WADADA ROGERS: The AG’s opinion on the fate of persons convicted under the impugned sections of the Computer Misuse Act and the amendments is not only erroneous but misleading

2026-03-29 - 10:25

The Attorney General (AG) of Uganda has in a lengthy opinion advised against appealing the Constitutional Court decision that struck down the Computer Misuse (Amendment) Act, 2022 over procedural breaches. In his letter to several government departments, the AG also guided that the law should be sent back to Parliament for fresh enactment. I personally have a problem with this guidance of sending the law back to parliament. It is clear we have not learnt anything from history. Just last year, the Supreme Court nullified sections of the Uganda Peoples’ Defence Forces (UPDF) Act on subjecting civilians to trials before the Court Martial. Within a short time, the law was hurriedly reviewed and the Uganda Peoples’ Defence Forces (Amendment) Act, 2025 was passed. As of today, a number of petitions are pending in the Constitutional Court against the amended UPDF Act for having violated key provisions of the Constitution by reinstating the jurisdiction of the Army Court Martial to try civilians under sections 117A clauses 29 and 30) and Clause 82, a practice that was declared unconstitutional by the Supreme Court. My fear is that history could repeat itself through the Computer Misuse Act which will soon be tabled before Parliament. The AG’s guidance follows last week’s ruling in consolidated Constitutional Petitions No. 34, 37 and 42 of 2022, where the Court quashed some sections of the Act and section 162 of the Penal Code Act on criminal libel. In its ruling, the Constitutional Court did not address its mind to the merits of the Computer Misuse (Amendment) Act, 2022, the focus was on the allegation that the legislation was passed without quorum. This therefore means that the temptation to return the amendment as it could easily blind the legislators to simply pay more attention to the issue of quorum. For instance, sections 2, 3, 4, 5, 6, and 7 of the Computer Misuse (Amendment) Act 2022 were not tailored to cure any mischief in the existing legislations. Above all, many of these sections are inconsistent with of Articles 2, 28(12), 29(1)(a) and (b), 40(2), and 41 of the 1995 Constitution to the extent that they make every social media user a potential criminal. These will definitely not survive the scrutiny of court. The opinion also addressed the issue of the permanent injunction restraining government agencies from enforcing any of the affected provisions; with the implication that all ongoing criminal proceedings based on the nullified provisions should be halted. The AG also guided that no arrests should be made, basing on the impugned provisions. I have been flipping through the books of law to identify a provision by which a judicial officer can be arrested, fined, or committed to civil prison for contempt of court if they willfully disobey lawful orders made by any court above their hierarchy. I am aware that while judicial officers have immunity for actions taken in good faith, deliberate defiance of higher court orders, such as injunctions can constitutes contempt at individual level. Now that the AG has made it clear that he does not intend to appeal the decision, why are the lower courts still holding accused persons on remand aware that the Court actually issued a permanent injunction against enforcing the nullified sections of the Act. Why is Male Mabirizi who was charged under Section 26 and 28 of the impugned Act still on remand? This week, Lawyers representing Lawyer Male Mabirizi were ordered by the Chief Magistrates Court of Buganda Road to obtain a certified copy of the Constitutional Court decision which the lawyers complied with. Upon being presented with evidence of the ruling, the Magistrate again demanded for a decree as a way of buying time. In a statement by the Uganda Law Society, it was noted that the conduct of the trial Magistrate at Buganda Road Court in Criminal Case No. 52 of 2026 was not in tandem with what is expected of a judicial officer. The society argued that the circumstances suggest the involvement of an invisible hand, turning the court into “an instrument of personal vendetta against Male Mabirizi rather superintending over the tenets of justice. The society warned that such actions erode public confidence in the judiciary and threaten constitutional freedoms. It called for immediate intervention, urging the Chief Registrar and Principal Judge to intervene administratively and bring the Magistrate to order for delaying justice and keeping the accused person in remand when the cases abated. Be reminded that it is sections 11, 23, 26, 27, 28 and 29 of the Computer Misuse Act that were nullified. The rest of the Act remained intact and can be enforced as such. Instead, it is the Computer Misuse Amendment Act, 2022 that was nullified in its entirety given that it was passed by parliament without the constitutional mandatory quorum. The opinion of the AG was just fine until he mentioned that individuals already convicted under those provisions and currently serving sentences are not affected by the court’s decision. Indeed, the Constitutional Court did not state whether or not its decision would operate retrospectively with the effect of overturning convictions already secured. However, the AG should be alive to the fact that even those convictions can be reversed. I am aware that a decision of a court particularly a precedent-setting ruling from the Constitutional Court or Supreme Court can operate retrospectively to overturn convictions already secured more so where the law under which the person was convicted is declared unconstitutional or fundamentally flawed. It is only newly enacted laws that do not operate in a backward manner, court decisions do. This means that if a person is convicted under a law that is subsequently found to have been passed illegally or unconstitutionally, the conviction is considered null and void, and the person is entitled to legal remedies, including compensation or potential release and the reversal of the conviction. One of such situations is where a law if found to have been passed without complying with proper procedures such as a lack of a quorum in Parliament. This therefore means that where a person was convicted under a law that is later found to have been void ab initio (invalid from the beginning), the law is treated as if it never existed hence removing the legal basis for the conviction. The affected person has the right to have their conviction vacated and their sentence terminated, though this is rarely automatic especially in a backward setting like Uganda. The process is generally not self-executing as we would have wished. The individual or their counsel must actively challenge the conviction in court and once the conviction is vacated, the person must go through the necessary steps to ensure his/her file is cleared of the criminal record that comes with a conviction. I have listened to argument that a conviction arising out of a nullified law should stand because it was the prevailing law at the time. This argument is based on the legal principle of finality and the general rule against retrospective application of laws. This view cannot however be invoked when dealing with decisions arising out of a Constitutional Court decision that nullified sections of the Computer Misuse Act, Section 162 of the Penal Code Act and the entire Computer Misuse (Amendment) Act, 2022. Wadada Rogers is a commentator on political, legal and social issues. wadroger@yahoo.ca