Constitutional Court Nullifies the Computer Misuse (Amendment) Act, 2022; Criminal Libel Under the Penal Code Act Also Declared Unconstitutional.
- Lawpointuganda
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INTRODUCTION
The Computer Misuse (Amendment) Act, 2022 and the offence of Criminal Libel under the Penal Code Act have, in recent years, been widely criticised for being used as tools to silence dissent, restrict free expression, and criminalise legitimate public discourse, particularly on TikTok and Twitter. Their enforcement has had a chilling effect on journalists, activists, and ordinary citizens engaging in democratic debate.
The Constitutional Court has, in the case of Alternative Digitalk Ltd & 24 Others v. Attorney General, Consolidated Constitutional Petitions Nos. 34, 37 & 42 of 2022 marked a significant turning point in Uganda’s constitutional jurisprudence. It not only addresses the substance of these laws but also reaffirms the fundamental importance of due process in law-making, especially the requirement of a quorum in Parliament. Quorum is not a mere procedural technicality; it is a constitutional safeguard that ensures laws are enacted with adequate representation, deliberation, and legitimacy in accordance with Articles 88 and 89 of the Constitution.
Let's look at the decision itself
Coram | Mulyagonja, Kitariisibwa Katunguka, Musisi, Byaruhanga-Rugyema & Nambayo, JJCC |
Lead Judgment | Hon. Justice Irene Mulyagonja, JCC |
FACTS
Three petitions were filed in the Constitutional Court challenging the Computer Misuse (Amendment) Act, Act No. 24 of 2022 (hereinafter referred to as “the Amendment”), which was passed by Parliament on 8 September 2022 and assented to by the President on 14 October 2022. The Act amended the Computer Misuse Act, Act No. 2 of 2011. Following the Law Reform Commission’s 2023 revision, the provisions now appear in the Computer Misuse Act, Chapter 96 of the Laws of Uganda (2023 Edition).
The six key sections challenged were Section 11(1) on unauthorised access to, or interception of, programs, data, voice or video recordings, or the sharing of personal information about another person. Section 23 on unauthorised sending or sharing of information about children through a computer. Section 26 on writing or sharing information likely to ridicule, degrade, create divisions, or promote hostility against persons, groups, tribes, ethnicity, religion, or gender. Section 27 on sending unsolicited information, unless in the public interest. Section 28 on sending or sharing “malicious information” about or relating to another person. Section 29 on Misuse of social media, including sharing prohibited information under a disguised or false identity. Lastly, Section 162 PCA on criminal libel under the Penal Code Act (challenged in CPC 42 only).
The petitioners included NGOs, advocates, journalists, politicians, human rights activists, technology and cyber law specialists, and the Uganda Law Society. The Attorney General was the respondent in all three petitions.
Three consolidated petitions (CPC 34/2022 by civil society/journalists; CPC 37/2022 by HRNJ-U & others; CPC 42/2022 by Uganda Law Society) challenged the substantive provisions as vague, over-broad and violative of Articles 2, 27(2), 28, 29(1)(a)–(b), 40(2), 41, 43(2)(c), 44, 45, 79 and others.
They also challenged the legislative process for lack of quorum under Rule 24(3) of the Rules of Procedure of Parliament (SI 30 of 2021) and Articles 88 & 89 of the Constitution.
The ULS additionally challenged s.162 of the Penal Code Act (criminal libel).
Evidence relied on included Hansard of 8 September 2022, affidavits of petitioners (including Hon. Winnie Kiiza and Bernard Oundo) and the Clerk to Parliament’s affidavit.
The petitions were consolidated as follows Constitutional Petitions Nos. 34 and 37 were consolidated on 8 May 2024, while Constitutional Petition No. 42 was consolidated with the two on 14 October 2025.
All three petitions were subsequently heard together before a five-judge panel of the Constitutional Court.
II. ISSUES FOR DETERMINATION
The Court addressed the following principal questions:
Whether Parliament passed the Computer Misuse (Amendment) Act, 2022 without the requisite quorum in contravention of Articles 88 and 89 of the Constitution and Rule 24 of Parliament’s Rules of Procedure.
Whether Sections 11, 23, 26, 27, 28 and 29 of the Computer Misuse Act are unconstitutionally vague, overly broad, and/or impose unjustifiable limitations on the rights to freedom of expression, privacy, access to information, and fair hearing under Articles 27, 28, 29, 40, 41 and 43 of the Constitution.
Whether the ‘Misuse of Social Media’ provision was inserted without adequate public participation in violation of Articles 1, 8A, 38, 41 and 79 of the Constitution.
Whether Section 162 of the Penal Code Act (criminal libel) is inconsistent with Articles 29 and 43 of the Constitution and with Uganda’s obligations under the ICCPR and the African Charter on Human and Peoples’ Rights.
What remedies are available to the petitioners?
Submissions
Petitioners (led by Eron Kiiza, George Musisi, Paul Wasswa, Kato Tumusiime, Jude Byamukama et al.)
On quorum:
Counsel submitted that Rule 24(3) of the Rules of Procedure places a mandatory obligation on the Speaker to affirmatively ascertain that one third of all Members entitled to vote are present before any vote is taken, proactively and without requiring a member to first raise an objection.
The standard for ‘ascertainment’ must produce certainty and definite figures, as established in Paul K. Ssemwogerere & Another v. AG and Wakiso Miraa Growers & Dealers Association v. AG. Crucially, the record (Hansard) must reflect the numbers present, entitled to vote, and the results of the vote.
On the Hansard evidence:
Counsel pointed to the Hansard for 8 September 2022 showing only “Question put and agreed to” and “Report Adopted” at the Committee of the Whole House stage and the Third Reading, with no evidence whatsoever that the Speaker ascertained quorum or that individual voting was recorded. This was fatal to the validity of the legislation.
On the substantive provisions:
Counsel argued that Sections 11, 23, 26, 27, 28, and 29 were overly broad, vague, and ambiguous, creating offences without adequate mens rea requirements and imposing disproportionate limitations on fundamental rights.
Further argued that substantive sections are vague (“any information”, “likely to ridicule”, “malicious”, “unsolicited”) and create strict-liability offences without mens rea, violating legality principle and freedom of expression.
Also submitted that s.162 PCA is vague (definition in s.163 “likely to injure reputation by exposing to hatred, ridicule or contempt” is indeterminate), imposes custodial sanctions disproportionate to civil remedies, and violates ICCPR Art.19(3) and ACHPR Art.9 (citing Lohe Issa Konate v Burkina Faso, African Court, and Jacqueline Okuta v AG, Kenya High Court).
Respondent (Attorney General) (Ms Charity Nabasa, Claire Atukunda, Natuhwera):
On quorum: The AG contended that the petitioners failed to adduce evidence specifically showing the number of Members present or absent, and relied on the affidavit of the Clerk to Parliament averring that the entire process was conducted in accordance with the law. The AG argued the burden of proof remained on the petitioners.
On substantive provisions: The AG submitted all impugned provisions were clear, precise, and justifiable limitations permitted under Article 43(2)(c). On Section 162 PCA, the AG stated Uganda had fulfilled its treaty obligations and that freedom of expression is not absolute.
Notable omissions: The AG filed no submissions in response to the quorum ground in CPC 37 of 2022 and gave no substantive answer to the challenge against Section 162 PCA in CPC 42.
On Criminal libel is constitutional (citing Joachim Buwembo v AG, Const. Ref. 1 of 2008 – now distinguished).
Legal Representation
PARTY | COUNSEL |
Petitioners — CPC 34 & 37 (8 May 2024 hearing) | Messrs Eron Kiiza, George Musisi, Aboneka Michael, Paul Wasswa, Henry Byansi & Kakuru Tumusiime |
Petitioners — CPC 34 & 37 (Final hearing) | Mr. Kato Tumusiime (CPC 34); Mr. Paul Wasswa (CPC 37) |
Petitioner — CPC 42 (Uganda Law Society) | Mr. Jude Byamukama & Mr. Paul Katunguka (initial hearing); Counsel for ULS (final hearing) |
Attorney General (Respondent) | Ms. Charity Nabasa (Senior State Attorney); Ms. Claire Atukunda / Ms. Claire Kukunda (Principal State Attorney); Mr. Natuhwera |
Courts Findings
In a unanimous decision, the Constitutional Court held as follows;
On Quorum and Failure of the Legislative Process
Justice Mulyagonja (lead judgment, pp. 26–44):
“The Hansard … shows only ‘Question put and agreed to’ … There is no evidence that the Speaker ascertained quorum … The operative word in Rule 24(3) is ‘ascertain’ … It cannot be done by mere looking around or guesswork … physical certainty is required.”
“The method adopted by the Speaker was incapable of enabling proof of who and how many Members voted … This is inconsistent with Articles 88 and 89 … the Computer Misuse (Amendment) Act, 2022 is null and void.”
The Court held that Rule 24(3) of the Rules of Procedure (S.I. No. 30 of 2021) imposes a mandatory, non-discretionary, and proactive obligation on the Speaker/Chairperson to ascertain that the requisite quorum, one-third of all Members entitled to vote, is present before every vote, irrespective of whether any Member raises an objection.
The obligation is not satisfied by guesswork or mere inspection of attendance registers; rather, the method used must produce definite and certain figures, which must be reflected in the Hansard.
The Court reviewed the Hansard for 8 September 2022 and found the following:
There was no evidence that the Speaker ascertained quorum before the vote to adopt the Committee of the Whole House Report.
There was no record of the number of Members present and entitled to vote at either the Committee stage or the Third Reading.
There was no record of how individual Members voted—despite a Minority Report by Hon. Gorreth Namugga and active floor debate opposing the Bill.
The only entries were “Question put and agreed to” and “Report Adopted,” which were held to be constitutionally insufficient.
The implication of the missing record was that the Bill passed by unanimous vote, which was factually untrue given the active dissent.
“Clearly, there is no evidence in the Hansard that there was any concern about whether the Members in the House at the time that the Report was adopted and the Bill passed into law constituted the requisite quorum of one-third of Members entitled to vote.” — Mulyagonja, JCC
“It is hardly sufficient to say ‘question put and agreed to,’ as is reflected in the Hansard. Definiteness in the record is essential for establishing either complete rejection or failure to accord approval by a constitutional majority.” — Mpagi-Bahigeine, JCC (quoted with approval from Ssemwogerere)
The Court affirmed the holding in Wakiso Miraa Growers & Dealers Association v. AG that physical counting is not the exclusive method of ascertainment. However, whatever method is used must produce certain and definite numbers that are properly documented in the record.
This test was not met.
Concurring justices (Katunguka, Musisi et al.) expressly agreed.
The Voice-Vote Problem
The Court observed that Rule 97 of the Rules of Procedure still makes voice voting the default method. It reiterated criticisms made in Ssemwogerere that this format makes it impossible to determine how individual Members voted and whether quorum was actually present.
The Court noted that this structural deficiency creates a recurring constitutional vulnerability for legislation passed by voice vote.
Effect on the Substantive Provisions
Having found a fatal procedural defect in the enactment of the Amendment, the Court held that it was unnecessary to interpret the substantive provisions individually against the Constitution.
All the challenged provisions, Sections 11, 23, 26, 27, 28, and 29 of the Computer Misuse Act, Cap. 96, are null and void as a direct consequence of the defective legislative process.
Section 162 Penal Code Act — Criminal Libel
The Court distinguished the present challenge from Joachim Buwembo & 3 Others v. AG (2008), which had upheld Section 179 (now Section 162) of the Penal Code Act against Articles 29 and 43 of the Constitution. The new ground of challenge was Uganda’s international treaty obligations.
“The definition of ‘defamatory matter’ in s.163 PCA is indeterminate … vague, indefinite, unspecified and ambiguous … falls short of the requirement that the law must be formulated with sufficient precision …” (citing UNHRC General Comment 34 and Chimakure v AG Zimbabwe).
“Section 162 PCA contravenes Article 9 of the ACHPR … States shall repeal laws that criminalise … libel … The imposition of custodial sentences for the offences of defamation and libel are a violation of the right to freedom of expression.” (citing Lohe Issa Konate and Principle 22 of the 2019 Declaration of Principles on Freedom of Expression in Africa).
“Section 162 … is inconsistent with Uganda’s international obligations … Objective XXVIII(i)(b) … and Article 8A(1) … and therefore null and void.”
Applying Article 45 of the Constitution, as interpreted by the Supreme Court in Madrama v. AG ([2019] UGSC 1), the Court held that the ICCPR, UDHR, and ACHPR can, and must, be used to construe the rights in Chapter Four of the Constitution.
Under Article 19 of the ICCPR, and applying UN Human Rights Committee General Comment No. 34, the Court found that Section 162 of the Penal Code Act, read together with the definition of “defamatory matter” in Section 163, does not meet the standard of a law “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.”
The definition of “defamatory matter” as matter “likely to injure the reputation of any person by exposing that person to hatred, contempt, or ridicule” was found to be inherently subjective and indeterminate, and therefore incompatible with the criminal standard of proof beyond reasonable doubt.
“The definition of ‘defamatory matter’ in Section 163 PCA does not bode well with the standard of proof for offences that are proscribed by the Penal Code Act, which is ‘beyond reasonable doubt.’ It leaves the definition of the misdemeanour called ‘libel’ uncertain, vague, indefinite, unspecified, and ambiguous.” — Mulyagonja, JCC
Under Article 9 of the ACHPR, and applying the Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019), the Court found that Section 162 of the Penal Code Act fails the test of necessity and proportionality under Principle 9(1)(c). This is because civil defamation remedies constitute a less restrictive and adequate alternative.
Principle 22(4) of the Declaration expressly provides that custodial sentences for defamation violate the right to freedom of expression. The Court followed the decision of the African Court in Lohe Issa Konate v. Burkina Faso [2014] ACHPR 42.
“Section 162 PCA definitely has the same effect on the rights guaranteed by Article 29(1) of the Constitution of Uganda. It also does not pass the test because there exist civil defamation laws in Uganda whose sanctions are less restrictive than imprisonment.” — Mulyagonja, JCC
HOLDING
The Court unanimously granted the petitions and made the following declarations:
i. Parliament passed the Computer Misuse (Amendment) Bill, 2022 into law without complying with Rule 24(3) of Parliament’s Rules of Procedure, made under Article 94 of the Constitution.
ii. The enactment, without compliance with Rule 24(3), was inconsistent with Articles 88 and 89 of the Constitution. As a result, the Computer Misuse (Amendment) Act, 2022 is null and void.
iii. All provisions of the Computer Misuse Act (2023 Edition) challenged in Constitutional Petition Nos. 34, 37, and 42 of 2022, namely Sections 11, 23, 26, 27, 28, and 29—are null and void.
iv. The definition of “libel” in Section 162 of the Penal Code Act, as read with Section 163, is vague and ambiguous and, to that extent, contravenes Article 19(3)(a) of the ICCPR and Objective XXVIII(i)(b) of the National Objectives and Directive Principles of State Policy.
v. Section 162 of the Penal Code Act contravenes Article 9 of the ACHPR. Section 163 does not meet the standard required by Article 9(2) of the Charter and is null and void to that extent.
vi. Section 162 of the Penal Code Act contravenes Objective XXVIII(i)(b) and is inconsistent with Article 8A(1) of the Constitution and is therefore null and void.
Orders
A permanent injunction is issued restraining the respondent, and all government agencies, authorities, and officials, from enforcing Sections 11, 23, 26, 27, 28, and 29 of the Computer Misuse Act, Cap. 96, and Section 162 of the Penal Code Act.
The respondent shall pay 30% of the costs of the petitioners’ advocates (per Kitariisibwa Katunguka, JCC).
Read the full case below
Prepared by Muhindo Simon
Legal Scholar
Year 3
Kampala International University
Editors key take aways
1. The Computer Misuse (Amendment) Act, 2022 has been entirely struck down
This is not a case of surgical invalidation of specific provisions. Rather, the entire Amendment has been declared void on procedural grounds. Consequently, all six impugned sections, Sections 11, 23, 26, 27, 28, and 29 of the Computer Misuse Act, Cap. 96, have no legal force. Any prosecutions or investigations premised on these provisions are, therefore, unconstitutional.
2. Quorum compliance is a strict constitutional requirement, not a technicalityThe Court emphatically reaffirmed the line of authority from Ssemwogerere to Wakiso Miraa Growers & Dealers Association v. AG. Rule 24(3) requires a proactive, affirmative, and documented ascertainment of quorum before each vote, regardless of whether any Member raises an objection.
The Hansard must clearly record the method of ascertainment, the number of Members present and entitled to vote, and how those Members voted. Entries such as “Question put and agreed to” are constitutionally insufficient. Any Act of Parliament enacted without such a record is liable to be declared void.
3. Voice voting remains a structural constitutional risk
The Court’s criticism of voice voting, still the default under Rule 97, echoes longstanding concerns raised in Ssemwogerere. The absence of a verifiable voting record makes it impossible to confirm quorum or individual participation. Parliament must urgently reform its voting procedures and Hansard recording practices to ensure compliance with Articles 88 and 89 of the Constitution, failing which further legislation risks invalidation.
4. Criminal libel is unconstitutional: a decisive break from Joachim Buwembo & 3 Others v. Attorney General
In a landmark shift, the Court has definitively declared Sections 162 and 163 of the Penal Code Act null and void. This marks a clear departure from the earlier position in Joachim Buwembo.
The practical implications are significant:
Criminal prosecutions for libel under the Penal Code Act no longer have any constitutional basis.
Defamation claims in Uganda must now be pursued exclusively through civil proceedings.
Parliament is implicitly called upon to enact civil defamation laws aligned with Principle 22(3) of the African Commission’s Declaration—limiting sanctions to those that are necessary and proportionate.
Uganda now aligns with jurisdictions such as South Africa (legislative abolition in 2023) and Kenya (judicial abolition in 2014), as well as the African Court’s position in Lohe Issa Konate v. Burkina Faso.
5. International human rights instruments now directly shape domestic constitutional law
The Court’s reliance on the ICCPR, ACHPR, and the African Commission’s Declaration of Principles (2019), grounded in Articles 45 and 8A of the Constitution, significantly strengthens the domestic enforceability of Uganda’s international obligations. This opens a new pathway for challenging legislation that falls short of international human rights standards.
6. The African Commission’s 2019 Declaration is now operational in Ugandan courts
By expressly relying on the Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019), particularly Principles 9, 21, and 22—the Court has elevated the instrument to a persuasive, near-binding authority in constitutional adjudication. Legal practitioners would be well advised to actively invoke it in future constitutional litigation.
Key Authorities Cited
The Court drew on a rich body of constitutional jurisprudence and international law, including:
Paul K. Ssemwogerere & Another v. AG (CPC No. 3 of 1999): Established the standard for quorum ascertainment and held that failure to meet quorum renders legislation void.
Wakiso Miraa Growers & Dealers Association v. AG (CPC No. 001 of 2017): Reaffirmed quorum principles and clarified acceptable methods of ascertainment.
Prof. Oloka-Onyango & 9 Others v. AG (CPC No. 08 of 2014): Held that failure to address quorum objections taints the legislative process.
Male H. Mabirizi v. AG (CPC No. 2 of 2018): Confirmed that non-compliance with Parliamentary Rules renders an Act a nullity.
Charles Onyango Obbo & Another v. AG (UGSC): Affirmed freedom of expression as foundational to democratic governance.
Joachim Buwembo & 3 Others v. AG (2008): Earlier authority upholding criminal libel, now departed from on treaty-based grounds.
Madrama v. AG ([2019] UGSC 1): Established that international human rights instruments inform constitutional interpretation under Article 45.
Lohe Issa Konate v. Burkina Faso [2014] ACHPR 42: Held that custodial sentences for defamation violate freedom of expression.
Jacqueline Okuta & Another v. AG (Kenya): Persuasive authority striking down criminal defamation.
Declaration of Principles on Freedom of Expression in Africa (2019): Key standards on permissible limitations and abolition of criminal defamation.
UN Human Rights Committee, General Comment No. 34 (2011): Authoritative interpretation of Article 19 of the ICCPR.
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