UGANDA CHRISTIAN UNIVERSITY

SCHOOL OF LAW

ADVENT SEMESTER 2024

INTRA-SCHOOL OF LAW MOOT COURT COMPETITION

THE CONSTITUTIONAL COURT OF KYONDO.

IN THE MATTER BETWEEN

BATHIMWA JOSEPH & ACTION FOR SOCIAL MEDIA RIGHTS

AND

ATTORNEY GENERAL OF KYONDO

MEMORIAL FOR THE APPLICAN

~1~
Table of Contents
UGANDA CHRISTIAN UNIVERSITY.............................................................................................1

LIST OF ABBREVIATIONS................................................................................................................4

INDEX OF AUTHORITIES................................................................................................................6

A. NATIONAL LEGISLATION.......................................................................................................6

B. NATIONAL COURT DECISIONS............................................................................................6

C. INTERNATIONAL TREATIES AND CONVENTIONS....................................................7

E. CASES OF THE AFRICAN COMMISSION............................................................................7

G. BOOKS AND OTHERS................................................................................................................8

STATEMENT OF JURISDICTION....................................................................................................9

SUMMARY OF FACTS........................................................................................................................10

STATEMENT OF ISSUES..................................................................................................................11

SUMMARY OF ARGUMENTS.........................................................................................................12

ARGUMENTS ADVANCED...................................................................................................................13

A. WHETHER THE CONSTITUTIONAL COURT HAS JURISDICTION TO HANDLE

THIS DISPUTE?....................................................................................................................................13

B. WHETHER THE RELEVANT SECTIONS OF THE KCC AND EXCISE

DUTY(AMENDMENT) ACT CITED IN PRECEDING PARAGRAPHS ARE IN
CONTRAVENTION OF THE CONSTITUTION?......................................................................15

C. WHETHER THE RELEVANT PROVISIONS CONTRAVENE THE RIGHTS,

PRINCIPLES IN INTERNATIONAL LAW, TREATIES/ CONVENTIONS?.....................17

D. WHETHER THERE ARE AVAILABLE REMEDIES?.......................................................19

PRAYERS................................................................................................................................................20

~2~
 LIST OF ABBREVIATIONS

ACHPR African Commission on Human and Peoples’ Rights

AfCHPR African Court on Human and Peoples’ Rights

AG Attorney General
ASMR Action for Social Media Rights

CJ Chief Justice

EACHPRB East African Community Human and Peoples’ Rights Bill, (2011)
EDA Excise Duty (Amendment) Act (2024)

EHRC European Court of Human Rights.

ICCPR International Covenant on Civil and Political Rights

ICEAFRD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

ICT Information and Communications Technology

JSC Justice of the Supreme Court

KCA Kyondo Communications Act

KCC Kyondo Communications Commission

LJ Lord Justice

SC Supreme Court

U.S United States

UDHR Universal Declaration of Human Rights

UGCC Uganda Constitutional Court

~3~
UK United Kingdom

USD United States Dollars

ZACC Zimbabwe Anti-Corruption Commission

INTERPRETATION

1. The Constitution means the Constitution of the Republic of Kyondo.

2. The Court means the Constitutional Court of Kyondo
3. The Charter means the African Charter on Human and Peoples’ Rights
4. The Declaration means the Declaration of Principles on Freedom of Expression and Access
to Information in Africa.

~4~
 INDEX OF AUTHORITIES

A. NATIONAL LEGISLATION

Citation Page

1. Constitution of the Republic of Kyondo

2. Excise Duty (Amendment) Act (2024)

3. Judicature (Fundamental & Other Human Rights and Freedoms)

(Enforcement Procedure) Rules, 2019
4. Kyondo Communications Act

5. Kyondo Communications Commission

B. NATIONAL COURT DECISIONS

1. AG v Tinyefunza Const. Appeal No. 1/ 1997

2. Andrew Mwenda v Attorney General [2010] UGCC 9

3. Gwogyolonga & 3 Ors v A.G Const. Petition No. 01/ 2019

4. Human Rights Network v AG & Ors [2020] UGCC 6

5. Islamic Unity Convention v Independent Broadcasting Authority

[2002] ZACC 3
6. Ismail Serugo v A.G & Anor Const. Appeal No. 2/1998 (SC)

7. Kakuru David & Ors v AG & Ors Const. Petition No.003/ 2023

~5~
8. Karamagi and Another v Attorney General Constitutional Petition
No. 15/ 2017 & No. 1/ 2019
9. Leal Brain Trust Ltd v A.G Misc. Cause No. 314/ 2021

10. Mbabali Jude v Edward Kiwanuka Sekandi & Ors Const. Petition No.
28/2012
11. Odoch & Ors v A.G & Ors Const. Petition No. 7/2016

12. Raphael Baku & Anor v A.G Const. Appeal No. 1/ 2003

13. Twase Jimmy v A.G Const. Petition No. 45/ 2017

14. Uganda Law Society v Uganda Communications Commission

C. INTERNATIONAL TREATIES AND CONVENTIONS

1. African (Banjul) Charter on Human and Peoples’ Rights

2. East African Community Human and Peoples’ Rights Bill, (2011)

3. International Convention on the Elimination of All Forms of Racial
Discrimination
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights

6. Universal Declaration of Human Rights

D. CASE OF THE AFRICAN COURT

1. Konaté v Burkina Faso [2013] AfCHPR 39

~6~
E. CASES OF THE AFRICAN COMMISSION

1. Amnesty International v Zambia [1999] ACHPR 1

2. Good v Republic of Botswana [2010] ACHPR 106

3. Lingen v Austria [1986] ACHPR 7

4. Media Rights Agenda & Ors v Nigeria [1998] ACHPR 3

5. Scanlen and Holderness v Zimbabwe [2009] ACHPR 96

6. Zimbabwe Lawyers for Human Rights v Zimbabwe [2008] ACHPR
86

F. OTHER INTERNATIONAL CASES

1. Handyside v UK [1976] EHRC 5

2. Justice Brennan, New York Times v. Sullivan, 376 U.S 254

3. Justice Powell, (Gertz v Robert Welch, Inc, 418 U.S 323, 1974)

4. Lingens v Austria, Application No. 9815/ 82

5. R v Bedfordshire 24 L.J.G.B 84

G. BOOKS AND OTHERS

1. Bryan A. Garner, Black’s Law Dictionary

2. Mulla, “Code of Civil Procedure”

3. The Judiciary of Uganda, “Court of Appeal” 2024

www.judiciary.go.ug

~7~
 STATEMENT OF JURISDICTION

The Applicants bring the matter before this Honorable Court on the basis of Article 137(1) of the
Constitution, which gives the Court mandate and original jurisdiction to determine matters
concerning questions as to the interpretation of the Constitution. The Court is vested with powers
to adjudge on matters of inconsistency of Acts of Parliament, and any acts or omissions by any
person or authority, in relation to any provision of the Constitution, for which redress is granted
where appropriate.

In Attorney General v Tinyefuza,1 the court's jurisdiction was observed to embrace references
and petitions whose resolution depends either on the interpretation of a constitutional provision or
on the determination of a question concerning the contravention of a constitutional provision.

1
[1997] UGCC 11

~8~
 SUMMARY OF FACTS

Kyondo is an East African state which is a signatory to all international and African Human rights
treaties that recognize Press and Access to information rights. Kyondo communications sector is
regulated by KCC which has been accused by several activists of misusing its regulatory power, and
not being independent from the Executive branch of Parliament. Critics have indicated that there
are no independent mechanisms in place to hold KCC accountable to the public.

In an effort to prevent abuse of top government officials, the parliament passed the KCA calling for
new licensing and registration requirements for online publishers and the regulator was given power
to block sites that failed to comply. The anonymity of content producers was also abolished, and
media outlets from live broadcasting parliamentary proceedings and debates on politically sensitive
issues was banned.

KCC issued a directive requiring “all online data communication service providers, including online
publishers, online news platforms, online radio and television operators” to obtain the KCC’s
authorization to operate. They were required to pay $200 per annum, with a deadline of 2nd April,
2024 to register or face blocking, thus strengthening the regulator’s powers to limit online speech,
hence the blockage of all unregistered sites.

The government passed the EDA known as “social media tax” imposing $1 per day on the use of
popular social media and communication apps. They denied users access more than 58 apps
including WhatsApp, X, Facebook, and Instagram which have been blocked from usage by citizens
in order to rig the upcoming 2025 elections.

Bathimwa Joseph, a professional journalist, was charged under the Kyondo Communications Act
with unlawful publication of defamatory matter and cyber harassment. He argues that the
criminalization of defamation and cyber harassment under Sections 179 and 25 violate his freedom
of expression guaranteed under Article 29(1)(a) of the Kyondo Constitution. ASMR joins the suit to
challenge the validity of these sections and the social media tax under the Excise Duty (Amendment)
Act.

~9~
~ 10 ~
 STATEMENT OF ISSUES

The Applicants respectfully request the Court to adjudge:

(a) Whether the Constitutional Court has jurisdiction to handle this dispute?

(b) Whether the relevant sections of the KCC and Excise Duty (Amendment) Act cited in preceding
paragraphs are in contravention of the Constitution?

(c) Whether the relevant provisions contravene the rights, principles in international law, treaties/
conventions?

(d) Whether there are any remedies available to the parties?

~ 11 ~
 SUMMARY OF ARGUMENTS

MERIT A

The Applicants submit that the Court has competent jurisdiction to entertain this dispute, since the
matter concerns questions as the interpretation of Sections 25 and 179 of the KCA, and other
provisions of the EDA.

MERIT B

The Applicants submit that Sections 25 and 179 of the KCA, and the provisions of the EDA, are in
total contravention with expression and speech rights, access to information rights, economic rights,
and association rights respectively guaranteed under Articles 29, 41, 40, 43 and 45 of the
Constitution.

MERIT C

The Applicants submit that Sections 25 and 179 of the KCA, and the provisions of the EDA are in
total contravention with international law obligations under the African Charter, ICCPR, UDHR,
African Declaration and other international instruments.

MERIT D

The Applicants submit that they are entitled to costs, Court’s declaration on the violations, and an
order to stay the enforcement of the contested provisions, as remedies for the suit.

~ 12 ~
 ARGUMENTS ADVANCED

A. WHETHER THE CONSTITUTIONAL COURT HAS JURISDICTION TO

HANDLE THIS DISPUTE?

[1]. The Applicants submit that the Court has original and material jurisdiction to handle the
dispute[I], and that the matter is one of public interest [II].

I. ORIGINAL AND MATERIAL JURISDICTION OF THE COURT.

[2]. Jurisdiction is the statutory mandate,2 and the power of the Court to adjudicate and handle
matters referred to it for litigation.3 The Applicants aver that jurisdiction is a statutory creature, 4 for
which the law has to dictate the nature of matters handled by the Court in its criminal and civil
capacity.5

[3]. The Applicants aver that the Constitutional Court is vested with powers, 6 and original
jurisdiction,7 to handle matters pertaining to the interpretation of the Constitution. 8 It is noteworthy
that the Court’s material jurisdiction is based only on matters challenging the constitutionality of any
law,9 acts or omissions of any person, 10 authority and state.11 Further, the Applicants submit that
there is a requirement for the application to show on the face of it that interpretation of a
constitutional provision is required.12

2
Bryan A. Garner, “Black’s Law Dictionary, 10th edn” 2014.
3
Kakuru David & Ors v AG & Ors Const. Petition No. 003/2023, p 10, Elizabeth Musoke LJ
4
AG v Tinyefuza, Const. Appeal No. 1/1997, Wambuzi CJ
5
Mulla, “Code of Civil Procedure”, p225
6
Human rights Network v A.G & Ors [2020] UGCC 6
7
The Judiciary of Uganda, “Court of Appeal” 2024. www.judiciary.go.ug
8
Ibid
9
Constitution, Art. 137(3)
10
Mbabali Jude v Edward Kiwanuka Sekandi & Ors, Const. Petition No. 28/2012, p 3
11
Ibid
12
Ismail Serugo v A.G & Anor, Const. Appeal No.2/1998 (SC)

~ 13 ~
[4]. The Applicants seek to challenge sections 25, 13 and 179 of the KCA,14 and the provisions
EDA,15 which on the face of it contravene with expression rights, 16 economic rights, access to
information rights, association rights and other rights guaranteed under Articles 28, 29, 40, 41, 43
and 45 of the Constitution.17

[5]. Conclusively, the Applicants aver that since the matters presented before the Court present
questions of constitutional incompatibility and interpretation, the Court has competent jurisdiction
over it.

II. JURISDICTION BASED ON PUBLIC INTEREST.

[6]. Public interest refers to welfare,18 or common good that the general public has a stake, 19 and
is subject to protection and recognition. 20 The Applicants submit that in order to amount to public
interest, a matter must contain issues concerning violation of a right which then leads to public harm
or injury,21 and must be filed in the Constitutional Court.22

[7]. The Applicants seek to challenge Sections 25,23 and 179,24 of the KCA, EDA25 and other
provisions which are against the interests of the people of Kyondo, since they contravene with the
rights to the freedoms of expression, access to information, association and economic rights.

[8]. Therefore, the Applicants submit that the matter presented before the Court is of public
interest, and the Court has adequate jurisdiction to preside over it.

13
Facts [11]
14
Facts [10]
15
Facts [6]
16
Facts [12]
17
Facts [13]
18
Supra (n1) 8th edn
19
R v Bedfordshire 24 L.J.G.B 84
20
Legal Brain Trust ltd v A.G Misc. Cause No. 314/2021
21
Ibid
22
Rule 7(2) of the Judicature (Fundamental & Other Human Rights and Freedoms) (Enforcement Procedure) Rules,
2019
23
Facts [11]
24
Facts [10]
25
Facts [6]

~ 14 ~
 B. WHETHER THE RELEVANT SECTIONS OF THE KCC AND EXCISE
DUTY(AMENDMENT) ACT CITED IN PRECEDING PARAGRAPHS ARE IN
CONTRAVENTION OF THE CONSTITUTION?

[9]. The Applicants submit that Sections 25 and 179 contravene speech and expression rights, [I]
and the EDA provisions contravene association and economic rights.[II]

I. INCONSISTENCY WITH SPEECH AND EXPRESSION RIGHTS.

[10]. The Applicants submit that everyone has a right to freedom of speech and expression, 26
being an inherent right,27 and not granted by the state.28 Freedom of expression is one's right to hold
opinions,29 seek and impart them information without restrictions of any kind. 30 The Applicant
further avers that the right does not only encompass ideas, 31 but also those that offend,32 shock or
disturb the state or any sector of the population.33
[11]. It's worthy noting that freedom of expression is not only the bedrock of any democratic
society,34 but most critically a foundation for which the public holds the government accountable, 35
thus public officers are subject to high levels of public scrutiny, 36 which calls for a higher threshold
in justifying limitations by the government on expression rights.37

[12]. Sections 25 and 179 of the KCA, criminalize cyber harassment and libel,38 thus falling short
of the definition of the freedom of expression in the context of shocking and negative statements, 39
and further lay below the yardstick of what is acceptable and demonstrably justifiable in a free and
26
Constitution,Art. 29
27
Rev. Christopher Mtikila v AG of Tanzania[1994] TZHC 12
28
Constitution, Art 20
29
EHRC, Art 10
30
General Comment No.34 on Freedom of Express,UNHC
31
AHRC Declaration on the freedom of expression(2019),[4-8]
32
Charles Onyango Obbo & Anor v AG
33
ibid
34
Article !9 v Eritrea
35
Dr. Isaac. C. Lubogo, “Freedom through the Law” 2021, pp123
36
Election Standards, https://eos.cartercenter.org
37
https://www.improvementservice.org.uk
38
Fact [10] [11]
39
Joachim Buwembo & Ors v A.G, Const. Reference No. 1/2008 p. 3

~ 15 ~
democratic society.40 This hinders accountability of leaders before the people and negative criticisms
against the government actions,41 which ought to be subject to high levels of criticisms.42

[13]. On the basis of the foregoing, the Applicants submit that the impugned provisions
contravene Article 29 of the Constitution which protects speech and expression rights, 43 endowed
to the people by virtue of their humanity.44

[II] INCONSISTENCY WITH ASSOCIATION ON ECONOMIC RIGHTS.

[14]. The Applicants submit that all people have a right to associate with others, 45 physically or
online in different engagements.46 This right allows individuals to participate in democratic
governance and realization of achievement of economic, social and other cultural rights. 47 Further,
the Applicants aver that this freedom is enshrined and protected by both national and universal
laws.48

[15]. The freedom of association encompasses both an individual's right to join or leave groups
voluntarily, the right of a group to take collective action to pursue the interests of its members, and
the right of an association to join trade unions, engage in free speech, participate in societies,
political parties and only limited under legally justifiable means.49

These regulations may negatively impact the ability of users to gain affordable access to the Internet, which goes against
States’ commitment to protect the right of every individual to receive information, as well as the right to express and
disseminate one’s opinion within the law which is provided under Article 9 of the African Charter on Human and
Peoples’ Rights.50

40
Supra (n 32)
41
https://www.instituteofgovernment.org.uk
42
Ibid
43
Kisaakye v Kadama[2017] UGHCCD 219, P5
44
Supra (n 27)
45
The Constitution, Art. 29
46
UN General comment No.37 on Freedom of Association
47
www.frontlinedefenders.org
48
Ibid
49
Guidelines on Freedom of Association, OSCE 2015
50
Media Defence, 'Social Media Taxes' (Media Defence, 2024)
<https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-

~ 16 ~
[16]. EDA provisions impose a daily tax of USD $1 to access online platforms, for which failure of
payment hinders the people from accessing all online platforms. 51 KCC hsa further made a directive
of an annual payment of USD $200 for all online publishers, 52 which has left out most online
stations,barring people from online associations and businesses.

expression-online/module-2-restricting-access-and-content/social-media-taxes> accessed 15 October 2024.

51
Facts [6]
52
Facts [5]

~ 17 ~
 C. WHETHER THE RELEVANT PROVISIONS CONTRAVENE THE RIGHTS,
PRINCIPLES IN INTERNATIONAL LAW, TREATIES/ CONVENTIONS?

[19]. The Applicants submit that Sections 25 and 179 of the KCA and provisions of the EDA
contravene the rights and principles in international law, treaties and conventions.

[20]. The Applicants aver that the impugned sections of the KCA and EDA prevent the exercise
of the right to freedoms of expression, 53 access to information,54 association,55 profession,56 and
economic rights,57 which are widely recognized at both regional,58 and international law
conventions.59

[21]. The freedom of expression is a fundamental right, 60 to political consciousness and

participation in public affairs,61 of any democratic society where everyone is free to express and
disseminate their opinions,62 receive, impart and seek information of any kind, 63 through the media,64
orally or in writing.65 Freedom of expression includes the right to make statements that disturb,
offend or shock the state, 66 and international law requires public figures to tolerate a greater degree
of criticism.67

[22]. The Applicants further submit that every individual is entitled to the right to work, 68 and to
practice their profession in a favorable environment, 69 for economic and social development. The

53
EACHPRB, Art 21
54
The Declaration, Principle 26
55
ICCPR, Art.22
56
UDHR, Art. 23
57
The African Charter Art. 22
58
ibid
59
ICEAFRD Art.5
60
Handyside v UK [1976] EHRC 5[49]
61
Amnesty International v Zambia [1999] ACHPR 1[54]
62
African Charter, Art. 9
63
Supra (n34)
64
Gwogyolonga & 3 Ors v A.G, Const. Petition No. 01/2019
65
ICCPR, Art.19
66
Supra (n 41)
67
The Declaration, Principle 21(b)
68
ICESCR, Art. 6
69
Ibid

~ 18 ~
state is vested with the responsibility to protect journalists and other media practitioners from undue
legal restrictions,70 and violent conducts of law enforcement agencies against them.71

[23]. The Applicants aver that by passing the KCA and EDA, the Parliament of Kyondo
arbitrarily restricted the right to the freedom of expression, 72 online association,73 access to
information,74 economic rights and a right to practice one’s profession, 75 by banning media outlets
from live broadcasting parliamentary proceedings and debates on “politically sensitive issues”, 76
blocking social media platforms,77 and imposing a daily USD $1tax on the use of popular social
media and communications apps,78 hence violation of the above rights.

[24]. Kyondo violated Bathimwa’s right to practice his profession, 79 as a journalist by charging
him with the offenses of libel under Section 179, 80 and cyber harassment under Section 25 of the
KCA.81 The Applicants submit that Bathimwa’s publications were opinions disseminated in the
exercise of his profession,82 and the right to freedom of expression. 83 Bathimwa’s statements were
political in nature,84 and calling for a higher degree of tolerance, 85 since they were made on a public
figure subject to public criticism.86

[25]. Therefore, the Applicants submit that the impugned provisions of the KCA and EDA
contravene or are in contravention of the rights and principles in international law.

70
The Declaration, Principle 19
71
Ibid, Principle 20
72
Media Rights Agenda & Ors v Nigeria, [1998] ACHPR 3
73
African Charter, Art. 10 ; General Comment No. 34 on Association Rights, by UN Human Rights Committee (2011)
74
EACHPRB, Art 23
75
Good v Republic of Botswana [2010] ACHPR 106
76
Facts [3]
77
Facts [7]
78
Facts [6]
79
Supra (n 54) Art. 8
80
Facts [10]
81
Facts [11]
82
African Charter, Art. 8
83
Zimbabwe Lawyers for Human Rights v Zimbabwe [2008] ACHPR 86
84
Scanlen and Holderness v Zimbabwe [2009] ACHPR 96
85
Supra (n 48)
86
Lingen v Austria [1986] ACHR 7 [28]

~ 19 ~
 D. WHETHER THERE ARE AVAILABLE REMEDIES?

[26]. The Applicants aver that in matters concerning the determination of unconstitutionality of
any law,87 act or omission by an authority, 88 or person,89 the Court is vested with the mandate to
grant appropriate remedies,90 such as a declaration,91 or an order for redress.92
The Applicants seek for the Court’s declaration of Section 25, 93 and other relevant provisions of the
KCA,94 and EDA,95 as inconsistent with Articles 28, 29 and 43 of the Constitution, 96 of Kyondo and
to that extent, null and void.97

[27]. The Applicants are before this Honorable Court seeking a grant of an order to stay the
enforcement of Sections 179,98 25,99 and other provisions of the KCA and EDA, 100 which
disproportionately curtails the enjoyment of the freedom of expression and access to information by
the people of Kyondo.101

[28]. The Petitioners seek for a grant of an order directing the stay of prosecution of Joseph
Bathimwa,102 who is currently charged for the violation of the impugned laws.103

PRAYERS

87
A.G v Tinyefuza, Const. Appeal No. 1/1997, Mulenga JSC
88
Raphael Baku & Anor v A.G, Const. Appeal No. 1/2003
89
Supra (n 9)
90
Twase Jimmy v A.G, Const. Petition No. 45/2017
91
Odoch & Ors v A.G & Ors, Const. Petition No. 7/2016
92
The Constitution, Art. 137(4)(a)
93
Facts [11]
94
Facts [4],[5],[10]
95
Fact [6]
96
Fact [13]
97
Karamagi and Another v Attorney General Constitutional Petition No. 5 of 2016
98
Facts [10]
99
Facts [11]
100
Facts [6]
101
Gwogyolonga Swaibu Nsamba & Ors v A.G, Const. Petition No. 15/2017 & No. 1/2019
102
Fact [10],[11],[12]
103
Fact [8],[9]

~ 20 ~
On the strength of the above submissions, the Applicants respectfully pray this Honorable
Court to adjudge and declare that:

I. The Constitutional Court has jurisdiction to handle all the claims in the dispute.

II. Sections 179 and 25 of the Kyondo Communications Act and the provisions of the Excise
Duty (Amendment) Act be declared unconstitutional, and therefore null and void.

III. Sections 179 and 25 of the Kyondo Communications Act and the provisions of the Excise
Duty (Amendment) Act contravene the rights, principles in international law treaties/
conventions.

IV. The Applicants are entitled to the above remedies as requested from the Court.

Respectfully submitted,
COUNSEL FOR APPLICANTS

1. GIZENGA CHRISTO WILLOW (LLB2 semester 2) [AKM23B11/048]

2. MWIMA IVAN HIIRE (LLB2 semester 2) [AKM23B11/102]
3. NAMAGEMBE JANET (LLB3 semester 2) [KM22B11/054]

~ 21 ~