Censorship: A Chill Wind Blows Over Press Freedom in Uganda
by Brian Kelliher, Democracy Fellow
"To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression."
-- Thomas Jefferson (1799)
In a speech delivered by proxy at the opening of an Association of African Election Authorities conference on January 14, 1997, President Museveni declared that there is unlimited press freedom in Uganda and that "Ugandans enjoy the freedom to criticise and present alternatives for their governance."
Yet, in recent months, the Museveni government, both directly and through various ministers and advisors, has mounted a campaign of harassing the press in Uganda. The government has threatened newspaper publishers, editors, and reporters with criminal action and other sanctions for what it terms "negative, alarmist and antagonistic" journalism. These threats are by no means idle, as the government has been quick to exact draconian measures to restrict the freedom of the press, such as directing the prosecutions of various members of the press for sedition and "publishing false news."
Less than two weeks into the new year, the president and his cabinet resolved to blame the press and its allegedly "unpatriotic" reporting for the many social, economic, and political ills that afflict the nation. According to Presidential Advisor on Media and Public Relations, John Nagenda, the President believes that the press is "standing in the way of the development of this country through . . . careless reporting."
This misguided, ignoble campaign to chill freedom of the press portends a difficult year ahead for journalists in this fragile, nascent democracy. The government's actions to clamp down on the press and suppress freedom of _expression_ are especially disturbing given that it is not an authoritarian dictator such as Idi Amin or Milton Obote who is directing them, but rather Uganda's first democratically elected government in over 30 years.
Particularly repugnant is the government's repeated wielding of colonial era sedition statutes and unjust "false news" laws in an attempt to browbeat the press into submission. For example, on December 19, 1995, Mr. Haruna Kanaabi, editor-in-chief of the periodical, The Shariat, was convicted by order of Mrs. F.N. Munaaba, Chief Magistrate, of printing and publishing seditious material and publishing "false news" under sections 42(1)(c) and 50(1) of the Penal Code Act. He was thereupon sentenced to 5 months' imprisonment and a fine of 49,500 shillings. The basis for his conviction was simply daring to publish a pointed and humorous article satirising President Museveni's well-known close affiliation with Rwanda.
In the article, the author satirically referred to Rwanda as Uganda's "40th District" and, tongue-in-cheek, portrayed President Museveni as seeking Rwandan's votes for the May 1996 election in Uganda. Notwithstanding the author's obvious intent to employ satiric humour and sarcasm to express his legitimate commentary, the court found that because Rwanda is not the 40th District of Uganda and because two principal witnesses expressed their opinion that the article caused them alarm and consternation, Mr. Kanaabi had published false news in violation of the Penal Code Act. Once more, the court concluded that the article was not only false (which, of course, it was -- that's the whole point of political satire), but also published with "the intention of exciting disaffection a
gainst
the person of the President, the Government of the National Resistance Movement as by law established." Mr. Kanaabi's appeal to the Ugandan High Court was recently dismissed by Justice E.S. Lugayizi on November 13, 1996. Mr. Kanaabi is now appealing to the Court of Appeal and, hopefully, will find true reason and justice there(1).
The definition of "sedition" under section 41 of the Penal Code Act is exceptionally vague, leaving the provision ripe for abuse by an overzealous government. Uganda's sedition law is an anachronistic, colonial-era tool of oppression and intimidation that should be struck down as unconstitutional and expunged from the country's statutes.
The Uganda Law Reform Commission is presently looking into the issue and hopefully will take positive action in the near future. In the interim, the law should be construed as narrowly as possible by the courts in order to safeguard from government abuse the freedom of _expression_, a freedom which is the lifeblood of this democracy and which is elaborately enshrined in Uganda's 1995 Constitution, the supreme law of the land. As former Chief Magistrate Mohammed Saied astutely noted in his decision in the infamous "Transition case" (Uganda v. Rajat Neogy & Abu Mayanja, 1 Feb. 1968), the law of sedition should not interpreted and applied in such a way as to "encourage the creation of a servile press."
Equally troublesome is the criminal statute proscribing the publication of "false news." Pursuant to section 50 of the Penal Code Act, "[a]ny person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanour." The statute further provides that "[i]t shall be a defence to a charge [of publishing false news] if the accused proves that, prior to publication, he took such measures to verify the accuracy of such statement, rumour or report as to lead him reasonably to believe that it was true."
The problem with the statute is that it is an overbroad infringement on the Constitution's guarantee of the freedom of _expression_. First of all, as exemplified by the Kanaabi case, the statute does not distinguish between assertions of fact and editorials, opinions, or satires not amounting to assertions of fact. In the Kanaabi case, the author unquestionably realised that Rwanda truly was not Uganda's 40th District and that President Museveni was not seeking votes there. He merely sought to use satire, sarcasm and humour to convey his message. Similarly, should a political cartoonist be prosecuted for drawing a caricature of a public figure and attributing a humorous, y
et
perhaps not factually accurate, statement to the figure in order to make a legitimate point on a matter of public interest?
A further example of possibly criminally-sanctionable "false news" was offered by President Museveni himself. Addressing a field of newspaper editors in October 1996, President Museveni cited a headline recently printed by a local newspaper. See The New Vision, Oct. 30, 1996, at 18-19. Apparently, the headline read, "Army Attacks Rebel Positions." According to the President, this was a false and misleading headline because the rebels described in the article did not actually hold "positions" in the military sense of the word, for the rebels could not hold their ground and fled when the Army attacked them. Surely the newspaper editors intended no malice in making this assertion and printed the headline in good faith to address a matter of supreme public interest.
Secondly, the standard of "likely to cause fear and alarm to the public or to disturb the public peace" is a troublesome one. How is a magistrate or judge to ascertain whether "the public" was alarmed or disturbed by a given opinion article expressing the author's belief that President Museveni is a liar? Indeed, "the public" is composed of millions of individuals, each with his or her own opinions. What is disturbing or alarming to one person, may be soothing poetry to another.
All but perhaps the most worthless speech, such as obscenity or imminent incitements to violence, should be allowed to be voiced in the marketplace of ideas. Only in such a free marketplace of ideas, unencumbered by the government, will the truth ultimately triumph over error and rumour, for "the ultimate good desired [by society] is better reached by free trade in ideas," Abrams v. United States, 250 U.S. 616, 630 (1919) (J. Holmes).
Unfortunately, however, the government is, with increasing regularity, forcing other journalists to defend their writing against the same or similar ridiculous charges. In November 1996, Mr. Peter Busiku, editor of the weekly Uganda Express, was charged with publishing "false news" regarding Uganda's involvement in the conflict in Eastern Zaire, a matter of great public concern.
Mr. Teddy Seezi Cheeye, editor of the biweekly Uganda Confidential, too was convicted under the "false news" statute. In January 1997, police officers from the Criminal Investigation Department (CID) interrogated a correspondent for the daily newspaper, The Monitor, for nearly 3 hours in Mbarara concerning a newspaper headline with which President Museveni apparently had taken issue. More recently, top officers of the CID questioned The Monitor's editors over controversial stories.
In addition, the government has frequently sought to reprimand or punish the press for its coverage of the armed conflicts in the North and Kasese District and the crisis in Eastern Zaire in name of "preserving national security." While the issue of to what extent under international law may a government legitimately suppress freedom of _expression_ and access to information in order to safeguard national security is certainly a problematic one, African leaders all too regularly parade out such "threats to national security" as a justification for censorship of potentially embarrassing political information.
In this regard, the Museveni government should heed the Johannesburg Principles on National Security, Freedom of _expression_ and Access to Information. The Johannesburg Principles were developed in September 1995 by a cadre of international legal jurists in conjunction with human rights bodies of the United Nations, the Council of Europe, the Organisation of American States, and the Organisation of African Unity. According to these Principles, the heavy burden is on any government that seeks to restrict freedom of _expression_ on national security grounds to demonstrate that its actions are necessary to protect a "legitimate national security interest," not simply to save the government from embarrassment or to prevent criticism.
Furthermore, the Johannesburg Principles specify that the definition of "legitimate national security interest" is to be construed narrowly (e.g. no less than an imminent threat to the country's existence or territorial integrity or its capacity to respond to the use or threat of force), and the restrictive action must be narrowly tailored to accomplish its legitimate ends. The Principles emphasise that the press must be permitted to freely investigate and report on armed conflicts.
The function of the press is to explore and investigate events, inform the people what is transpiring, and expose the harmful as well as the good influences at work. As former American Supreme Court Justice Hugo Black stated in 1960, free press and free _expression_ are "the deadliest enemies of tyranny." This is so because a free press serves the governed, not the governors.
The press is an essential source of information for Ugandans. How else will Ugandan citizens know such things as whether their government is acting according to the will of the people, whether government officials are usurping their powers, and whether tax revenues are being properly allocated or diverted into the bottomless pit of corruption? Transparency and accountability are critical features of a truly democratic government.
The people must have access to their representatives and to information on the government's handling of the affairs of the state, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. The press, in its vital role as "public watchdog," provides ordinary Ugandans such access. This is the essence of a "responsible, patriotic" press.
By cracking down on free _expression_ and the press, rather than addressing the concerns legitimately raised by the media, the government is placing itself in an unfavourable light, for its leaders present the appearance that they something to hide from the very people from whom their power is derived.
Of course, the freedom of the press, as enshrined in article 29(1)(a) of the Constitution is not absolute. At the same time, however, article 43(1)(c) of the Constitution extols freedom of the press as one of the most fundamental human rights protected by its strictures, providing that there shall be no limitation on the enjoyment of this freedom "beyond what is acceptable and demonstrably justifiable in a free and democratic society."
This is patently a very narrow standard, one which imposes upon the government a heavy burden of proving that: (1) its action restricting press freedom is prescribed by law and precisely defined; (2) the restriction serves a legitimate purpose enumerated in the Constitution; and (3) the restriction is necessary to achieve the legitimate end, such that the end cannot be realised through a less restrictive means. Any statutes or regulations limiting press freedom beyond this narrow standard are per se void, to the extent of the inconsistency, under article 2 of the Constitution, which declares the Constitution is the supreme law of the land.
The civil, not criminal, law of defamation may be one such legitimate restriction. Yet, in reacting to media coverage, political leaders and other public figures must display a greater degree of tolerance than the average citizen, especially with respect to matters of public concern.
Moreover, in any defamation case in which a public official claims he or she has been defamed by a press report, the burden should be on the plaintiff official to establish that the report was in fact false and that the newspaper knowingly printed the false report or printed it with reckless disregard for its truth or falsity.
Criminal sanctions against the press clearly are heavy-handed censorship measures that have no place in a free and democratic society, save for the most egregious cases.
The leaders of Uganda's government surely are not cowards -- they should not fear political change or exalt order at the cost of liberty. Nor should they continue to fear free and open _expression_ of opinion in this country. Likewise, magistrates and judges must maintain their essential judicial independence and demonstrate the will to deal with these crucial constitutional issues with objectivity, courage and candour.
Remarking on Ghana's poor history since independence of respecting fundamental human rights and of perpetuating the use of colonial-era laws to repress Ghanaian citizens' freedoms, Justice Amua-Sekyi of the Ghanaian Supreme Court noted in the landmark decision, New Patriotic Party v. Inspector-General of Police, Accra (Nov. 30, 1993):
Unfortunately, we have had too little experience of true democracy since independence. Like bird kept in a cage for years, we have come to think of the cage as home rather than a prison. The door has been flung wide open, yet we huddle in a corner and refuse to leave.
This statement as easily could have been made to describe Uganda. The Museveni government to date, although professing to be "revolutionary," has been reluctant to fly from the cage and embrace healthy public debate, criticism, and dissent. It is no longer legitimate to engage in "human rights relativism" by merely comparing this regime with those of Amin and Obote.
Certainly, press freedom today is incomparably better than in the dark days of the past, but in absolute terms, Uganda's present government has yet to fully accept and embrace the crucial role the press plays in a free and democratic society.
Government measures to censor or "chill" the press do not strengthen the cohesiveness and stability of the nation; they weaken it. Such measures do not "protect" the sustainability of a fragile democracy; they enhance its vulnerability to popular upheaval and collapse.
Ugandan leaders, secure in their election by popular mandate or appointment by elected representatives, should recognise "that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; [and] that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." Whitney v. California, 274 U.S. 357 (1927) (J. Brandeis) (concurring opinion).
The Museveni government must pay greater heed to the virtues of a free, vibrant and vigilant press, for the liberty of all Ugandans is at stake.
Endnote
(1) Mr. Kannabi has since been released from detention because he had already served his 5-month term of imprisonment.
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