Bakampa Brian
Baryaguma
We must seek the guilty and not strike out against the innocent or we become like them [terrorists] who are without moral guidance or proper direction – Cardinal Theodore McCarrick, Archbishop of Washington.
1.
Introduction
It is argued
that the history of terrorism is a history of well-known and historically
significant individuals, entities, and incidents associated, whether rightly or
wrongly, with terrorism.[1]
Further, that the history of terrorism is
as old as humans' willingness to use violence to affect politics.[2] For
this reason, the term “terrorism” has always been politically and emotionally
charged, with intrinsically negative connotations, generally applied to one’s
enemies and opponents.[3] Consequently,
there is no universally accepted definition of terrorism today.
However, in Uganda, Section 7(2) of the Anti-Terrorism Act, 2002, provides for
and defines the offence of terrorism. For
purposes of this study, it is prudent to reproduce the section in detail.
7. The offence of terrorism(2) A person commits an act of terrorism who, for purposes of influencing the Government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property, carries out all or any of the following acts–(a) intentional and unlawful manufacture, delivery, placement, discharge or detonation of an explosive or other lethal device, whether attempted or actual, in, into or against a place of public use, a State or Government facility, a public transportation system or an infrastructure facility, with the intent to cause death or serious bodily injury, or extensive destruction likely to or actually resulting in major economic loss;(b) direct involvement or complicity in the murder, kidnapping, maiming or attack, whether actual, attempted or threatened, on a person or groups of persons, in public or private institutions;(c) direct involvement or complicity in the murder, kidnapping, abducting, maiming or attack, whether actual, attempted or threatened on the person, official premises, private accommodation, or means of transport or diplomatic agents or other internationally protected persons;(d) intentional and unlawful provision or collection of funds, whether attempted or actual, with the intention or knowledge that any part of the funds may be used to carry out any of the terrorist activities under this Act;(e) direct involvement or complicity in the seizure or detention of, and threat to kill, injure or continue to detain a hostage, whether actual or attempted in order to compel a State, an international inter-governmental organization, a person or group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage;(f) unlawful seizure of an aircraft or public transport or the hijacking of passengers or group of persons for ransom;(g) serious interference with or disruption of an electronic system;(h) unlawful importation, sale, making, manufacture or distribution of any firearms, explosive, ammunition or bomb;(i) intentional development or production or use of, or complicity in the development or production or use of a biological weapon;(j) unlawful possession of explosives, ammunition, bomb or any materials for making of any of the foregoing.
Canadian
Senator, Hon. Raynell Andreychuk,
described it as ‘a sweeping piece of anti-terrorism legislation.’[4] This
law, broad as it is, is part of the global response to the September 11, 2001
terrorist attacks on New York City, Washington, D.C. and Pennysylvania, in the
United States of America. It has rather vague and ambiguous considerations that
may result in such questions as, how serious is “serious”?
2.
The Right to Privacy
under the Constitution
Article 27 of
the Constitution provides for the
right to privacy of the person, home and other property. The article reads as
follows:–
27. Right to privacy of person, home and other property.(1) No person shall be subjected to–(a) unlawful search of the person, home or other property of that person; or(b) unlawful entry by others of the premises of that person.(2) No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.
The rationale of
this right is to secure the individual against arbitrary interference by public
authorities in private and family life.[5] Further, it is mainly
regarded as being of value to individual persons and of social benefits, which
include such things like individuality, autonomy, dignity, emotional release,
self-evaluation and interpersonal relationships of love, friendship and trust.[6]
In Uganda, the
most prominent case that has been litigated upon in enforcement of article 27
is the 2008 case of Victor Juliet Mukasa and Yvonne Oyo vs Attorney General,[7] in
which the applicants complained that the forceful ingress by the LC1
Chairman of Kireka zone, into the first applicant’s house was a violation of
the right to privacy of the person, home and property guaranteed by article 27
of the Constitution. The case involved illegal search of the home of Ms Mukasa,
unlawful seizure of her property, and the unwarranted arrest and harassment of her
friend, Yvonne.
Publication of
injurious information may also amount to violation of the right to privacy. For
instance, in the case of Kasha
Jacqueline, David Kato Kisuule & Onziema Patience vs Rolling Stone Ltd
& Giles Muhame,[8] Justice
Musoke-Kibuuka held that the exposure of the identities of the persons and
homes of suspected homosexuals for purposes of fighting homosexuality and
activities of gays, threatened the applicants’ right to privacy of the person
and their homes.
3.
Terrorism as a Threat
to the Right to Privacy
The right to
privacy is currently under attack and threats from several forces,[9]
including the emergence of organized crime and modern terrorism.[10] After
the 11 September 2001 attacks in the United States, the world was sent into a
state of shock and disbelief. Therefore, several countries sought to neutralize
and suppress the threat of terrorism through enabling laws.
In Uganda, The Anti-Terrorism Act, 2002 was enacted
and came into force on 7 June 2002. This Act generated a great deal of
controversy both prior to its enactment and thereafter. Like many other related
Acts elsewhere,[11] critiques
have argued that it was created opportunistically with little debate. Apart
from its too broad definition of terrorism under section 7(2), the other
equally controversial enactment in the Act is section 19, which reads as
follows:–
19. Powers of authorised officer(1) Subject to this Act, an authorised officer shall have the right to intercept the communications or a person and otherwise conduct surveillance of a person under this Act.(2) The powers of an authorised officer shall be exercised in respect of a person or a group or category of persons suspected of committing any offence under this Act.(3) The functions of an authorised officer shall be exercised only in respect of the person or group or category of persons described in the order.(4) The purposes for which interception or surveillance may be conducted under this Part are–(a) safeguarding the public interest;(b) prevention of the violation of the fundamental and other human rights and freedoms of any person from terrorism;(c) preventing or detecting the commission of any offence under this Act; or(d) safeguarding the national economy from terrorism.(5) The scope of the interception and surveillance allowed under this Part is limited to–(a) the interception of letters and postal packages of any person;(b) interception of the telephone calls, faxes, emails and other communications made or issued by or received by or addressed to a person;(c) monitoring meetings of any group of persons;(d) surveillance of the movements and activities of any person;(e) electronic surveillance of any person;(f) access to bank accounts of any person; and(g) searching of the premises of any person.(6) For the avoidance of doubt, power given to an authorised officer under subsection (5) includes–(a) the right to detain and make copies of any matter intercepted by the authorised officer;(b) the right to take photographs of the person being surveilled and any other person in the company of that person, whether at a meeting or otherwise; and(c) the power to do any other thing reasonably necessary for the purposes of this subsection.
Under
sub-section (2), mere suspicion is enough to make one a terror suspect! That is
how loose and fluid it is. This section has its origins in section 18 which, under
sub-section (1) empowers the Minister responsible for internal affairs to
designate in writing, security officers to be “authorized officers” within the
meaning of the Act. Under sub-section (2), this order remains valid for ninety
days from the date of issue and then expires.
4.
The Effect of Section
19 on the Right of Privacy
As rightly noted
by Kakungulu-Mayambala,[12] section
19 runs counter to the spirit, letter and intent of article 27 of the Constitution; so much so that it
completely negates its guarantees and effectively renders it inoperative. It
gives a ‘blank cheque’ to violate the privacy of countless innocent Ugandans
and non-Ugandans present in our territory.
Considering the
provisions of article 27 of the Constitution
and section 19 of The Anti-Terrorism Act,
one gets the impression of a classic example where the law gives with one hand
and takes with another. From a human rights perspective therefore, it showcases
a move from the protection of the fundamental human right of privacy to wanton violation
of the same.
Unfortunately,
the constitutionality of section 19 has not yet been tested in court. But for
one to get a glimpse of its potential dangers, reference may be made to the trials
and tribulations of Col. (Rtd) Dr. Kizza Besigye and 22 others, before the army
General Court Martial on alleged commission of terrorism.[13]
Briefly, the following were the facts.
In 2005, Col.
(Rtd.) Dr. Kizza Besigye and 22 others were on remand in custody at Luzira
Prison pending trial by the High Court on an indictment for treason and
concealment of treason. On 16th November 2005, twenty-two of the
accused persons appeared before the High Court at Kampala, on a bail
application. Justice Lugayizi granted them conditional bail. Before they could
be released from custody, however, a group of heavily armed security agents
(known as Black Mambas) invaded the
High Court premises, interrupted the processing of release papers and as a
result the accused persons were returned to Luzira prison instead of being
released. On the following day, 17th November 2005, they were taken
to the General Court Martial where they were jointly charged with the offences
of terrorism and unlawful possession of firearms.
This matter has
been the subject of protracted litigation and debate in Uganda, whose in-depth
analysis is beyond the scope of this essay. Suffice to say however, that when
the Supreme Court was called upon to inquire into the legality of the actions
of the security agencies, and the subsequent proceedings in the General Court
Martial, in the case of Attorney General vs
Uganda Law Society,[14] it
stated that, ‘… the proceedings before the General Court Martial were
inherently unconstitutional ….’
This matter
demonstrated that the military court is more of a political tool of President
Museveni, used to suppress political opposition;[15] something that the earlier
opponents of the Act (especially, opposition politicians and civil society),
repeatedly mentioned. Since under section 19 of the Anti-terrorism Act mere suspicion is enough to put one in the
category of terrorists, then considering Dr. Besigye’s fate, the sky is the
limit for the potential harm faced by numerous people on Ugandan territory. For
now, we can only speculate and wait to see what the future actually holds.
Further still,
the experiences of the complainants in the case of Kasha Jacqueline &
Others vs Rolling Stone Ltd & Another,[16]
can offer some reasonable guidance on the potential dangers of relying on suspicion.
The complainants were merely suspected of being homosexuals. Basing on this
suspicion, their tormentors exposed them to public embarrassment and ridicule.
The 1st
defendant newspaper published a story labeled as “SCANDAL” entitled as follows:
‘HANG THEM; THEY ARE AFTER OUR KIDS!!!!!Pictures of Uganda’s 100 Homos Leak’
The story
carried the facial identities and addresses of the applicants and advocated for
their hanging. On the first applicant, it was reported that, ‘at the end of
every month, gays usually gather at the homes of gay organization leaders
especially at Kasha Jacqueline’s mansion in Makindye. Kasha is said to be Naon
Ruzindana’s girlfriend. At Kasha’s place, wine is popped and sometimes gays
engage in orgies. Kasha usually hangs out at Effendy’s bar in Kampala.’
On the third
applicant, it was written that, ‘This newspaper also discovered that most
secondary schools and tertiary institutions have been penetrated by gay
activists to recruit kids. One Stosh Shella, a resident of Kisaasi in Kampala
and Patience Onzima, are said to be behind this sinful project.’
Dr. Onoria
argued on their behalf that this story constituted a threat to the applicants’ right
to privacy of both the person and the applicants’ homes under article 27 of the
Constitution. Justice Musoke-Kibuuka agreed
with him and held that, ‘They are entitled to that right.’
5.
Whether Section
19 of the Anti-terrorism Act is Justifiable?
The question
whether section 19 of the Act is justifiable or not arises in consideration of
the fact that the right to privacy is not absolute. Its enjoyment can be restricted
under article 43 of the Constitution
which imposes general limitations on the enjoyment of fundamental human rights
and freedoms. Article 43(1) provides that,
In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.’ But under article 43(2)(c), public interest limitations must not go, ‘… beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
These provisions
were the subject of litigation in the case of Charles Onyango Obbo and Andrew Mujuni Mwenda vs Attorney General,[17]
where the Supreme Court held that, ‘… in defining any derogation of a right
guaranteed by the Constitution, precision and clarity are of the essence.’ In
court’s view, the limitation provided for in clause (1) is qualified by clause
(2), which in effect introduces ‘a limitation upon the limitation.’ It was
clearly stated that the,
… protection of the guaranteed rights is a primary objective of the Constitution. Limiting their enjoyment is an exception to their protection, and is therefore a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary objective. In that eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstance is permissible.
I do not think
that section 19 of the Anti-terrorism Act
meets the tests set by the Supreme Court. First, its basis on suspicion strips
it of precision and clarity; second, it cannot fall under the permissible
exceptional circumstances because like I stated earlier, this section militates
against all guarantees in article 27 of the Constitution;
third, the danger to the public interest sought to be thwarted by section 19 is
not proximate to the act of committing terrorism, owing to the speculative
nature of the offence.
6.
Conclusion
Section 19 of
the Anti-terrorism Act goes beyond
what is acceptable and demonstrably justifiable in a free and democratic
society, or what is provided in article 27 of the Constitution. If the 1995 Uganda Constitution is to truly be the most
liberal document in the area of human rights than any other constitution South
of the Sahara as alleged,[18]
then its substance is negated by legal provisions like section 19 of the Anti-terrorism Act, which represents a
dramatic shift from protection of human rights to violation of the same.
The problem is that the post-September 11 2001 era has focused very much on
public safety and security issues, at the expense of protecting fundamental
human rights and freedoms. This has negated the essence of free societies, and
the gains in human rights that democracy offers its citizens.[19]
Notes and References
[1] Wikipedia, ‘History of Terrorism’
http://en.wikipedia.org/wiki/History_of_terrorism.
[2] Amy Zalman,
‘The History of Terrorism’ (2011), www.about.com.
[3] Wikipedia, supra note 1.
[4] Raynell Andreychuk, ‘Case Study: Canada Anti-Terrorism Legislation’
(2003).
[5] R. Kakungulu-Mayambala, ‘Data
Protection and National Security: Analyzing the Right to Privacy in
Correspondence and Communication in Uganda’ (2009), at 10.
[6] Ibid.
[7] (2008) AHRLR 248.
[8] High Court Miscellaneous Cause
No. 163 of 2010 at 9.
[9] For example, communication
interception (especially telephone tapping), electronic surveillance, and homosexuality,
among others.
[10] R. Kakungulu-Mayambala, ‘Phone-tapping
& the Right to Privacy: A Comparison of the Right to Privacy in
Communication in Uganda & Canada’ (2008), at 8.
[11] For example, the USA PATRIOT Act, and the Canadian Anti-terrorism Act, 2001.
[12] R. Kakungulu-Mayambala,
Phone-tapping & the Right to Privacy, supra
note 10, at 14.
[13] See, generally, Ronald Naluwairo,
‘The Trials and Tribulations of Rtd. Col. Dr. Kizza Besigye and 22 Others: A Critical Evaluation of the Role of the General Court
Martial in the Administration of Justice in Uganda’ (2006).
[14] Constitutional Appeal No. 1 of
2006.
[15]
See, H. Mukasa, ‘Museveni raps ruling on Court Martia,’ The New Vision, Tuesday, February 7, 2006.
[16] Supra note 8.
[17] Constitutional Appeal No. 2 of
2002.
[18] For instance by Mpagi-Bahigeine, JA., in Uganda
Association of Women Lawyers & Ors vs Attorney General, Constitutional
Petition No. 2 of 2003, at 5.
[19] Raynell Andreychuk, supra note 4, at 1.
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