Unwanted Witness v. Uganda Communications Commission and the Attorney General of Uganda
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This case addresses a directive by the Uganda Communications Commission that seeks to establish registration of online and digital platforms disclosing the identity of its users, which would act as a de facto registration for journalists, bloggers, and activists. Unwanted Witness, a civil society organization in Uganda, filed a complaint before the Constitutional Court of Uganda in 2019, arguing that the directive violated fundamental human rights, such as freedom of press and speech.
On March 6, 2018, the Uganda Communication Commission (UCC) issued a blanket directive requiring that all online publishers, new platforms, and data communication service providers, including bloggers and online commentators, apply for an authorization from the UCC in order to continue with their work. The procedure includes disclosing the identity of proprietors of the platforms/channels and paying a yearly fee of 20 USD, which violates Ugandans’ constitutional rights to freedom of speech and expression. Additionally, the publishers were also required to provide their actual names and personal details, as well as the identity of their proprietors, which turns the entire procedure into a de facto registration requirement for journalists, bloggers, and other activists.
Dorothy Mukasa, the Unwanted Witness Chief Executive Officer, has stated that “profiling online publishers does not only violate fundamental human rights but also stifles independent media, investigative journalism and general free flow of information which has a chilling effect on the national democracy.” In the same line, Freedom House considers that this action stifles free speech and creates opportunities for the government to interfere in citizens’ speech. Recently, Ugandans have started to use online platforms to communicate and articulate ideas, in addition to circulating information, particularly as the amplification of the access to the internet grew in the country. Thus, the online or digital platforms, including social media platforms, have become the key source of information to a considerable number of persons. Therefore, with the goal of controlling the space and possibly target players, the regulator of the media sector seeks registration of the categories listed in the directive, including bloggers, journalists and activists
On March 25, 2019, Unwanted Witness, a leading digital rights organization in Uganda, filed a lawsuit against the Uganda Communication Commission. With its constitutional challenge, Unwanted Witness sought a permanent injunction against the UCC on the grounds of the violation of fundamental human rights, and disrespecting national, regional, and international legal frameworks. The petition filed argues that the directives issued by the UCC are illegal because they violate the rights of Ugandan citizens and online journalists to freedom of speech and expression, as guaranteed by articles 27 and 29 (1) (a) of the Ugandan Constitution, article 9 of the African Charter on Human and Peoples’ Rights, article 19(2) of the International Covenant on Civil and Political Rights and article 19 of the Universal Declaration of Human Rights.
On September 4, 2020, via a new directive, the UCC provided a final deadline – October 5, 2020 – for requesting an authorization, stating that registration was mandatory to “online data communication and broadcasting services, including but not limited to blogs, online televisions, online radions, online newspapers, audio over IP (AoIP), Internet Protocol TV (IPTV), Video on Demand (VoD), Digital Audios radio and televisions, internet/web radio and internet/web television, to obtain authorisation from UCC before providing such services to the public”. This directive replicated the content from the March 8 document, acting as a reminder and enforcing a new deadline. When questioned about the motive behind this regulation, the UCC’s Executive Director, Irene Kaggwa Sewankambo, stated that it was meant to uphold Uganda’s national values, protect its national identity, balance commercial and public interest, and oversee user redress mechanisms.
On September 11, 2020, Unwanted Witness filed another constitutional petition to the Constitutional Court in which it challenged the constitutionality of requiring social media and other digital platform users to apply for and obtain authorization from the UCC. In this petition, the CSO described the directive as an act that exceeded the UCC’s mandate, contrary to the rights and freedoms of conscience, expression, association, and access to information, all of which are safeguarded by articles 20(1), 27(2), 29(1)(a), (b) and (e), 43(1)(c) 287 of the Constitution of the Republic of Uganda (1995), article 19 of the Universal Declaration of Human Rights (1948), article 19 of the International Covenant on Political and Civil Rights (1966) and article 9 of the African Charter on Human and Peoples’ Rights (1981).
According to Dorothy Mukasa, “the blanket decision and the directive by UCC to publishers and others to apply and obtain authorization from them, interfere with the free flow of information and the right to seek, receive, and is in contravention and inconsistent with Article 29(1) and 41 of the 1995 Constitution of the Republic of Uganda.” She noted that digital communication is fundamental to the electoral process because it bridges the gap between politicians and the public, however the required procedure is a threat to not only free speech, but also the right to association and assembly. Whereas the goal of the directive was in good faith, to curb the misuse of the internet to spread fake news and blackmail public figures, to issue draconian regulations – particularly in place of existing laws such as the Computer Misuse Act and the Data Protection and Privacy Act – could result in the violation of people’s human rights.
From 2018 until 2021 Uganda had the Over-The-Top (OTT) tax, popularly known as the “social media tax”, was implemented in 2018 and required that Ugandans paid 200 Ugandan Shillings (UGX), the equivalent of around 0.05 US dollars, to access social media platforms such as Facebook, Twitter and WhatsApp. This measure was heavily criticized by civil society and the public, who saw the tax as an attempt to curb free speech and access to information. After three years, in 2021, the OTT was abandoned by the Ugandan government, which promptly implemented a 12% tax on internet data as part of the Excise Duty (Amendment) Act 2021, which could still prove to be as harmful to the population as its predecessor.
While the 2022 Freedom on the Net report by Freedom House did not record restrictions on connectivity during the period it addressed, it noted that, during the previous coverage, Uganda faced an aggressive internet shutdown in January 2021 prior to the general elections. The blockage on social media platforms and communication apps represented a violation of several rights, including freedom of press and speech, as well as access to information.