A critical analysis of the impact of the computer misuse act on freedom of expression in Uganda

Abstract

Previous research has sharply criticised the Computer Misuse Act, 2011 (CMA), thereby making it appear as if it was enacted to suppress enjoyment of the right to freedom of expression. With the aim of establishing whether there was another side to this law, this study sought to analyse its impact on Ugandans’ enjoyment of this right. The objectives of the study were thus to (a) examine the extent to which the CMA had achieved its purpose of serving as a basis for prosecuting alleged abusers of their right to freedom of expression; (b) establish the practical challenges faced in using this law to prosecute these abusers; and (c) propose remedies to these challenges. The study was designed as an exploratory case study involving a largely qualitative approach to primary data collection and analysis complemented by quantitative content analysis of secondary data. The sample consisted of 30 purposively selected respondents who included prosecutors, crime investigators, judicial officers, counsel, legislators, regulators, and the convicted abusers of their right to freedom of expression. Primary data was collected from these respondents using face-to-face interviews aided by interview schedules. Corroborative secondary data was collected using document review of relevant legal reports and instruments. Primary data was analysed using directed qualitative content analysis and so was secondary data, but the latter was supplemented by quantitative content analysis using the Excel Computer Program. The key findings of the study indicate that the CMA had achieved its purpose of serving as a basis for prosecuting abusers of their right to freedom of expression to a large extent, which, however, was contrary to the Constitution of Uganda and some international conventions on human rights such as UDHR and ICCPR. The challenges faced in prosecution based on the CMA included the questionable constitutionality of this law; vagueness of its Sections 24, 25 and 26; not covering all the offences committed through cyberspace; inadequate digital forensic equipment and expertise required to facilitate cyber investigations, differences in prosecutorial and judicial interpretation of digital evidence presented in trial courts, and inadequate government funding. The proposed remedies to these challenges included: redefining Sections 24, 25 and 26 to remove ambiguity, and amending Article 29(1)(a) of Uganda’s constitution to limit freedom of expression that infringes on other equally important human rights such as the right to dignity and privacy. Other remedies included: providing the Criminal Intelligence and Investigations Department (CIID) of Uganda Police Force with enough digital forensic equipment, hiring digital forensic professionals and training police investigators in digital forensic investigation as well as judicial officials in how to admit and interpret digital evidence presented by prosecutors in court trials. Also proposed was adequate funding to the CIID and Office of the Director of Public Prosecutions (ODPP). From the above findings, the study concluded by underscoring the need to address the weaknesses and challenges facing the use of the CMA to prosecute alleged abusers of their freedom of expression through internet-powered communication devices such as telephones, laptops, personal computers and others that facilitate cyber communication. Based on this conclusion, the study recommended to the Parliament of Uganda to amend Article 29(1)(a) by setting limits that eliminate the unconstitutionality of the CMA, and to redefine its Sections 24, 25 and 26 to remove vagueness. It also recommended to government to increase funding to the ODPP and CIID of the Uganda Police Force (UPF). It also recommended to the Uganda Police Force to equip its Investigations Department with sufficient digital forensic equipment, hire digital forensic experts and train its investigators, especially those dealing with investigation of cyber crime. The study further recommended to the judiciary to provide its judicial officers with training in how to admit and interpret digital evidence presented by prosecutors in trial courts.