the Constitution.
You will recall that in 2004, the Supreme Court, in the case of Charles Onyango Obbo and Anor versus the Attorney General (Constitutional Appeal No. 2 of 2002), declared section 50 of the Penal Code Act which criminalized publication of a false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace as being inconsistent with article 29(1)(a) of the constitution.
In the lead judgment of Justice Joseph Mulenga, with which all the other justices of the Supreme Court concurred, he went at great length to explain the above constitutional provision in 5 critical area, that is, freedom of expression in a democracy, falsity and freedom of expression, limitation on freedom of expression, the standard of limitation and prejudice to the public interest. On freedom of expression in a democracy, he stated;
“… 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”.
On falsity and freedom of expression, he had this to say;
“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 when a person’s views are opposed or objected to by society or any part thereof, as “false” or “wrong”.”
On limitation on freedom of speech and the standard of the limitation stipulated in article 43 of the constitution he stated that;
“In other words, by virtue of the provision in clause (1), the constitutional protection of one’s enjoyment of rights and freedoms does not extend to two scenarios, namely:
(a) where the exercise of one’s right or freedom “prejudices” the human right of another person; and
(b) where such exercise “prejudice” the public interest. It follows therefore, that subject to clause (2), any law that derogates from any human right in order to prevent prejudice to the rights or freedoms of others or the public interest, is not inconsistent with the Constitution. However, the limitation provided for in clause (1) is qualified by clause (2), which in effect introduces “a limitation upon the limitation”.
It is apparent from the wording of clause (2) that the framers of the Constitution were concerned about a probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest. For avoidance of that danger, they enacted clause (2), which expressly prohibit the use of political persecution and detention without trial, as means of preventing, or measures to remove, prejudice to the public interest. In addition, they provided in that clause a yardstick, by which to gauge any limitation imposed on the rights in defence of public interest. The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. This is what I have referred to as “a limitation upon the limitation”.
The limitation on the enjoyment of a protected right in defence of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalised, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society.”
As regards prejudice to public interest he held that the prejudice must be real and not speculative or conjectural mischief. He stated;
“Clause (1) of Article 43 allows for derogation of rights, or limitation of their enjoyment, in respect of two exceptional circumstances or scenarios, namely, where the enjoyment, of one’s right “prejudices” either the personal rights of others or the public interest.
Those are grave circumstances presenting actual mischief or danger to “the rights of others” or to “the public interest”. In those exceptional circumstances, the Constitution allows for derogation or limitation in order to avert or remove real mischief or danger. The clause does not expressly or implicitly extend to a third scenario, where the enjoyment of one’s right is “likely to cause prejudice”.
I do not understand the clause to permit derogation of guaranteed rights or limitation of their enjoyment, in order to avert speculative or conjectural mischief or danger to public interest.”
He held that Section 50, however, relates precisely to that third scenario and was therefore inconsistent with Article 29(1) of the constitution.
In 2007, the constitutional court also nullified Section 32 of the police Act that gave police powers to control public assemblies and demonstrations. In the lead judgment of justice Byamugisha, JA, she stated that;
“A society especially a democratic one should be able to tolerate a good deal of annoyance or disorder so as to encourage the greatest possible freedom of expression, particularly political expression”.
In 2010, the same court annulled section 39,40,41,42 43 and 197 of the Penal Code Act that created the offence of sedition.
The court relied on the case of Charles Onyango Obbo, supra, and held that those sections of the penal code Act were in conflict with Article 29 of the constitution. In their words they said;
“Our people express their thoughts differently depending on the environment of their birth, upbringing and education. While a child brought up in an elite and God fearing society may know how to address an elder or leader politely, his counterpart brought up in a slum environment may make annoying and impolite comments, honestly believing that, that is how to express him/herself. All these different categories of people in our society enjoy equal rights under the Constitution and the law. And they have equal political power of one vote each.
That explains counsel Kakuru’s observation that during elections voters make very annoying and character assassinating remarks and yet in most cases false, and yet no prosecutions are preferred against them.
The reason is because they have a right to criticize their leaders rightly or wrongly. That is why he suggested, rightly so that leaders should grow hard skins to bear. We find that, the way impugned sections were worded have an endless catchment area, to the extent that it infringes one’s right enshrined in Article 29(1) (a). We answer issue one in affirmative and in favour of the petitioners.”
Therefore, all these court pronouncements go to show that the courts have come out clearly to defend freedom of speech and expression.
but why is the debate still on? and government organs hiding under the auspices of article 41 which is the limitations to the freedom of expression...
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