City Lawyer and cyber law practitioner Allan Bariyo has written to President Museveni over the Computer Misuse (Amendment) Bill, 2022 expressing the threat it poses to the digital rights and the likely contradiction with the other cyber laws.
The said Bill, which sought to amend the Computer Misuse Act 2011, was passed by Parliament on September 9th and sent to the president for assent.
Moved by Kampala Central MP Muhammad Nsereko, the bill enhances the provisions on unauthorised access to information or data; prohibit the sharing of any information relating to a child without authorisation from a parent or guardian; prohibit the sending or sharing of information that promotes hate speech among others.
Bariyo says the bill, if assented to in its present form, the resultant law would threaten the right to access information electronically, freedom of speech & expression over computer networks, thereby contravening a number of constitutional provisions, including, but not limited to Articles 29 and 41 of the Constitution. The latter provisions guarantee the right to access information and freedom of speech & expression.
He writes in the letter that in the endeavor to give life to Article 41 of the Constitution of the republic of Uganda, ten years after the promulgation of the aforestated constitution, the legislature, alive to the advancing technology, deliberately provided for access to electronic information.
However, The Computer Misuse (Amendment) Bill, 2022, seeks to enhance the provisions on unauthorised access to information or data; to prohibit the sending or sharing of information that promotes hate speech; to provide for the prohibition of sending or sharing false, malicious and unsolicited information.
He said in unclear manner, the amendment bill seeks to amend section 12 of the principal Act to prohibit the recording of voice and videos.
“Your Excellency, as a legal practitioner who is alive to the provisions of the constitution, the cyber laws in force and some of the treaties which Uganda is party to, it is of great concern that if the said bill is assented to, the resultant law would inter alia and in summary; Threaten the right to access information electronically, Endanger the enjoyment of the right to freedom of speech & expression over computer networks, Negatively impact electronic transactions and online trade, The same would have a toll on the local computing industry advancement, which is already threatened by the principal Act, and The resultant law would equally usher in possible contradiction among cyber laws,” he writes.
Article 2(2) of the Constitution provides for supremacy of the constitution of the Republic of Uganda and enjoins parliament to make laws that are consistent with provisions of the constitution. It follows that while drafting any legislation aimed at giving effect to, or setting frontiers for enjoyment of any constitutional right in public interest, or in light of the rights enjoyed by others, thorough regard must be given to the relevant constitutional provisions affecting the proposed law.
The framers of the constitution, after phrasing the subsequent article catering for the fundamental right to fair hearing, immediately provided for the freedom of speech & expression under Article 29 of the same constitution. Under article 41 of the constitution, the same framers created the right to access information. The aforementioned rights cross to electronic information and freedom of speech and expression over computer networks.
Bariyo says the same constitution, under article 43 (2) bars parliament from enacting laws that limit the enjoyment of the fundamental rights, access to information, freedom of speech and expression inclusive.
“The proposed limitation on the enjoyment of the said rights goes beyond what is acceptable and demonstrably justifiable in a free and democratic society, and what is provided in the Constitution,” he writes in the letter.
He adds that the proposed amendment would have an effect of contradicting some provisions of the Access To Information Act, 2005, Computer Misuse Act, 2011, The Electronic Transactions Act, 2011, The Contracts Act, 2010, The Civil Procedure Act Cap 71 and the rules there under with provisions of the Electronic Transactions Act, 2011, Computer Misuse Act, 2011 and The Contracts Act, 2010.
“The proposed amendment, especially clauses seeking to prohibit unilateral voice and video recording, disguised as ‘unauthorised recording’, and sharing of information about another person electronically, if passed into law in their present form would contradict certain provisions of the Electronic Transactions Act, 2011. Consequently, such a law would complicate execution of certain contracts and doing business electronically.”
Section 14 of the Electronic Transactions Act, 2011 permits formation of a contract by electronic means. The latter includes data message, the category where voice and video recordings lie. The said law provides that a contract shall not be denied legal effect merely because it is concluded partly or wholly by means of a data message. The same applies to any electronic message.
Such recordings have been of material relevance in both criminal and civil proceedings to prove existence of certain facts. Whether the recorded party had knowledge that he/she was being recorded at the time is immaterial.
The advocate says sharing information about other people electronically during execution of contracts, is relevant for purposes of conducting due diligence. “The proposed amendment ought to be revised to be alive to the aforestated reality. Technology should be used to aid business as opposed to stifling the same. Equally, every cyber legislation ought to be alive to the aforestated fact.”
The proposed amendment seeks to fatally criminalise unilateral recording of such data, thereby directly whittling the application of the said provisions.
“Thus any desirable amendment to the principal Act ought to be crafted in a manner that would not give unscrupulous contracting parties leeway to evade their obligations under the respective contracts by threatening the recording parties with criminal complaints.”
Further, an unclear law prohibiting voice and video recording would inter alia see the legality of recording with CCTV Cameras on buildings, streets and offices, hang in balance, regardless of the vital necessity of such recordings.
“It would not be rational for a law to prohibit a person from recording what transpires in his or her premises, including offices and homes. If such a law must pass, the exceptions thereto ought to be clearly spelt out therein,” Bariyo writes.
He adds; “As such we invite your thorough scrutiny of the said bill before you [President Museveni] assent to the same. Out of trust, the legislature is vested with enormous power to make laws. The same ought to be exercised cautiously. The said bill was not adequately debated. We thus invite your indulgence.”
“Sensitive to the taxpayers’ money, where I belong, we ought not to pass a law with knowledge, or reasonable suspicion that the respective constitutional petitions to challenge the same are already lined up.”
“As such, my prayer is that your good office, with the legal assistance of the learned Attorney General should give particular attention not only to the passed bill but also the cyber laws in force for further guidance to the nation.”
