Two blanket and out rightly unconstitutional bans in the space of just one week against the exercise of the citizens’ fundamental freedoms of speech/expression and association have sent chills down the spines of ordinary Ugandans.
The first was the April 29th interim order issued by the Constitutional Court that indefinitely banned FDC and Dr. Kizza Besigye from “engaging in demonstrations, processions, other public meetings, media campaigns/pronouncements in furtherance of the defiance campaign”.
The second was summarily issued yesterday afternoon, outlawing any press coverage of FDC activities, most notably, its demonstrations, press conferences and hosting FDC leaders on media talk shows. The Executive Director of Uganda Communications Commission shortly thereafter threatened to block access to social media if the outlawed coverage is published there.
Whereas the freedom of expression/speech does not fall under the category of those human rights that are considered inviolable, local and international law to which Uganda is subject dictates that it cannot be lightly interfered with unless such interference is reasonable and demonstrably justifiable in a free and democratic society. Nothing can justify especially the press ban.
It is now trite law that whereas certain freedoms such as freedom of expression (which includes freedom of the press) are not to be enjoyed without limits, any such limitation must be justified otherwise it would be unconstitutional, and therefore null and void. For any limitation on these fundamental freedoms to be justified, it must neither be irrational nor disproportionate nor vague. Unfortunately, yesterday’s press ban is all this and more.
Firstly, there is no rational justification for this ban which came out of the blue. It beats all understanding why of all possible, less drastic measures, government felt a press ban would be the perfect way of countering the FDC activities which it claims are meant to overthrow a legitimately elected leadership.
Neither the public nor the press been given the benefit of knowing which considerations the government had in mind before deciding to deprive the former of its right to be informed of what is going on in the country, and the latter of its right to exercise freedom of the press. Were these considerations really relevant? What if the really relevant considerations where ignored?
There is no evidence whatsoever that the ban was made in public interest. No public consultation was done before coming to the conclusion that banning press coverage of the FDC activities was necessary. Even if the public had consented, there is no evidence that the ban would not be abused by those in authority through overzealous enforcement even on events it was not meant to cover yet no safeguard has been provided for this.
Secondly, the latest press ban has had and threatens to continue having a disproportionate impact on individuals or entities. It is so wide that it threatens to net almost everyone including even the untargeted members of society. For example, Gov’t officials have threatened to close down social media if the public posts/tweets about the banned activities. Is it only the press that has been banned from covering/publicizing FDC activities or the entire public?
Media houses have been placed in fear of having their licenses revoked in case they broadcast certain information relating to the “defiance activities” because they cannot determine with precision what they can or cannot cover. TV stations like NBS which have seen tremendous growth over the past months because of their popular live broadcasts now face the risk of dwindling viewership numbers which will potentially lead to a slump in advertising revenue and its associated problems.
Thirdly, the ban is unconstitutional for being vague. It is difficult to assign “defiance activities any precise meaning. What exactly do defiance activities include and why should the press be threatened with penalties for covering the same? Do prayers mean defiance? Which kind of talk shows and conferences have been banned? At this point in time it is unclear what FDC activity has not been banned. Is there any list Government has provided of FDC activities that the press can cover? Because it appears that any FDC activity or one organized by any FDC member is unlawful. What exactly amounts to “live coverage?” If footage is captured and aired five minutes later, does that amount to live coverage?
The purported ban of the press from giving live coverage to unspecified activities of the FDC party or its presidential flag bearer Dr. Besigye should therefore be widely condemned for being not only unconstitutional but also in blatant violation of international human rights charters that guarantee the freedom of expression and right to access information, which charters Uganda is a signatory to.
Also, it should be noted that the misleading attempt by the Minister of Information Maj. Gen. Jim Muhwezi to justify the press ban by claiming that the press coverage would be in contempt of the interim order issued by the Constitutional Court is in vain. On the face of it, the said order does not in any way extend to or even appear to ban press coverage. Even if it did, it would still be unlawful because it was made without giving the press a chance to be heard. It cannot be enforced against entities that were not party to it.
In addition, any step taken to block access to social media will also be unlawful for a number of reasons, some of which are already discussed above. For starters, it would be sub-judicial as an earlier four-day blockade effected by the Government in February is currently the subject of ongoing litigation in the High Court Judicial review case of Legal Brains Trust v. Uganda Communications Commission, Attorney General & Bank of Uganda.
We live in interesting times!
