Arrested in Museveni’s name

Kampala. Journalist-turned pastor Joseph Kabuleta is the latest name on the growing list of Ugandans who have got into trouble with the law over accusations of insulting or annoying the President.

Mr Kabuleta, who on Friday was with friends at Forest Mall in Lugogo, Kampala, ahead of his weekly Watchman Fellowship held at UMA Upper Gardens, was grabbed by plain-clothed security agents at around 5pm and bundled into a waiting Toyota Wish car, registration number UBB 459D.

To effect an arrest, the police would ordinarily be expected to use official police force vehicles. The process of arrest also requires that a person is informed of the reason for his/her arrest, and ideally presented with an arrest warrant.

In the lead up to his arrest, Mr Kabuleta had embarked on a vicious social media campaign in which he authored missives critical of the ruling establishment and the First Family.

In the latest memo entitled “Mafia Empire and the Transition”, which was published on his Facebook page on July 8, Mr Kabuleta was particularly critical of President Museveni’s son and senior presidential advisor on special operations, Lt Gen Muhoozi Kainerugaba. He said a plot was in flight to ensure that Gen Muhoozi succeeds his father as President.

“The First Son is already being sent on foreign missions on behalf of his father and is meeting ambassadors and dignitaries, and tweeting about it,” Mr Kabuleta’s post reads in part.

He added: “Maybe the Godfather is planning to go into semi-retirement after rigging the 2021 elections and take on an advisory role as his son runs the family business called Uganda Limited.

“Or maybe, just maybe, the transition happens within NRM and the country adopts a parliamentary system in which the party with the most elected legislators takes the presidency.”

He then concluded: “Whatever their plans, I know for sure that the reality will be different. The Mafia empire is crumbling and Uganda will return to Ugandans.”

Mr Peter Magelah, a lawyer at Chapter Four, an NGO promoting human rights, in a tweet questions the mode police adopted to arrest Mr Kabuleta.

“About Kabuleta [and] other arrests, I am wondering; why would a professional [Uganda Police] or any security agency for that matter, arrest someone in a manner similar to kidnap and forced disappearance in a ‘peaceful’ and ‘democratic’ country?”

At the time of filing this report, the place where Mr Kabuleta was detained remained unknown, despite the police confirming that they were holding him. Mr Fred Enanga, the police spokesperson, declined to say where Mr Kabuleta was held and whether his lawyers and family had been allowed access to him.

Mr Kabuleta’s arrest on Friday seems to be a reversion to an old tactic of the security forces to hold suspects for a considerable period of time before producing them in court since the courts don’t open on weekends.

On July 9, the Inspector General of Police (IGP), Mr Martins Okoth-Ochola, issued a circular to all police units directing the Force to adhere to the provisions of the Human Rights (Enforcement Act 2019), which was recently passed by Parliament.

“The common human rights violations by police that have been documented over the years include, but not limited to, detention of suspects beyond 48 hours, torture, denial of a right to a fair hearing ...” the circular reads in part.

He added: “Important to note is that responsible officers will now be required to personally incur the cost of compensation in the event of an award by court...”

Section 10 of the cited new Human Rights (Enforcement) Act of 2019 holds public officers like police officers individually liable for violation of a person’s rights or freedoms committed either individually or in a group. The law states that individual officers shall pay a portion of the compensation as has been ordered by the court.

It is also not clear whether the plain-clothed security personnel who conducted the arrest were police personnel.

Shortly after Mr Kabuleta’s arrest, Kampala Metropolitan Police spokesperson Patrick Onyango was quoted by the New Vision newspaper, where Mr Kabuleta cut his teeth as a journalist, as saying: “they [the police] had not yet been briefed about the operation and that he would inform the media once they were briefed”.

Mr Charles Twine, the spokesperson of the Criminal Investigations Directorate of the police, later confirmed Mr Kabuleta’s arrest and detention.

“He has been arrested on offensive communication charges and he has been detained,” Mr Twine told this newspaper.

Mr Fred Enanga, the police spokesperson, in a subsequent statement, said Mr Kabuleta had been arrested by the Special Investigations Division of the police and put “under custody” because of “offensive communication against the person of the President”.

“According to preliminary information, the writer repeatedly posted grossly offensive messages under “Joseph Kabuleta Weekly Rant Returns,” referring to the fountain of honour as “a Gambler, Thief and Liar”. Section 25 of the Computer Misuse Act, 2011, criminalises such acts of communication.”

He added: “The public is further advised to think first about what they say on social media. The joint forces will continue using the acquired capabilities to monitor comments on social media and any offenders will be investigated and punished. Investigations into the conduct of Joseph Kabuleta are ongoing and more information will be availed as investigations unfold.”

The debate

The arrest of Mr Kabuleta elicited debate, with many largely condemning it.

Mr Andrew Mwenda, the proprietor of the Independent magazine, who made a name in the late 1990s and early 2000s for criticising President Museveni’s rule in print and broadcast journalism, said Ugandans had a right to offend the President.

Mr Mwenda tweeted: “The arrest of Joseph Kabuleta for “offending the President” is archaic, intolerable and unacceptable! Ugandans have every right to offend the President. They hire him to serve them. They should be free to express their anger at how he is running the country justifiably or not!”

He added in another tweet: “Uganda is a republic, not a monarchy, the President is elected by citizens, not anointed by birth; power belongs to the people, not to the President who only exercises it on their behalf. So citizens have every right to make judgment of how they think/feel he is performing!”

Mr Mwenda’s reaction mirrors the arguments in the landmark constitutional case of 2005, decided in 2010, in which the Constitutional Court expunged from the Constitution the offense of sedition.

Lawyer James Nangwala, who represented Mr Mwenda in the constitutional petition, argued during the hearing: “In Uganda where the President is elected and not born, the actions of the President and activities of the State, administration and justice offices … must undergo criticism of the citizens... A leader should not cease to tolerate those who elect him only because he has been elected.”

The petition arose out of criminal cases that had been brought against Mr Mwenda over comments he had made during a talk show on KFM radio regarding the death of former Sudan vice president John Garang.

Among other statements, Mr Mwenda said: “You see these African presidents. This man went to university, why can’t he behave like an educated person? Why does he behave like a villager?’

Mr Mwenda halted his trial in the magistrate’s court by filing a petition challenging the constitutionality of the charge of sedition, and the Constitutional Court ruled in his favour, expunging the offense of sedition from the Constitution.

In describing the offense of sedition, this is one of the statements that were expunged from the Penal Code Act as follows: “To bring into hatred or contempt or to excite disaffection against the person of the President, the Government as by law established or the Constitution.”

The current law

At least 15 people have been arrested for allegedly offending President Museveni since the 2016 general elections.

Away from Mr Kabuleta’s case, the most prominent case currently unfolding is of Dr Stella Nyanzi, formerly a fellow at Makerere University’s Institute of Social Research, who has been on remand since November last year. She was charged in court and she refused to apply for bail, arguing that she did not want to go home worrying about being picked up the following day. That was the second time she was arrested over posts on Facebook written in explicit language criticising President Museveni and his family.

The prosecution has since closed its case in Dr Nyanzi’s trial and to kick off her defence, she asked that President Museveni, who the prosecution says was offended by her posts, shows up in court to be cross-examined. Court informed her that the incumbent is not obliged to appear in a court of law.

Dr Nyanzi, in interviews and writings that she has done while on remand, argues that she took on a different way of expressing herself because the government was no longer listening to Ugandans. Mr Kabuleta has made similar claims, just like a number of others who have recently got into trouble with the law over similar utterances.

Law enforcement and other State agencies have mostly relied on the Computer Misuse Act, 2011. Internet users, including activists, journalists and human rights defenders have been arrested and charged under the law.

Section 25 of the Computer Misuse Act, 2011, on offensive communication and cyber harassment, is perhaps the most controversial. “Any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanour and is liable on conviction to a fine not exceeding 24 currency points or imprisonment not exceeding one year or both,” the act reads in part. Twenty four currency points is an equivalent of Shs480,000.

Whereas this law can be invoked by any person in Uganda, who may feel wronged through social media, the most publicised cases of people being charged under it have involved the President or people close to him.

There have, however, been cases involving other people.

On June 12, the police arrested Pidson Kareire, the managing editor of a news website, The Drone Media, on charges of, among others, four counts of “offensive communication. The charges stem from The Drone Media’s reporting on labour recruitment firm, Middle East Consultants Limited. Mr Kareire pleaded not guilty to the charges and was released on a non-cash bail of Shs10m.

Last year, Mukono Muicipality MP Betty Nambooze was also arrested and detained on charges under the Computer Misuse Act for her alleged social media comments prior to and after the shooting to death of Arua Municipality MP Ibrahim Abiriga and his brother Saidi Butele Kongo. Other people, including Raymond Soufa, alias Peng Peng, Nasser Mugerwa and a one Jane Kuli, were indicted by the police under the same law and related events.

In the Penal Code Act, however, Section 24 still exists to specifically protect the President. The section makes it an offence to alarm or annoy or ridicule the President, and the maximum punishment for one found guilty of this offence is imprisonment for life.

A 2017 report by Unwanted Witness, an independent civil society organisation (CSO) of bloggers, activists, writers and human rights defenders, whose vision is “creating platforms that guarantee Internet/online freedoms”, indicates that in the 2016 post-election year, the country registered the highest number of Ugandans ever arrested for their online expression.

On April 20, 2017, in constitutional petition number 15 of 2017, Unwanted Witness petitioned the Constitutional Court challenging the constitutionality of Section 25 of the Computer Misuse Act, 2011.

Like the challenge lodged against the Public Order Management Act (POMA) more than six years ago, the case has stayed in the Constitutional Court and is yet to even reach the conferencing level.

Justice Kenneth Kakuru of the Court of Appeal (Constitutional Court) was not yet on the Bench when the judgment that expunged the offense of sedition cited above was handed down. He was the lawyer for Eastern African Media Institute, which joined the petition in support of Mr Mwenda. During the hearing, Mr Kakuru made an argument that the Justices led by the late Lady Justice Leiticia Mukasa-Kikonyogo agreed with.

The judgment reads in part: “… during elections, voters make very annoying and character assassinating remarks and yet in most cases false, and yet no prosecutions are preferred against them. The reason is because they have a right to criticise their leaders rightly or wrongly. That is why he (Mr Kakuru) suggested, rightly so, that leaders should grow hard skins to bear (the criticism).”

The institution of criminal proceedings against individuals for criticising public officials, and raising issues of public interest, is a violation of the right to free expression and a State’s international legal obligations, says ARTICLE 19, an international NGO that campaigns for a world where people “can freely express themselves and actively engage in public life without fear of discrimination”.

Those arrested before

June 18, 2019: Andrew Mukasa, also known as Bajjo, was charged with incitement of violence against the person of the President and offensive communication.

February 25, 2019: City socialite Shanita Namuyimba, alias Bad Black, was quizzed by the police CID for allegedly abusing and defaming President Museveni on social media. In the video, she also claims that the President had impregnated her and then forced her to abort.

January 2019: Police in Gomba District arrested a 19-year-old man for allegedly insulting President Museveni. Authorities said, Joseph Kasumba, a resident of Kanoni Town, abused Mr Museveni, calling him names, including Bosco. Gomba District Police Commander, Robert Kuzaara, at the time said Mr Kasumba would be charged with alleged alarming, annoying and ridiculing the person of the President contrary to the Penal Code Act.

November 2017: Five directors and three editors of the Red Pepper publications were charged with seven counts, including offenses under the Computer Misuse Act 2011. The accused were Arinaitwe Rugyendo, Richard Kintu, James Mujuni, Patrick Mugumya, Richard Tusiime, Johnson Musinguzi alias Byarabaha, Ben Byarabaha, and Francis Tumusiime. They were charged with, among other things, injuring the reputation of President Museveni, disturbing the peace of his younger brother, Gen Salim Saleh and the then Security minister, Gen Henry Tumukunde.

In 2016: Dr Stell Nyanzi was arrested after she published a post on her Facebook page describing President Museveni as “a pair of buttocks”. She was arrested again on November 2, 2018. In both instances, she is facing charges relating to offensive communication and cyber harassment.

December, 2017: Music producer Jonah Muhanguzi and artiste David Mugema were arrested and locked up in prison for allegedly insulting President Museveni. The prosecution alleged that Mr Mugema and Mr Muwanguzi repeatedly composed, recorded, produced and distributed a song in which they attacked and disturbed the peace of President Museveni. The DPP discontinued charges of offensive communication against the duo. Mr Muwanguzi was also independently charged with abetment of offensive communication.

Moses Nsubuga, aka Viboyo: Detectives arrested local musician for composing a song in which he allegedly used obscene words to attack government leaders, including President Museveni and Speaker of Parliament Rebecca Kadaga. Viboyo was detained at Jinja Road Police Station on charges of offensive communication.

December 2016: Swaibu Nsamba Gwogyolonga was arrested on charges of offensive communication against President Museveni. Trouble for Nsamba stemmed from his Facebook post expressing how he will announce and mourn the death of President Museveni when he died. The post was accompanied with a photoshopped picture of Mr Museveni and how he would look after his demise. Mr Nsamba said the charges against him infringe on his freedom of expression. He is one of the petitioners in the Constitutional Court and his trial was stayed pending determination by the Constitutional Court in that hearing.

June 2015: Robert Shaka was arrested and remanded to Luzira Prison after being charged with offensive communication contrary to Section 25 of Computer Misuse Act. According to the charge sheet, the State alleged that Mr Shaka, disguising as Tom Voltaire Okwalinga (TVO), between 2011 and 2015, in Kampala, wilfully and repeatedly using a computer with no purpose of legitimate communication, disturbed the right to privacy of President Museveni by posting statements regarding his health condition on Facebook.

October 31, 2018: Ms Susan Namata spent two months in police custody before she was presented before Buganda Road Magistrates Court on October 31, 2018. Ms Namata and her friend allegedly recorded a video threatening to hit President Museveni with their genitals. Ms Namata was charged with the offense of offensive communication and cyber harassment towards the person of the President. She was remanded, but later granted bail. Her friend, who is said to be out of the country, remains on the run.

July, 2018: Mr Mulangira Hope Kaweesa was arrested on charges of offensive communication after he allegedly circulated an audio threatening to harm President Museveni.