Article Uganda: Constitutional Court Finds Key Sections of Anti-Pornography Act Unconstitutional

On August 13, 2021, the Ugandan Constitutional Court in a unanimous decision ruled that key sections of the controversial 2014 Anti-Pornography Act, commonly known as “the miniskirt law,” are unconstitutional and, therefore, null and void. Although the act makes no mention of miniskirts, critics maintain that its enactment had provided a pretext for an increase in attacks against and harassment of women in the streets for the way they dressed. High-level government officials in part fueled this — Simon Lokodo, the country’s former ethics and integrity minister, who reportedly introduced the legislation, was once quoted as saying that women who wore “anything above the knee” should be arrested.

The Anti-Pornography Act

Enacted in February 2014, the Anti-Pornography Act created a catch-all offense of pornography. It provided a broad definition of the term pornography as “any representation through publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or stimulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual excitement.” (Anti-Pornography Act, Act 1 of 2014, § 2 (Feb. 6, 2014).) It criminalized the production, trafficking in, publishing, procuring, importing, exporting, selling or abetting any form of pornography, the violation of which, on conviction, was punishable by a fine equivalent to 10 million Ugandan shillings (about US$2,818) or a custodial sentence not exceeding ten years, or both. (§ 13.)

The act also established a Pornography Control Committee (the Committee) and accorded it the following extraordinary powers:

The Committee may, in the performance of its duties under this Act or any regulations made under this Act, at all reasonable times and without warrant—

(a) require the production, inspection and examination of records and other necessary documentation relating to the enforcement of this Act;
(b) carry out inquiries to ensure that this Act is complied with;
(c) carry out periodic inspection of any establishment which imports, exports, stores, sells, distributes or uses equipment or data that is likely to give the public access to pornography;
(d) carry out inspections as may be necessary to ensure that the provisions of this Act are complied with;
(e) seize any equipment, document or any other thing which it believes has been used in the commission of an offence against this Act or regulations made under this Act;
(e) close any internet service provider who promotes, publishes, sells or imports pornography contrary to this Act; or
(f) cause a police officer to arrest any person whom it believes has committed an offence under this Act.
(2)  In exercising its powers under this section, a member of the Committee shall suitably identify himself or herself. (§ 11.)

In addition, the act mandated that courts issue seizure and arrest warrants without requiring the satisfaction of any evidentiary threshold, stating that “[w]here information is brought to the attention of the court that there exists in premises, an object or material containing pornography or an act or event of a pornographic nature, the court shall issue a warrant for the seizure of the object or material and for the arrest of the person promoting the material or object.” (§ 15.)

The Court Case

Nine petitioners, including the Centre for Domestic Violence Prevention, the Women’s Organization Network for Human Rights Advocacy, and the Human Rights Network for Journalists, challenged the constitutionality of the above provisions before the Constitutional Court. One of the claims contended that the definition of the term pornography in the act violated the principle of legality under articles 2(1) & (2), 28(12), and 44(c) of the Ugandan Constitution. (Const. of the Rep. of Uganda, 1995 (amended through 2017); Centre for Domestic Violence Prevention and Others v Attorney General of Uganda (Constitutional Petition 13 of 2014) [2021] UGCC 20 (13 Aug. 2021) ¶ 44).) Specifically, counsel for the petitioners argued that the definition of the term pornography in the act

contains words and phrases that are vague, ambiguous, uncertain and generally subjective. Such words or phrases include ‘indecent show’, ‘by whatever means’, ‘stimulated explicit sexual activities’, ‘sexual parts’, ‘primarily sexual excitement’. Article 28(12) requires a criminal offence to be defined by law. It does not require every word used in the law to be defined but for the offence to be ascertainable from its definition in the statute. … It is essential for offences to be clearly defined so that people can know what is and what is not prohibited. The description of the prohibited conduct should be precise and rationally connected with the harm targeted by the law. (Centre for Domestic Violence Prevention and Others v Attorney General of Uganda ¶ 49.)

The court disagreed with the petitioners, noting that “the words or phrases ‘stimulated explicit sexual activities”, ‘sexual parts’, ‘primarily sexual excitement” are not vague, ambiguous, uncertain and subjective as the petitioners contend.” (¶ 53.) However, the court found part of the definition to be ambiguous and imprecise, stating that

the Act does not provide what amounts to ‘indecent show’ and the threshold over which an action can be measured to determine whether it falls within the ambit of ‘indecent show’. An imprecise statement of the prohibited conduct may lead to inconsistent enforcement of the law, uncertain application of the law or failure to preclude conduct that it was intended to prohibit. The phrase ‘by whatever means’ is too general and unacceptable as it may capture a range of conduct that is too wide and not intended to be subject to the offence. (¶ 53.)

Significantly, the court questioned the wisdom of the legislative objective of banning pornography and found that the government had failed to show that the ban was rationally connected to achieving this legislative objective, stating as follows:

Notwithstanding the foregoing, I am unable to determine either from this provision defining the crime of pornography, or from any other portion of the Act, the legislative objective for the criminalisation of pornography. Counsel for the respondent suggested in her submissions that the legislative objective was to protect women and children from sexual offences. How this provision or the Act protects women and children is unclear.

What harm would result to society, if publication, exhibition, or other representation of images of sexual parts of the human body or sexual activities primarily for sexual excitement, is not prohibited? None has been put forward by the respondent except from the bar where it is intimated implicitly as harm to women and children. However, no proof of this harm has been provided. It was not specifically set out in the pleadings nor in the supporting affidavits.
It was incumbent upon the respondent not only to clearly assert and show the legislative objective of the criminalisation of pornography but to demonstrate that this measure was rationally connected to achieving the legislative objective of the Act. This has not been done. The respondent has also failed to demonstrate before this court that the impairment of the fundamental right was no more than necessary to achieve the legislative objective of the Act. (¶¶ 55, 56 & 61.)

The court concluded that the provisions of the act defining pornography and criminalizing it (sections 2 and 13) are inconsistent with the principle of no punishment without law (section 28(12)) and the prohibition of derogation from particular human rights and freedoms clause (section 44) of the Constitution. (¶¶ 58 & 62.)

The petitioners had also alleged that the powers that the act accords the Committee under section 11 and the courts under section 15 are too wide and discretionary and, therefore, are inconsistent constitutional principles of the right to personal liberty, privacy and property. (¶ 68.) The court agreed with the petitioners on this point, noting that “since the powers granted both to the Pornography Control Committee and the Courts are premised upon section 2 of the Anti-Pornography Act which has already been found unconstitutional it would follow the activities of the Pornography Control Committee and the courts in relation to sections 11 and 15 of the Anti-Pornography Act would equally not pass constitutional muster.” (¶ 69.)

The court then moved to unanimously declare sections 2 (on the definition of pornography), 11 (on the powers and duties of the Committee), 13 (on the prohibition of pornography), and 15 (on the power of courts to issue warrants) of the act “null and void for inconsistency with the Constitution.”) (¶ 71.)

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Uganda: Constitutional Court Finds Key Sections of Anti-Pornography Act Unconstitutional
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