Uganda: Social Media Ban Infringes on Fundamental Civil Liberties
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On Thursday 18th February 2016, Ugandans went to the polls to elect a president and members of parliament for a five year term. That morning, Ugandans woke up to news that the government through the Uganda Communications Commission (UCC) had ordered privately owned telecommunications companies to block all social media including Facebook, Twitter and Whatsapp. Government also went ahead to order the blockage of mobile money, a mobile financial service that allows people to carry out financial transactions over their mobile phones.
The Uganda Communication Commission indicated that the social media blackout was ordered due to “a threat to public order and safety.”
The President-elect Yoweri Kaguta Museveni justified the social media ban stating that, "Some people misuse those pathways. You know how they misuse them - telling lies. If you want a right, then use it properly." He further stated that the social media ban was meant to avert lies intended to incite violence and illegal declaration of election results.
Legality of the social media ban
Chapter Four Uganda considers the social media blockage over the electoral period as a violation of the right to freedom of expression using any form of media guaranteed under Article 29 of the 1995 Constitution as amended and Article 9 of the African Charter on Human and Peoples Rights (ACHPR). Freedom of expression in Uganda’s context means "freedom to hold opinions and to receive and impart ideas and information without interference” and the right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. The Supreme Court of Uganda has previously stated in the case of Charles Onyango Obbo and another versus Attorney General (Constitutional appeal no. 2 of 2002) that “It (the right to freedom of expression) is not confined to categories, such as correct opinions, sound ideas or truthful information.”
The protection of this freedom ought to be upheld as the primary objective of the government of Uganda especially during this period when Ugandans should be shaping their democracy. Social media has been widely recognized as a legitimate means of political engagement between citizens and their governments with several government officials, agencies and political leaders worldwide having social media accounts with which they engage with the citizenry. The internet, generally, and social media in particular is a hub for obtaining and sharing information as well as a means for civic engagement and creation of awareness.
Further, Article 27 of the Constitution guarantees the right to privacy and noninterference with communication and correspondence even via social media. A government ban on the use of social media during the electoral period infringed on the right to privacy by unlawfully interfering with communication and correspondence between citizens.
While fundamental rights and freedoms are not absolute, any limitation of those rights must be within the scope of Article 43 (2) (c) of the Constitution on what is justifiable in a free and democratic society or what is provided in this constitution. This position is further supported by jurisprudence from across the globe on the standards that governments must meet in order to justify an infringement on fundamental rights and freedoms such as those at jeopardy here.
Under Article 20 (1) of the Constitution of Uganda, human rights are inherent and not granted by the state; therefore the executive’s statement that “if you want a right then use it properly” goes against the provisions of Ugandan law.
Previously, the Government of Uganda has taken to arresting and prosecuting social media activists and people who criticize the government.
In November 2014, three youth activists who were running a Facebook page called Masindi News Network (MANET) were arrested after initiating an online petition requesting the Parliament to investigate claims that funds for construction of the Kigumba-Kyenjojo road had been misappropriated.
In June 2015, Robert Shaka, an alleged government critic on social media, was arrested and charged with “offensive communication” by posting about the President’s health status. These cases point to a more systematic abuse of individual freedom of expression and the right to privacy perpetrated by the state against politically-minded citizens.
The government ban on social media was arbitrary and is not justifiable in a free and democratic society. UCC did not have legal justification for the ban and did not state the law under which its actions were effected. There was no due process to determine whether a blanket ban on social media would serve the governments interests.
The social media ban was therefore an over expansion of government powers and amounts to censorship without lawful justification. As the Supreme Court has previously stated, “…Uganda as a democratic society, must apply the universal standards of a democratic society; and that under those standards, it is not justifiable to censor free speech and expression.”
Chapter Four Uganda would like to remind the Government of Uganda and the telecommunications companies that the rights and freedoms enshrined in the Constitution must be “respected, upheld and promoted by all organs and agencies of the government and by all persons.”
Any actions taken by both State and non-State during this period must comply with the laws of Uganda and the international obligations which Uganda has signed up to.