13/08/2021
As the controversy surrounding the arrest and extradition of blogger, Fred Lumbuye to Uganda continues to play out, what is emerging is that it might even be harder to successfully try and convict him for his alleged cybercrimes.
Lumbuye's whereabouts remain unknown for now since his alleged arrest last week, with conflicting statements emerging from Turkey and Uganda. What is clear for now is that if the government finally takes him to the court, it might struggle to obtain a conviction for the crimes he is being accused of.
This week, police spokesperson Fred Enanga said they will prefer at least 15 charges against Lumbuye including crimes provided for under the Computer Misuse Act. Enanga also mentioned terrorism as another charge that awaits Lumbuye if he ever gets his day in court.
But a look at the crimes that are provided for in the Computer Misuse Act and the court precedents reveal that Lumbuye might be out of the realm of people who can be tried under that Act. The Act provides for a number of offenses but the most outstanding that Lumbuye might be charged under sections; 24, 25 and 26, which talk about cyber harassment, offensive communication and cyberstalking.
Section 24 says that a person who commits cyber harassment is liable on conviction to a fine not exceeding seventy-two currency points or imprisonment not exceeding three years or both. The section defines cyber harassment as the use of a computer for; making any request, suggestion or proposal, which is obscene, lewd, lascivious or indecent; threatening to inflict injury or physical harm to the person or property of any person, or knowingly permits any electronic communications device to be used for any of the purposes mentioned above.
On the other hand, section 25 says that any person who willfully 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.
While section 26 says any person who willfully, maliciously, and repeatedly uses electronic communication to harass another person and makes a threat with the intent to place that person in reasonable fear for his or her safety or to a member of that person's immediate family commits the crime of cyberstalking and is liable on conviction to a fine not exceeding 120 currency points or imprisonment not exceeding five years or both.
However, what makes it very hard to convict these people under the Act is section 30, which limits the jurisdiction of the law. Although the section says that the Act has powers over any person, whatever his or her nationality or citizenship and whether he or she is within or outside Uganda, it says it can only apply if the offense in question, the accused was in Uganda at the material time of committing it or the computer, program or data was in Uganda at the time of the crime.
In fact, that was the very reason why High court judge Dr Henry Peter Odonyo quashed the conviction and sentencing of Dr Stella Nyanzi by Buganda Road chief magistrate Gladys Kamasanyu. Nyanzi was arrested and charged in 2018 for cyber harassing President Yoweri Museveni.
She was sentenced to two years in prison. Dissatisfied, Nyanzi appealed both her conviction and sentencing at the High court alleging among others that the magistrate court had no powers to try her because there was no evidence indicating that by the time she wrote on her Facebook timeline she or the devices she was using were in Uganda.
In his judgment, Adonyo said that for as long as court lacks jurisdiction over a matter, its decisions are null and void.
“If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court must inquire into the existence of the facts in order to decide whether it had jurisdiction...Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to anything. Jurisdiction must be acquired before judgment is given,” Adonyo’s judgment on February 20, 2020 reads in part.
It adds that the non-presentation in the magistrate’s court of a forensic report pointing to the location of both the device and the offender disadvantaged it to ascertain whether it was seized from within Uganda.
“Since the issue of jurisdiction go to the root of the case with the consequences that any lack of it would render the decisions of the court, however, technically correct or precise to be of no legal consequence and therefore void…From the above, my conclusion is that the proof of the identity and the residency of the offending computer, program or data and the offender in relation to the committal of an offense as brought under the Computer Misuse Act is crucial before a court can purport to try a case brought under the said Act for section 30 of the Act clearly directs in very clear provisions as to how a court seizes jurisdiction with any failure to determine the same from the onset rendering any trial conducted as a result of non-appreciation of this jurisdictional remit having serious consequences…My finding is that the learned trial magistrate in the lower trial court did err in law and fact when she entertained the case against the appellant yet her the court had no jurisdiction with the illegal assumption of jurisdiction renders the trial in the lower court a nullity,” the judgment adds.
Male Mabirizi, who has litigated so many cases against the state said going by Nyanzi’s judgment, Lumbuye cannot be tried in Uganda for the crimes he allegedly committed in Turkey.
“As per the decision of Nyanzi, there is no way a person can be charged or convicted of an offense in relation to Computer Misuse Act without establishing the computer footprint which locates the computer location showing that it was in Uganda, in absence of which, the court has no jurisdiction. CID confessed before court in Nyanzi’s case that Facebook has never responded to any of their footprint requests hence they can't get the evidence,” Nyanzi said.
On the terrorism or treason charges, which are the other charges that the government is considering, Mabirizi said, those will be charges in futility because Uganda has no powers to charge offenses committed in Turkey with Facebook not willing to share any information with them.
“They can't locate where he was and can't exhibit his videos,” Mabirizi said. Like Mabirizi, Isaac Ssemakadde, who was the lead lawyer in the Nyanzi case, said unless the government can prove that it has an extraterritorial jurisdiction interest in having Lumbuye, it's fighting a dead end.
“Government must look for an offense in its Acts which have extraterritorial jurisdiction but it must be consistent with international law otherwise, it’s going to be very hard for them to charge Lumbuye because clearly, they don’t have jurisdiction,” Ssemakadde said.
He however said he wasn’t optimistic that government will not try to abuse the law with the help of lawyers and charge Lumbuye.
“The culture of lawyering in Uganda is to enable governmental abuse the law. The lawyers will take a plea; they will ask for bail in essence they will play a conventional game instead of asking the government to justify a charge before taking plea. The truth of the matter is that the government must have a forensic report, which it must show the court at the beginning that they have jurisdiction because it’s a foundational issue,” Ssemakadde said.
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