Kabila Gold: Uganda journalists aquittted

Story not likely to cause fear and alarm, rules court

A UGANDAN court acquitted the editor and a reporter of the independent The Monitor newspaper of charges of publishing false news contrary to Section 50 of the Penal Code Act. The charge was a result of a story published in the paper to the effect that President Kabila of the Democratic Republic of Congo had paid President Museveni in gold for the latter's role in overthrowing Late President Mobutu of former Zaire.

Facts

On 21 September 1997, the independent Sunday Monitor newspaper published a story to the effect that President Laurent Kabila of the Democratic Republic of Congo gave a large consignment of gold to the government of Uganda as payment for services rendered by the latter during the struggle against the late Mobutu Sese Seko.

The story also alleged that the then commander of the Anti-Smuggling Unit had played a key role in the transfer of the gold consignment from the DRC to Uganda. Before being published in the Sunday Monitor, the story had appeared in the Indian Ocean Newsletter, a regional newsletter which is circulated in Uganda. The prosecution had called five witnesses including two employees of the Bank of Uganda, who testified that no gold had ever been received from the DRC.

President Kabila: 'Paid Museveni in gold.'

Ruling

The learned Magistrate ruled that the evidence of the two bank employees, and that of the Anti-Smuggling Unit Head to the effect that he did not play any role in the alleged transfer would suffice to require the accused to be put on their defence. However, apart from adducing evidence to show that the accused persons published the false statements complained of, the prosecution had to adduce evidence to show that the statements had been likely to cause fear and alarm to the public or disturb the public peace.

The court referred for guidance to Haruna Kanabi v Uganda (Cr. App. No. 72 of 1995), where the appellant was convicted inter alia for publishing a false statement, such statement being likely to cause fear and alarm to the public or disturb the public peace.

The false statements were that the President of Uganda had visited the 40th District of Uganda (a reference to Rwanda) to solicit for votes in the presidential election. In upholding conviction, Lugayizi J had noted that "it is common knowledge that Rwanda is not a district of Uganda. It therefore follows that the appellant and others published a false statement."

The court had further held that it was enough for such a statement to have been calculated to cause fear or alarm to the public, and it was immaterial whether it brought such consequences or not. But the court held that Haruna was clearly distinguishable in that in the present case, it could not be reasonably said that by their very nature, the statements complained of were calculated to cause fear and alarm to the public.

Mere writing

"It would be going beyond reason," the magistrate said "if I were to hold that the mere writing that Uganda was paid in gold can cause fear or alarm." To the contrary, the court noted, some of the witnesses called by the prosecution said that they were either excited by the news or that they just dismissed it as lies.

"It is my submission that the evidence adduced by the prosecution does not by any measure show that the public or any member thereof was alarmed or feared as a result of the publication," the court held, noting that personal fears expressed by some of the witnesses could not be taken as indicative of the kind of fear and alarm envisaged by s. 50 of the Penal Code. "Were that to be the case, so many newspaper articles would be held to be the source of fear and alarm."

The court further pointed out that the fact that the story had first appeared in the Indian Ocean Newsletter, which had been read by some of the witnesses before The Monitor publication would have some bearing upon the charges against the journalists as the newsletter had been circulated in Uganda without causing fear or alarm. The court found the judgment of the European Court of Human Rights in The Observer and the Guardian Newspaper v The United Kingdom (The Spycatcher Case) to be highly persuasive in that regard.

No merit

The court therefore found that there was no sufficient evidence to show that the publications complained of were likely to cause fear or alarm. It found no merit in the charges under s. 50 of the Penal Code Act and accordingly dismissed them and acquitted both accused journalists of all the counts against them. It also ordered the refund of their cash bail.

Meanwhile, on 14 May 1999, journalists Charles Onyango Obbo, Wafula Ogutu and Ouma Balikowa, all editors of The Monitor were arraigned before the Kampala Chief Magistrates Court and charged with sedition and publishing false news. This followed the publication in the newspaper of a photograph showing a young naked woman being held by four men in army uniform who were alleged to be shaving her pubic hair. The caption said that sources claimed the photograph was taken at an army barrack in Gulu, northern Uganda, where the army is fighting rebels of the Lord's Resistance Army who have been fighting to overthrow the government of Yoweri Museveni.The three journalists were released on bail pending the hearing of the case.

Njonjo Mue
Article 19,
with Kenneth Kakuru in Kampala.