ARTICLE 19 Eastern Africa (EA) asks the Uganda Communications Commission (UCC) to recall the public notice and reminder for prior authorisation, issued on 7 September 2020. This notice requires all online data communication and broadcasting services providers to ‘obtain prior authorisation from the UCC before providing such services to the public’ before 5 October 2020. These requirements are particularly challenging ahead of the January – February 2021 presidential elections because all electoral campaign activities are being held online due to COVID-19 restrictions and the ban on physical political rallies.
The requirement for prior approval is at odds with international standards, which rely on ‘human rights by default’as a precursor for online content regulation. Such a requirement will excessively and arbitrarily affect various groups’ ability to express themselves freely on online platforms, and impacts the upcoming elections by ‘push(ing) back against the new digital civil society.’
“This notice restricts the use of the Internet to exercise the rights to freedom of assembly, expression and association. In addition to the heavy restrictions impose on online media, reports from sources on the ground indicate that the opposition is having narrower platforms and space to mobilise the electorate and deliver its message online,” said Mugambi Kiai, Regional Director of ARTICLE 19 Eastern Africa.
These spaces are not merely being restricted online; reports indicate that media houses are being intimidated and are denying the opposition access to radio and television stations.
The 2019 report by the Special Rapporteur on the rights to freedom of peaceful assembly and association magnified states’ obligation to promote the ‘freedom to access and use digital technologies for the exercise of peaceful assembly and association rights (which) should be viewed as the rule, and the limitations as the exception.’ Further, the Human Rights Council expressed concern about ‘undue restrictions preventing Internet users from having access to or disseminating information at key political moments, with an impact on the ability to organise and conduct assemblies.’
During its 2nd Universal Periodic Review Cycle, the Ugandan government accepted various recommendations* relating freedom of expression. The government also affirmed that it would not obstruct the media and the Internet, not unduly prohibit peaceful protests, and improve the transparency of the electoral process and provide equal conditions for all candidates. Nonetheless, four years after its review and ahead of its 3rd UPR Cycle in October 2021, there has been minimal progress, which has a serious impact on the enjoyment of people’s rights.
Incompatible prior authorisation requirements
While the UCC may take appropriate steps to expand Uganda’s obligations to protect human rights and address violations on digital communication platforms, licensing and registration requirements for practically all digital users are incompatible with international standards on freedom of expression. ARTICLE 19 has repeatedly magnified international positions set out in the 2011 Joint Declaration on Freedom of Expression and the Internet and the Human Rights Committee’s General Comment No. 34.
We remind the UCC that prior authorisation requirements for all communications providers, including bloggers and citizen journalists, are not legitimate unless such measures conform to the three-part test on lawful restrictions of freedom of expression, namely legality, proportionality and necessity. Secondly, the UCA, 2013 defines a broadcaster as a “licensed person who packages and distributes or distributes television or radio programmed services for reception by subscribers or the public, regardless of the technology’. Based on this definition, this registration requirement would apply exclusively to TV or radio services, and not all all communications providers and services.
Excessively broad prohibited content
The list of prohibited content, which the UCC insists applies to both broadcasters (TV and radio providers) and online communications providers, is inconsistent with international law. This list requires entities to ensure that their content is ‘not contrary to the public morality; doesn’t promote the culture of violence or ethnical prejudice among the public; is free from distortion of facts; is not likely to create public insecurity or violence; is in compliance with all the existing laws; is not pornographic in nature, in addition to providing an undertaking that all registered entities will avail ‘all its content… to the Commission immediately on demand.’
“The use of vague, subjective and incompatible prohibitions requiring broadcasters or video operators to ensure that content is ‘free from distortion of facts’ has a chilling effect on free expression and is not compatible with Uganda’s Constitution and international human rights law.
This phrase is not expanded in the UCA, 2013 or the Content Regulations, 2019, and demonstrating that content is factual and free from distortion is an impossible task. It remains unclear how UCC would arrive at such a conclusion and the basis that would inform its analysis/conclusion,” continued Mugambi Kiai.
Prior challenge to communications (regulatory) framework
The Content Regulations, 2019 form part of 18 regulations which were introduced to expand the UCA, 2013 on 8 November 2019. Despite assertions by the UCC that all of these regulations are legal, a recent report by the Committee on Information, Communication Technology and National Guidance (Committee) concluded otherwise. It determined that the fees as required under the Uganda Communications (Fees and Fines) (Amendment) Regulations (Fees and Fines Regulations) were ‘prohibitive… (and) would have the unwanted effect of lowering the penetration of ICT services’ in Uganda in contravention of the “connectivity for all” objectives of the National Broadband Policy.’
The Committee recommended a withdrawal of the Fees and Fines Regulations, and called for the presenting before Parliament of revised regulations with a favourable licensing framework and fees.
ARTICLE 19 EA calls on the UCC to put into practice its statement that it ‘doesn’t take pleasure in punishing its stakeholders but rather engaging them to improve communications services for everyone.’ This requires UCC to recall its notice, and enable a multi-stakeholder revision of the Content Regulations, 2019 to ensure compliance with international standards promoting freedom of expression.
