Ugandan court guts anti-porn laws women say oppress, rather than protect, them

20 August 2021 · Carmel Rickard

Women’s organisations and several individual women in Uganda have challenged key parts of the country’s 2014 laws intended to deal with pornography. They claimed that, far from protecting women, the ‘overbroad’ laws had led to women being assaulted and literally undressed in public by men who claimed their dress was ‘too skimpy’. The constitutional court was unanimous in agreeing to much of the petition and finding the contested provisions unconstitutional. This decision is particularly interesting since it was responding to an application by a number of women and women’s organisations and yet anti-pornography laws are usually justified by governments on the grounds that they are necessary to protect women and children.

Uganda’s anti-pornography laws, in operation since 2014, have long been a problem for women. Almost from the day the new legislation became law, women complained that men used it to target and harass them for the clothes they were wearing. The law itself was referred to as a ‘miniskirt ban’ and it led to protests by women who said it dictated what was acceptable by way of dress.

There have also been a number of incidents in which men who objected to the length of a woman’s clothing have forcibly undressed women in public. In general, harassment of women by men over their clothing has increased significantly during the time that the law has been in place.

It also led to government offices issuing instructions that women were not to wear short skirts, show any cleavage or wear brightly coloured nails. Eventually, seven applicants, including several individual women and some organisations, brought a petition to the constitutional court, asking that various key sections of the anti-pornography law be declared null and void.

Indecently dressed

Among their complaints was that a number of women had been undressed in public and that two women had been detained for three hours by a magistrate on allegations ‘that they were indecently dressed’. They argued that although no state agent had participated in the actual undressing, the state had created a ‘toxic environment’ that facilitated these actions.

Their ultimately successful argument was that section 2, in defining and creating the offence of pornography, led to the ‘harassment and mistreatment of women in public’. It also denied them control over their bodies and access to public spaces and was inconsistent with the right to equal dignity, freedom from discrimination and to freedom from degrading treatment, among others.

They complained about the powers given to the committee that had to enforce and monitor the law, and about the sections that criminalised the production, publication and broadcasting of pornography, saying this section was so broad that it could criminalise legitimate debate and contravened the right to privacy, and freedom of expression, the press and other media. According to the petition, other sections giving wide enforcement and policing powers were also too wide and contravened the constitution.

‘Indecent show’

In response, the attorney general, for the government, simply denied all the allegations. The AG’s legal team said there were no questions of constitutional interpretation raised by the petition and it should therefore be dismissed.

Although Justice Frederick Egonda-Ntende, writing for a unanimous court, found that he could hear the matter, he rejected argument by counsel for the petitioners that the court should ‘take judicial notice’ of newspaper reports on the undressing of women and of charge sheets detailing allegations against women under the anti-pornography law. This was because the documents were ‘merely attached to the written submissions’ and thus amounted to ‘adducing evidence at the bar’.

On the central issues, however, the court found that certain phrases in the law, such as ‘indecent show’ were not clearly defined. This could lead to ‘inconsistent enforcement of the law’ and could affect too wide a range of conduct, including content ‘not intended to be subject to the offence’.

Objective

Justice Egonda-Ntende said he could not find the legislative objective for the criminalisation of pornography. While counsel for the AG suggested that it was intended to ‘protect women and children from sexual offences’ it was not spelled out in the legislation and it was unclear how the Act was supposed to achieve these ends.

‘What harm would result to society if publication … 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 AG) 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.’

What about the petitioners’ claim that the law was inconsistent with freedom of expression? Again, the lack of information from the AG made it impossible for the court to decide whether the objective of the law was important enough to override the fundamental right to freedom of expression. The AG should have not only clearly asserted and shown the objective of the criminalization of pornography but should also have shown that the measures taken were rationally connected to achieving this purpose. But the AG had not done so.

Powers

Similarly, the Pornography Control Committee (PCC) was given a variety of powers that the court found were based on the very sections of the law that the court had already found were unconstitutional. It had to follow that these powers too, could not pass constitutional muster.

Finally, the court had to consider whether the sections of the law about which the petitioners complained were inconsistent with Uganda’s obligations under various international human rights instruments. On this question the court found that the applicants had not specified with which instruments the law was allegedly inconsistent. This argument therefore had to be dismissed.

Writing in support of the various findings, one of the bench hearing the matter, Judge Elizabeth Musoke, said that a law criminalising pornography would obviously violate several constitutionally guaranteed rights including the right to freedom of expression and the right to privacy. ‘Whether or not violation of those rights was justified was for the (AG) to prove, but he made no attempt in his pleadings to do so. Therefore, the challenge to the impugned provisions ought to be sustained.’

Values

This court victory is part of an ongoing battle between much of Ugandan society on the one side and, on the other, government seeking to impose increasing conservative values and behaviours on the people of the country.

In 2017 the media reported that the government had bought an expensive machine that would detect if nude materials were being shared on mobile phones. It was held out to be the ultimate weapon in the arsenal of the nine-member PCC, assisted by between 30 and 40 staff, whose job was to protect Uganda’s cultural values.

Government ministers have been quoted as saying that ‘homosexuality and pornography’ amount to deadly moral diseases and that every effort must be made to stamp out both. However, commentators claim that this is another attempt to distract the population from the country’s real problems such as poverty, the lack of healthcare, corruption and domestic violence.

* 'A matter of justice', Legalbrief, 16 August 2021

Carmel Rickard

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