Criminal defamation case against Journalist heard by East African Court

By

Robert Ssewankambo

The East African Court of Justice (EACJ) in Arusha, Tanzania last week began hearing a case in which a Ugandan journalist, the late Ronald Ssembuusi, challenged criminal defamation. A panel of five Judges led by the Principal Judge of the Court, Justice Monica Mugenyi presided over the hearing.

Ssembuusi, a former CBS FM radio correspondent in the Kalangala district of Uganda died in January 2015 after filing his case with the EACJ. His lawyer, Catherine Anite, told journalists in Arusha that his death did not affect the case because the Rules of the Court allow for the appointment of a legal representative.

During the hearing, it emerged that the Rules of the Court are unclear on how to notify Court about the death of a complainant and how to join the legal representative of the deceased to the suit. Ssembuusi’s lawyers wrote a letter to the Registrar of the Court about the death of their client and the duly appointed representative. But the Court, using its discretional powers, directed them to file a motion substituting the deceased with the duly appointed legal representative. Court was adjourned to allow Ssembuusi’s lawyers to finalise the process.

Meanwhile, the United Nations, African Union, Media Legal Defence Initiative-London and nineteen other civil society organisations have filed applications at the East African Court of Justice seeking to intervene in the case

In their joint application filed at the Arusha Court on July 30th, both the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye and AU Special Rapporteur on Freedom of Expression and Access to Information, Faith Dikeledi Pansy Tlakula said they will provide the Court with expert interpretation on international law from the perspective of the African Union and UN.

“The Special Rapporteurs will provide insight as to how the AU and UN define the appropriate contours of government restrictions on speech and press in the context of defamation laws, and will assist the Court in assessing the Statute’s compatibility with the principles enshrined in the EAC Treaty,” stated Kaye and Pansy in their application.

The Media Legal Defence Initiative based in London and nineteen others in their application filed in July stated that they have a strong interest in the case because it raises questions concerning the permissible limits on the right to freedom of expression including freedom of the press and the right to access information. The AU and UN are represented by Tanzanian Advocate William Ernest while MLDI and 19 others are represented by Senior Lawyer, Gimara Francis.

In December 2014, Ssembuusi filed a case in the East Court of Justice challenging his conviction and one year jail term sentence by the Kalangala Magistrates Court on charges of criminal defamation. Ssembuusi in his affidavit contends that the continued use by the Ugandan government of sections 179 and 180 of the Penal Code Act of Uganda which provide for the offence of criminal defamation is a violation of the fundamental and operating principles of the East African Community Treaty. He wants the Court to determine whether or not these sections of the Penal Code Act place justifiable restrictions on the right to freedom of expression, media and access to information that are protected by the Treaty for Establishment of East African Community.

Article 40 of the EAC Treaty allows a Partner State, the Secretary General or a resident of a Partner State who is not a party to a case before the Court to ask to intervene with the aim of supporting or opposing the arguments of a party to the case.  In their request to intervene, the consortium of organisations say they will provide the EACJ with a comparative and international law perspective that will enrich the court’s understanding  of the right to freedom of expression, press and access to information which in turn “will enhance the Court’s assessment of Uganda’s criminal defamation law.”

“… a decision concerning Uganda’s criminal defamation law could potentially influence views of courts in other East African countries on criminal defamation issues … as well as other African countries. “ The organisations say the impact of the EACJ’s decision will go beyond Uganda’s boarders and that is why it is important for them to assist the Court in assessing Ssembuusi’s case.

The organisations that are seeking permission to intervene are Media legal Defence initiative, Africa Freedom of Information Centre,  Article 19 Eastern Africa, Centre for Human Rights of the University of Pretoria, Centre for Media Studies and Peace Building, Centre for Public Interest Law, Committee to Protect Journalists, Foundation for Human Rights Initiative, Freedom of Expression Institute, Ghanaian PEN Centre, Human Rights Network-Uganda, Media Council of Tanzania, Media Rights Agenda, Media Institute of Southern Africa,  Pan African Lawyers Union,  PEN International, PEN Sierra Leon, PEN South Africa, PEN Uganda and World Association of Newspapers and News Publishers.

Responding to MLDI’s affidavit sworn by Nani Jansen, the Principal State Attorney, Oburu Odoi Jimmy in his affidavit submitted to Court said it is “inconceivable “to expect these organisations “to give the Court a cogent objective and impartial assistance” in determining Ssembuusi’s case. He said the organisations seeking to assist Court share the same objectives like Ssembuusi on criminal defamation. He asked the Court not to allow their request because it will heavily prejudice the government’s defence against Ssembuusi.

On June 4, 2009 the Constitutional Court of Uganda, chaired by Justice SBK Kavuma ruled that criminal defamation is a justifiable restriction in a free and democratic society. However, on December 5 2014, the African Court on Human and People’s Rights directed Burkina Faso to amend its criminal defamation laws because they do not conform to Article 9 of the African Charter. Earlier in June 2014, the Supreme Court of Zimbabwe annulled criminal defamation and said it is not reasonably justifiable in a democratic society.

Robert Ssewankambo

Robert Ssewankambo is a Ugandan writer. Working currently on a freelance basis, he is a regular contributor to major newspapers in Uganda and electronic online magazines and media sources in Africa, such as the Bukedde newspaper, Hindered radio, Red Pepper, Eddobozzi newspaper and African Interest online.

For media enquiries, contact Robert at the following email address: [email protected]