Criminals or Activists? Finding the Space for Hacktivism in Uganda’s Legal Framework
| Jurisdiction | South Africa |
| Published date | 27 May 2019 |
| Date | 27 May 2019 |
| Pages | 508-525 |
| Author | Rukundo Solomon |
| Citation | (2017) 28 Stell LR 508 |
CRIMINALS OR ACTIVISTS? FINDING THE
SPACE FOR HACKTIVISM IN UGANDA’S LEGAL
FRAMEWORK
Rukundo Solomon
LLB (University of Dar es Salaam) Dip LP (Law Development Centre, Kampala,
Uganda)
Uganda Revenue Authority
1 Introduction
The i nternet is slowly but surely revolutionising societies i n Africa.
Increasingly more people rely on it for business , enter tainment and
communication. Social med ia such as Facebook, WhatsAp p and Twitter have
gained considerable popularity in recent years.1 E-commerce is sweeping
across the continent such that an online presence is now a necessity for
most big businesses.2 Government s across the continent have com mitted
themselves t o developing effective e-Government st ructures3 i n which they
have made some strides.4 Political and social act ivism on the internet ha s
similarly grown across the continent. Websites and blogs run by seasoned
activists advocating one cause or the other are now the norm . Even regular
individuals share a nd advocate for their causes th rough micro blogging on
Twitter and sharing their opi nions on their Facebook status updates.
One peculiar form of online activism that has attracted controversy is
hacktivism. Thi s i s t he “combination of grassroot s political protest with
computer hack ing.”5 In a number of reporte d incidents government websites
across the continent have been hacked into as a form of political protest against
government actions and policies. In 2009, the Zimbabwean government’s
website was hacked and replaced by a Microsoft advert. In 2011 the same website
was brought down by a denial of service atta ck (“DoS att ack”) for which the
international hacker collective, Anonymous, took credit. Anonymous claimed
1 As of June 2016, Facebook had 146,637,000 subscribe rs from Africa refle cting a 12.4% penetration on the
continent: Anonymous “Facebook Users in the World” (30-06-2016) Intern et World Stats
internet worldstats.com /facebook.htm> (acce ssed 25-05-2017).
2 T Shapshak “Africa’s L argest C ompany Na spers Ups Invest ment i n Takealot, South Africa’s Biggest
Ecom merc e Firm” (11-04-2 017) Forbes
largest-compa ny-invests-more-in-ta kealot-south-africa s-biggest-ecommerce -website/#35230904530c>
(accessed 25-0 5-2017).
3 Ar t 8 of the Charter for the Public Servic e in Africa Third Pan-African Conferen ce of the Min isters
of Civil Se rvice held at Windhoek Namibia on 5 February 2001
public/documen ts/CAFRAD/U NPAN004365.pdf> (acce ssed 25-05-2017).
4 NJ Haf kin E-governm ent in Africa: An O verview o f Progress Mad e and Challenges A head, paper
presented at the UNDESA /UNPAN workshop on electronic /mobile government in Africa: Buil ding
Capacity in Knowledge Man agement th rough Part nership, held at the United Nations Economic
Commission for Af rica on 17-19 February 2009 available at
unpan0340 02.pdf> (accesse d 25-05-2017).
5 T Jord an & P Taylor Hacktivism an d Cyberwars: Rebels w ith a Cause? (2004) 5.
508
(2017) 28 Stell LR 508
© Juta and Company (Pty) Ltd
that this was done in ret aliation for the government’s efforts to prevent the
spread of information regarding les relea sed by WikiLeak s.6 In January
2017, after President Yahya Jammeh of The Gambia annulled election results
in which he had lost to Adama Barrow, the Gambia state house’s website
was hacked into and a hacker posted a pict ure of Adama Barr ow with the
inscription “Adama Bar row, President of the Re public of The G ambia.”7 The
hacktivism phenomenon sweeping across the continent ha s been p resent in
Uganda for a few years now. In March 2009, the website of Uganda’s Ministry
of Defence was te mporarily shut down aft er hackers calling them selves “the
Ayyildiz team” hacked into the site and publishe d anti-Israel messages on
it.8 In May 2010 a hacker calling hi mself “Kaka Ar gentine” hacked into the
State House website and posted a conspicuous picture of Adolf Hitler with the
swastika, a Nazi Pa rty symbol.9
This a rticle examines whether there is legal room for hacking as a
legitimate form of protest both in the inte rnational cybercrime legal regime
and in Uganda’s municipal laws and constitution, par ticularly under article
29 of the Constitution of the Republic of Uganda, 1995 (“Constitut ion of
Uganda”) which guarant ees freedom of expression. This is exami ned in light
of the crimi nalisation of hacking under inter national, regional and municipal
laws. The article ar gues that as the legal regime sta nds today, the common
forms of hacktivism have no constitut ional protection. However, it goes on to
conclude that as cyberspace t akes over as the new public space the law will
have to adapt to accommodate the less dest ructive forms of cyber p rotests.
The argument proceeds in th ree part s. Part 2 of this article examines the
phenomenon of hacktivism. The part a lso considers the d ifferent forms of
hacktivism and their consequences. Finally, the section looks at international
and regional instr uments as well as local laws that cr iminalise the various
forms of hacktivism. Part 3 examines hacktivism as a form of protest and
assesses the argument for and against its protection under local laws and
international i nstruments. Finally, part 4 gives the conclusion of the art icle.
2 Hacktivism
2 1 Reasons for the growth of hacktivi sm
Across the globe, hacktivism arose in the lat e 1980s and i nitially took the
form of computer viruses and worms that spread messages of prote st.10 In
1996, hackt ivists star ted defacing websites and replacing their home pages
6 M Ma lakata “Website att acks raise que stions about Af rican data sec urity” (14-01-2011) CIO East Africa
(accessed 19-05-2017).
7 I Akwei “G ambia’s governme nt website ‘confiscated’ by proud computer ha cker” (23- 01-2017)
Africa News
computer-hacke r/> (accessed 19-05-2017).
8 An onymous “ Uganda hit by an ti-Israel hackers” (09 -03-2009) BBC Ne ws o.uk/2/hi /
africa/793254 4.stm> (accessed 16-0 9-2016).
9 R Kas asira “Hacker posts Hit ler photo on State House website” (31-05-2010) Daily Monitor
monitor.co.ug/News/National/688334-929108-brnt54z/index.html> (accessed 16-09-2016).
10 D Denning “ The Rise of Hackti vism” (08-09-2015) Georgetow n Journal of Intern ational Affairs
journal.georgetown.edu/the-rise-of-hacktivism/> (accessed 28-09-2016)
HACTIVISTS: CRIMINALS OR ACTIVISTS? 509
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with messages of protest.11 Hacktivism has gained popularity for several
reasons.12 It is relatively easy to conduct and people with little technical skill
can u se free, use r-friendly tools to lau nch cyber-assaults. Hacktivism poses
little risk to protesters unlike street demonstrations. The internet enables
hacktivists to campaign for far away causes from a safe d istance. The effects
of hackt ivism are oft en very v isible, for ex ample defaced websites, website
shut down s due to DoS at tacks, or when protesters report their actions via
social media.13 Finally, as state security agencies have resorte d t o u sing
electronic sur veillance and hacking14 again st political opponents, hacktivism
seems to have been adopted as a me ans of evening the playi ng eld.
2 2 Forms of hacktivism
Hacktivism t akes various forms w ith illegal hacking as the common
denominator. O rdinarily, when a website is unable to cop e with the number
of requests it is receiving or a system is overwhelmed by the number of
simultaneous requests it is therefore unable to f unction opt imally. A DoS
attack replicates th is effect intentionally, and can target a single computer,
server, website or network15 ge nerating a volume of spurious messages that
clog the system until it can no longer receive messages f rom genuine users.16
Site redirects send use rs to a site that is different t han the one indicated by
the web address. Information theft involves gaining unauthorised access to
a computer or network and stealing private d ata. Site defacements i nvolve
obtain ing unauthor ised access to a web ser ver and either repl acing or alteri ng
a web page with new content that conveys a particular message. This is the
most common and usually least damaging for m of hacktivism.17 Viruses and
other malware can also be use d as forms of hacktivism.18
2 3 Criminalisation of hacktivism
2 3 1 International conventions
Virtually all forms of hacking are illegal in Uganda regardless of the motive
behind the hack. The laws against hacking c an be found at an international,
11 Denni ng “The Rise of Hackt ivism” (08-09-2015) Georget own Journal of Inter national Affair s.
12 Denning “ The Rise of Hacktiv ism” (08-09-2015) Georgetow n Journal of Intern ational Affairs.
13 Denning “ The Rise of Hackt ivism” (08-09-2015) Georgeto wn Journal of Inter national Affairs.
14 In August 2015 it was repor ted that the governm ent of Uga nda was in the process of pur chasing
technology from an Ital ian cybe r secur ity fi rm kn own as Hacking Team at 10 billion shillin gs (USD
3,000,000): H Matsiko “Museven i Opponents in Trouble” (03-08-2015) The Independent
com/stories /201508050892.html> (accessed 01-10-2016) Freedom House “Fre edom on the Net Re port
2015: Uganda” (2015) Freedom House
(acce ssed 01-10 -2016).
15 J Clough Principles of Cybercrime (2010) 37.
16 IJ Ll oyd Information Technology Law (2008) 216; E Zuc kerman, H Robert s, R McGrady, J York & J
Palfrey 2010 Report o n Distributed De nial of Service ( DDoS) (2010).
17 CN Hampson “H acktivism: A New Breed of Prot est in a Networked World” (2012) 35 BC Int’l & Comp L
Rev 511.
18 In 2008 the “Odinga Virus”, named after the Kenyan politician Raila Odinga due to his picture popping
up once the computer was infected, ravaged computers all over Africa: J Barwon “Have you Ever Heard
of the Rail a Odinga Comput er Virus?: My Ex perience wit h the ‘RAILA ODINGA’ Virus” (23-05 -2011)
Newafritech (accessed
27-09-2 016)
510 STELL LR 2017 2
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regional and local level. However, there is no international convention dealing
with cybercrime. Over the years the United Nations (“UN”) has incremental ly
taken action against cyber criminals. In 1990, the UN issued an endorsement19
of the general resolution on computer related crimes made at the Eighth
United Nations Congress on the P revention of Crime and the Treatment of
Offenders.20 In 1994, the UN published its Manual on the prevention and
control of computer-re lated crime21 which ide ntied an d attemp ted to expl ain
the phenomenon of computer crime and noted the need for global action
against it. It recommende d the cri minalisation of unauthorised alterat ion of
computer data and computer espionage. It also sug gested that member states
consider criminalisation of traf cking in wrongf ully obtained passwords and
other information t hrough which unauthorised access to computer s ystems
would be obtained. I n 2001, the G eneral Assembly adopted a re solution on
combating the crim inal misuse of information technologies.22 Th is resolution
made a number of general recom mendations including rec ommending that
“legal systems should protect the condentiality, integr ity and availability of
data and computer systems f rom unauthorize d impairment and en sure that
criminal a buse is penali zed.”
The internat ional instrument closest to bei ng an international convention on
cybercrime is the C ouncil of Europe Cybe rcrime Convention (“Cybe rcrime
Convention”).23 T he Convention has bee n ratied by 22 non-Council of
Europe countries,24 including African states like Ghana, Senegal, South Africa
and Morocco.25 A number of countries i ncluding Uganda have passe d their
laws base d on its provisions.26 The convention calls for the crimi nalisation
of unauthor ised access to the whole or a ny pa rt of a comput er system27 and
unauthorised interception of transm issions of private computer data by technical
means.28 Art icle 4 of the Cybercrime Convention requi res member states to
19 UNGA Res 45 (14 December 1990) U N Doc A/RES/45/12.
20 Eighth Un ited Nation s Congre ss on the Prevent ion of C rime and the Tre atment of Offenders Havana,
Cuba, 27 Aug ust to 7 Septe mber 1990 UN Do c A/CONF.144/28/Rev.1 available at
org/documents/congress/Previous_Congresses/8th_Congress_1990/028_ACONF.144.28.Rev.1_Report_
Eighth_United_Nations_Congress _on_the_Prevention_of_Crime_ and_the_Treatment_of_Offenders.
pdf> (acces sed 01-06-2017).
21 United Nat ions “Manua l on the pr evention and control of computer-relat ed crime” (1994) 43-44
Internati onal Review of C riminal Policy UN Doc E/94/I V/5
bcb/bdf/ int_regulat ions/un/Comp Crims_UN_G uide.pdf> (acces sed 01-06-2017).
22 UNGA “Combating the cr iminal misuse of infor mation te chnologies” (22 Janua ry 2001) UN Doc A/
RES/55 /63.
23 Council of Europ e’s Convention on Cybercrim e (adopted on 23 November 2011, entered into force 1 Ju ly
2004) ETS No 185; Z Jamil “Compa rative analysi s of the Malab o Convention of t he African Union and
the Budapest Convention on Cybercrime” (20-11-2016) Global Acti on on Cybercrime Ext ended
rm.coe.int /16806bf0f8> (access ed 20-09-2016) 3
24 Council of Eu rope “Chart of signatur es and ratif ications of Treaty 185” (28-08-2017) Council of
Europe
FcLoVE1N> (accessed 04-06 -2017)
25 Council of Euro pe “Chart of signat ures and ratif ications of Treaty 185” (28-0 8-2017) Council of Europe.
26 Jamil “Comparat ive analysis of the Malabo Convention of the African Union and the Budapest Conventio n
on Cybercri me” (20-11-2016) Global Action on Cybercrime 3; Uganda Law Re form Comm ission A Study
Report on Electronic Transactions Law (Law Com Pub No 10 of 2004) para 1; Parl iament Hansard
Tuesday 29 June 2010.
27 Art 2 of the Cyb ercrime Conventio n.
28 Art 3.
HACTIVISTS: CRIMINALS OR ACTIVISTS? 511
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criminal ise the unauthorised “damaging, deletion, deterioration, alteration or
suppression of com puter data”. Article 5 criminalises unauthorised, ser ious
hindering of the fu nctioning of a computer system by inputting, transmit ting,
damaging, deleting, deteriorati ng, altering, or suppressing computer data.
Finally, article 7 calls upon member states to cri minalise the misuse of
computer devices including malware such as v iruses. The Convention also
provides a mechanism for i nternational cooperat ion,29 extradition,30 sh aring
of information31 and mutual assistance32 in matters of cybercrime.
2 3 2 African Union instruments
The African Un ion Convention on Cyber Security a nd Personal Data
Protection (“Convention on Cyber Securit y and Personal Data Protection”)33
provides that each state party shall adopt such legislative measures “as it
deems effective by considering as substantive criminal offences acts which
affect the condentialit y, i ntegrity, availability and sur vival of information
and commu nication technology systems , the data t hey process and the
underlying net work inf rastructure …” The convention also pr ovides for
regional harmonis ation of cyber secur ity laws and mutual legal assistance.
2 3 3 East African Community instruments
The Draft East Afr ican Communit y L egal Fra mework for Cyber laws
(“Draft Ea st African Framework for Cybe r Laws”) formulated in November
2008 by the East Af rican Community Task Force on Cyber Laws are a ser ies
of recommendations made to the partner states about reforming national
laws “ to deter conduct designed to unde rmine the condentiality, i ntegrity
and availability of infor mation and communication te chnologies.”34 The
provisions of the Computer Misuse Act of 2011 (“CMA”) ar e based on and
are to be con strued within the c ontext of among ot her sources the Draft E ast
African Framework for Cyber Laws.35 The Draft East Af rican Framework
for Cyb er Laws recommends the criminalisat ion of u nauthorised access to
computer systems, u nauthorised interference or modicat ion of systems,
unauthorised int erception of communications between or withi n systems, the
misuse of computer devices and the supply of malware.36 All these encompass
29 Art 23.
30 Art 24.
31 Art 26.
32 Art 2 5.
33 Art 25(1) of the Af rican Union Co nvention on Cyber S ecurity and Personal Data P rotection (adopted on
27 June 2014, entered into fo rce 16 August 2016) EX.CL/846 (XX V).
34 East African Community Task Force on Cyber laws “Draft East African Community Legal Framework
for Cyber Laws” (11/2008) East Afri can Communit y
11671/1815/EAC%20Framework%20for%20Cyberlaws.pdf?sequence = 1&isAllowed = y> 3 (accessed
28-08-2017).
35 Parliament Ha nsard, Tuesday, 29 June 2010; Council of Europ e’s Convention on Cybercrime (adop ted on
23 November 2011, entered into force 1 July 2004) ETS No 185 and the United Nations Convention on use
of Electro nic Commun ications in Internat ional Contr acts (adopted on 23 Novem ber 2005, e ntered into
force 1 March 2013) 50 UNTS 50525 are annexu res to the Draft Eas t African Framework for Cyb er Laws
2008.
36 EAC Task Force The Draft Leg al Framework for Cybe r laws 15.
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some form of hacking. The document fur ther notes that measures designed to
tackle cyb er-terroris m activities are based on the motivation of the offender
rather than his or her conduct, which will gener ally fall within the behaviour
already proscribed.37
2 3 4 Ugandan Municipal Law
Section 12(1) of the C MA criminalis es mere unauthor ised intrusion,
thus, the simple act of gai ning access to a system, even if the offender do es
not act fur ther (that is, doe s not take or modify any dat a).38 Section 12(3)
of the CMA cr iminalises the production, possession, sale, design adapting,
procurement and distribut ion of any device, including a computer programme
or a c omponent which is designe d primarily to overcome security measures
for t he protection of data. Section 12(5) specically prohibits DoS at tacks.
Such attacks on critical infrast ructures (such as energ y di stribution,
communications, transportat ion, government, emergency ser vices, etcetera)
could lead to physical injuries to persons or property as well as economic
losses.39 Section 14(1) prohibits any action taken with requisite intent and
knowledge that such act ion will cause unauthorised modicat ion of the
contents of any computer. This criminalises the defacement of websites which
is the most prevalent form of hacktivism .
Some forms of hacktivism can be considered cybert errorism which is
contrary to section 7(2)(g) of the Anti-Terrorism Act of 2002 (“Anti-Terrorism
Act”). The section prohibit s the “serious interference with or disr uption of an
electronic system” for purposes of inuencing the Governme nt or intimidating
the public a nd for a political, religious, social or economic a im. The offence
carries the de ath penalty.40
The Data Protection and Privacy Bill of 2015 curre ntly under parliamentary
review crim inalises unlawfully obtaini ng data and disclosing it. T he offence
carries a penalty of a ne of UGX 2,400,000 or 5 years imp risonment.41 An
example of the mischief targeted by this provision is the theft of employee and
user in formation from t he Tanzania Telecommunications Company Limited
(“TTCL”) website by the hacker group Anonymous that occur red in February
2016. The stolen data was du mped online as par t of Anonymous’ #OpAfrica
which is a hacktivism protest ag ainst bad governance in Africa.42
37 15.
38 Cybercrime Convention Explanatory Re port [2001] ETS No 185 par a 44 (“Cybe rcrime Explanator y
Report ”).
39 CA Jennif er “Secur ity in Cyber space: Comba tting Dis tributed D enial of Ser vice Attac ks” (2003-200 4) 1
U Ottawa L & Tech J 231 .
40 S 7(1) of the Anti-Terrorism Act.
41 Cl 27 of the Data Pr otection and Priv acy Bill.
42 A Mu tulya “Concern as TTCL Data r eportedly stolen by hackers” (17-02-2016) The Citizen
www.thecitizen.co.tz/News/Concern-as-TTCL-data -reportedly-stolen-by-hackers/1840340-3080618-
a5a30xz/i ndex.html> (access ed 01-06-2017).
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3 Hacktivism as a form of protest
3 1 The right to protest
The right to prote st is protected to varyi ng degrees under intern ational and
regional human rights i nstruments to which Uganda is par ty.
3 1 1 International law
Ar ticl e 19 of the Uni vers al Dec lara tion of Hu man R ights (“ UDHR ”)43 states
that everyone has the right to freedom of expression and this includes the right
to “ impart infor mation and ideas through any media.” Furthermore, article
19(2) of the Inter national Covenant on Civil and Political Rights (“ICCPR”)44
protects free dom of opinion and expression.45 The art icle’s emphasis on “any
other media” as a form of expression certainly covers new innovations in
information and communicat ion technologies (“ICT”).46 The ICCPR only
permits r estrictions on this r ight that are necessary for protect ion of national
security, public order, public health, or morals.47
3 1 2 African Union
Ar tic le 9 of th e Afr ica n Cha rt er on Hu man an d Peo ples Ri ght s (“ACHP R”)48
provides that people have the right to express and disseminate opinions within
the law. In interpreting article 9, the Africa n Human Rights Commission
(“AHRC”) assert ed the “ fundamental importance of freedom of expression
and information as a n individual human right, as a cornerst one of democracy
and as a means of ensu ring respe ct for all hum an rights and freedoms.”49
Unfortunately, the full effect of the art icle is diluted by a clawback clause
restricting forms of protes t to those sanctioned by law.50 This makes it prim a
facie of limited application to hacktivism which often out of necessity involves
violation of the law. However, laws, which restrict freedom of expression,
have been held to be in violation of article 9 and actions cont rary to those
laws considered justied. In Const itutional Rights Project v Nigeria51 the
government nullied the elections and passed a decree prohibiting a number of
people and news agencies from commenting on them. Those who chose to defy
43 Universal Decl aration of Human R ights (adopted 10 December 1948) U NGA Res 217 (III).
44 Internat ional Convention o n Civil and Polit ical Rights (adopt ed 16 December 1966, entered into force 3
January 1976) 999 U NTS 171.
45 Art 19:
“Everyone shall have the right to freedom of expre ssion; th is righ t shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, i n the form of art, or t hrough any other m edia of his choice.”
46 T Sorell “Human Rights and Hacktivism: The Cases of Wikileaks and Anonymous” (2015) 7 Journal of
Human Rights Practice 391-410.
47 Art 19(3) of the ICCPR.
48 African Charter on Hu man and Peoples’ Rig hts (adopted 27 Jun e 1981, entered into force 21 O ctober
1986) 1520 UNTS 217.
49 Law offic es of Ghazi Suleim an v Sudan II (2003) AHR LR (ACHPR 2003).
50 R Gittleman “T he African Cha rter on Human and People s’ Rights: a Legal Analysis” (1982) 22 Va J Int’l
L 667; Even in La w offices of Ghazi Sule iman v Sudan II (2003) AHRLR (ACHPR 2003) th e Africa n
Comm ission on Hu man Rig hts empha sised th at freed om of expre ssion has to be exerci sed with in the law.
51 AHRC Commun ication 102/93, Constitut ional Rights Project v N igeria (2000).
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this decree were arrested. The A HRC held that the proscription of part icular
news agencies was a violation of the law. Further, the AHRC has stated before
that speech dir ected towards the promotion and protection of huma n rights is
of special value to society and de serving of special protection.52 Hacktivism
done in promot ion of huma n rights has a h igher chance of qualif ying for
protection. Article 25(3) of the Convention on C yber Security and Personal
Data Protection p rovides that i n adopting legal measures in the area of cyber
security, state parties shall ensure that the adopted measures do not infri nge on
the rights of citizens guara nteed under the national constitution and protected
by international conventions, p articularly the ACHPR. The provision then
specically singles out freedom of expression as one of the key rights that
should not be infri nged by the cyber-secur ity laws.
3 1 3 East African Community
Under ar ticle 6(d) of the Treaty for t he Establishment of the East Afr ican
Com m un it y,53 the promotion and prote ction of human and people’s rights
in acc ordance with t he provisions of the ACHPR is one of the fu ndamental
princi ples.
3 1 4 Ugandan Constitution
Article 29 of the Constitution of Uganda protect s t he right to protest
in Uganda. I n Muwanga-Kivumbi v The Attorne y General (“Muwanga-
Kivumbi”)54 the C onst itu tio nal Co ur t decl are d a prov isi on giv ing th e Ins pec tor
General of Police the power to proh ibit assemblies a nd processions if he was
of the view that it was likely to cause a “breach of the peace” unconstitutiona l.
Therefore, the r ight to prot est is undisputed. Indeed, the Supreme Court55
has stated that protect ion of the guarante ed rights including freedom of
expression is the pr imary objective of the Constitution and limiting their
enjoyment was an exception to thei r protection and therefore a secondary
objective. Although the Const itution provides for bot h, the primary objective
is dominant and could only be sup erseded in exceptional circumstances
that g ive r ise to th at secondary objective. In t hat eventuality, only minimal
impairment of enjoyment of the right, strictly warr anted by the exceptional
circumstanc es could be pe rmissible. The fre edom to protest therefore ought
not to be supp ressed except where allowing its exercise would d irectly
endanger commun ity intere st.56
The freedom to protest undoubtedly applies as readily in the cyber sphere as
it does ofine. The introduction of new me diums of communication th rough
the development of technology should not warrant narrower application of
52 Law offic es of Ghazi Suleim an v Sudan II (2003) AHR LR (ACHPR 2003).
53 Treaty for the Establish ment of the East African Com munity (adopted on 30 November 1999, entered into
force 7 July 2000) 2144 UNT S 255.
54 Const Pet No 9 of 2005.
55 Obbo vs Attorney-General 2004 1 EA 265 (Supre me Court of Uganda at Me ngo).
56 Obbo vs Attorney-General 2004 1 EA 265 (Supre me Court of Uganda at Meng o).
HACTIVISTS: CRIMINALS OR ACTIVISTS? 515
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the freedom to protest.57 In Rwanyarare v At torney General (“Rwanyarare”)58
the cour t considered a provision of the Referendum Act 200259 which
prohibited any person from using electronic media to make false, malicious,
sectarian , or derogatory state ments. The provision also prohibited the use of
“exaggerations or using caricatu res” and “derisive or mudslinging words”.
The provision dened electronic media as including “television, radio, internet
and email and any other similar medium.” Twinonujuni J found this provision
unconstitutional due to vagueness and the fact that if applied, it would only be
applied against the multipar ty side and not the movement side.
3 2 Hacktivism and freedom of express ion
It has been argued that the inter net is a public sphere which by a ccidents
of evolution and design, has none of the inherent free- speech guarantees one
woul d expec t in the pu blic sph eres of the re al world. 60 There is nowhere online
for an activist to stand with h is or her friends to mount a demonst ration. A
dedicated blog or website may, or may not ever be read.61 Thus, the protester
is left with no option but to encroach on web-space in the online envi ronment
to do his or her protest ing. This, it is argued , qualies hacktivism for
constitutional protect ion.
The existence of cyber laws prohibiting hacktivism is not necessarily a major
barrier to protection as civil disobedience oft en necessitates the breaking of
some law.62 Examples abound on the African continent of civil disobedience
that involved break ing the law in existenc e at that time. Boycotts, strikes
and the burning of pa ssbooks were all illegal in apartheid South Africa but
are lauded as valid forms of civil d isobedience.63 In Uganda, resistance to
Idi Amin’s dictatorial govern ment in 1971-1979 in the form of inaction by
public se rvants to frustrate and hasten the collapse of the govern ment and
collaboration with resistance ghters in the bush were common. Indeed the
Constitution of Uganda in its preamble, which is to be taken into consideration
in constitutional interpretation,64 dramatically recalls the nation’s “history
which has been chara cterised by political and cons titutional instability”
and recogn ises past “strug gles against the forces of tyranny, oppression and
57 X Li “Hacktivism and the First Amend ment: Drawing the Line between Cybe r Protests and Crime” (2013)
27 Harv JL & Tech 301-330; Sorell (2015) Journal of Hum an Rights Practice 3 91-410.
58 Rwanyarare v Attorney General Const Pet No 5 of 1999.
59 The Act had been passed to regul ate the referendum in which the people of Uganda would choose to eithe r
be governed by the “Moveme nt system” which was a thi nly veiled one party sys tem and the multiparty
system.
60 M Sauter The Comi ng Swarm, DDoS Acti ons, Hacktivi sm, and Civil Disobe dience on the Inter net (2014)
4.
61 4.
62 HD Thoreau “ On the Duty of Civi l Disobedience” (und ated) Project Gut enberg
org/files /71/71-h/71-h.htm> (accessed 2 8-09-2016); ML King Jr “Letter From Birmingh am City Jail” in
HA Beda u (ed) Civil Diso bedience in Focus (1991) 68 73; It has also been sugge sted that the preamble
to the U DHR implies that man h as a right to rebellion which may incl ude the select ive disobedien ce of
particu lar laws in time s of t yranny a nd oppres sion: KJ Keith “Th e Right to Prote st” in K J Keith (ed)
Essays on Huma n Rights (1968) 49.
63 C Villa-Vicencio Civil D isobedience and Be yond: Law, Resistan ce, and Religion in So uth Africa (199 0).
64 B Leiter, CE Handler & M Hand ler “A Reconsideration of the Releva nce and Materialit y of the Preamble
in Constit utional Inter pretation” (1990) 12 Cardozo L Rev 117.
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exploitation”.65 Article 3 of the Constitution goes fur ther and calls on all
citizens to put up resistance against any attempt to overthrow the Constitution
by doing “all in their power” to restore the Constitution.66 Therefore, actions
that are in breach of existing laws are not necessarily lacking in constitutional
protection where the government in power is illegitimate. Hackt ivists in
Uganda cer tainly seem to view t heir actions i n the context of wider act s of
resistance against government ac tions. When “HackersUganda” hacked into
the Uganda Investment Authority (“UIA”) website and posted a message
protesting against t he proposed give-away of t he Mabira forest, the largest
forest reserve in Uganda, to a n investor for development,67 the g roup also
posted a call on its website to the Uganda Law Society to take legal action
against the proposed sale.68 This argument, however, has two limitations.
First, by its very nature hacktivism will be conducted by stealth and in
anonymity which undermines its moral st anding.69 While anonymity per se
does not negate the protection of free speech,70 it does tend to ta ke away much
of its moral punch. As Kenneth Eina r Himma puts it:
“Clandestine acts of disobeying law do not count as civil disobedience, even if they are motivated by a
desire to protest the law. The openness of an act of civil disobedience signals to the public that the act
is intended to call attention to the injustice of some element of the law or legal system.”71
Second, the entire ar gument is prem ised on the illegitimacy of the
government. While selective illegal acts by the government can easily be
identied, it is doubt ful t hat these, even taken together, can qual ify it as
illegitim ate.72 In a legitimate democratic government there are alternative
legal means of giving voice to one’s causes therefore using illegal means
such as hacking is u nacceptable. It should be noted that arguments before the
courts of Uganda for the illegitimacy of the government have not been known
to fare well.73
Hacktivism, it is claimed, can be a form of levelling the political playi ng
eld where the govern ment uses ICT surveillance and hack ing technology.
In Uganda, there are laws that provide for state surveilla nce. Part VII of
the Ant i-Terrorism Act provides for t he interception of com munication
in investigation of ter rorism activities and sect ion 8 of the Regulation of
Interception of Com munications Act 18 of 2010 (“Regulation of I nter-
65 Preamble to the C onstitution of the Re public of Uganda.
66 Art 3.
67 J Njoroge “Save Mabira Activist s Hack into Investment Authori ty Website” (17-0 8-2011) Daily
Monitor (accessed
16- 09-2 016).
68 Anonymous “UIA Hacked, join us and s ave #ma bira” (16-08 -2011) HackersUganda
uganda.wordpress.com/2011/08/16/uia-hacked-join-us-and-save-mabira/> (accessed 05-06-2017)
69 Li (2013) Harv JL & Tech 301-330.
70 In Rwanyarare v Attorney General Const Pet No 5 of 1999 Twinomujuni J considered a provision of the
Referendum Act of 2002 that requ ired the author of any article about the refere ndum to state his name and
address to b e unconstitut ional and in violation of t he right to free sp eech.
71 KE Himm a “Hacking as Poli tically Motivated D igital Civil Disob edience: Is Hackt ivism Morally
Justifie d?” in KE Himma (ed) Internet Secur ity: Hacking, C ounterhack ing, and Othe r Moral Issues
(2007) 73 98.
72 98.
73 Ex parte Matov u 1966 EA 514; Paul k. Ssemoger ere v Attorney Gener al (Const App No1 of 200 2) 2004
UGSC 10 (28 January 200 4).
HACTIVISTS: CRIMINALS OR ACTIVISTS? 517
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ception of Communications Act ”) requires Internet Service P roviders to
provide assistance i n intercepting communication by ensu ring that their
telecommunication syst ems are technically capable of suppor ting lawful
interception at all times.74 It has also been re ported that the governme nt uses
illegal hacking technology to spy on opposition groups. In 2011 it was reported
that the st ate’s intelligence organ, the Chieftaincy of Mi litary Intelligence
(“CMI”), used surveillance malware know n as FinFisher to infect laptops and
phones belonging to membe rs of the opposition party.75 Clearly an uneven
political playing eld has been created in considering the constitutionality of
penal laws. In declaring provisions of the Referendum Act 2002 (“Referendum
Act”) unconstitutional , Twinomujuni J in Rwanyarare con sidered that
there were only t wo sides to the referendum, the movement side and the
multiparty side and that all the sec urity and admin istrative agencies were by
the operation of the Movement Act 1997 par t of the movement. He therefore
thought it very unlikely that they would arrest a member of the movement side
for violating the Referendum Act. In nding the provisions of the Referendum
Act unconstitutional , the unlevelled political ground was therefore ta ken into
consideration. The problem with this argument is that there is a legal means of
equalising the political equat ion. Constitutional petitions against illegal and
unfair laws and practices can rea dily be brought and the courts have proven
themselves exible i n accommod ating pet itions deali ng in particular with
human rig hts abuses.76 Justi fying th e use of hack ing can the refore be an up hill
task.
The disrupt ion caused by hack tivism does not necessarily preclude it f rom
constitutional protection. Street protests ar e necessari ly disruptive but can
hardly b e said to be illegal on those grounds alone. In Muwanga-Kiv umbi77
Byamugisha J stated that:
“A society especially a democratic one should be able to tolerate a good deal of annoyance or disorder
so as to encourage the greatest possible freedom of expression, particularly political expression.”
In another decision, it was held that a particular mode of freedom of
expression is not excluded from constit utional protection simply because it is
thought by others to be erroneous, contr oversial, or unpleasant.78 Therefore,
despite the “annoyance or disorder” caus ed by hacktivism , it could sti ll
be argued that it qu alies for protection under article 29. I n Ve rein igu ng
Bildender Künstler v Austr ia,79 the Eur opean Cour t of Human Right s allowed
a painting entitled “Apocalypse”, which was a collage of 34 prominent public
gures including mother Theresa naked a nd involved i n sexual activities,
to be displayed as free dom of expression despite the efforts to ban it by the
government and some of those displayed therei n.
74 S 8 of the Regulat ion of Interception of Co mmunications Ac t.
75 H Mat siko “Uga nda: How CMI, Police Spied On Opposition, MPs, Media Hou ses” (16-10-2015) Th e
Independent
76 Bukenya Ch urch Ambrose v Attor ney General (Const Pe t No 26 Of 2010) 2011 UGCC 5 (20 March 2011).
77 Const Pet No 9 of 2005.
78 Obbo v Attorney-General 2004 1 EA 265 (Supre me Court of Uganda at Men go).
79 (App No 68354/01) 25 January 2007.
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Meaningful enjoyment of any human right s and in particular t he right to
freedom of expression might be fru strated by i nadequacies or inequality in
the dist ribution of resources between private citizen s wishing to p rotest and
the government.80 For citi zens to engage in me aningful political or social
protest they need resources such as med ia c overage. Some political and
social positions are however difcult to express in t he mainstream me dia or
public open spa ces due to severe rest rictions by the governme nt. Expressing
these ideas may attr act severe government sanctions a gainst the individu als
expressing them and those who provided them with a platform to use. The
expression of other idea s could attrac t public ire and lead to mob action
against par ticipants. Arguing for gay r ights i n Uganda is an example he reof.
Deep-rooted homophobia in the c ountry makes Lesbian, Gay, Bisexual,
Transgender, Int ersex and Que er (“LGBTIQ”) rig hts a dvocacy a risky
business.81 The cou ntry has near dr aconian anti-gay laws82 and it has been
held that any acts that promote homosexuality including workshops organised
by gay-rights activis ts are illegal.83 Assaults by bot h police and violent mobs
are the frequent results of any public protests and demonstrations by LGBTIQ
persons.84 In 2016, a gay pride beauty pageant was violently raided by the
police and al l in attendance were severely beaten.85 It was in such a charged
atmosphere that the abortive Anti-Homosexual ity Bill,86 which had a deat h
sentence p enalty clause and prohibited the “promotion of homosexual ity”,87
was int roduced. Hacktivists quickly charged in to the rescue and i n August
2012, the hacker collective Anonymous hacked into the Ugandan Of ce of
the Prime Minister’s website and left a message p rotesting against the Bill.88
Another example is that of the leading opposition politician Dr Kiiza Besigye,
who has been imprisoned so many times, that he at one point was entered into
the Guin ness book of records as the world’s most imprisone d man.89 Almost
80 S Adrienne “T he Comparative Con stitutional Law of Free dom of Expression” (01-07-2010) University of
Melbourne Le gal Studies
81 DL Moore & BM-C Epps “An Interview with Frank Mugisha, LGBT Freedom Fighte r in Uganda” (14-
11-2011 ) Huffington Post
b_1082943.html> (accessed 14- 02-2017).
82 S 145 of the Penal Code Act Cap 120 provides a max imum sentenc e of life impr isonment for t hose who
commit the “ unnatura l offence”.
83 Nabagesera v Att orney General (Mi sc Cause No O33 of 2012) 2014 UGHCCD 85 (24 June 2014) where
the minister of eth ics and integr ity orde red the closing down of a workshop organised by gay rights
activists . In an applic ation contesti ng the const itutionality of the action court held th at the meeti ng was
an illegal me eting as the p rohibition of an ac t by the Penal Code Act earns any a ctions that pro mote that
act are also il legal.
84 Anonymous “Ugandan police block gay pr ide para de” (24-09 -2016) BBC News
news/world-af rica-37462627> (accessed 14-02-2017).
85 “Uganda gay pride event raided by police, activists arrested and repor tedly bea ten” (05-08-2016) A BC
News
14-02- 2017).
86 The Act was passed by parliame nt but even tually declared to be uncon stitutional: Olok a Onyango
v Attorney General Const Pet No 8 of 2014.
87 AJ Kretz “From ‘Kill the Gays’ t o ‘Ki ll th e Gay Rights Movement ’: The Future of Homosexual ity
Legislation i n Africa” (2013) 11 Northwestern Unive rsity JHR 207.
88 CIPESA “State of Internet Freedoms in East Afr ica 2015: Survey on Access, Privacy and Secu rity
Online” (12-09 -2015) CIPESA (accessed 03-10-2016).
89 O Ru nsewe “ Museveni’s long-t ime r ival feat ures in Gu inness World Book of Records, all thanks to
him” ( 01-08-2 016) Ventures Afric a
guinness-world-book-of-records/> (accessed 05-06-2017).
HACTIVISTS: CRIMINALS OR ACTIVISTS? 519
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every time that he attempts to a ddress a gathering of supporters, Dr Besigye
will be arrested. In 2011, hotly c ontested presidential elections were held in
which the incumbent President Yoweri Museveni of the National Resistance
Movement (“NR M”) was re -elected for a third t ime, having been in power
sin ce 198 6.90 D r Besigye rejected the elect ion result s and called for peacef ul
protests against the results.91 Ever y time Dr Besigye attempted to organise
a street protest he was arrested and i mprisoned. On more than one occasion
his home was be sieged by police who were preventing him from leaving due
to fear that his presence in the capital city’s central business district would
disrupt business.92 In March 2012, with Dr Besigye still in and out of prison,
the Ugandan M inistry of Works’ website was ha cked into and his picture
posted prominently thereon.93 These examples underscore the effectiveness of
hackt ivism in givi ng a platform to idea s and positions which would ot herwise
go unnoticed and u nheard.
The a rgument for hacktivism as a means of defending human rights and
highlighting their abuses is undermined by the fact that hacktivism itself
may amount to the inf ringement of the rights of others. Unaut horised digital
intrusions amou nt to trespassing on ind ividuals’ computers and networks and
thus violating their right to their physical propert y.94 Hack tivists of course
argue that unless the victim’s web-space is encroached upon, the protest
would go unn oticed.95 Hackt ivism also tends to be censorial and therefore
actually opposed to freedom of expression.96 T he thre at of a cyber-attack
looms agai nst anyone who dares speak out in opposition of the hacktivists’
cherished causes,97 even the moral ly ambiguous ones.98 Hacktivism may
involve involuntary and unwitting part icipation through the unaut horised
commandeeri ng of individuals’ computers for example in DDoS attacks where
other’s computers may be taken over and used by botnets in the atta ck.99 This
encroaches on the individual’s right to prop erty and an argument ca n also
be ma de for an infringement of the freedom of ex pression and a ssociation,
as it arbitr arily compels the victim to par ticipate in the cyber-attack. The
computerisation of many large corporations and moves towards e-Government
have led to private data of individuals being held by various institutions such
90 R Gibb “Preside ntial a nd parlia mentary elections in Uganda, Feb ruary 18, 2011” (2012) 31 Electoral
Studies 458- 461.
91 Ano nymou s “Ugan da elec tion: Besigy e calls for peac eful protes ts” (24 -02-2 011) BBC News
bbc.com/news/ world-africa-12567832> (accesse d 23-09-2016).
92 Anonymous “Uganda: Kizza Besigye arrested after policeman’s death” (22-03-2012) BBC News
www.bbc.com/ne ws/world-africa-17468289> (access ed 23-09-2016).
93 E Gyezaho “Ministry pulls down website after hackers post Besigye photo” (01-03-2012) Daily Monitor
05-06-2017).
94 Himma “Hac king as Politically Mot ivated Digital Civi l Disobedience” in Internet Security 98.
95 Sauter The Com ing Swarm 4.
96 Sorell (2015) Journal of Hum an Rights Practice 3 91-410.
97 A Bernstei n “Abuse and Harassment Di minish Free Spee ch” (2014) 35 Pace L Rev 1.
98 On 10 February 2010, Anonymous launched a cyber-at tack on the Australian Parlia ment House and Prime
Minister’s websites in an operation they called “Operation Titstorm”. This wa s in protest against the
government’s plans to i ntroduce a mandatory internet filter banning p ornographic images of animated
character s, small brea sted women (who may appear u nder the legal a ge) and female ejacu lation:
K Hardy “Oper ation Titstorm: Ha cktivism or Cybe rterroris m?” (2010) 33 UNSW Law Jo urnal 474.
99 Li (2013) Harv JL & Tech 301-330.
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as banks,100 hospitals,101 and telecommunication companies102 in elect ronic
form. H acktivism that involves viewing or st ealing such d ata103 amounts to
a breach of privacy for the individuals concerned.104 Hack ing can also pose
a threat to the very democratic pri nciples hackers purp ort to defend. In
December 2016, the Ghanaian electoral commission’s website was hacked and
shut down in the middle of the presidential election.105 Hacktivism is thus a
dou ble-e dged swo rd whos e regu latio n, if not cr imin alis ation , may be ju sti ed.
Article 43(1) of the Constitution of Uganda provides that in the enjoyment of
constitutional rights and f reedoms, no person shall prejudice the fundamental
or other human rights and freedoms of others. Irr esponsible use of the right to
freedom of expression has been blocked by the courts where the legal inte rest
to be protected outweighed the interest in the right to freely express oneself.106
Virtually all forms of hacktivism would involve inf ringing on rights in some
form. Even an assault on a corporation or government website can be said
to infri nge on their rights.107 Moreover, some forms of hack tivism108 such
as information theft and DDoS att acks ca nnot qu alify as “expression” or
“speech” for purposes of protection as free speech protest s. DDoS attacks
simply involve render ing a system or website inaccessible wh ich can hardly
be said to commun icate any message. To the system user s and website
visitors the system would simply appear to fail with no mean ingful message
commun icated.
One of the frequent charges levied against hacktivism is that it pose s a
serious threat to the integrity of developing electronic systems. At its mildest,109
100 S 6 of the Anti-Money Laundering Act 2013 re quires ba nks and similar institut ions to keep extens ive
records rega rding their client s.
101 LL v France (no 7508/02); Z v Fi nland, Judgment of 25 Febr uary 1997 and An ne-Marie And ersson
v Sweden, Judgment of 27 August 1997 are th ree examples from the European Co urt of Hum an Rights
where medical d ata protection wa s at issue.
102 S 8 of th e Reg ulation of I nterception of Communi cations Act requires the persona l in formation of
subscribe rs t o b e reg istered. This include s th e su bscriber’s full name, resident ial address, busine ss
address, p ostal address , and identity numb er.
103 For ex ample in Februar y 2016 t he hacker collective anonymou s stole employee and use r infor mation
from the TTCL website: A Mutulya “C oncern as TTCL Da ta re portedly stole n by hac kers”
(17-02-2016) The Citizen
by-hackers/1840340-3080618-a5a30xz/index.html> (accessed 01-06-2017).
104 Art 27 of the Con stitution of the Republic of Uganda; Mukasa v Attorney- General (2008) AHRLR 248
(UgHC 2008); In S and Marper v th e United Kingdom [GC] nos 30562/04 and 30566/0 4, § 41, 4 December
2008, the European Court of Human Rights stated t hat the protection of personal data is of fundamental
importa nce to a per son’s enjoyment of his r ight to respe ct for private and family li fe; In People’s Union
for Civil Libert ies v Union of India 19 99 2 LRC 1 (I ndia) th e righ t to priv acy of co mmun icat ion was st ated
to be a part of the r ight to “life” and “p ersonal liber ty.
105 C A ldehuela “Gh ana Elect ion Website Back On line Af ter ‘Attempte d Hack’” (08-12-2016) Newsweek
106 Republic v G achoka 1999 1 EA 254 (Cour t of Appeal of Kenya at Nairobi).
107 It has been argued tha t companies can have their “human rig hts” violated: L Sealy & S Worthington Sealy
& Worthington’s Cases and Ma terials in Company Law 10 ed (2013) 50; In R v Big M Dr ug Mart Ltd
(1985) 18 DLR (4th) 321 the Supr eme Court of Canada all owed a company t o challenge a statute on the
ground tha t it infringed t he guarantee of f reedom of religion and c onscience irre spective of any quest ion
whether a corporation can enjoy or exercise freedom of religion. Courts in the UK have held that a body
corporat e can institut e proceedings for a v iolation of the Convention : R (on the application of Alc onbury
Developmen ts Ltd) v Secretar y of State for the Environm ent, Transport and the Re gions and other ca ses
2001 UKHL 23; North ern Cyprus Touri st Centre Limited) v Transp ort for London 2005 U KHRR 1231.
108 The except ion here is website redi rects and web deface ments.
109 Forms of hack tivism like site def acement cause lit tle to no serious har m.
HACTIVISTS: CRIMINALS OR ACTIVISTS? 521
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where it has no ser ious consequences it st ill poses a threat, a s the faith people
have in electronic systems will waiver if they realise that these syst ems are
easily penetrated. Thi s is especially true for developing countries where these
technologies are relatively new and still viewed with suspicion by some. Efforts
towards the development of e-commerce and e-Governme nt are severely
undermine d by hackers slipping in and out of systems and posting messages and
pictures wherever they may choose.110 Cybercrime and cybert errorism have
been recognised as challenges and threats to e-Government implementation.111
At its ext reme it is arg ued that hacktivi sm poses a ser ious t hreat to national
se cu r it y.112 Hacktivism, it is feared, can be use d to cause such damage to
critical electr onic national system s and spread such fear a nd intimidation t hat
it is nothing short of ter rorism.113 Indeed as already seen above, Uganda’s
anti-terror ism law appears to anticipate this with its provision specically
against cyberterror ism.114 T he very sa me tools hack tivists use against what
they perceive as dictator ial and illegitimate governments, it is argued, can be
used against legitimate democr atic governments by terr orists. A DDoS attack
against a critical syst em such as the national wate r distribution system, air-
trafc cont rol system or the electr ical gr id could be devastating.115 Alt hough
no such attack has yet occurred, the possibility has been raised by successful
cyber assaults against some of the nation’s critical and protected systems. In
2012 the Uganda Revenue Authority’s car registration system was hacked into
resulting in a loss of 2.4 billion shillings ( USD720,000) in taxes.116 In March
2016 it was reported that four near-successful attempts were made to tr ansfer
USD24 m illion from accounts with the nation’s central bank, the Bank of
Ugand a.117 Even if a direct cy ber-attack was not launched, hacktivists’ tools
can still prove useful to terrorists. For example, privacy-enhancing technology
such as the hacktivist software Camera/Shy wa s used to en able dissidents
to acce ss otherwise blocked websites in politically rest rictive countries like
China and North Korea undete cted. However, ter rorists could use the very
same tool to pass infor mation undetected.118
110 The G overnment of Uganda has noted that trust, c onfidence a nd securit y are key principles in guiding
the e-Gover nment programme i mplementation: Gover nment of Uganda National Electronic Government
(e-Government) Policy Framework (June 2011) para 2.4.
111 Para 1.4.5
112 G Weimann “Cyberte rrorism: The Sum of All Fears?” (2005) 28 Studies in Conflict and Terrorism
129 135-136.
113 S Be n & H Kathleen “Cyber Terror ism” (28-01-2014) Sydney Law School
2387206> (accessed 05 -06-2017)
114 S 7(2) (g) of the Anti-Terrorism Act .
115 M Milone “Hacktivism: Secur ing t he Natio nal In frastruc ture” in Dav id Clar ke (ed) Technology and
Terr or ism (2004) 79 114.
116 E Anyoli “U RA tracks fake registere d vehicles” (10-11-2012) New Vision
new_vision/news/1309836/ura-tracks-fake-registered-vehicles> (accessed 03-09-2017); Uganda v Gu ster
Nsubuga HCT-00-AC-SC-0084-2012.
117 E Mugendi “Sha red Passwords almost co st the Bank of Uganda 24 Millio n D ollars” (19-03-2016)
Data breaches.net
24-millio n-dollars/> (acce ssed 02-06-2017)
118 B Still “Hack ing for a Cause” (2005) 10 First Monday
printerFr iendly/1274/1194> (accessed 28- 08-2017); Milone “H acktivism” in Tec hnolo gy and Terro rism
114.
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However, ma ny argue that the fear of a cyber-terror ist att ack is totally
unfounded and put forward a number of reasons to suppor t this. Vipin Kumar
Singha l119 notes that most nat ional infrastructu re systems have to deal w ith
failure on a reg ular basis and are therefore more ex ible and responsive i n
restoring service than most imagine. This is especially so with developing
countries which have t o routinely dea l with chal lenges like power c uts and
failed systems. He therefore argues that cyber-attacks unaccompanied by
physical attacks would achieve little. Sandor Vegh120 argues t hat the negative
light in which hacktivism and other for ms of on line activism is viewed, is
largely a creation of mass media to ser ve t he interests of the corporate elite
due to the threat hacking poses to the “domina nt order”. According t o him,
the public’s drea d of a cyber-attack serves to protect the government from
electronic form s of political dissent, gives the government power to monitor
citizens, and protects businesses from revenue loss due to intellectu al property
infringeme nt. In an analysis of 627 a rticles in ve lea ding United St ates of
America (“US”) news papers, he notes that prior to the September 11 at tack
on the US, h acktivism was viewed positively as a legitimate form of prote st.
However, following the attack, the dis course shifte d from viewing hackers
as cr iminals with a cause to portrayi ng them as cyber-terrorists. He claims
that in reporti ng hacking incident s, the newspapers did not critical ly examine
the motives of the hackers so as t o distinguish ha cking from hackt ivism but
rather used language that blur red any distinct ion betwee n the two activities.
He argues that the seem ingly looming thr eat of cyberterror ism is a creation
of the media using hypothetical scena rios; noting t hat no act ual incident of
cyberter rorism has in fact taken place. As t he established politico-econom ic
order increasingly depends on cyber tools to ent rench and support itself,
hacking becomes a more relevant tool as a means of prot esting against that
orde r.
It has also been argued that a partnership between terrorists and hackers is in
fac t unli kely. Mau ra Conw ay121 asser ts th at conta ctin g or emplo ying wo uld-be
hackers-for-hire would subject terrorists to signicant operational security
risks as terrorist organisations ru n the risk of hackers being tur ned into double
agents by governments. She also notes that hacker organisations tend to be
open-ended as opposed to terrorist organisations that are hierarchical. The fact
that no signicant cybe r-attack that ca n be considered cyberterrorism has yet
occurred any where in the world suggests that it is unlikely. Mark Manion and
Abby Goodrum122 argue that hacktiv ists have in fact condemned any hack ing
119 VK Si nghal “Cybe rterroris m: An Over view” (21-04-2014) Indian Council for Social Science Research
120 S Vegh “The media’s portrayal of hacking, hackers, and hacktivism before and after September 11”
(07-02-2 005) 10 Fir st Monday (accessed
06-02-2017); S Vegh “Hack tivists or Cyberter rorists? The changing media disco urse on h acking”
(07-10-2002) First Monday 7 (accessed
06-02-2017).
121 M Conw ay “Hackers as Terror ists? Why it doesn’t compute” (2003) 12 Comput er Fraud and Security
10-13.
122 M Manion & A Goo drum “Terror ism or Civil Disobed ience: Toward a Hacktivist Ethic” (2000) 30 ACM
SIGCAS Compute rs & Society 14 -19.
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activities that are likely to cause direct harm to individuals in society. They give
the example of a 1998 declaration of “cyberwar” by a member of the hacktivist
group, Legion of the Underground, on the information infrastructu res of China
and Ir aq which prompted a coalition of hacktivists group s to condemn it as
irresponsible. The condemnat ion stated that “Declari ng ‘war’ against anyone,
any group of people, or any nation is a most deplorable act .., this has nothing
to do with hacktivism or the hacker ethic and is nothing a hacker can be proud
of ...” Instead, they argue that describing hacktivists as cr iminals entrenches
control over intellectual property, obscuring the larger critique about the
ownership of information. In addition, the state uses the legal system to protect
the p owerful economic int erests of c orporations that wish to dominate a nd
commercialise t he internet. However, Kenneth Ei nar Himma123 rejects Ma rk
Manion and Abby Good rum’s argument a s he claims it wrongly presupposes
that committi ng civil disobedience is morally permissible as a general mat ter
of moral principle. He notes that in a legitimate state, civil disobedience is
only morally justi ed in na rrowly dened circumstances; ther efore an illegal
form of civil disobedience such as ha cktivism ha s no justication.
The gist of these arguments is that hacktivists are unlikely to launch attacks
on critical infrastr uctures because their goal is to advocate social and political
causes and not to cause mayhem or har m. This of course poses t he obvious
challenge of relying on the goodwill of ha ckers not to do damage. There is
also the fear that hacktivism, if left unchecked, could encourage hackers to
commit more dangerous and harmf ul forms of hacking.124 Nonetheless there
is some validity to the argume nts put forward in defence of hacktivism wh ich
are enough to qualif y it for consideration as a valid form of protest.
4 Conclusion
Hacktivism is useful in arguing for fringe unpopular causes and g ives
voice to the voiceless in author itaria n regimes. On these grounds, it does
deserve some level of protection, at t he very least in mitigation. However,
it also poses considerable risk, however remote, to critical national systems
and the development of e-commerce and e-Govern ment. The most convincing
argument for hackt ivism is the fact that t he internet is increasingly becoming
the new public space and a s political and social discou rse goes digital so
too should the acceptable forms of protest and advocacy. As the law st ands
today, both loc ally and intern ationally, hack tivism cannot be said to qualif y
for protect ion as a form of free speech. However, less dest ructive forms of
hacktivism will very l ikely qu alify for that in future. Mild site defacements
that com municate messages while leaving the site active for instance could
eventually gain acceptance as legitimate forms of prote st. This cou ld r ange
from words displayed on the side of the webpage to pop -up windows that
communicate the h activists’ message. The content of the message would also
be relevant such that it should be proven that regular and lawful forms of protest
123 Himma “Ha cking as Politicall y Motivated Digital Civ il Disobedience” i n Internet Security 98.
124 Cybercr ime Explanatory R eport para 44.
524 STELL LR 2017 2
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would likely be ineffective in the prevailing socio-political environment. Until
such a time, hacking for political or so cial causes or for sel sh gain remain
illegal and unprotecte d.
SUMMA RY
The int ernet is slowly but su rely revolutionisi ng societies in Afr ica and has also affected soc io-
political action. The phenomenon of hacktivis m whereby hackers illegally access government minist ry
and a gency websites to s teal infor mation or deface them is on t he rise. Hacking and by extension
hacktivis m has been criminalise d under international , regional and municipal laws. This art icle, using
Uganda as a c ase study, examin es the nature and motivations of h acktivism to det ermine wheth er its
criminalisation is ju stied. The article also attempts to nd legal r oom for hacktivism as a legitimate
form of protest in the i nternational cybercri me legal regime and in Uganda’s laws par ticularly as
protected speech under the constit utionally protected right of freedom of expr ession. The ar ticle
concludes that although cur rently the c ommon forms of ha cktivism have no lega l prot ection, as
cyberspace takes over as t he new publ ic space the law w ill have to adapt to accom modate the less
destruc tive forms of hacktivi sm.
HACTIVISTS: CRIMINALS OR ACTIVISTS? 525
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