By A.K Sempala | Head Legal and Programs | Unwanted Witness

11^th April 2026 | Kampala, Uganda

There is a certain irony in the State’s decision to withdraw charges under the annulled Computer Misuse Act, only to reframe them under the Uganda Communications Act and its attendant regulations. It is an irony that cannot be ignored, particularly in the immediate aftermath of a landmark Constitutional Court judgment that sought to reset the boundaries of permissible state control over expression in Uganda’s digital age.

That judgment was not merely about statutory interpretation; it was about constitutional fidelity. It reaffirmed a principle that lies at the heart of any democratic society: that freedom of expression is not a privilege to be dispensed at the discretion of the State, but a right that inheres in the people, protected under Article 29 of the Constitution and limited only under the strict and exacting standards of Article 43.

Against that backdrop, the introduction of fresh charges grounded in Sections 28(1) and (2) of the Uganda Communications Act, alongside Regulation 110(e) of the Uganda Communications (Licensing) Regulations, raises more than procedural questions. It raises a deeper constitutional concern: whether this is an attempt to regulate what could not be constitutionally sustained under another name.

Section 28 of the Uganda Communications Act, when read in its proper context, is not a punitive provision. It is, in fact, framed as a protective one. It seeks to safeguard the right to broadcast by prohibiting unauthorized interference based on the content of a programme. Subsection (2) introduces narrow and legitimate exceptions, such as the prohibition of pornography and the protection of individual privacy. These are constitutionally defensible limitations, grounded in clearly identifiable harms.

However, to transpose this provision into a basis for criminal liability for “broadcasting without a license” in a digital context requires careful scrutiny. The modern information ecosystem has fundamentally altered what constitutes “broadcasting.” Individuals with smartphones, journalists operating online platforms, and ordinary citizens engaging in political commentary now occupy spaces that were once the exclusive domain of licensed broadcasters. To treat all forms of digital expression as licensable broadcasting risks collapsing this distinction and extending regulatory control into the realm of everyday speech.

Such an interpretation would sit uneasily with Article 29. It would imply that the exercise of free expression, particularly in digital spaces, is contingent upon prior state authorization. That is a proposition that strikes at the very core of constitutional democracy.

Even more troubling is the reliance on Regulation 110(e), which criminalizes the “publication of fake news.” At first glance, the objective appears legitimate. No society benefits from deliberate disinformation. But the constitutional question is not whether false information is undesirable; it is whether its criminalization meets the threshold of necessity, proportionality, and clarity required under Article 43.

The Constitutional Court has already provided guidance on this question. As reaffirmed in its recent judgment, and rooted in the earlier Obbo doctrine, the Constitution does not exclude false, offensive, or unpopular speech from its protection. The reason is both practical and philosophical. In a democratic society, truth is not determined by the State but emerges from open contestation. To criminalize falsehood is to vest in the State the authority to determine truth, a power that is inherently susceptible to abuse.

The concept of “fake news” is, by its very nature, indeterminate. What constitutes falsehood? Is it deliberate misinformation, negligent reporting, satire, political exaggeration, or dissenting opinion? Without precise legal definition, such a provision becomes a tool of discretion rather than law. It invites selective enforcement, where the line between lawful expression and criminal conduct is drawn not by objective standards, but by subjective judgment.

This is precisely the kind of vagueness that the Constitutional Court warned against. Laws that lack clarity do not merely regulate conduct; they produce a chilling effect. They compel individuals to self-censor, not because their speech is unlawful, but because the boundaries of legality are uncertain. In such an environment, the safest course is silence, and silence is antithetical to democracy.

Moreover, the criminalization of “fake news” fails the proportionality test under Article 43. Criminal sanctions carry severe consequences, including arrest, prosecution, and potential imprisonment. These are the most coercive tools available to the State. To deploy them in response to expression, particularly where less restrictive alternatives exist such as civil remedies, corrections, or counter-speech, is to exceed what is demonstrably justifiable in a free and democratic society.

There is also a deeper structural issue at play. The shift from the Computer Misuse Act to communications regulation suggests a broader pattern: the migration of speech control across legal frameworks. When one avenue is constitutionally constrained, another is invoked. But constitutional rights do not depend on the label of the law under which they are restricted. Whether the limitation arises under cyber law, communications law, or any other statutory regime, it must still satisfy the same constitutional standard.

What is at stake, therefore, is not merely the fate of an individual case, but the integrity of Uganda’s constitutional order. The recent judgment was a clear signal that the expansion of criminal law into the domain of expression must be approached with caution, precision, and restraint. It was, in many respects, a course correction.

To now rely on broadly framed provisions such as “fake news” risks undoing that correction. It risks reintroducing, through regulatory means, the very uncertainties and overreach that the Court sought to eliminate.

This is not to suggest that digital spaces should be unregulated. Harmful conduct, including incitement to violence, defamation, and violations of privacy, can and should be addressed. But the means of regulation must align with constitutional principles. Criminal law should be a measure of last resort, reserved for clearly defined and demonstrably harmful conduct, not a default response to contested or erroneous expression.

A democratic society does not fear falsehood; it confronts it through debate, evidence, and counter-speech. The remedy for bad speech is not less speech enforced by law, but more speech enabled by freedom.

In the end, the question is not whether the State can regulate expression, but how it chooses to do so. The Constitution provides the answer. Any limitation must be lawful, necessary, proportionate, and justifiable. Anything less is not regulation, but restriction. And restriction, when it strays beyond constitutional bounds, becomes something more troubling: a quiet erosion of the very freedoms that define the Republic.