----- Original Message -----
From: Elum Aniap Godfrey Ayoo
To: [log in to unmask]
Cc: Edward Mulindwa ; [log in to unmask]
Sent: Wednesday, February 11, 2004 10:59 PM
Subject: Supreme Court strikes out law on false news
Null and void
By P. Matsiko wa Mucoori & Halima Abdallah
Feb 12, 2004
Supreme Court strikes out law on false news
KAMPALA - The Supreme Court yesterday declared Section 50 of the Penal Code Act null and void.
The unanimous judgement by the seven justices of the court means that journalists can no longer be charged with "publication of false news".
In the lead judgement, Justice Joseph Mulenga ruled that the section is inconsistent with Article 29 (1) (a) of the 1995 Constitution, which guarantees the right of expression including the freedom of the press.
Section 50 of the Penal Code says that "any person who publishes a false statement, rumour or report which is likely to cause fear or alarm to the public is guilty of criminal offence."
However, the Supreme Court ruled that by using the words "likely to cause," the section deals with speculation rather than reality.
The court also noted that the section does not specify what to publish and not to publish and leaves the media in a "dilemma".
In his own ruling, Chief Justice Benjamin Odoki said: "The [section] puts the press and other media in a dilemma as to whether to publish and face punishment or not to publish and withhold the information from the public."
Justice Mulenga said that freedom of expression includes holding, receiving, and disseminating all forms of information.
"It is not confined to categories such as correct opinions, sound ideas or truthful information," he ruled.
He said that a statement cannot be denied the constitutional protection simply because it is perceived to be false or unpleasant by a person or others.
He said that Section 50 does not fit within the parameters of Article 41 of the Constitution, which guarantees the free access to information, as long as such information does not infringe other people's rights or prejudice national security.
Speaking after the ruling, the managing editor of The Monitor, David Ouma Balikowa said: "We welcome the ruling.
"It is a victory for The Monitor, the entire media fraternity and civil society. Draconian laws like this one are inconsistent with civilised society. We thank the public for its support in this effort to reform the bad laws in Uganda," Mr Balikowa said.
Long legal battle
The judgement arose from a constitutional petition by The Monitor's former managing editor, Charles Onyango-Obbo and senior reporter Andrew Mwenda.
The two petitioned the Constitutional Court in 1997 seeking to declare Section 50 unconstitutional.
The petition came after the two journalists were charged in Buganda Road Chief Magistrate's Court under the section for publishing false news on October 24, 997.
The charges arose from a Sunday Monitor story: 'Kabila Paid Uganda In Gold. The story quoted contents of a foreign publication The Indian Ocean Newsletter.
After a two-year delay, in which the journalists were acquitted of the criminal charges, the Constitutional Court dismissed the petition on a 4 to 1 majority ruling.
Not satisfied, the petitioners appealed to the Supreme Court, which ruled for them yesterday.
Justice Mulenga noted that the Kabila story in the Sunday Monitor was not prejudicial to national security nor was it an infringement of any person's right.
The Supreme Court also ruled that it should not be the Director of Public Prosecutions to determine what is false and likely to cause public alarm and what is not - as was the case in Section 50.
The court also held that freedom of expression is not only restricted to accurate information or report.
"In this regard Section 50 does not pass the first test of validity," Mulenga said as he delivered the judgement of the court. "In the result I would allow this appeal and set aside the majority decision and declarations of the Constitutional Court.
"I declare that Section 50 of the Penal Code Act is inconsistent with Article 29 (1) of the Constitution and it is void," he said.
He awarded the appellants costs of the petition both in the Supreme Court and the Constitutional Court.
Chief Justice Benjamin Odoki, Justice Joseph Mulenga, Justice Alfred Karokora, Justice Arthur Oder, Justice Constance Byamugisha, Justice Tsekooko and Justice George Kanyeihamba heard the appeal.
See Full court report
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