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East African Court begins hearing defamation case

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East African Court begins hearing defamation case

R-L: The late Ssembuusi’s lawyers Nicholas Opio, Harriet Nalukenge, Jeffrey Atwine, Ojambo Bichachi representing the Attorney General of Uganda, Tanzanian Advocate William Ernest representing the United Nations and African Union, Ugandan Lawyer, Gimara Francis and Alinda from UK representing MLDI and 19 others.

Lawyers of a Ugandan journalist challenging sections of Uganda’s Penal code on criminal defamation in the East African Court of Justice have applied to formally to replace the deceased complainant with his brother for purposes of continuing with the case.

Ronald Ssembuusi, a former CBS FM radio correspondent in Kalangala district died in January 2015 after filing his case with the EACJ.

Although the rules of the court allow for the appointment of a legal representative, it emerged during the first hearing of the case that it is unclear how to notify Court about the death of a complainant and how to replace the deceased for the case to continue.

In the application signed by Catherine Anite, the late Ssembuusi’s lawyer, stated that for purposes of continuance of the case, Ssembuusi now deceased “be substituted by Kyeyune Edward, as his appointed Legal Representative”.

Hearing of the case commenced on July 31 in Arusha before a panel of five Judges led by the Principal Judge of the Court, Justice Monica Mugenyi. The late Ssembuusi, is represented by Catherine Anite and Nicholas Opiyo of Oasis Advocates while the Attorney General of Uganda is represented by State Attorneys Jeffrey Atwine, Harriet Nalukenge and Ojambo Bichachi.

Ssembuusi’s lawyers had earlier on notified court about his death through letter to the Registrar of the Court and his duly appointed representative. But Court, using its discretionary powers, directed them to file an application substituting the deceased with the duly appointed legal representative.

The case was adjourned to allow the process to be finalized. According to the rules of the court, the death of a complainant does bring to halt the case filed before the court.

In December 2014, the late Ssembuusi filed a case in the East Court of Justice challenging his conviction and sentencing to a one year jail term on charges of criminal defamation by the Kalangala Magistrates Court.

Ssembuusi contends that the continued use by the Uganda 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 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.

On the other hand, the United Nations, African Union, Media Legal Defence Initiative-London and nineteen other civil society organizations have requested court to allow them intervene in the case as friends of the court to assist in assessing the matter before it.

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.

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, in their joint application July 30, said if allowed they will provide Court with expert interpretation on international law from the perspective of the AU 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 on July 10 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 Ugandan Lawyer, Gimara Francis.

In their request to intervene, the consortium of organizations said they will provide the EACJ with a comparative and international law perspective that will enrich the court’s understanding of the right to freedom 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 organizations 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,” noted Gimara.

The 20 organizations 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.

However, responding to affidavit sworn by Nani Jansen of MLDI on behalf of the 20 organizations, the Principal State Attorney, Oburu Odoi Jimmy in his affidavit submitted to Court said it is “inconceivable “to expect these organizations “to give Court a cogent objective and impartial assistance” in determining Ssembuusi’s case. He said the organizations seeking to assist Court share the same objectives like Ssembuusi on criminal defamation. He asked 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 Steven 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.

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