MBALE – The confidence with which Mr Nsereko sought leave of Parliament to table the Computer misuse Amendment Act was that of a man on a mission.
Surely with Mr Nsereko’s legal background, I was left wondering if his draconian law did not have an underlying ill motive.
Anyone disputing my thinking should ask Mr Amama Mbabazi who pushed for the enactment of the Public Order Management Act, it later caught up with him during the 2016 presidential elections.
I have no doubts in my mind many of us have in one way or another been victims of the digital world but do we have a choice?
This however does not mean legislating on every possible issue that comes with modernity; otherwise, the first son would be in prison for all the offensive tweets he has been throwing around with impunity.
Even those with nude pictures would be beneficiaries of that law and it is my considered view that no parliament should pass laws that are selective in nature and oppressive expecting Ugandans to receive them with open arms.
I cannot tell with certainty whether Nsereko was a paid mercenary, was genuinely pushing for the amendment for the general public, or was just an excited busybody with the desire to remain relevant.
The proverb ‘A little knowledge is a dangerous thing’ comes in handy, for it expresses the idea that a small amount of knowledge can mislead people into thinking that they are more expert than they really are, which often misleads them into making obvious mistakes.
The Computer Misuse Act is one of the few laws that Museveni has assented to without thinking twice. It appears the bill had been crafted and drafted to perfection with his knowledge, involvement, consent, and or approval with no room for reconsideration.
One would safely assume the bill was Museveni’s idea channeled through Nsereko. Initially, many thought the president would see to it that the bill in its form was wanting and short of duplicating many other existing laws that serve the same purpose.
The law nonetheless sailed through without any hindrance and opened a can of worms; it is now a law due for gazetting but already in court.
This brings into play the reasoning I have always shared with my fellow drunkards; the President actually makes laws that he uses to rule. There is no single law that exists in Uganda unless the President endorsed it to be passed.
This is why I say the framers of the 1995 Constitution under article 91 made the biggest blunder of all time. The President should not have been given so much power to interfere with the work of Parliament which is mandated to make laws.
When a bill is presented to the President, he is under obligation within thirty days to assent to it or returns the same to Parliament with a query that the bill or a particular provision of it be reconsidered or notifies the Speaker in writing that he or she has refused to assent to it. After the concerns of the President have been re-considered and or rejected, it is again presented for a second time to the President for assent who has the leverage to reject it again.
Where the President returns the same bill twice and the bill is passed for the third time having the support of at least two-thirds of all members of Parliament, the Speaker causes a copy of the bill to be laid before Parliament, and the bill becomes a law without the assent of the President.
In Uganda however, these provisions have never been put to test save for an attempt on July 2014 regarding the Public-Private Partnerships Bill. Again the President through his blue-eyed boys muscled his way out and took the day.
In the instant case, the computer Misuse Act presents yet another scenario where the President simply assents to a bill of choice into law without raising any red flag. Past immediate laws that have been assented to like the Fisheries and Aquaculture Bill, Sexual Offences Bill 2021, the Succession Amendment Bill, Mining and Minerals Bill, and the Excise Duty (Amendment) Bill, 2022 among others were sent back to Parliament for reconsideration.
Other private members’ bills have been left unattended because, for one reason or another, they were not favouring the interests of the President or some other group of people that he fears to offend.
A comprehensive review of all criminal-related laws such as the Penal Code Act, Magistrates Court Act, Trial, and Indictment Act, children’s Act, and Evidence Act among others will reveal that the concerns of the Computer Misuse Act are already catered for.
The law, therefore, presents another ugly face like the Anti-Homosexuality Act, of 2014 whose offenses and penalties were clearly provided for under the Penal Code Act but were again being duplicated to create a conflict in their application by the courts of law.
I cannot agree more that the amendment needs to be stifled as it is very harsh, for it creates harsh punishments ranging between 5 and 10 years or a fine of 10 million or both for people found in breach. Before the law can start biting, Ugandans need to be aware that the amendment is overly broad in nature, vague, opaque, imprecise, targets a certain group of people, and unjustifiably limits fundamental freedoms hence rendering the amendment inconsistent with the constitution.
The amendments further criminalize any access or interception of any program or another person’s data or information, voicing or video recording, or sharing of any information, without specifying or defining the said information which offends the rights to freedom of expression, practicing one’s profession and carrying on any lawful occupation, trade or business, Access to information and renders some laws such as the Access to Information Act of no useful purpose.
Some clauses in the amendment may from time to time require constant interpretation by the constitutional court.
For instance, the phrase “unsolicited information” as used in the amended act is disproportionate, indiscriminate, and broad in application because it doesn’t clearly specify what amounts to unsolicited information. The clauses in the law are omnibus and ambiguous and will not survive the keen eye of the courts of law.
If left in our law books, many digital journalists are obvious candidates for prison or will spend all their earnings paying fines in court.
This, therefore, means the consumers of their content will either get half-baked information or the media house owner may have to get rid of some vital programs such as live talk shows because their content may be treated as offensive and ridiculed by viewers thus attracting prosecution.
It is indeed very hard for the media house to determine whether the guests in their studios have received prior authorization to share information relating to any person since the discourse during live talk shows is fluid.
I agree with the dissenting voices that the law is archaic, unwarranted, opaque, draconian, and backward as the spirit behind its enactment threatens the right to freedom of expression online, including the right to receive and impart information and free use of social media. In other words, the amendment is very restrictive and aimed at gagging the public and undermines their quest to demand accountability from the government.
Besides, one of the underlying fears is that failure to regulate social media could cause unrest as was the case in Egypt, Tunisia, and Sudan where social media was used to cause regime change. It is on record that the fear of social media has seen our government switch off social media like Facebook and the internet during elections.
To the best of my knowledge, Sections 2, 3, 4, 5, 6, and 7 of the Computer Misuse (Amendment) Act 2022 have not been tailored to cure any mischief or gaps but to clear the road to 2026. For instance, Section 3 of the Act is evidently inconsistent with of Articles 2, 28(12), 29(1)(a) and (b), 40(2), and 41 of our 1995 Constitution.
Clearly, the amendments are sinister as they make every social media user a potential criminal, especially those who receive and forward videos or pictures. The constitutional court will definitely shoot down all the amendments to the act.
The author, Roger Wadada Musaalo is a Lawyer, human rights activist, researcher, and politician
