By Andrew Irumba
Kampala: Parliament has passed the Computer Misuse (Amendment) Bill, 2022 privately moved by Hon. Muhammad Nsereko (Independent representing Kampala Central), imposing tough penalties for cyber crimes.
The Computer Misuse (Amendment) Bill, 2022 sought to amend the Computer Misuse Act, 2011 to enhance 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; to prohibit the sending or sharing of information that promotes hate speech.
With the deletion of clauses that sought to bar convicts under the law from holding public office or running for elections in 10 years, the rest of the clauses unanimously sailed through uncontested, with MP Gorreth Namugga (NUP, Mawogola County South) dissenting.
A new clause in the bill, proposed by the ICT committee chairperson, Hon. Moses Magogo defined social media and created penalties for computer users who take refuge in pseudo accounts.
The clause reads: “A person who uses social media to publish, distribute or share information, prohibited under the laws of Uganda or using a disguised or false identity, commits an offence”.
A person who manages an account of an organisation where this happens will be held liable for the commission of the offence, the bill provides.
The clause proceeded to give a diverse definition of social media to mean, “a set of technologies, sites, and practices which are used to share opinions, experiences and perspectives, and includes YouTube, WhatsApp, Facebook, Instagram, Twitter, WeChat, TikTok, Sina Weibo, QQ, Telegram, Snapchat, Kuaishou, Qzone, Reddit, Quora, Skype, Microsoft Team and Linkedin”.
A person who commits the offence under the clause in issue shall, on conviction, suffer either a fine of Shs16 million, five years in jail or both fine and imprisonment.
Social media accounts that are verified will be presumed to be owned by the persons in whose names the accounts are run unless the contrary is proved.
Also, a person whose telephone numbers and or email addresses have been used in creating social media will be personally liable for prosecution for offences committed under the act as amended.
Hon. Magogo justified the clause as being intended to “provide for the regulation of social media”. The bill also criminalized and defined unsolicited information, but excused commercial adverts from the categorisation, granting advertisers the liberty to share information with target audiences.
“For the purposes of this section, “unsolicited information” means information transmitted to a person using the internet without the person’s consent but does not include an unsolicited commercial communication,” partly reads clause 5.
Hon. Dan Kimosho Atwijukire, the Kazo County MP presenting on the bill to the House on behalf of Hon. Muhammad Nsereko on Thursday, 09 September 2022.
In her minority report, MP Namugga said the bill was unconstitutional and implored the House not to pass it. “The entire bill should not be left to stand as part of our laws as all the clauses are already catered for in existing legislation and in some instances offends the Constitution of the Republic of Uganda; the fundamental rights to access information electronically and to express oneself over computer networks are utterly risked by this bill,” she said.
She added: “if passed into law, it will stifle the acquisition of information; the penalties proposed in the bill are overly harsh and disproportionate when compared to similar offences in other legislations; this bill if passed, will be a bad law and liable to constitutional petitions upon assent.”
MP Dan Kimosho Atwijukire (NRM, Kazo County) processed the bill on behalf of its mover, Hon. Nsereko.
Efforts by different stakeholders including the Ministry of ICT and National Guidance, Journalists and civil society organisations among others to have Nsereko’s proposal dismissed from the floor of parliament have all hit a dead end.
Last Month, the Ministry of ICT revealed that it was in the process of bringing an encompassing bill (Information and Communications Bill, 2022) to address gaps in the ICT sector noting that Nsereko’s amendment was therefore not necessary.
In the same vain, Members of the Independent Online Journalists Association-Uganda (INDOJA-U) and other stakeholders in the civil society organizations had called for the dismissal of Nsereko’s proposed amendment noting that Uganda already has enough laws and only needs to review, strengthen and implement the existing laws to regulate information sharing and distribution on social media.
While appearing before the ICT committee last week, INDOJA- U President who is also an executive member on the National Association Of Broadcasters (NAB), Andrew Irumba Katusabe with other Association’s members along with their legal representative Joel Mucunguzi of Signum Advocates told the committee that the proposed bill, in its entirety, seeks to kill investigative journalism and has been brought in bad faith.
”Regarding the proposed introduction of Section 22A, the Investigative Journalist has to ask for consent. Who will give us consent and authorization to run a story about the starving street children that need help and support most of them females that are being sexually abused and assaulted? Should we leave them to suffer simply because we lack authorization?” Irumba questioned the Committee.
Adding that ”furthermore, there are many scenarios where it’s the parents or guardians who are mistreating these children, so what would you advise a neighbour to do in such a situation? To let the child die or inform the police and be arrested for sharing information about the children without an authorization? I can authoritatively conclude that this amendment is going to bring a clog against the protection of children’s rights yet these are the future of this when I and the framer of this bill are long gone.
Hon. Nsereko is suggesting that if I find him urinating on the roadside and therefore becoming a nuisance, for me to take that video or photo evidence, I must first seek his permission”. ”So it’s upon this background that I would opine the framers of this bill have a hidden agenda of misinforming the public using the media platforms that they have control over and the cropping online media platforms are being a challenge since they feel they are not under their control.”
Irumba’s proposal was also backed by Michael Aboneka, an advocate with Thomas and Michael Advocates saying the Computer Misuse (Amendment) Bill 2022 that is before Parliament duplicates provisions in existing laws.
According to Aboneka, among the existing laws that cure issues raised in the proposed Bill are the Constitution, the Children Act, the Human Rights Enforcement Act 2019, the Penal Code Act, the Data Protection and Privacy Act 2019 and the Regulation of Interception of Communications Act.
Aboneka who also appeared before the ICT Committee on 10 August 2022 to present views on the proposed Bill, observed that certain provisions of the current Computer Misuse Act do not clearly spell out the ingredients of the offence of offensive communication further noting that this tends to re-enact what Courts have already declared unconstitutional.
Furthermore, the mover of the Bill ought to allow as much possible public participation in form of petitions, protest notes, consultations and legal commentaries on the proposed law.
“We should focus our energies in implementing the existing laws to the latter and reviewing/repealing laws that do not conform to the human rights standards to bring them in line with the Constitution,” Aboneka said.
Aboneka called for the deletion of the proposed amendments citing duplication of an already existing legal regime.
He cited Clause 4 of the Bill that seeks to introduce a section [23A] on hate speech, that states that ‘a person shall not write, send or share any information through a computer, which is likely to ridicule, degrade or demean another person, group of persons, a tribe, an ethnicity, a religion or gender.
According to Aboneka, the proposed Bill gives instances in which the offence of hate speech may occur and not what institutes the offence.