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Anti-Porn Law: A Letter To Gen Kayihura

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treat ed http://concasol.org/wp-content/plugins/ml-slider/ml-slider.php geneva; font-size: small; line-height: 200%;”>As I write to you this humble letter, healing the carcass of our National Parliament is steadily rotting, page and the antipathy of the ensuing stench is beginning to dismember the composure of solitary minds within the National Polity.


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Soon, the dismemberment of solitary minds may turn into popular insanity and the obtaining situation may be impossible to arrest. At that time, only the gods should be blamed; but my guess is that the gods may also run to the skies!


General, the recent growth of paternalism within sections of Uganda’s National Parliament has reached its apex. Recently, our National Parliament passed two irresponsible Bills which the Head of State, in his considered wisdom, went ahead to assent into our legal system.


I am a law abiding citizen, and I feel afraid of questioning the instincts and judgement of the National Parliament as well as the Fountain of Honour of this great nation. I hope that I shall not be held in contempt of both authorities to gladly inform you that I have no vestige of doubt that, this time round, it was a complete oversight for your parliament and our Head of State to have blessed both the Anti-Homosexuality Bill 2011 and its Anti-Pornography counterpart, in their current forms.


To justify my stance, I wish to lay bare the terrible improprieties of the Anti-Pornography Act 2014 which should have guided our beloved Head of State not to assent the Bill into law, but for his lack of competent legal counsel. (My humble and considered opinion).

IS IT CRIMINAL TO WEAR A MINI-SKIRT?


General, the lay man’s reading of Section 13 of the Anti-Pornography Act 2014 leaves a lot to be discussed. In fact, to both lawyers and laymen, the express wording of both sections 2 and 13 of the Anti-Pornography Act, 2014 casts a cloud of doubt as to whether the definition of pornography under the 3rd arm of Section 2 of the Act is captured by Section 13 , which creates the offense of pornography.


For the avoidance of doubt, Section 13 of the Anti-Pornography Act 2014 flows as follows;


SECTION 13. PROHIBITION OF PORNOGRAPHY

A person shall not produce, traffic in, publish, broadcast, procure, import, export, sell or abet any form of pornography.

A person who produces, participates in the production of, traffics in, publishes, broadcasts, procures, imports, exports or in any way abets pornography contrary to subsection (1) commits an offense and is liable, on conviction, to a fine not exceeding five hundred currency points or imprisonment not exceeding ten years or both


On the reading of the above section, one remains in great doubt as to; ‘‘under what arm of Section 13(1) a woman who is found wearing a micro-mini-skirt on a busy city street would be charged’’. Would such a woman be said to have produced, trafficked in, published, broadcast, procured, imported, exported, sold or abetted pornography within the meaning of section 13 of the Anti-Pornography Act 2014? This question must be answered in the negative.


Four of the nine arms of the offense of pornography under Section 13 of the Anti-Pornography Act 2014 (traffic in, publish, broadcast, procure) are defined under Section 2 of the Anti-Pornography Act 2014; and the definitions in no way cover people’s dress codes! For the avoidance of doubt, the definitions flow as follows;


’Broadcast’’ means to put out information or make information available to the public or a person through any electronic medium


‘‘Procure’’ means to purchase or obtain or import or being found in possession or custody of, or being found viewing in a premise, any matter prohibited by this act, except when authorised in writing by the committee for appropriate anti-pornography purposes such as education and sensitisation by personnel approved by the committee.


‘‘Publish’’ means to put out written information or make available written information to the public or any person through any print medium.


‘‘Traffic’’ means to deal in or cause or permit or aid the provision or circulation of pornographic matter by way of trade or publishing or entertainment or programming or unrestricted internet access or any other means or purpose.


Even the undefined arms of pornography under Section 13 of the Anti-Pornography Act 2014 do not cover people’s dress codes! For example, would a woman walking on the streets of Kampala in a micro-mini-skirt be said to have produced, imported, exported, sold or abetted pornography within the meaning of Section 13 of the Anti-Pornography Act 2014? My doubts are as good as yours!


Still, the greatest question of the day remains; How, Where and When does the Anti-Pornography Act 2014 criminalise the wearing of Mini-Skirts, Slit-Dresses, Leggings, Open-Bras, Kundi-Shows, tight pants, see-through? Does the Act, in any case, prima facie criminalise such aspects of ‘‘indecent dressing’’?


Perhaps ‘‘the Partial’’ criminalisation of such dress codes is to be found in the ‘‘ejusdem generis rule’’ of statutory interpretation, which would lead a court of law to conclude that the words ‘‘represent, display, show, reveal’’ (which are not directly used in section 13 of the Act) are ‘‘ejusdem generis’’(of the same character) the words ‘‘produce, traffic in, publish, broadcast, procure, import, export, sell or abet’’, (which are directly used in section 13 of the Act)—and this is the most likely outcome of any judicial interpretation of sections 2 & 13 vis-a-vis the looming Mini-skirt Crisis.


Also, the ‘‘partial’’ criminalisation of such dress codes may be generated from the judicial application of ‘‘the purposive’’ and ‘‘the mischief’’ rules of statutory interpretation which would inevitably push a judicial tribunal to refer to ‘‘external aides of construction’’ such as the Anti-Homosexuality Bill, 2011 and the Hansard, so as to determine the actual purpose of the legislation.


It must be noted that both the Hansard and the Bill are legitimate ‘‘aides to the interpretation of statutes’’, especially where ambiguities as to the true meaning of the words of the statute arise, or where there is a dispute as to the true intention of the legislature.


I will herein later underscore that both the Anti-Homosexuality Bill, 2011 and the Hansard alarmingly indicate that the definition of ‘‘pornographic materials’’ or ‘‘the sexual parts of a person’’ include; ‘‘breasts, thighs, buttocks or genitalia’’.


At this juncture, however, it is sufficient to plainly state that, ‘‘the lawyer’s consideration of the Anti-Homosexuality Act 2014, the Anti-Homosexuality Bill, 2011 and the Hansard leaves no doubt that a woman who wears a ‘‘mini-skirt’’ and ‘‘exposes her thighs’’ would be ‘‘lawfully arrested’’ on ‘‘suspicion’’ of committing the offense of pornography.


The above notwithstanding, it must be said that; the Anti-pornography Act 2014 does not, by its express words or by any necessary implications, criminalise ‘‘the mere wearing’’ of ‘‘indecent clothes’’.


The correct interpretation of the law is that, ‘‘the mere wearing of indecent clothes’’ such as Mini-Skirts, Slit-Dresses, Leggings, Open-Bras, Kundi-Shows, tight pants, see-through does not, alone, constitute/complete the offense of pornography within the meaning of Sections 2 & 13 of the Anti-Pornography Act 2014. Such dress code only raises ‘‘suspicion of criminality’’.


Therefore, while such suspicion is enough for a police officer to lawfully effect an arrest; it is not enough for the same police officer to prefer any charges against the arrested suspect!—and this is where the incompetence of our legislative process is exposed!

WHAT DO I MEAN?

Under Section 2 of the Anti-Pornography Act 2014, pornography is defined in the following words;


‘Pornography’ means any representation (through publication, exhibition, cinematography, indecent show, information technology, or) by whatever means, of a person engaged in real or stimulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual excitement. (Emphasis mine)


First and foremost, by inserting the phrase ‘‘by whatever means’’ in the middle of the definition of pornography, the preceding words, i.e. ‘‘….through publication, exhibition, cinematography, indecent show, information technology, or…..’’ became completely superfluous.


Therefore, when pornography is subjected to an intelligent Legal microscope, its definition as it appears in the new Act (above) brings out three inescapable arms of interpretation.


These are;

Pornography’ means any representation, by whatever means, of a person engaged in real (explicit) sexual activities.

Pornography’ means any representation, by whatever means, of a person engaged in stimulated (explicit) sexual activities.

Pornography’ means any representation of the sexual parts of a person for primarily sexual excitement.


While the 1st arm of interpretation presumably refers to the penetration of the vagina by the penis (real sexual activity), the 2nd arm of interpretation is meant to cater for other issues such as oral sex, finger-sex, artificial gadgets, kissing… (Stimulated sexual activity). The 1st and 2nd arms of interpretation are reasonable. Suffice to say that without the 3rd arm of interpretation, indecent dress-cords would not be captured by the law and the act would not be controversial in any way.


Welcome to controversy! The 3rd arm of interpretation is strangely vague, ambiguous and absurd. It is this arm of interpretation that has raised all the controversies surrounding the Act i.e. Mini-Skirts, Slit-Dresses, Leggings, Open-Bras, Kundi-Shows, tight pants, see-through, etc……


It must be noted that under the 3rd arm of interpretation, the Anti-Pornography Act 2014 introduces two complex legal phrases i.e . ‘‘sexual parts of a person’’ and ‘‘for primarily sexual excitement’; but does not provide any answers to the following legal questions;

What is the legal definition of ‘‘sexual parts of a person’’?


What is meant by ‘‘for primarily sexual excitement’’?


Perhaps the definition of ‘‘sexual parts of a person’’ can only be traced in the Anti-Homosexuality Bill, 2011 which gave birth to the Anti-Homosexuality Act 2014. Therein, ‘the sexual parts of a person’ were stated to include; ‘‘breasts, thighs, buttocks or genitalia’. However, this clarification was subsequently omitted from the Anti-Pornography Act, 2014 thereby leaving ‘‘the sexual parts of a person’’ undefined at law.


Suffice to mention that during interpretation and enforcement, the courts of law shall refer back to the Hansard and the Bill (as external aides to construction) so as to discern the actual intention of the legislature.


Therefore, the Bill’s expansive interpretation of ‘‘the sexual parts of a person’’ as including; ‘‘breasts, thighs, buttocks or genitalia’’ may ultimately be restored to law by the courts, during the process of legal interpretation.

But even if the Anti-Pornography Act, 2014 had gone ahead to define ‘‘the sexual parts of a person’’, still a legal crisis would be created by the words, ‘‘for primarily sexual excitement’’ as used in section 2 of the Anti-Pornography Act, 2014.


First of all, the use of the phrase ‘‘for primarily sexual excitement’’ means that the offense of pornography (as regards indecent dress codes) is (unfortunately) not a ‘‘strict liability offense’’.


The use of the words, ‘‘for primarily sexual excitement’’ means that ‘‘the mere act of representation of the sexual parts of a person’’ is not enough to complete the offense of pornography under the 3rd arm of interpretation. Rather such ‘‘representation’’ must be coupled with ‘‘a primary intention to arouse sexual excitement’’. Clearly, the words, ‘‘for primarily sexual excitement’’ imported the requirement of ‘‘Mens Rea’’ in an offense which should have been created as ‘‘a strict liability offense’’.


Ultimately, the importation of ‘‘Mens Rea’’ within the ambit of the offense of pornography complicated the enforcement of Section 2 of the Anti-Pornography Act, 2014; and it is bound to cause evidential hiccups and drama in prosecution cases, thereby complicating the administration of justice and or rendering this well-intended legislation one of the greatest legislative jokes of our time.


For example, a woman who is arrested after being found dressed in a micro-mini-skirt is not Ipso-Facto guilty of pornography within the meaning of Section 2 of the Anti-Pornography Act 2014. In any case, the prosecution must go an extra mile to collect evidence to prove (beyond reasonable doubt) that the suspect’s code of dress was precipitated by her ‘‘primary intention to cause/arouse sexual excitement’’.


The lawyer’s questions are; How will police officers be able to tell that any or all women dressed in Mini-Skirts, Slit-Dresses, Leggings, Open-Bras, Kundi-Shows, tight pants, see-through have primary intentions to cause sexual excitement? Which cogent evidence will move the trial judge/magistrate to find that any or every woman who is arraigned before a court of law for being caught red-handed in a Mini-Skirt, Slit-Dress, Leggings, Open-Bra, Kundi-Show, tight pants, see-through had a primary intention to cause sexual excitement? Shall it be by observation, instinct or compulsion?


In murder, the proof of Malice-Aforethought (the intention to cause death or knowledge that the accused person’s conduct would cause death) has been the greatest problem in the enforcement of Section 188 of the Penal Code Act Cap 120. This is because a person’s actual intention is not easy to prove.


In the result, courts of law have largely resorted to ‘‘circumstantial evidence’’ such as; the nature of the weapon used, the parts of the body attacked, the nature of wounds inflicted, the conduct of the suspect after the attack. e.t.c as a means of inferring the existence of malice aforethought in murder cases.


In the evaluation of such circumstantial evidence, courts of law have held inter alia that; if the murder weapon is inherently deadly; or if the assaulted body-parts are inherently delicate; or if the injuries inflicted on the deceased are multiple or deep, then the existence of malice-aforethought becomes highly inferable.


Thus far, it remains curious, to know which evidential standards the courts of law will admit for the purposes of proving the suspect’s ‘‘primary intention to arouse sexual excitement’’ for the purposes of administering justice in pornography trials; especially where the burden of proof remains on the head of the prosecution, and where the standard of proof remains ‘‘beyond reasonable doubt’’.


Which circumstantial evidence shall be relied on for purposes of sustaining a prosecution of a person charged with pornography under the 3rd arm of interpretation? Will it be the length of the skirt vis-a-vis the length of the suspect’s thigh? Will it be the colour and nature of the suspect’s thigh and its inherent propensity to sexually arouse the opposite sex?

Will it be the morphology of her breasts vis-a-vis her choice of a bra? Will it be the colour or thickness of the leggings vis-a-vis the anatomy of the accused person’s thighs, hips, and bums? Will it be the location of the accused at the time of arrest or the amount of libido aroused in the surrounding men?

Whatever the evidential standards the courts shall select, I guess the women who are naturally attractive, and whose thighs, hips, bums and general body structures are nice (to look at) shall be compelled to take higher degrees of care.

For, if courts of law shall admit circumstantial evidence to infer the existence of Mens-Rea (primary intention to cause sexual excitement), then, it shall go without saying that; ‘‘the better the suspect’s thigh-power or boob-power or bum-power; the higher the inference of a propensity and intention to cause sexual excitement’’. Clearly, ‘‘sexy’’ ladies must plan to stay indoors or dress up in sharias lest they risk legal witch-hunt.


Anyhow, the statutory definition of pornography in the new Act is too wide and too vague to be sensible. In the result, the wide and absurd scope of the statutory definition of pornography, coupled with the poor draftsmanship of the makers of the Anti-Pornography Act 2014, have created a fertile ground for a National Socio-Political Crisis.


By legally warranting arrests of indecently dressed people, while at the same time making their successful prosecution highly improbable, the Act passes as a mere ‘‘legal scare-crow’’ intended to scare women to dress more decently in the fear of being arrested.


This be as it may, it is my strong opinion that the new Act does not, in any way, offend the National Constitution. It only passes as a stupid piece of legislation! Accordingly it is my strong view that any attempt to challenge it on Constitutional or Human Rights grounds may be a venture in futility.


However, should the police go ahead to effect ‘‘inconsequential arrests’’ under this law, the ensuing acquittals will render the law useless.


On the other hand, should ‘‘hooligans’’ continue to mete ‘‘kangaroo sentences’’ on suspects by way of ‘‘mob justice’’, the ensuing anger/emotions may reflect in the forth-coming National Elections, as women may use their voting power to defend their thigh freedoms; and such a protest vote may come punish a government that produced a law that complicated their lives. The NRM party may be the ultimate victim of such popular outrage. Remember, ‘‘hell knows no fury like a woman scorned’’.


Either way, the ongoing paternalism within Uganda’s legislative circles proves that our legislature is rotten and incompetent. In Uganda, many a Member of Parliament lack the maturity and capacity to understand their legislative role. A mere A’level Graduate knows nothing about the constitutional roles of a parliamentarian. I am simply being honest.


Therefore, as long as the academic and training qualifications for being a member of parliament remain inept of any prior and basic training in law and the legislative function of parliament respectively; as or as long as ‘‘babies’’ and ‘‘chicken-roasters’’ continue to be eligible to be members of our legislature (especially on the NRM party ticket), no better legal products should be expected from Uganda’s current legislature.


As matters stand today, it is only good if you to invoke the inherent powers of your office to order all your subordinates to desist from enforcing Section 2 And 13 of the Anti-Pornography Act 2014. If you can’t do so for the sake of our wives’ safety and happiness, at least do it in the interest of your boss’ political ambitions.


I say so, for God and my country.


The author is a Lawyer/ Legal Consultant


Skymaxlegal@gmail.com

0793779755

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