The Computer Misuse Amendment Bill 2022 that was first introduced by Hon. Muhammad Nsereko on 19th July 2022 has been passed on 8th September 2022 by Parliament. This is barely two months after its introduction and the Act now awaits Presidential assent. The bill has spurred a lot of controversy in the public domain as it proposes a raft of measures and introduces new sections into the Computer Misuse Act of 2011. The bill was passed despite request by Permanent Secretary Ministry of ICT and National Guidance; Dr. Aminah Zawedde that the bill be withdrawn. A minority Parliamentary report was also produced by the Mawogola County MP Ms. Goretta Namugga.
Civil society groups such as the Collaboration on International ICT Policy (CIPESA), the Centre for Policy Analysis, Unwanted Witness and Human Rights Networks for journalists among others interfaced with the sectoral Committee on Information, Communication Technology and National guidance by making written submissions. It’s clear from the sectoral committee on ICT report that civil society views were ignored.
The bill in its current state does not provide remedies to addressing the complex nature of tech-generated cybercrime that are facilitated and perpetuated online which should actually be the focus. Uganda continues to face increased cybercrime internally by malevolent actors and loses significant financial resources to cyber criminals. The scope of cybercrime has recently exacerbated inter-state conflict and caused diplomatic rift between Uganda and Rwanda over actions that were facilitated in the cyberspace.
However, the new law is perceived by sections of the public as intended to punish dissent and curtail freedom of expression online. In its submissions, Civil Society group CIPESA cites instances, where the law has been used against perceived ‘enemies’ of the state including Dr. Stella Nyanzi who was accused of insulting the President via a social media post. CIPESA’s submission notes “In 2019, she [Stella Nyanzi] was convicted of cyber harassment contrary to section 24 of the Computer Misuse Act but acquitted of offensive communications, which is proscribed under section 25. Other individuals who have suffered the wrath of the same law include former presidential aspirant Henry Tumukunde who was arrested over alleged treasonable utterances in radio and television interviews, the Bizonto comedy group who were arrested over alleged offensive and sectarian posts”.
The proposed amendment does not provide the precise definition of terms or elaborate on the scope of the terms used. For instance, ‘hate speech’, ‘malicious’ or even ‘unsolicited’ are vaguely inserted in the text. In fact, the sectoral committee on Information, Communication Technology and National Guidance in its report acknowledged the ambiguity of these terms unfortunately. Clause 5 of the bill introduces section 24 (A) and states that (1) a person shall not send to or share with another person unsolicited information through a computer. The definition of what is ‘unsolicited’ or ‘solicited’ is not provided which provides a basis for security agencies to use the law to curtail on free expression. Clause 6 introduces 26 (A) on misleading or malicious information stating (1) a person shall not send, share, or transmit any misleading or malicious information about or relating to any person through a computer.
The Act already in its original form is very ambiguous in defining terms used. Under Section 24 (2) of the Act 2011 prohibits ‘cyber harassment’ and provides that “For purposes of this Section, cyber harassment is the use of a computer for any of the following purposes a) making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent and b) threatening to inflict injury or physical harm to the person or property of any person or c) knowingly permits any electronic communications device to be used for any of the purposes mentioned in this Section. Section 24 (a) poses clear threat to free expression as it broadly prohibits any requests, suggestions or proposals which are “obscene, lewd, lascivious or indecent”.
In principle, the amendment raises fundamental questions. For example, does the framers consider existing legal remedies already established to address issues such as personal data, access and use of personal data including lawful interception? This is because, some of the provisions in the bill is already catered for in the Regulation on Interception of Communications Act (RICA) 2010 and the Data Protection and Privacy Act 2019. Furthermore, does the law conform to existing international human rights instruments as guaranteed by the Universal Declaration of Human Rights article 19, the International Covenant on Civil and Political Rights (ICCPR) article 19 and the African Charter on Human and People’s Rights article 9 particularly in respect to free expression?
In its submission to the sectoral committee on ICTs and National Guidance, CIPESA observed that “the proposed bill greatly undermines the enjoyment of digital rights and freedoms including freedom of expression and access to information which are guaranteed by national, regional, and international laws. The right to freedom of expression and access to information [which] are guaranteed by various international and regional instruments”
It’s argued by observers that the mover of the amendment; the Hon. Muhammad Nsereko had allegedly suffered disinformation campaigns during his political canvasing by opposition group – the National Unity Platform. Now, the bill according to sources is intended to punish those groups that maligned him during the campaign trail. It should, however, be noted that in April 2022, the United Nation’s Human Rights Council adopted a resolution on disinformation that calls upon member states to ensure responses to the spread of disinformation comply with International Human Rights Law and that efforts to counter disinformation promotes, protects and respect individual freedom of expression.
Despite the above concerns that the amendment raises, the Act if assented to by the President is likely to draw legal contestation. But also generally, it clearly undermines freedom of expression especially where Ugandans and political activists continue to disappear and later show up in courts without legal representation and are remanded on clauses such as ‘cyber harassment’ contrary to the Computer Misuse Act 2011. And now the law will unfortunately be used selectively to target political dissent. Regrettably, the law does not provide exceptions or defenses where individuals reasonably believe the information to be true. Moreover, the proposed responses or sanctions to offences under the Act are not proportionate. For example, the hefty fines and jail terms proposed are all disproportionate. The amendment therefore does not pass the test from a Human-Rights centric approach.
Moses Owiny
(info[at]thecfma.org)
