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Analysis

The Computer Misuse Act,  an Infringement On Internet Freedom

Joseph Kabuleta was arrested on charges of computer misuse(PHOTO/Courtesy)

By Eric Emlyn Okoth

KAMPALA –Joseph Kabuleta, renowned former Sports journalist turned preacher speaks eloquently and writes elegantly.

His flock that listen to his preaching are willing to be counselled and guided by him.

However,  it is his aggressive  spirit and willingness to practice the common saying, “publish and be damned” that has created his ferocious  collision with the government beyond the narrow conception that everyone should be submissive and subversive to the whims and fancies of the current regime.

Internet space has handed a weapon to those who have mastered the craft of creative writing and publishing to directly take on the state for any mistakes made in administering the country.

Especially on subjects the state deems uncomfortable to discuss in the public sphere.

To counter this internet-given opportunity, the regime has resorted to using the law to control and restrict freedom of expression.

On Friday evening Police arrested the evangelist, Joseph Kabuleta together with his Colleague Godwin Masiko at forest mall in Lugogo,  Kampala.

Currently, he is facing charges of offensive communication against the President under section 25 of the computer misuse Act and is being held at the special investigations unit in Kireka.

“Back to the Computer Misuse Act, it is an Act of Parliament and these are laws that came into being with the police as the enforcer of the law. However when such laws come into effect,  it is the duty of the law reform who have a mandate to ensure that such laws are disseminated and awareness is promoted such that all beneficiaries,  users and wider public are aware of  the contents and provisions of such laws, ”
Stated Fred Enanga the police spokesperson in response to the Kabuleta arrest saga.

Joseph Kabuleta with Prophet Elvis Mbonye on the pulpit (PHOTO/File)

The police said Kabuleta disturbed the person of the President in his utterances. Do we have a crime that is described in any of our penal laws or the Computer Misuse Act as “disturbance of the person of the President” which to my knowledge does not exist.

Even when you look at the penal code Act, the Section that talks about disturbance of the person of the President honestly talks about annoying and ridiculing by way of Acts, harm him or enticing people to strike which does not fall within the ambit of electronic use. And the computer misuse Act does not define anything to do with doing such acts as amounting to abusing the person of the President. I think right now we can safely say that there has been wrongful charge against him (Joseph Kabuleta) as far as Section 25 is concerned ”
commented Anne Tendo  a  lawyer, on the Joseph Kabuleta matter.

“I think the uniqueness of the computer misuse Act is that it revives the archaic laws that were used by the colonialists to muzzle those who were against the colonial government. It takes root in a dictatorial regime where you come out strongly to speak against the impunity of the government.

Now that juxtaposed with the freedoms under the constitution under Article 29 of the constitution which is the supreme law of the land, the citizens have a right to express themselves.  Now obviously others may argue that this right is not an absolute right, it can be limited under Article 43. But you see under Article 43 of the constitution, the standards are very clear, one under public order and the most important  aspect under  Article 43 is that it should be reasonably justifiable under a free and democratic state.

That sets the standard whenever you want to limit any  human right especially  one which is deeply entrenched  in the constitution like freedom of expression. What the computer misuse Act comes out to do is that it violates the position under the constitution of the republic of Uganda and because of that there is a whole not only limitation but derrogation,” stated Simon Ssenyonga, a city lawyer and advocate.

Police stated that the writer repeatedly posted grossly insulting messages under the headline, “Kabuleta weekly rant, ” in which he referred to the President as a gambler, thief and liar contrary to section 25 of the computer misuse Act 2011.

The evolving media landscape has provided a safety net on cyber space beyond the gated community where the state uses a compliant media as a delivery means in transactional politics.

 

Joseph Kabuleta during one of his church sermons preaching the word.(PHOTO/File)

As a result those who speak power to the truth have been given a formidable platform. Kabuleta and others have adopted the “publish and be damned” adage and are seemingly unwilling to let it go. This however comes with consequences  as police Spokesperson Fred Enanga warns.
“There is a lot of excitement on social media.  People simply post and share without knowing the repercussions of what it is that they are sharing. However Ignorant you are about the law, it is no defence” added the police  spokesperson.

To the regime perpetuaters of such crime and embellished commentary against the President and those close to him must be punished.
Kabuleta is a multi-talented individual, formally an aggressive sports journalist who tormented wayward sports administrators with a pen and a pad. Nonetheless, he recently traded this for the pulpit.

Those who thought the gospel would turn him into a meek lamb were in for a shock of their lives.
Eventually his stubborn streak began to emerge. His ministry for the short time of existence has challenged the evangelical status quo. He is not a praise singer as expected like other pentecostal pastors known to pay blind loyalty to the current regime.

Previously the state used to control the Pentecostal “Balokole” because many of them were uneducated, very poor and unlearned about the contemporary  affairs of the state,  according to Simon Ssenyonga, a lawyer.

Part of what the state normally tries to do is keeping religion seperate from politics forgetting
that religious leaders are part of the country’s Citizenry.
Apprehension crept in when Kabuleta began to comment on what is referred to as sensitive subjects.

Kabuleta came out strongly as a citizen to speak against the President,  first Family and first Son which raffled political feathers and put him in detention where he currently is.

He stepped out and rebelled against the unwritten cradle expected of pentecostal pastors
His articles were part of his raw expression with brutal candor.
Kabuleta now joins a list including Journalist Timothy Kalyegera and scholar Stella Nyanzi as part of those to be charged with crimes under the Computer Misuse Act.

In February,  the Uganda Law Society petitioned the constitutional Court seeking two Sections of the Computer Misuse Act to be declared null and void. The petition states that section 24 and 25 of the Computer misuse Act are inconsistent with the Constitutional Stipulation and call for respect of human rights thus making them null and void.

State Actors often argue that much as there is freedom of expression,  there is a limitation  as far as public general interests are concerned as stated in Article 43 of the same Constitution.
Uganda has quite rich Precedented law on the subject of freedom of expression.

It was a subject of debate in  the 2004 landmark decision of the Supreme court in the case of Charles Onyango Obbo and Another V AG(Attorney General).
The appeal from the Constitutional  court  as well as Section 50 of the Penal code Act which by then made publication of false news a criminal offense. This contravened the protection of individual rights of expression .

Justice Joseph Mulenga made the lead judgement which struck down section 50 of the then Penal Code Act. He stated,
“Subject to the limitation under Article43, 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 or unpleasant.”

It read further, “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”.
The question to be addressed in the Kabuleta case is the legality and constitutionality of Section 25 of the Computer misuse Act.
Its answer is yet to be known.

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