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EPIC --- Privacy and Human Rights Report 2006

Republic of Uganda

Constitutional Privacy Framework

The Constitution of the Republic of Uganda[5251] recognizes the right to privacy as a human right.[5252] Article 27 of the Constitution provides:

No person shall be subjected to unlawful search of the person, home or other property of that person; or unlawful entry by others of the premises of that person. No person shall be subjected to interference with the privacy of his home, correspondence, communications or other property.[5253]

The right to privacy, however, is not an absolute right, as it can be derogated from by lawful means. Article 43 provides that in the enjoyment of the prescribed rights and freedoms, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.[5254]

The Constitutional Court addresses questions relating to the interpretation of the Constitution. Article 137(4) of the Constitution empowers the Constitutional Court to grant an order of redress, should it determine that a law or act or omission by any person or authority is inconsistent, or in contravention with, a constitutional provision.[5255] Where necessary, it refers the matter to the High Court, to investigate and determine the appropriate redress.

Privacy Supervisory Authority

The Constitution established the Uganda Human Rights Commission (UHRC) to oversee the enjoyment of all rights provided for in the Constitution.[5256] The Uganda Human Rights Commission Act provides in greater details the powers, functions, and structure of the UHRC, as well as the procedure and mechanisms for handling complaints before it.[5257] The UHRC has engaged in significant monitoring of activities in contentious areas of human rights, especially in the activities of security agencies. The commission has the powers and general mandate to address all complaints arising out of human rights abuses. It is entrusted with the duty to initiate investigations of human rights violations; have access to and monitor detention conditions; conduct educational and other activities to promote human rights awareness; and monitor and make recommendations for government compliance with its international obligations. The UHRC can subpoena any witness or document, order the release of any detained person, and recommend payment or compensation, or any other legal remedy after it learns of the existence of a human rights abuse.[5258]

Uganda does not have a Data Protection Authority. The UHRC is therefore the body handling the complaints that arise out of issues concerning the abuse of privacy.

Data Protection Framework

The Uganda Communications Act (UCA) establishes the Uganda Communications Commission (UCC) to carry on functions related to communications services and operations in Uganda and also to ensure compliance with international standards and obligations relating to communications by receiving and investigating complaints and taking necessary responsive action.[5259] Any operator[5260] has to ensure that there is no unlawful divulgence, interception or disclosure,[5261] with some exceptions in accordance with a court order or in public emergency. Telecommunication companies have cooperated with security agencies requiring information such as traffic data and calling line identification. A person who sustains loss or damage as a result of any act or omission contrary to UCA may sue and recover for the loss or damage suffered.[5262] However, Uganda's courts lack adequate capacity to address privacy issues – privacy being a relatively new area in the jurisprudence of Uganda – and in the absence of proper guidelines, the process can easily be abused.

The Uganda Posts and Telecommunications Act provides for secrecy of telephone communications and telegrams. It permits interception and disclosure only in the case public emergency or in the interest of public safety or tranquility under the direction of the Minister responsible for internal security.[5263] The Penal Code Act empowers a police officer not below the rank of inspector or any other officer authorized by the Attorney General to detain, open and examine any package or article that he suspects contains prohibited publications or information prejudicial to security and to detain such person for purposes of prosecution.[5264] In addition, while Ugandan law requires law enforcement agents to acquire a warrant prior to searching a private home, agents occasionally disregard this requirement.[5265] In July 2005, government officials illegally entered and searched the home of Juliet Mukasa, a women's rights activist and chairperson of the NGO Sexual Minorities Uganda (SMUG).[5266]

In the communications sector, emphasis has been on trade liberalization rather than consumer protection issues. Save for the provisions in the UCA and license terms and conditions requiring respect for privacy, there are no regulations or guidelines. Operators have a duty to observe consumer privacy through the mastermind operator/customer agreement. A number of complaints that have arisen have been addressed directly to the operator responsible for the unauthorized and unlawful release of the traffic data in contention.

The Evidence (Banker's Books) Act[5267] empowers courts to permit a party to a legal proceeding to inspect and take copies of any entries in a banker's record. In the absence of guidelines, courts have resorted to requiring the court order applicant to attach a copy of relevant documents so the courts can check on the likelihood of abuse of the process. There have, in fact, been instances in which individuals used law enforcement officers to unlawfully access bank records, in breach of a customer's privacy. This is due to a lack of guidelines or procedural rules that could enable better implementation of the law, especially with the advent of electronic bank transactions.[5268]

The Press and Journalists Act requires journalists to comply with laws prohibiting publication that improperly infringes on the privacy of an individual.[5269] However, the professional code of ethics in the Fourth Schedule to the Act does not contain a provision on the respect of privacy. Further, a newspaper’s publication of the first names and professions of 45 allegedly gay men did not violate this Act, as Uganda criminalizes homosexuality.[5270] The men suffered harassment and were ostracized from their families and communities.

Like other sub-Saharan countries, Uganda continues to explore ways to educate its people and curb the spread of HIV/AIDs. In recent years, the debate has centered on whether individuals should be forced to divulge their HIV status. Churches offer “healing powers” if followers declare their HIV status.[5271] Critics wonder if this declaration is voluntary, or a condition of receiving prayer that intrudes on an individual’s right to medical privacy and confidentiality.[5272] Separately, a survey by the Center for Global Development found that 20% of Ugandan employers conduct a pre-employment health check which includes HIV screening.[5273] While Kenya and Tanzania ban HIV screening, presumably because it can be used for discrimination, Uganda has no such law.[5274] In 2007, the President called for the criminalization of the deliberate spread of HIV.[5275] No law has yet been introduced but his comments will likely add fuel to the debate on medical privacy.

The Uganda Consumers Protection Association handles all matters concerning consumer interests.[5276] Uganda’s lack of a tort for invasion of privacy coupled with a culture of placing the rights of others above the individual may result in a population that does not vigilantly pursue matters where a breach of privacy occurs.[5277]

Electronic and cyberspace privacy are slowly emerging as potential issues.[5278] While the government usually does not interfere with e-mail communication, in 2006 the government began blocking access to radiokatwe.com, a website that published anti-government gossip. NGOS and opposition figures alleged that the move reflected a crackdown on Internet freedom.[5279] In May 2007, the government began finalizing three bills aimed at reducing cybercrime. The bills will address electronic transactions, digital signatures and computer misuse.[5280]

Wiretapping and Other Government Surveillance

In 2007, the government introduced the Regulation of Interception of Communication Bill 2007. This bill would legalize the “interception and monitoring of certain communications in the course of their transmission through telecommunication, postal or any other related service or system in Uganda.”[5281] The bill mandates the establishment of a communications monitoring center, to be operated by the Minister of Security in order to combat terrorism. Members of Parliament will decide the category of people whose phones will be tapped. Opponents question the constitutionality of the bill, but believe it will become law since the ruling party also controls the legislature.[5282] The Uganda ruling party readily admits to illegally tapping the phones of the opposing political parties.[5283]

The Suppression of Terrorism Act permits an authorized officer to intercept the communications of a person and otherwise conduct surveillance of that person.[5284] The Act allows interception of letters and postal packages, telephone calls, fax messages, e-mails, and bank records, and allows rigorous security checks and surveillance of persons or premises. According to the government-owned daily newspaper, the President of Uganda stated that communication between opposition politicians and members of the Lord's Resistance Army (LRA)[5285] have been monitored.[5286] This surveillance comes in the wake of the 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar-es-Salaam in Tanzania, the September 11, 2001 terrorist attacks in the United States, and the continued instability in Northern Uganda.

The government has also begun to issue new passports equipped with biometric technology in order to control immigration into the country.[5287] In addition, in 2006 the government awarded a contract to issue computerized driving permits and licenses. The new licenses may include smart card or biometric technology.[5288]

Open Government

The right of access to information is also provided for in the Constitution. Article 41 provides that: “Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State, except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person.”[5289]

The Access to Information Act was enacted by Parliament in 2005. It contains the only statutory definition of privacy available in Uganda: "the right of a person to keep his or her matters and relationships secret."[5290] This Act also provides that the right of access should not interfere with the right to privacy.[5291] It remains to be seen how the implementation of this law will affect the state of privacy in Uganda.

International Obligations

Uganda is a signatory to a number of international human rights legal instruments, namely the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.[5292] Uganda therefore has obligations pertaining to the duty to ensure respect for personal privacy.

[5251] Constitution of the Republic of Uganda, available at <http://www.parliament.go.ug/index.php?option=com_wrapper&Itemid=78>.
[5252] See generally, E.M. Bakibinga, "Managing Electronic Privacy in the Telecommunications Sub-sector: The Ugandan Perspective," paper presented at the African Electronic Privacy and Public Voice Symposium held on December 6, 2004, Cape Town, Republic of South Africa, available at <http://www.thepublicvoice.org/events/capetown04/bakibinga.doc>.

[5253] Constitution of the Republic of Uganda, supra at Article 27.

[5254] Id. at Article 43.

[5255] Id. at Article 137(4).

[5256] Id. at Article 50.
[5257] Uganda Human Rights Commission Act, Cap 24, Vol. 2, Laws of Uganda, Revised Edition 2000.
[5258] See generally Uganda Human Rights Commission Act (2000).

[5259] Uganda Communications Act (UCA), at Section 4 (1997), available at <http://www.ictregulationtoolkit.org/en/Publication.1431.html>.
[5260] Any licensee providing communications services under the UCA.
[5261] UCA, supra at Section 66.
[5262] Id. at Section 73; Under this section, the UCA does not prevent any person from being prosecuted, under any other law in force, for an act or omission that constitutes an offense. Therefore, courts may apply other laws concerning privacy such as the Penal Code Act (Cap 120, Laws of Uganda) and the Uganda Posts and Telecommunications Act (Cap 107, Laws of Uganda).

[5263] There have been a number of prosecutions concerning offenses pertaining to stealing postal material and secrecy of telegrams in the lower courts; see Uganda v. Grace Kitaka, Case No: HQS-CO-0061-2003 and Uganda v. Kiiza Joe Masajjage & Anor, Case No: BUG-CO-1042-2004, both of which are still undergoing inquiries.
[5264] Cap 120 at Section 38, Vol. 6, Laws of Uganda, Revised Edition 2000.
[5265] U.S. State Department Human Rights Report 2006 - Uganda, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78763.htm>.
[5266] Amnesty International, “Sexual rights are human rights: Defending women defending rights,” Dec. 6, 2005.

[5267] Cap 7, Vol. 2, Laws of Uganda, Revised Edition 2000.
[5268] “It's BOU's 40th Birthday And Banking Crime is Growing,” The Monitor, Aug. 7, 2006.

[5269] Cap 105, Vol. 5, Laws of Uganda Revised Edition 2000.
[5270] Amnesty International, “Uganda: Lesbian, gay, bisexual, and transgender people targeted,” Aug. 29, 2006.

[5271] “Churches Aggravating AIDS Problem,” New Vision, Sept. 20, 2006.
[5272] Id.
[5273] Center for Global Development, Does the Private Sector Care About AIDS?, Jan. 20, 2006, available at <http://www.cgdev.org/content/publications/detail/5850>.
[5274] “Does the Private Sector in East Africa Care About AIDS?,” The East African, Jan. 31, 2006.
[5275] “Intricate Issues with Criminalizing HIV Spread,” The Monitor, Mar. 1, 2007.

[5276] Uganda Consumers Protection Association, <http://ucpa.eac-quality.net/>.
[5277] See Bakibinga, supra.

[5278] Only 0.25% of the population has Internet access. See “ICT Policy in Uganda,” APC Africa ICT Policy Monitor, <http://africa.rights.apc.org/test.shtml?apc=s21849e_1>.
[5279] U.S. Dept of State, Uganda: Country Reports on Human Rights Practices, supra.
[5280] “New ICT Bills to be Introduced,” New Vision, May 25, 2007.

[5281] “Uganda; Phone-Tapping To Be Legalized,” The Monitor, May 30, 2007.
[5282] Id.
[5283] Id.

[5284] The Suppression of Terrorism Act No. 14 of 2002.
[5285] The Lord’s Resistance Army and Movement are listed as terrorist groups under the Schedule to the Suppression of Terrorism Act. No. 14 of 2002.
[5286] New Vision Reporter, "Museveni Warns MPs – MPs who Communicate with LRA Will Be Hanged'," New Vision, Vol. 18, No. 217, September 10, 2003, at 1.

[5287] “Immigration Department to be Strengthened,” The Monitor, Jun. 13, 2007.
[5288] “Driving Permits Take Up Digital Trend,” The Monitor, Aug. 1, 2006.

[5289] Constitution of the Republic of Uganda, supra at Article 41.

[5290] Access to Information Act 2005, available at <http://www.freedominfo.org/documents/uganda_ati_act_2005.pdf>.
[5291] The Access to Information Act was enacted by the Parliament on March 13, 2005 and presented to the President for Assent.

[5292] Ratified June 21, 1995.