Story-Based Inquiry, an investigative journalism handbook published by UNESCO, defines investigative journalism as the kind of journalism that involves exposing to the public matters that are concealed–either deliberately by someone in a position of power, or accidentally, behind a chaotic mass of facts and circumstances that obscure understanding. It requires using both secret and open sources and documents.”
Relatedly, the Dutch-Flemish investigative journalism group VVOJ defines investigative reporting simply as “critical and in-depth journalism.” But to do serious and critical journalism in Uganda is still not a free zone for journalists based on the developments that we have seen in the recent past.
The situation has made some journalists withdraw their passion from the sensitive stories for fear of being apprehended. Majority of them have actually resorted to reporting only press conference stories but this denies chance and right to citizens to know what is happening in their governments. Actually some journalists have been put on the red list not to cover certain state functions, which is really absurd.
PEN International Uganda, a local not for profit Organisation but England based charity Organisation that promotes literature and freedom of expression has called on government to repeal laws criminalizing defamation on grounds that the law continues facilitating official secrecy and undermining accountability.
Pansy Tlakula, the chairperson of the African Commission on Human and People’s Rights and Special Rapporteur on Freedom of Expression and Access to Information says the laws are incompatible with the African Charter on Human and People’s rights and that they should be repealed.
“Criminal defamation and insult laws are nearly always used to punish legitimate criticism of powerful people, rather than to protect the right to a reputation,” Tlakula says.
The 2017 report titled; “Stifling Dissent, Impeding Accountability: Criminal Defamation Laws in Africa” shows how the cost of these laws is significant and how they stifle independent comment and political debate denying the public the right to know about stories of national importance and deter investigative journalism.
Hilda Twongyeirwe, the Executive Director FEMRITE – Uganda Women Writers’ Association urges Ugandan Writers and Journalists to join hands to form a Uganda Writers Union that would be charged with collective protection of their rights. She says the report is very important for practitioners to begin the debate on how to influence laws in Uganda.
Ms.Twongyeirwe states that; “These things have been happening. The report is unearthing what has been happening. So now that we have information, that the individual stories are no longer individual stories, I think that is a trigger that should get all of us on our toes and act, yes everybody wants to be safe, we have families, friends and relatives but at the same time, it becomes so disempowering when somebody dries to silence our voices.”
Dr. Danson Sylvester Kahyana PEN Uganda Chapter President says they are now focusing on sensitizing the public and practitioners about the effect of defamation laws on the quality service delivery and in turn the quality of lives.
Dr. Danson Sylvester Kahyana
Dr. Kahyana, who is also a lecturer in the Literature Department at Makerere University, urges citizens to support journalists in the cause of informing and disseminating information and to stand with them in times when they face such challenges.
He also appeals to journalists and practitioners to quickly identify with several human rights organizations which could help them once they land in such troubles resulting from storytelling.
“The biggest challenge I think is ignorance, people do not know about defamation. Even writers don’t know anything about defamation, they hear about it the day they are being arrested. And that is the biggest challenge. That is why through our work we want to ensure many people are empowered. And people should know that being prosecuted doesn’t not mean that you are guilty because writers and journalists write these stories not on their behalf but on behalf of the population,” Dr. Kahyana.
Criminal defamation laws can be traced in the 1950 Penal Code Act. Specifically articles 179-186 clearly set out the law on criminal defamation.
Article 179 defines libel as unlawful publication of any ‘defamatory matter’ with intent to defame another person, while Article 180 defines ‘defamatory matter’ as that likely to injure the person’s reputation by exposing them to hatred, contempt or ridicule.
The article protects the reputation of the dead as well as the living, although no prosecutions for alleged defamation of people who are deceased proceed without approval of the Director of Public Prosecutions.
These laws were used to prosecute two Sunday Monitor journalists, senior reporter, Angelo Izama, and Editor, Henry Ochieng, in connection with an article published in December 2009 that drew similarities between Uganda government under President Museveni and the former regime of Ferdinand Marcos in Philippines.
The two journalists were later acquitted in December 2012, by which time they had spent almost three years facing trial and threat of imprisonment for their peaceful criticism of the government.
Ronald Nahabwe, former Red Pepper Journalist who was charged with criminal defamation and later acquited.
In another notable case, authorities in Uganda arrested four journalists and charged them with criminal defamation in August 2015. All the four- Madinah Nalwanga and Patrick Tumwesigye of the Vision Group, and Benon Tugumisirize and Ronald Nahabwe of the Red Pepper newspaper were criminally accused of defaming two Kampala businessmen in stories about a land ownership dispute.
They were granted bail but it was set at two million shillings each; while the Vision Group met this for their journalists, Red Pepper spent five days in Luzira prison before bail was paid.
Benon Tugumisirize another journalist who was charged using criminal defamation laws and later acquitted.
Trial proceedings against the four journalists, and a fifth person who had acted as their source of information, continued for more than a year before Buganda Road Chief Magistrate acquitted them of all charges in March 2017.
The fifth accused was however convicted was found to have provided journalists with information false information concerning the two businessmen with whom he was in dispute which they subsequently published.
According to the report, almost half of the 38 writers and journalists from 22 African countries who responded to the survey conducted by PEN and University of Witwatersrand on the impact of Criminal defamation and insult laws indicated that the use of these laws inhibit them in practicing their professions.
Due to fear of prosecution under criminal defamation and or insult legislations, 16 of the respondents avoided writing stories at some point. For those that avoided writing stories oft would be on topics such as corruption, crime and politics.
“By fencing in the media in this way, criminal defamation laws deter investigative journalism and the exposure of corruption and other wrong doing by state officials and undermine media’s capacity to perform its acknowledged role as a critical watchdog of the public interest,” report.
Adding that; “They (criminal defamation laws) endanger media self-censorship and contribute to a climate of official inviolability, secrecy and unaccountability in which corruption, arbitrary unlawfulness and human rights violations may flourish.”
The report recommended that decriminalizing defamation would assuredly serve the public interest by freeing journalists to investigate and report on key political issues and personalities without constant threat of criminal prosecution as it would help ensure greater government accountability and enhancing democracy.
PEN International and PEN Uganda urges the government to promptly repeal Penal Code articles 39 and 40 on sedition which the Constitutional Court ruled in 2010 breached the constitution.
And subsequently repeal the Penal Code provisions criminalizing defamation and the publication of false news specifically articles 50, 53, and 179-186 and that the state ensures that truth is available as a complete defense to defamation.
PEN Uganda also wants amendments to laws that infringe on the exercise of the right to freedom of expression including the 2010 Interception of Communications Act and the 2011 Computer Misuse Act to ensure their full conformity with Uganda’s obligations under the African Charter and the International Covenant on Civil and Political Rights (ICCPR).
They also want government to immediately and unconditionally release anyone detained or imprisoned on criminal defamation charges and drop all prosecutions on such charges.
Media owners, publishers, editors and journalist associations and practitioners have been urged to support, strengthen and comply with the code of ethics promulgated by the independent media council, train their journalists and provide adequate legal, financial and professional support to employees facing criminal defamation charges.