Sedition held Unconstitutional

Uganda recently held that the law of sedition in their Penal Code was inconsistent with the protection of freedom of expression enshrined in their Constitution. Malaysia, on the eve of Merdeka investigated Namewee for sedition.

Photo by Adam Lee

Photo by Adam Lee

Not in Malaysia, of course. Namewee might still face a sedition charge here. But in Uganda, their Constitutional Court on 25th August 2010 held that the law of sedition in Uganda, contained in their Penal Code, was inconsistent with the protection of freedom of expression contained in the Ugandan Constitution.

The case is Andrew Mujuni Mwenda & Anor v Attorney General [2010] UGCC 5

Uganda’s sedition laws

Uganda’s provisions criminalising sedition are broadly similar to Malaysia’s, and journalist Andrew Mwenda was charged for displaying a sedition intention in that he uttered words that would “bring into hatred or contempt or to excite disaffection against the person of the President, the Government as by law established or the Constitution”.

Although not quite as onerous as the Malaysian provisions, it would appear that in Uganda too there are deeming provisions where a person is deemed to intend that his words are seditious if the words themselves show a “seditious intention”. In Malaysia, the magic words are “seditious tendency”.

What did he say?

According to the report of the case, these are the words that led to the charge:

“You see these African Presidents. This man went to University, why can’t he behave like an educated person? Why does he behave like a villager?

Museveni [the President of Uganda] can never intimidate me. He can only intimidate himself …. the President is becoming more of a coward and every day importing cars that are armor plated and bullet proof and you know moving in tanks and mambas, you know hiding with a mountain of soldiers surrounding him, he thinks that, that is security. That is not security. That is cowardice

Actually Museveni’s days are numbered if he goes on a collision course with me.

You mismanaged Garang’s Security [Garang was the Deputy President of Sudan who died in an Ugandan helicopter which crashed]. Are you saying it is Monitor [the accused's newspaper] that caused the death of Garang or it is your own mismanagement? Garang’s security was put in danger by our own Government putting him first of all on a junk helicopter, second at night, third passing through Imatong Hills where Kony is? …. Are you aware that your Government killed Garang?

I can never withdraw it. Police call them, I would say the Government of Uganda, out of incompetence led to or caused the death of Garang”

To get the full background, read the opening part of the judgment itself.

Uganda’s Constitution

Article 29(1)(a) of the Ugandan Constitution provides that “Every person shall have the right to freedom of speech and expression which shall include freedom of the press and other media.”

Malaysia’s equivalent Article 10(1)(a) restricts the right to freedom of speech and expression only to citizens and does not expressly guarantee a free press.

The guarantees of human rights in the Ugandan Constitution are not stated in absolute terms.

As in Malaysia, and as in all other international human rights instruments, an individual’s enjoyment of human rights is balanced with the need to preserve the rights of others, though the degree to which individual rights can be trampled on differs greatly.

In Uganda, this principle is encapsulated in Article 43 of their Constitution which provides as follows:-

(1) In the enjoyment of the rights prescribed in this chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2). Public interest under this Article shall not permit.

(a) Political persecution.

(b) Detention without trial.

(c ) Any limitation of the enjoyment of the rights and freedoms prescribed by this chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this Constitution.

In Malaysia, Article 10(2)(b) of the Federal Constitution provides that Parliament may by law impose on the right to free speech “such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.”

Recent Federal Court decisions have held in Malaysia that fundamental liberties must be read liberally, whilst restrictions must be read restrictively and must be reasonable: see Sivarasa Rasiah v Badan Peguam Malaysia (reported as [2010] 3 CLJ 507).

The decision

Uganda’s Constitutional Court held the section and charge unconstitutional.

The court found that the Prosecution had not adduced any evidence to discharge its burden to prove that the restrictions on free speech were required in a democratic society, nor did it adduce any evidence at all to show the reactions and feelings of the community towards the speech to show that it was in the public interest to criminalise the speech.

As to the offence of sedition itself, the Court held that the wording creating the offence of sedition was so vague that one could not know the boundary to stop at when exercising one’s right to free speech. As the words had an “endless catchment area” it infringed free speech guarantees in the Ugandan Constitution.

Can it apply to Malaysia

I would think that this case ought to be food for thought to Malaysian judges. The reasoning of the Ugandan Constitutional Court can equally apply to our Constitutional guarantee of free speech.

Our existing jurisprudence in the Sivarasa case mentioned above and in the much earlier Supreme Court decision of Dewan Undangan Negeri Kelantan v Nordin bin Salleh [1992] 1 MLJ 709 have held that a legislative provision that renders a fundamental liberty guaranteed by the Constitution “illusory” is null and void.

The law of sedition as it stands in Malaysia is vague, archaic and stifles free speech and legitimate criticism of governmental actions. It should be repealed. Failing that, our Courts should enforce the fundamental liberties enshrined in our Federal Constitution and hold this odious piece of legislation void.


LB: Shanmuga K (@shanmuga_k on Twitter) is a lawyer at Kanesalingam & Co. He doesn’t know why he keeps writing here. A purple banana emerges in his consciousness, and an article seems to be magically written. Strange.


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Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 1 September 2010. You can follow any responses to this entry through the RSS 2.0.

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