Uganda’s blasphemy law is unconstitutional

Author: Nimrod Muhumuza
Lawyer and LLD candidate, Dullah Omar Institute, University of Western Cape

Laws prohibiting blasphemy are astonishingly widespread worldwide with many countries criminalising conduct deemed blasphemous with disparate punishments ranging from prison sentences to lashings or the death penalty. A comprehensive report prepared by the US Commission on International Religious Freedom found that 71 countries prohibit views deemed blasphemous. These laws have dire consequences for those who find themselves on their wrong side as the most recent and much publicised case of Asia Bibi in Pakistan has demonstrated.

South of the Sahara, the report found that only four countries criminalise blasphemy. Uganda did not make that list. This is despite the provisions of Chapter III, sections 118-122 of the Penal Code Act. Sections 118-121 proscribe conduct that involves the destruction or damage or defilement of any place of worship with the intent of insulting the religion; disturbing religious assemblies, trespassing on burial places hindering burial of a dead body. The utility and legality of these provisions is not inherently the protection of religions and religious ideas and their constitutional validity will not be canvassed at this point.

Section 122 will be the focus of this discussion. The provision criminalises writing or uttering words with the intent to wound religious feelings. The full text of the provision states that ‘any person who with deliberate intention of wounding the religious feelings of any other person, writes any word, or any person who, with the like intention, utters any word or makes any sound in the hearing of any other person or makes any gesture or places any object in the sight of any other person, commits a misdemeanor and is liable to imprisonment for one year.’ It is my argument that this provision is constitutionally invalid for contravening the key tenets of the principle of legality, and freedom of speech.

Section 122 and the principle of legality

The principle of legality is guaranteed by article 28(12) of the 1995 Constitution. ‘Except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.’ The principle of legality requires that the law have a clear definition before punishment. Lawyers might recognise this requirement as the need to articulate the ingredients of an offence. Legality requires that a citizen should be able to know in advance, with sufficient clarity, which conduct is prohibited and the legal consequences that will flow from a particular course of action. The law must indicate with reasonable certainty to those who are bound by it what is required of them so that they regulate their conduct accordingly. A vague law, as the Supreme Court stated in Penal Code Act, is a violation of due process of law.

Section 122 is embarrassingly and glaringly imprecise so much so that the publication or circulation of this piece might constitute an offence under the provision. The determination of whether a crime has been committed under the provision depends on the subjective feelings of the audience to whom any word, sound or gesture may or may not be directed. In other words, a prospective suspect’s fate depends on the feelings and sensibilities of another individual. The absurdity of the provision is compounded by the fact that the law criminalises conduct made with the intention of wounding religious feelings ‘in the hearing or sight of any other person.’ So, non-believers gathered in a public place discussing or debating the non-existence of god with a theist can be prosecuted if a cleric, who is not part of their discussion and is within hearing distance of the discussion, dislikes the premise of the debate if there is proof that what is said is intended to hurt religious feelings. It is inconceivable how such a debate might take place without intentionally causing slight to ‘religious feelings.’ One might even wonder what the law means by ‘religious feelings’ since this phrase is not defined either.

Vague laws, such as section 122, may trap the innocent by not providing fair warning. A vague law impermissibly delegates basic policy matters to policemen, judges, juries for resolution on an ad-hoc basis with the attendant danger of arbitrary and discriminatory application. However, even if the prescription of what constitutes an offence under the provision was precise and clear enough, would it survive interdiction by the right to freedom of expression provided for in the Constitution?

Section 122 and the right to freedom of expression

The Uganda Supreme Court has defined freedom of expression as the freedom to hold opinions and to receive and impart ideas and information without interference. This extends to holding, receiving and imparting all forms of opinions, ideas and information and is not confined to categories such as correct opinions, sound ideas or truthful information. Subject to the general limitation clause under article 43, a person’s expression or statement is not precluded from constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant. ‘Indeed,’ the Court expounds, ‘the protection is most relevant and required when a person’s views are opposed or objected by society or any part therefore as “false” or “wrong.”

It is irrelevant, for purposes of this discussion, what the British, who drafted our Penal Code in 1950, have done with their blasphemy law because in 1995 we debated and promulgated our Constitution that protects free speech. A law enacted in 1950 must therefore be able to pass constitutional muster. Section 122 does not. It irrationally infringes on the right to freedom of expression for the stated purpose of avoiding wounded feelings. A democratic society protects the right to freedom of expression because of the benefit it derives from the free exchange of ideas and critique of established and conventional wisdom.

Incitement to violence and hatred

Invalidating blasphemy laws is not a clarion call to incite violence and hatred towards religious people. There is a very fine line between laws that protect the infliction of violence on individuals and those that protect ideas from scrutiny. Every individual is guaranteed the right to inviolability of their person/body. However, ideas, religious or otherwise, deserve no such respect. It is disingenuous for one to argue that blasphemy laws help protect religious individuals from being subjected to wanton violence for their beliefs. If anything, in Uganda, we have seen the opposite: self-righteous indignation by members of certain religious groups towards different (usually so-called traditional) belief systems has occasionally manifested itself through violence and destruction of property.

No idea is sacred

Blasphemy laws create the illusion that some ideas and individuals associated with those ideas are beyond criticism and critique. They engender and create a society that believes in absolutes; the infallibility of one’s belief systems which then leads to the rejection of compromise and indifference if not opposition to alternative opinions. The century-old tensions between the various belief systems in this country attest to this. Blasphemy restrictions are an attempt to create religious conformity and forcibly silence criticism of dominant religious ideas especially when those ideas support and are supported by political power. This is antithetical to the religious plurality that characterises Ugandan society. In a country whose populace subscribes to at least 10 (non)religious ideals, blasphemy laws are an unnecessary restriction on the need to have difficult conversations about the positive and negative role religion plays in our lives.

Even if no one, to my knowledge, has been convicted of the offence of blasphemy (I would wager that the law was enacted at the height and peak of religious tensions in the colonial period to ease and appease those at the fore of these conflicts), the State cannot protect ideas for the sole reason that they are religious. In any event, the absence of any prosecution and conviction should count towards scrapping the law.

The late Justice Mulenga could not have put it better when he wrote that ‘if there’s any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate. Thus the guarantee of freedom of expression serves to preclude the majority’s perception of truth or public interest from smothering the minority’s perception. The import of freedom of expression is to avoid the greater danger of smothering alternative views of fact or opinion.’

About the Author:
Nimrod Muhumuza is a lawyer and LLD candidate at the Dullah Omar Institute, University of Western Cape