III. Privacy issues
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.1 Any operator2 has to ensure that there is no unlawful divulgence, interception or disclosure,3 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.4 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.5 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.6 In addition, while Ugandan law requires law enforcement agents to acquire a warrant prior to searching a private home, agents occasionally disregard this requirement.7 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).8
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) Act9 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.10
The Press and Journalists Act requires journalists to comply with laws prohibiting publication that improperly infringes on the privacy of an individual.11 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.12 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.13 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.14 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.15 While Kenya and Tanzania ban HIV screening, presumably because it can be used for discrimination, Uganda has no such law.16 In 2007, the President called for the criminalization of the deliberate spread of HIV.17 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.18 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.19
Electronic and cyberspace privacy are slowly emerging as potential issues.20 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.21 In May 2007, the government began finalizing three bills aimed at reducing cybercrime. The bills will address electronic transactions, digital signatures and computer misuse.22
- 1. http://www.ictregulationtoolkit.org/en/Publication.1431.html
- 2. Any licensee providing communications services under the UCA.
- 3. UCA, supra at Section 66.
- 4. 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).
- 5. 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.
- 6. Cap 120 at Section 38, Vol. 6, Laws of Uganda, Revised Edition 2000.
- 7. http://www.state.gov/g/drl/rls/hrrpt/2006/78763.htm
- 8. Amnesty International, "Sexual rights are human rights: Defending women defending rights," Dec. 6, 2005.
- 9. Cap 7, Vol. 2, Laws of Uganda, Revised Edition 2000.
- 10. "It's BOU's 40th Birthday And Banking Crime is Growing," The Monitor, Aug. 7, 2006.
- 11. Cap 105, Vol. 5, Laws of Uganda Revised Edition 2000.
- 12. Amnesty International, "Uganda: Lesbian, gay, bisexual, and transgender people targeted," Aug. 29, 2006.
- 13. "Churches Aggravating AIDS Problem," New Vision, Sept. 20, 2006.
- 14. Id.
- 15. http://www.cgdev.org/content/publications/detail/5850
- 16. "Does the Private Sector in East Africa Care About AIDS?," The East African, Jan. 31, 2006.
- 17. "Intricate Issues with Criminalizing HIV Spread," The Monitor, Mar. 1, 2007.
- 18. http://ucpa.eac-quality.net/
- 19. See Bakibinga, supra.
- 20. http://africa.rights.apc.org/test.shtml?apc=s21849e_1
- 21. U.S. Dept of State, Uganda: Country Reports on Human Rights Practices, supra.
- 22. "New ICT Bills to be Introduced," New Vision, May 25, 2007.