"The suspension was done in good faith and for purposes of securing the country against the reasonably suspected risk of incitement of violence by publishing unregulated content on social media, which is permissible under article 43 of the constitution", the government argued.
Deputy Chief Justice Richard Buteera.
The Constitutional Court has dismissed a petition by Norman
Tumuhimbise and Unwanted Witness Uganda, a Civil Society Organization
challenging the government shut down of mobile money and internet services
during the 2016 general elections.
A panel of five Constitutional Court Judges led by the
Deputy Chief Justice, Richard Buteera dismissed the petition on grounds that
the shutdown was justifiable within the context of the available statutes and
regulations. The other members of the panel are Kenneth Kakuru, Catherine
Bamugemereire, Christopher Izama Madrama and Irene Mulyagonja, who wrote the
In their petition, the applicants argued that the shutting
down of social media platforms during February 2016 presidential,
parliamentary and local government elections and swearing-in of the President-Elect
in May was inconsistent with the Constitutional provisions that guarantee the
right to freedom of speech and expression.
They also argued that the shutdown
of mobile money transfer services during the general elections violated
Constitutional provisions, which protect the right to livelihood and life. Tumuhimbise told the court that the internet was shut down at
the time he was expected to conduct an interview with to submit his
contribution to a book published once a year.
He said that by the time internet
was restored, the deadline for the interviews had already elapsed leading to
the termination of his contract, which cost him USD 500 that each contributor
was entitled to. The petitioners asked the court to declare that the shutdown of
mobile money and internet services by the government through Uganda Communications
his response, the Attorney General through the Principal State Attorney, Jimmy
Oburu Odoi asked the court to dismiss the petition on grounds that it did not raise
any questions that needed Constitutional interpretation. He also argued that the government suspended the social
media because of national security and public interest to ensure peace and
"That the suspension was done in good faith and for purposes of securing
the country against the reasonably suspected risk of incitement of violence by
publishing unregulated content on social media, which is permissible under
article 43 of the constitution", the government argued.
In their decision,
the Justices concurred with the government arguing that there was no
constitutional question that required their interpretation, saying
the application should have been filed in another court.
Justice Madrama argued that the matters relating to freedom
of speech and expression were determined by the Supreme Court in a similar
petition but the petitioners only caused a backlog at the Constitutional Court.
"Moreover the Constitutional Court has to defer
handling other matters and invest the time and resources of a minimum of five
Justices of Appeal to determine any Petition. This obviously adversely affects
the efforts and capacity of the court to clear its caseload,” said Madrama.
On his part, Justice Kenneth Kakuru stated that the petition
should have looked at a comparative study detailing the circumstances under,
which the internet may be shut down in free and democratic societies but still
there was no reasonable cause of action by the Petitioners.
"Before I take leave of this matter I would like to observe
that a number of NGOs and individual citizens are bringing to this court well-intended but poorly conceived petitions. These petitions are shallow both in
form and substance. It could be that they are encouraged by the past success of
public interest cases in this court or by the fact that this court has adopted
an unwritten rule of not condemning unsuccessful Petitioners to costs,” said
“Whatever the case, there is serious need to ensure that only deserving
petitions are heard and the court in my view should proceed to strike out
unfounded petitions summarily and only proceed to hear and determine deserving
During the just-concluded
elections, the government shut down both internet and mobile money services. A number
of people have filed several petitioners arising from the latest shutdown. Some
of the key petitioners include the East African Law Society and Male Mabirizi