Freedom of the press in Uganda in the light of the drafting history of articles 29(1)(a), 43 and 41 of the Constitution

• Citation: (2022) 28(2) Fundamina 1
• DOI: https://doi.org/10.47348/FUND/v28/i2a1
• Published date: 26 April 2023
• Pages: 1-42
• Author: Mujuzi, J.D.
• Date: 26 April 2023

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https://doi.org/10.47348/FUND/v28/i2a1

ARTICLES

FREEDOM OF THE PRESS IN

UGANDA IN THE LIGHT OF THE

DRAFTING HISTORY OF

ARTICLES 29(1)(a), 43 AND 41 OF

THE CONSTITUTION

Jamil Ddamulira Mujuzi*

ABSTRACT

Article 29(1)(a) of the Constitution of Uganda (1995) provides for the

right to freedom of speech and expression, which includes freedom of

the press and other media. Article 43 provides for the circumstances

in which the rights in the Constitution may be limited, including the

right to freedom of the press. Article 41 provides for the right of every

citizen to access information in possession of the state. In 1989,

Uganda embarked on the process of enacting a new Constitution. In

this contribution, I demonstrate the drafting history of articles 29(1)(a),

43 and 41 of the Constitution by referring to the report of the

Constitutional Commission and the Proceedings of the Constituent

Assembly. It is submitted that some of the phrasing of article 29(1)(a)

as agreed to by the Constituent Assembly delegates to extend the

protection of the right to the freedom of the press was omitted from the

* Professor of Law, Faculty of Law, University of the Western Cape. E-mail:

djmujuzi@gmail.com

(2022) 28(2) Fundamina 1

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JAMIL DDAMULIRA MUJUZI

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nal Constitution without explanation. Also, some of the phrasing of

article 43 specically excluded by the Constituent Assembly delegates

was included in the nal Constitution. This contribution refers to the

case law on the right to the freedom of the press and argues that, when

dealing with that right, the courts have not clearly explained the two

parts under article 43. Since access to information is vital for freedom

of the press, this contribution also demonstrates the drafting history of

article 41 and refers to cases in which courts have interpreted it.

Keywords: Freedom of expression; freedom of the press; the press;

Uganda; Constituent Assembly; limitation of rights

1 Introduction

Article 29(1)(a) of the Constitution of Uganda (1995) provides

that “[e]very person shall have the right to freedom of speech

and expression, which shall include freedom of the press and

other media”. In other words, freedom of the press is one of the

components of the right to freedom of speech and expression. The

Ugandan Constitutional Court held that “other media” under this

article includes “social media”.1 The right to freedom of expression

is available to every person in Uganda;2 it is not for citizens only.

However, like most of the rights in the Constitution, freedom of the

press is not absolute.3 Article 43 provides for the circumstances in

which human rights may be limited, and states that:

(1) In the enjoyment of the rights and freedoms 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 justiable in a free

and democratic society, or what is provided in this Constitution.

Thus, for example, the Press and Journalist Act 6 of 1995 provides

for the right to publish newspapers4 and also for the limitations

1 Unwanted Witness Uganda v Attorney General [2021] UGCC 40 (27 Apr

2021).

2 Tumwekwasize v Attorney General [2010] UGHC 36 (22 Mar 2010).

3 Article 44 of the Constitution provides for non-derogable rights.

4 Section 2 of the Press and Journalist Act 6 of 1995.

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FREEDOM OF THE PRESS IN UGANDA

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on this latter right.5 Likewise, the Uganda Communications Act 1

of 2013 empowers the Uganda Communications Commission,

inter alia, “to receive, investigate and arbitrate complaints relating

to communications services, and take necessary action”6 and

any broadcast has to comply with the minimum broadcasting

standards.7 Article 41 of the Constitution provides for the right of

every citizen to access information in the possession of the state. In

1986, the National Resistance Army, a rebel group led by Mr Kaguta

Museveni, overthrew the Ugandan government and formed the

National Resistance Movement (hereafter “NRM”) government.

In 1989, the NRM government established the Constitutional

Com mission (also known as the Odoki Commission, because

it was chaired by Mr Benjamin Odoki) to gather views on those

issues Ugandans wanted addressed in the new Constitution.8 The

public submitted their views on press freedom to the Commission.

The Odoki Commission recommended that press freedom should

be provided for in the Constitution. This recommendation was

discussed by the Constituent Assembly (hereafter “CA”), which

later included article 29(1)(a) in the Constitution.9

Since the right to the freedom of the press is not absolute, the

CA delegates also discussed the circumstances in which such a right

5 Section 3 provides: “Nothing contained in section 2 absolves any person from

compliance with any law – (a) prohibiting the publication of pornographic

matters and obscene publications insofar as they tend to offend or corrupt

public morals; (b) prohibiting any publication which improperly infringes

on the privacy of an individual or which contains false information.” See,

also, The Press and Journalist (Amendment of Fourth Schedule) Instrument,

2014, Statutory Instrument 5 of 2014 published in GN 8 GG 107 of 10 Feb

2014, which provides for the Professional Code of Ethics for Journalists and

Editors.

6 Section 5(1)(j) of the Uganda Communications Act 1 of 2013.

7 Section 31. Cases in which the Uganda Communications Commission has

found that the broadcasts did not comply with the minimum broadcasting

standards include Suuna Emmanuel Abdur Shakur v Star DTV (U) Ltd t/a

Star Times (Uganda Communications Commission, decision of 13 Dec 2021);

Odrek Rwabogo v Select 4 Fun Limited t/a STV (Uganda Communications

Commission, decision of 29 Jul 2022).

8 For the functions of the Odoki Commission, see s 4 of the Uganda

Constitutional Commission Statute 5 of 1988.

9 Section 4(1) of the Constituent Assembly Statute 6 of 1993 provided that

“[t]here is established a Constituent Assembly for the purpose of scrutinising,

debating, enacting and promulgating a new Constitution of the Republic

of Uganda”.

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