January 12, 2021

Trial Observation Report: Uganda v. Moses Bwayo

From May to August 2020, the American Bar Association (ABA) Center for Human Rights monitored criminal proceedings against journalist and filmmaker Moses Bwayo in Uganda as part of the Clooney Foundation for Justice’s TrialWatch initiative. Mr. Bwayo was charged with unlawful assembly for shooting a scene for a documentary about opposition activist, presidential candidate, and musician Bobi Wine: the authorities alleged that the gathering and filming constituted subversion of the Ugandan government. Mr. Bwayo’s arrest, detention, and prosecution for speech that was wholly non-violent and that concerned political matters violated his right to freedom of expression. It likewise violated his right to peaceful assembly. While the case against Mr. Bwayo was dismissed by the court for want of prosecution, it should never have been brought. As Uganda prepares for its presidential and parliamentary elections on January 14, it must ensure that journalists such as Mr. Bwayo are protected from reprisal for their coverage of opposing campaigns.

On February 24, Mr. Bwayo and a group of approximately ten individuals assembled on the rooftop of the Five Horsemen Hotel in Kampala to film a scene for a documentary about Bobi Wine. The scene was a music video for one of Bobi Wine’s songs: in addition to starting the opposition People Power movement and running for president against incumbent Yoweri Museveni, Bobi Wine is a popular singer whose music often features political themes. For the music video, the group on the rooftop - which primarily consisted of camera crew - was filming shots of Bobi Wine and his entourage, mostly in the street below but also on the rooftop. Those in the video had donned People Power hats and clothing and were singing a song about the struggle to rid Uganda of economic inequality, corruption, land grabbing, discrimination, and police brutality. As Bobi Wine and his entourage performed in the street, a number of bystanders joined, chanting People Power slogans. A military officer in the neighboring Nsambya barracks noticed the filming and called the landlord of the hotel, who was unaware of the events at hand: an assistant hotel manager had given Mr. Bwayo permission to film on the rooftop. 

Police and military officers arrived at the hotel. Those on the rooftop, including Mr. Bwayo, were arrested and transported to the Makindye police station. Those in the street scattered. The rooftop group was held in custody until February 26 and thereafter released on bond. On March 4, the accused reported to the police station in line with their bond conditions, at which point they were rearrested and brought to the Makindye Chief Magistrate’s Court for a bail hearing. At the hearing, the accused were formally charged with unlawful assembly and remanded to detention. On March 6, the accused were released on bail. Pretrial proceedings began before the Makindye court in May. When the prosecution failed to produce any witnesses on August 10, the day the trial was due to start, the court dismissed the case for want of prosecution. While nine individuals were charged in the case, this report is focused on Moses Bwayo. 

The proceedings violated the right to freedom of expression enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter). As mentioned above, Mr. Bwayo was filming a scene for a documentary about Bobi Wine: specifically, a music video for the purposes of which participants had donned People Power paraphernalia and were singing a Bobi Wine song. This speech, covered by the right to freedom of expression, warranted heightened protection because it concerned political matters: as noted above, the song was about reforming Ugandan society and government. In order to impose restrictions on the speech - i.e. arrest, detention, and criminal charges - the State had to both possess a legitimate objective and respond in a manner necessary and proportional to the supposed threat. 

As a baseline, it appears that the authorities did not possess a legitimate objective for the restrictions but were instead motivated by the perceived political affiliation of those in attendance: in concluding that a crime had been perpetrated, police officer statements, the investigation report, and the charge sheet all reference the fact that the group was donning People Power attire and/or singing what is characterized as anti-government music. 

Crucially, even if a State “invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and … a direct and immediate connection between the expression and the threat.” In the present case, while the authorities referred vaguely to the specter of subversion, indicating that they acted on public order or security grounds, they failed to explain the “precise nature” of the alleged subversion, what the potential effects of such subversion might be, and why the police considered the filming of a music video to be a “global threat” - as stated in a police report. Moreover, the authorities failed to establish a direct and immediate connection between the filming and the supposed threat. In light of the above, Mr. Bwayo’s right to freedom of expression was violated.

The ICCPR and African Charter also protect the right to peaceful assembly. Under these treaties, restrictions on peaceful assembly - like restrictions on protected speech - must possess a legitimate objective and must be necessary and proportional. As noted above, there are grounds to conclude that the authorities interfered due to the accused’s perceived political affiliation, without a legitimate objective. Even assuming a legitimate objective, there were less intrusive options that the authorities could have pursued to assuage any concerns about potential subversion. They could have verified with the hotel manager or the film crew, for example, that the gathering was for the purpose of a documentary and was not a prelude to violence. If the officers were concerned about the filming of the barracks, as stated in the charge sheet and other documents, they could have requested that the crew film the scene from a different angle or make other adjustments. The authorities’ unnecessary and disproportionate actions in arresting, detaining, and charging Mr. Bwayo and others thus violated the guarantee of peaceful assembly enshrined in the ICCPR and African Charter.

As the Ugandan election approaches, the authorities have intensified attacks - including physical assaults and baseless arrests and charges - on individuals affiliated with opposition parties. Journalists covering opposition campaigns have been vulnerable to such harassment. The case against Mr. Bwayo thus reflects a broader pattern. In line with recommendations from United Nations Special Proceduresand organizations such as the Human Rights Network for Journalists-Uganda, the government should take steps to protect the right to freedom of expression and, in particular, press freedom, at this crucial juncture, ensuring that journalists covering the opposition are able to operate freely, ensuring that any individuals or institutions that target such journalists are investigated and sanctioned where appropriate, and ensuring that the populace is freely able to access media across the political spectrum.

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