Constitutional court quashes pornography offence

Kampala, Uganda | THE INDEPENDENT | The Constitutional Court has quashed the offense of pornography and other sections of Anti-Pornography Act that were previously giving powers to the Pornography Control Committee.

In an unanimous judgment, a panel comprised of Justices Frederick Egonda-Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi and Irene Mulyagonja also condemned government to pay half of the legal costs to the nine petitioners.

The petitioners include; Center for Domestic Violence Prevention, Women’s Organization Network for Human Rights Advocacy, Professor Sylvia Tamale, Sarah Kihika, Lillian Drabo, Strategic Initiative for Women in the Horn of Africa, Uganda Health and Scientific Press Association, Human Rights Network for Journalists – Uganda and Lina Zedriga.

In 2014, the said group of four individuals and five charity organizations petitioned the court challenging the legality of Sections 2, 11, 13 and 15 of the Anti-Pornography Act of 2014.

The said sections respectively talk about the interpretation of the Anti-Pornography Act, powers and duties given to the Anti-Pornography Committee, prohibition of pornography and court to issue a warrant to seizure and arrest someone promoting pornography.

Court heard that the definition of pornography under section 2 of the Anti-Pornography Act of 2014 contravenes the principle of legality since it is inconsistent with articles of the constitution which make it the most Supreme law of the country.

The petitioners also argued that the definition of the law in question further contravened the fundamental rights and freedoms enshrined in the constitution.

According to the Act, pornography means; any representation through publication exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or stimulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual excitement”.

As such, the petitioners successfully argued that the sections of the Act define and create the offence of pornography in an overly broad, vague, and subjective manner and conferring wide discretionary enforcement.

In the lead judgment dated August 13th 2021, Justice Egonda-Ntende held that the Anti-Pornography Act does not provide what amounts to indecent show and that the threshold over which an action can be measured to determine whether it falls within the ambit of indecent show.

“An imprecise statement of the prohibited conduct may lead to inconsistent enforcement of the law, uncertain application of the law or failure to preclude conduct that it was intended to prohibit,” said Egonda Ntende.

He however dismissed the petitioners’ argument on the definition of pornography reasoning that the words ‘stimulated explicit sexual activities’, ‘sexual parts’, ‘primary sexual excitement’ are not vague, ambiguous, uncertain and subjective.

The Judge held that he was unable to determine either from the provision defining the crime of pornography or from any other portion of the Act, the legislative objective for the criminalization of pornography.

“What harm would result to society, if publication, exhibition or other representation of images of sexual parts of the human body or sexual activities primarily for sexual excitement, is not prohibited? None has been put forward by the respondent (Attorney General) except from the bar where it is intimated implicitly as harm to women and children,” held Justice Egonda-Ntende.

He added that there was no evidence of a pressing and substantial objective for prohibition as well as proof of harm provided by the government.

According to the Court decision, even if one were to accept that the legislative objective of the challenged provisions and the Act were to protect women and children, it was not demonstrated that the criminalization of pornography is rationally connected to that legislative objective.

Justice Egonda-Ntende explained that he was forced to find that sections 2 and 13 of the Act impair the fundamental freedom of expression and such impairment is not justified by the Constitution.

On the issue of powers granted to the Pornography Control Committee, the Judges have reasoned that since they have already found that sections which create the offense of pornography to be inconsistent, it follows that the Committee which is led by Dr Annette Kezabu may no longer exercise powers under the Act.

Speaking to Uganda Radio Network, Isaac Ssemakadde who represented Jemima Kansiime alias Panadol Wa’basajja the first Ugandan to be subjected to the Anti-Pornography law said that it is now time for the Director of Public Prosecutions to set free every person who has been facing trial on pornography charges.

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