• August 16, 2021
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Constitutional court trashes anti-pornography law

Constitutional court trashes anti-pornography law

The Constitutional Court has annulled four sections of the Anti-Pornography Act 2014 reasoning that they are unconstitutional.

The court decision means that no person can be indicted for the offense of pornography in Uganda under the Anti-Pornography Act.

A panel of five Judges; Frederick Egonda- Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi and Irene Mulyagonja unanimously declared unconstitutional Sections 2 which defines and creates the offence of pornography, 11, 13 and 15 Anti-Pornography Act.

They directed the Attorney General (AG) to pay half of the legal costs incurred by the nine petitioners.

Other Sections declared unconstitutional; 11 which confers wide discretionary powers upon the Anti-Pornography Committee in the enforcement and monitoring of the compliance of the Act, 13 which criminalizes the production, publication, broadcasting, procurement, importation and exportation, sale or abetment, sets out prohibited acts of pornography.

As well as 15 which confers wide enforcement and policing powers in authorizing entry upon premises and is likely to interfere in activities pursued in private; occasion the seizure of personal property and arrest of persons engaged in personal pursuits and is inconsistent and in contravention of the right to privacy among others.

Justice Egonda-Ntende ruled 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.

He added that an imprecise statement of the prohibited conduct may lead to inconsistent enforcement of the law, uncertain application of the law or failure to impede conduct that it was intended to prohibit.

Justice Ntende also overruled the argument that the words ‘stimulated explicit sexual activities, ‘sexual parts’, ‘primary sexual excitement’ to define pornography under Section 2 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 the bar where it is intimated implicitly as harm to women and children,” held Justice Egonda-Ntende adding that no proof of harm has been provided by the state.

The judges said that even if one were to accept that the legislative objective of the impugned provisions and the Act was to protect women and children, it was not demonstrated that the criminalization of pornography is rationally connected to that legislative objective.

According to the court, sections 2 and 13 of the Act damage the fundamental freedom of expression and such impairment is not justified by Article 43 of the Constitution.  

The Court held that the powers granted to the Pornography Control Committee and the courts of law are inconsistent with the rights to personal liberty, privacy and property.

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

Court heard that the definition of Pornography under Section 2 of the Anti-Pornography Act of 2014 contravenes the principle of legality under Articles 2, 28, 44 of the Constitution.

They 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 add policing powers on state authorities in contravention of the obligations with regards to human rights guaranteed under international human rights instruments ratified by Uganda.

The petitioners are Center for Domestic Violence Prevention, Women organization Network for Human Rights Advocacy, Prof Sylvia Tamale, Sarah Kihika, Lilian 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.

Source: Daily monitor

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