On several occasions over the last two years, Mukono Municipality MP Betty Nambooze has been summoned to the police’s Criminal investigations directorate for questioning for making statements that allegedly promote sectarianism.
After each interrogation, she waits to be taken to court, only to be summoned by the police over another statement she made.
“I have been charged with that offence for as many times as I can remember, but at no one occasion have I ever been prosecuted,” Nambooze says.
She adds that her only ‘crime’ is pointing out a marked lack of equity when it comes to sharing the politically-dispensed national cake.
“This all started when I said that a particular group of people was favoured at the expense of others when it comes to the distribution of jobs in government, service delivery and the national cake in general,” she said.
The outspoken MP sounds both bemused and angry that she should be charged by police for doing her job as a leader.
“How can the whistleblower be the accused?” she wonders. “I honestly make these assertions so that the public knows how their power is exercised. After all, the prosecution should be interested in finding out from me and others, who is to be charged because we are the ones raising the red flag,” she says.
Nambooze’s bemusement is shared by many other Ugandans who continue to be charged with or prosecuted for promoting sectarianism. Many claim the charge is only a ploy by the government to silence its critics.
This claim seems borne out by the fact that almost all victims of the charges are or were critical voices.
They include journalists James Tumusiime of The Observer; Ssemujju Ibrahim Nganda, a former political editor of The Observer and now Kyadondo East MP; Andrew Mwenda of The Independent magazine and opposition politicians such as Nambooze, Hussein Kyanjo (Makindye West MP), David Ntege (from Luweero) and, recently, Moses Kasibante (Lubaga North MP), currently facing prosecution in Mwanga II Magistrate’s court.
“I was charged with the offence when I made a statement that people from western Uganda were being favoured when it comes to the distribution of government jobs,” says MP Hussein Kyanjo, who faced the sectarianism charges four years ago.
After reporting to the police for several days in a period of a year but with no prima facie case established to warrant his prosecution, the charges were dropped.
“They wasted a lot of my time as I appeared before the CID for interrogation at all times I would be summoned,” Kyanjo says.
Sectarianism, as per Section 41 of the Penal Code Act, is the practice of degrading or exposing to hatred or contempt or disaffection for anyone on the basis of religion, tribe or ethnic or regional origin.
One commits the offence if he/she prints, publishes, makes or utters any statement or does any act which is likely to “(a) degrade, revile or expose to hatred or contempt; (b) create alienation or despondency of; (c) raise discontent or disaffection among; or (d) promote, in any other way, feelings of ill-will or hostility among or against, any group or body of persons” on the above sectarian grounds. The offence carries a maximum punishment of five years’ imprisonment.
However, Section 41(2) of the Penal Code says it can be a defence to a charge of the offence of sectarianism, if someone prints, publishes, makes or utters, a statement that can be perceived to be promoting sectarian with a view to expose, discourage or eliminate matters which promote or have a tendency to promote sectarianism.
According to one Kampala lawyer who requested anonymity, the law on sectarianism was enacted in 1988 essentially to discourage discrimination against sections of Ugandans, particularly the Banyarwanda, on the basis of their origin.
The 1995 Constitution also upheld the principle, proscribing, under Article 21(2), discrimination on grounds such as ethnic origin and tribe. The offence also speaks to the internationally-recognized principle of equality before the law. Countries that have a similar offence include Rwanda and the UK.
However, no one has ever been successfully convicted for the offence in Uganda, with charges dragging on for years before being dropped or dismissed. Whereas the motive underlying the offence was to curtail discrimination, victims of contemporary prosecution claim it has been used to gag hose who criticize the acts of sectarianism.
“There is a higher chance for someone to be charged or perhaps be prosecuted of sectarianism if he/she raises a concern about government practising or promoting sectarianism,” Kyanjo says.
Nambooze adds that the offence is against freedom of speech, expression and conscience: “You see even when you express [yourself] about something they claim that you are promoting sectarianism; there is no clear parameter to guide the application of this law,” says Nambooze, citing the case of Ntege.
Ntege was charged with the offence in regard to a statement he made at Nakaseke town as President Museveni addressed a gathering of people.
“Ntege David on the 15th day of October, 2005 at Nakaseke Town in Nakaseke District uttered a statement which was likely to promote … feelings of ill-will or hostility among or against the herdsmen community (Balaalo) in Nakaseke to wit, ‘Watwaala District Yaffe mu Balaalo’ meaning that “You gave away our district to the herdsmen,” reads the charge sheet. Following his plea to the charge in regard to a confession he made in court affirming to have made the statement, Ntege was convicted of the offence.
However, through a revisional order of the High court, Ntege’s conviction was quashed as it was found not to be in accordance with the law.
While quashing the conviction of Ntege on the charge of promoting sectarianism, Justice E. S. Lugazi observed that the provisions of section 41 of the Penal Code Act (Cap. 120) are a serious affront to the inherent human right of freedom of speech found in Article 29(1) of the Constitution.
“For that reason, court greatly doubts their constitutionality and consistency with National objective No. 1 i.e. “…the establishment and promotion of a just, free and democratic society” in Uganda,” Lugayizi ruled on November 10, 2006.
In the year that Ntege was convicted, Andrew Mwenda, together with the Eastern African Media Institute Uganda, petitioned the Constitutional court to strike down the offence of sectarianism on grounds that it curtails freedom of speech and expression.
However, the court rejected their prayers, saying there was nothing unconstitutional about the offence as created by law. Prof Joe Oloka-Onyango, a Constitutional Law lecturer at Makerere University said this was a very unfortunate finding by the court.
“The offence of promoting sectarianism is not justifiable in a democratic society,” he told The Observer recently. “It requires refinery. If the offence is not refined, it can be invoked by the state if anyone accuses it of promoting sectarianism, which in turn becomes the victim being the accused.”
Buganda Kingdom Attorney General David Mpanga concurs with Oloka on the need to give the law some specificity: “Its application should be demonstrably justifiable in a free and democratic society, a parameter envisaged by the Constitution.”
Mwenda and EAMI appealed to the Supreme court but the appeal is pending. Consequently, the DPP has stayed proceedings against some suspects like Tumusiime and Ssemujju.
Meanwhile, Nambooze and others pray that the Supreme court strikes down the offence – at least because as it is in law, the offence inadvertently shields sectarianism, by ensuring no one talks about it.
“This offence gags and is a threat to those who would have talked against the practice of sectarianism,” Nambooze says.