THE COLONIAL RELIC OF SECTION 38 OF THE PENAL CODE ACT, CAP. 128: WHY THE OFFENCE OF PROMOTING SECTARIANISM IS VOID FOR VAGUENESS AND SHOULD BE ANNULLED

INTRODUCTION

On 1 July 2026, Ugandans awoke to the alarming news that political activist and former Minister of Ethics and Integrity, Miria Matembe, had been remanded to Luzira Prison after being charged with the offence of promoting sectarianism under section 38 of the Penal Code Act, Cap. 128.

The 73-year-old former Minister of Ethics and Integrity appeared frail and had difficulty walking as she appeared before Grade One Magistrate Sheilah Gloria Atim at the Luzira Chief Magistrate's Court. She firmly denied the charge and was remanded pending the hearing of her bail application.

According to the prosecution, Ms. Matembe made remarks on DK TV Uganda in June 2026 while in Nakawa Division, Kampala, stating that “all our taxes are being spent on the Banyankole women ministers.” The prosecution contended that these remarks were likely to incite hostility, hatred, or ill will against members of the Banyankole ethnic group. Ms. Matembe pleaded not guilty and was yesterday released on bail.

Matembe's prosecution is not an isolated incident. Rather, it highlights a broader constitutional problem embedded within Uganda's criminal law. Any advocate of constitutionalism familiar with the Penal Code Act, Cap. 128, will recognise that many of its offences are colonial-era relics, adopted with minimal modification from the criminal codes used by Britain to administer its East African territories. These provisions were designed primarily to preserve colonial administrative control rather than protect the public from demonstrable harm. They achieved this by criminalising dissent, restricting political organisation, and regulating speech along ethnic, religious, and regional lines in a manner that served the interests of the colonial administration.

More than six decades after independence, such offences sit uneasily within a constitutional democracy founded upon the rule of law, the separation of powers, and the protection of fundamental rights and freedoms guaranteed under Chapter Four of the Constitution of the Republic of Uganda, 1995.

The constitutional difficulty of reading such statutory provisions day by day becomes even more apparent when considered alongside the Supreme Court's reasoning in Charles Onyango Obbo & Another v Attorney General; the Court observed that:

If an offense is established based on a speculative likelihood of fear, alarm, or despondency that may result from the publication of any statement, rumor, or report, even to a single individual, it is irrelevant whether such fear, alarm, or despondency actually occurs. This is because Section 50(2)(a) focuses on the likelihood rather than the actuality, and since the time elapsed between the publication and the trial is immaterial, the provision is, in my view, vague and open to excessively broad interpretation. It leaves individuals uncertain about what actions are legally permissible and what are not.

The significance of this reasoning extends well beyond the offence considered in Charles Onyango Obbo. It establishes a broader constitutional principle that where a legislation is drafted in terms so vague, subjective, or elastic that an ordinary citizen cannot reasonably determine what conduct is prohibited, it offends the principle of legality and violates the constitutional guarantee of freedom of expression. Such provisions fail to satisfy the clear and ascertainable standard of legality demanded by Article 2 of the Constitution and ought therefore to be identified, challenged, and declared unconstitutional.

If I am to borrow the words of an Indian constitutional scholar and advocate Pratap Bhanu Mehta in his article, A Modest Plea for Constitutional Morality, Mehta argues that constitutional morality serves as a diagnostic principle, alerting courts to arbitrariness, unaccountable power, and instances where freedom and equality are displaced by discretion. Properly understood, constitutional morality reinforces, not replaces, the principle that public power must be exercised according to clear constitutional standards rather than subjective preferences.

The same principle applies with equal force to Uganda's criminal justice system. Criminal offences that are so vague as to leave citizens uncertain about what conduct is prohibited are incompatible with constitutionalism because they permit arbitrary enforcement and chill the exercise of fundamental freedoms. Equally, the Office of the Director of Public Prosecutions ought not to invoke constitutionally suspect offences to prosecute citizens, as doing so undermines the very constitutional order it is entrusted to uphold.

This write-up examines whether section 38 of the Penal Code Act, Cap. 128, under which the charge against Miria Matembe was brought, can withstand constitutional scrutiny. It argues that the provision is void for vagueness, inconsistent with the constitutional principle of legality, and therefore liable to be declared unconstitutional and annulled.

More fundamentally, it is a modest plea for constitutional morality, not in the abstract, but as a practical obligation resting upon every actor in the administration of justice. Judicial officers, prosecutors, and all public officials entrusted with enforcing the law must look beyond the mere existence of an offence on the statute book and ask a more fundamental constitutional question; does the Constitution permit this offence to be enforced? The fact that Parliament enacted a provision, or that it remains in the Penal Code, does not by itself render its enforcement constitutionally legitimate. Fidelity to the Constitution requires not blind adherence to inherited statutes that have provisions that offend the spirit of constitutionalism, but a steadfast commitment to the rule of law, the principle of legality, and the protection of fundamental rights and freedoms.

The Void-for-Vagueness Doctrine in Statutory Interpretation

The void-for-vagueness doctrine is rooted in the principle of legality, which demands that laws be clear and precise. It requires that penal statutes define criminal offences with sufficient specificity to enable ordinary individuals to understand what conduct is prohibited, and to prevent arbitrary and discriminatory enforcement.

The doctrine recently featured at page 21 of the judgment of Mugenyi, JSC, in the Supreme Court decision of Attorney General v Kabaziguruka, Constitutional Appeal No. 2 of 2021, [2025] UGSC 1 (31 January 2025).

This constitutional principle was articulated in the United States Supreme Court decision of Kolender v Lawson, 461 U.S. 352 (1983), where a statute was struck down for failing to provide clear guidelines for enforcement, in violation of due process. Mugenyi, JSC observed that Ugandan courts have similarly ruled against vague legislative provisions. In Francis Tumwesige Ateenyi v Attorney General, Constitutional Petition No. 36 of 2018, and Andrew Karamagi & Another v Attorney General, Constitutional Petition No. 5 of 2016, provisions lacking precise definition were held unconstitutional for vagueness.

Applying this reasoning, Section 117(1)(h) of the UPDF Act was found to lack the clarity and specificity required by the Constitution, and was accordingly held unconstitutional under the void-for-vagueness doctrine.

Section 38 of the Penal Code Act Cap 128

38. Promoting sectarianism

(1)  Any person who prints, publishes, makes or utters any statement or does any act which is likely to —

(a)  degrade, revile or expose to hatred or contempt;

(b)  create alienation or despondency of;

(c)  raise discontent or disaffection among; or

(d)  promote, in any other way, feelings of ill will or hostility among or against,

any group or body of persons on account of religion, tribe or ethnic or regional origin, commits an offence and is liable, on conviction, to imprisonment for a term not exceeding five years.

(2)  It shall be a defence to a charge under subsection (1) if the statement was printed, published, made or uttered, or the act was done, with a view to exposing, discouraging or eliminating matters which promote or have a tendency to promote sectarianism.

(3)  Sections 39, 40 and 41 shall apply to a charge under subsection (1).

Section 38 Is Constitutionally Defective

Section 38 of the Penal Code Act criminalises any statement or act that is “likely to” degrade, revile, expose to hatred or contempt, create alienation or despondency, raise discontent or disaffection, or otherwise promote feelings of ill will or hostility among persons on account of religion, tribe, ethnicity or regional origin.

While the objective of preventing sectarian conflict is undoubtedly legitimate, the manner in which the offence is drafted is fundamentally inconsistent with the Constitution. The provision is framed in language so broad and indeterminate that it criminalises protected speech and grants law enforcement virtually unfettered discretion to determine what constitutes an offence.

1.  The Offence Is Void for Vagueness

The doctrine of void for vagueness is a cornerstone of statutory interpretation on the legality of the offences under criminal law. Criminal offences must be drafted with sufficient precision to enable an ordinary citizen to know what conduct is prohibited, and to prevent arbitrary or discriminatory enforcement.

Section 38 fails this basic constitutional requirement. The offence employs highly subjective expressions, including:

•  “likely to degrade”;

•  “revile”;

•  “expose to hatred or contempt”;

•  “create alienation”;

•  “raise discontent”;

•  “raise disaffection”; and

•  “feelings of ill will” or “hostility.”

None of these expressions is defined in the Act. Their meaning depends almost entirely on the personal opinion of the investigating officer, prosecutor or trial judge.

For example, robust criticism of tribal patronage in public appointments, criticism of religious leaders, or political commentary on regional inequalities could all arguably “raise discontent” or “create alienation.” The statute offers no objective standard by which lawful criticism can be distinguished from criminal conduct.

A criminal offence cannot leave citizens guessing whether perfectly lawful political speech will later be characterised as criminal.

2.  The Offence Is Overbroad

Section 38 does not merely prohibit speech that intentionally incites violence or discrimination; it captures speech merely because it is “likely” to produce certain emotions. The provision therefore extends far beyond internationally recognised limitations on freedom of expression enshrined under article 29 of the Constitution.

Uganda, being a constitutional democracy, generally permits particular restrictions under Article 43 of the Constitution; however, Section 38, by contrast, criminalises expression capable only of causing emotional reactions such as dissatisfaction, resentment or hostility, regardless of whether any violence or unlawful conduct is intended or likely to occur.

Consequently, the offence encompasses:

•  political criticism;

•  academic debate;

•  investigative journalism;

•  satire;

•  historical discussion;

•  advocacy for disadvantaged communities; and

•  public commentary concerning tribal or religious discrimination.

Such protected expression lies at the very heart of Article 29 of the Constitution.

3.  The Provision Violates Article 29 of the Constitution

Article 29(1)(a) of the Constitution guarantees every person the freedom of speech and expression, including freedom of the press and other media. The Constitutional Court has consistently recognised that political speech receives the highest level of constitutional protection, a principle reaffirmed in several landmark decisions.

(a)  Charles Onyango Obbo & Another v Attorney General

In Charles Onyango Obbo & Another v Attorney General, the Supreme Court declared criminal libel unconstitutional on the ground that it imposed a disproportionate limitation on freedom of expression. The Court recognised that democracy depends upon broad, uninhibited and even offensive public debate, and held that, where reputation has been harmed, civil remedies are ordinarily sufficient; criminal sanctions, particularly imprisonment, exert an impermissible chilling effect on legitimate public discourse.

The same reasoning applies with equal force to Section 38. Rather than targeting genuine incitement to discrimination or violence, the offence criminalises speech that merely generates disagreement, discomfort or hostility. It therefore suppresses precisely the type of vigorous political discussion that Article 29 was enacted to protect.

(b)  Andrew Mwenda & Another v Attorney General

The Constitutional Court similarly invalidated the offence of sedition because it criminalised criticism of government through vague and expansive language. The Court held that laws restricting expression must be narrowly tailored, and that citizens are constitutionally entitled to criticise public institutions without fear of criminal prosecution.

Section 38 suffers from the very defects that led to the demise of sedition. Like sedition, it employs subjective language that allows authorities to prosecute speech simply because it is unpopular or politically inconvenient.

(c)  Alternative Digitalk Ltd & 24 Others v Attorney General

Most recently, in Alternative Digitalk Ltd & 24 Others v Attorney General, the Constitutional Court struck down key provisions of the Computer Misuse (Amendment) Act, 2022, including the offences of offensive communication and the publication of false information. The Court reaffirmed two important constitutional principles; first, that vague criminal offences regulating expression violate Article 29 because citizens cannot reasonably predict what speech is prohibited; and second, that broadly drafted offences create a chilling effect, causing citizens to censor themselves rather than risk criminal prosecution. The Court further recognised that constitutional protection extends equally to digital and traditional forms of expression.

Section 38 presents exactly the same constitutional defect. Its undefined concepts, “ill will,” “hostility,” “discontent” and “alienation”, are no more precise than the expressions invalidated in Alternative Digitalk. Their breadth permits arbitrary enforcement and inevitably discourages lawful public debate on issues of ethnicity, religion and regional inequality.

4.  The Offence Invites Arbitrary Enforcement

A further constitutional difficulty is that Section 38 provides no objective threshold for criminal liability. Two persons may deliver identical speeches, yet one may be prosecuted while the other is not. The determination depends less on the wording of the speech than on the subjective assessment of law-enforcement officials.

Such unfettered discretion is precisely what the constitutional doctrine against vagueness seeks to prevent. The rule of law requires that criminal liability be determined by clear legal standards rather than prosecutorial preference.

5.  The Statutory Defence Does Not Cure the Defect

Subsection (2) provides a defence where the impugned statement or act was made with a view to exposing, discouraging, or eliminating sectarianism. At first glance, this appears to safeguard legitimate speech. Upon closer examination, however, it does little to cure the constitutional infirmity inherent in the offence.

The Constitution requires that criminal offences themselves be drafted with sufficient precision to enable citizens to know, in advance, what conduct is prohibited. A citizen should not have to rely on a statutory defence, invoked only after arrest, prosecution, and the commencement of criminal proceedings, to establish that their speech was lawful. The principle of legality demands certainty before criminal liability arises, not a defence after the fact.

The practical difficulty with subsection (2) exposes the contradiction at the heart of section 38. How does one rely on a defence that requires proving they were exposing sectarianism when the very act of exposing it may itself be treated as promoting sectarianism?

For example, suppose a citizen publicly criticises tribal favouritism in public appointments and states that a particular public official is favouring members of their own ethnic group. The purpose of the statement is plainly to expose and discourage sectarian practices. However, the official or those offended by the allegation may contend that the statement is "likely to" promote hostility or ill will against members of that ethnic group and report the speaker for promoting sectarianism under section 38. The citizen is then arrested, charged, and forced to rely on subsection (2) as a defence. In effect, the very conduct that the defence seeks to protect becomes the basis for prosecution.

This circularity demonstrates that subsection (2) is vague because, rather than preventing arbitrary enforcement, it merely postpones the question until trial, leaving citizens exposed to arrest, prosecution, reputational harm, and the burden of defending themselves in court. Such a scheme inevitably chills legitimate expression, as individuals cannot predict whether their speech will be regarded as exposing sectarianism or as promoting it. The uncertainty created by the provision discourages free speech, public debate and accountability that Article 29 of the Constitution was enacted to protect.

The Chavunduka Precedent

The tendency of Uganda's criminal justice system to deploy politically sensitive offences against government critics has a well-defined precedent in the locus classicus of Charles Onyango Obbo & Another v Attorney General. On a broader interpretation, that decision not only halted the use of such offences, but also established a benchmark against statutes that create offences merely for the sake of it.

In reaching its decision, the Court cited the judgment of the Supreme Court of Zimbabwe in Mark Gova Chavunduka and Another v Minister of Home Affairs and Another, which considered section 50(2)(a) of the Law and Order (Maintenance) Act, a provision almost identical to the impugned section then under review. The Zimbabwean Supreme Court held;

“Does s.50(2)(a) of the Act overcome this threshold test? It is obvious that the provision does not just criminalize false statements; nor false statements which actually cause fear, alarm or despondency. There is no requirement of proof of any consequences — of damage to the State or impact upon the public. What the lawmaker has provided for is a speculative offence. An offence has been created out of a conjectural likelihood of fear, alarm or despondency which may arise out of the publication of any statement, rumour or report, even to a single person. It matters not that no fear, alarm or despondency actually eventuates. Because s.50(2)(a) is concerned with likelihood rather than reality, and since the passage of time between the dates of publication and trial is irrelevant, it is, to my mind, vague, being susceptible of too wide an interpretation. It places persons in doubt as to what can lawfully be done and what cannot. As a result, it exerts an unacceptable ‘chilling effect’ on freedom of expression, since people will tend to steer clear of the potential zone of application to avoid censure and liability to serve a maximum period of seven years’ imprisonment.”

The Zimbabwean Supreme Court accordingly declared section 50(2)(a) of the Law and Order (Maintenance) Act to infringe the right to freedom of expression and to be unconstitutional.

The parallel to Section 38 of Uganda's Penal Code Act is direct. Section 38, too, criminalises conduct on the basis of conjectural likelihood rather than proven consequence, and thereby offends the same constitutional principle. A criminal offence cannot leave citizens guessing whether perfectly lawful political speech will later be characterised as criminal, particularly where, on a strict reading of the Act, a substantial proportion of ordinary media reporting on ethnic and regional affairs in Uganda would itself fall within its terms.

Conclusion

Although combating sectarianism is unquestionably a legitimate constitutional objective, Section 38 employs vague, subjective and overbroad language that criminalises a substantial amount of protected speech. Its undefined terminology fails to provide clear notice of prohibited conduct, encourages arbitrary and selective enforcement, and creates a chilling effect on public discourse.

The Constitutional Court's jurisprudence in Andrew Mwenda, Charles Onyango Obbo and Alternative Digitalk establishes a consistent principle that criminal offences regulating freedom of expression must be narrowly drawn, clearly defined, and proportionate to a legitimate constitutional objective. Section 38 satisfies none of these requirements. To the extent that it criminalises speech based on vague concepts such as “discontent,” “alienation,” “ill will” or “hostility,” rather than intentional incitement to violence or discrimination, Section 38 is incompatible with Article 29 of the Constitution and is liable to be declared unconstitutional and void.

Most importantly, Section 38 is a colonial relic that has outlived whatever administrative purpose it once served. It belongs to a body of law designed to entrench control over a subject population, not to govern a sovereign, constitutional democracy in which citizens are entitled, as of right, to criticise power, question ethnic and regional patronage, and debate the allocation of public resources without fear of imprisonment. The prosecution of Ms Matembe is not an isolated misapplication of an otherwise sound law; it is the entirely foreseeable operation of a provision that was defective from the outset.

Therefore, Section 38, alongside other similarly vague and overbroad offences inherited from the colonial-era Penal Code, is inconsistent with that constitutional settlement and has no legitimate place within it. It should be struck down as void for vagueness, and Parliament should, in its place, undertake a deliberate review of the Penal Code Act to identify and repeal offences that serve no purpose beyond the suppression of lawful dissent.

By

Waboga David

Legal Researcher.