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Constitutional law –Principle of legality—Offence must be defined—Penal provision null and void for being vague and overly broad.
Constitutional law –offensive communication, online/digital freedom of expression – limitation must be justifiable in a free and democratic society.
The Constitutional Court allowed a petition filed by Andrew Karamagi and Robert Shaka challenging the constitutionality of Section 25 of the Computer Misuse Act. The Petitioners argued that the section was vague, overly broad and that it unreasonably restricted the enjoyment of with the freedom of expression. The Court agreed with the Petitioners and declared the section null and void for not specifying what conduct constitutes offensive communication and for being inconsistent and in contravention of Article 29(1) of the Constitution, which guarantees the freedom of expression.
Andrew Karamagi and Robert Shaka filed a constitutional petition challenging Section 25 of the Computer Misuse Act, Amendment Act No. 2 of 2011, which criminalized the willful and repeated use of electronic communication to disturb or attempt to disturb the peace, quiet, or right of privacy of any person with no purpose of legitimate communication. The Petitioners argued that Section 25 was overly broad in breach of the principle of legality, it infringed on the freedom of expression, and that it was inconsistent with and contravened Article 29(1)(a) of the Constitution.
Two major issues were resolved by the Constitutional Court:
The Constitutional Court held that the wording of Section 25 of the Computer Misuse Act is vague, overly broad, and ambiguous, contrary to Article 28(12) of the Constitution, which requires that an offence must be defined.
The Court declared Section 25 null and void for being inconsistent with Article 29(1) of the Constitution, Article 19(2) of the International Covenant on Civil and Political Rights and Article 9(2) of the African Charter and Human and Peoples’ Rights.
The Court, while finding that the words under Section 25 of the Computer Misuse Act were vague, overly broad, and ambiguous, stated that Article 28(12) of the Constitution requires that an offence must be defined.
It further stated that what constitutes an offence according to Section 25 is “unpredictable” and gives the law enforcer the discretion to pick and choose what qualifies as offensive. It gives the law enforcement unfettered discretion to punish unpopular expression.
Limitations imposed on freedom of expression must not be more than is reasonably necessary to achieve the legitimate objective, namely, the protection of rights. The limitation must be acceptable and demonstrably justifiable in a free and democratic society. In a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within the guarantees of freedom of expression in a democratic society. Section 25 is unjustifiable as it curtails the freedom of expression in a free and democratic society.
The decision further sets perimeters for limitation of online/digital freedom of expression and sets the standard that such a limitation must be justifiably demonstrable in a free and democratic society.
