PRESS STATEMENT/BRIEF ON THE JUDGEMENT OF THE CONSTITUTIONAL COURT IN RESPECT OF CONSTITUTIONAL PETITIONS NO. 12 OF 2005 (ANDREW MUJUNI MWENDA VS. ATTORNEY GENERAL) AND CONSTITUTIONAL PETITION No. 03 OF 2006 (EAST AFRICA MEDIA INSTITUTE VS. ATTORNEY GENERAL)
PRINCESS KABAKUMBA MASIKO –MINISTER OF INFORMATION AND NATIONAL GUIDANCE AT THE UGANDA MEDIA CENTRE
The above petitioners filed a Petition challenging the offences of Sedition (Section 39, 40 of the Penal Code Act) and promoting sectarianism (Section 41 of the Penal Code Act) as unconstitutional.
They also wanted Sections 42 – 44 of the Penal Code Act which relate to these offences declared redundant, in case the above sections were found to be unconstitutional.
Yesterday 25th August 2010, the Constitutional Court held that the offence of Sedition was unconstitutional whereas the offence of Sectarianism was upheld as being constitutional.
The parties were not availed with copies of the judgement. The Attorney General is presently considering filing an appeal against the judgement declaring the offence of Sedition as unconstitutional, and has requested for a copy of the Judgement to enable it further determine possible grounds of appeal.
Presently, one of the areas of dissatisfaction with the judgement is that it seems to focus on the acceptability of criticising the person of the President as a politician, and did not address the other areas of the Section 39.
(Please refer to Section 39 1 ( a) (the last part refers to the Government and the Constitution) 39 (1)(b), ( c ) and (d).)
In our opinion, the Court also failed to properly consider Section 39(2) which provides for very wide range of defences which in effect allow for very wide political comment and criticism of the Government. The Attorney General is thus dissatisfied that the Court found that the offence is too wide.
The Attorney General is also dissatisfied that the Court did not address the fact that the law of sedition is present in the law books of leading democracies, such as the USA. It is a standard established by the Constitutional Court that it should consider the practices of countries which are free and democratic in assessing constitutionality of laws. However, while the Attorney General presented different leading democracies which have laws on sedition, (e .g, USA, Australia) it was not addressed by Court.
It is also our opinion that the Court erred in holding that the Attorney General had not adduced evidence to prove that Mr. Mwenda’s statements prejudiced the national interest or security, when this was never in issue before court.
(There was never any issue framed before court as to whether Mr. Mwenda’s trial for the offence was justified, as this would have been an issue before the Magistrate. The only question referred to the Constitutional Court by the trial Magistrate was whether the challenged Sections of the Constitution were unconstitutional).
In conclusion the issues presented before Court were those of law and not of fact and the court erred in requiring the Attorney General (who was not the DPP prosecuting the matter in the trial court) to prove the effect of Mr. Mwenda’s statements or the justification for his prosecution.
FOR GOD AND MY COUNTRY
26TH AUGUST, 2010