2015 Intra-University Moot Problem (19 January 2015 Draft)

2015 Constitutional Moot Problem (19 January 2015 Draft)

In the Constitutional Court of Uganda, Kampala Division 

Blue Uganda Inc. and Mahesh Gupta v the Attorney General of Uganda

PRELIMINARY NOTE: FOR THE PURPOSE OF THIS MOOT PROBLEM WE WILL OPERATE UNDER THE FACTUAL PRESUMPTION THAT BOTH THE ANTI-PORNOGRAPHY ACT AND THE PUBLIC ORDER MANAGEMENT ACT WERE PROPERLY ADOPTED WITH PARLIAMENTARY QUORUM.

Royal Blue Telecom is mobile phone and internet service provider based out of Belgium.  It is wholly owned by the members of the royal family of Belgium.  

Blue Uganda is a duly incorporated corporation under the laws of Uganda.  Royal Blue Telecom (an entity wholly owned by the Belgium royal family) owns 99% of the stock in Blue Uganda.  1% of the stock is held by Mahesh Gupta, a citizen of Uganda, who is also the Chief Operations Officer of Blue Uganda. 

Blue Uganda has been offering mobile phone and internet access services in Uganda since 2009.  Up until recently Blue Uganda was Uganda’s second leading provider of Internet access services and fourth leading provider of mobile phone services.

Blue Uganda prides itself on its commitment to social justice.  Each year it holds the Blue Lake Triathlon which raises money for the education of children with disabilities in Uganda.  Unfortunately concerns over bilharzia from swimming in Lake Victoria has limited participation in this event over the years.  

Other efforts of Blue Uganda have generated greater community participation and impact.  This is especially true of Blue Uganda’s Virtual Community Meeting (VCM) initiative.  Every month Blue Uganda hosts an interactive gathering on its network to discuss a topic relevant to Ugandans.  Internet access to participate in this event is provided at no charge.  Recent topics covered at VCMs include ‘Women and their Bodies’ and ‘Presidential Term Limits as a Human Right.’  According to Blue Uganda over 2 Million Ugandans participated on their last VCM entitled ‘Realising the Right to Education’.

Blue Uganda has been rocked of late by the Government of Uganda.  The Government actions against Blue Uganda have come from two fronts.

First, the Ugandan Government has taken action against Blue Uganda for violation of the Public Order Management Act, 2013.  The Government contends that the VCMs hosted by Blue Uganda amount to unauthorised public meetings in violation of the Public Order Management Act.  It is true that Blue Uganda never took any steps to register their VCMs with governmental authorities.  Blue Uganda did not believe that online meetings amounted to public meeting under the Public Order Management Act.   

Police arrested Mahesh Gupta based on his role in repeatedly violating the Public Order Management Act on 8 September 2014.  He is now out on bond but is facing criminal charges for twelve violations of the Act.  He faces a much as twelve months in prison for each of the alleged violations of the Act. 

In addition, Blue Uganda faces a fine in the amount of 480,000 UGX for each of its 12 violations of the Public Order Management Act.  The fine is based on the total estimated number of participants in the VCMs since the enactment of the Public Order Management Act.  Blue Uganda has not been able to pay this fine with its funds from Ugandan operations and the Government of Uganda issued a directive that Blue Uganda must stop all business operations in Uganda until the fine is paid in full in order.

Second, the Ugandan Government has taken action against Blue Uganda for violation of the Anti-Pornography Act.  In July 2014, the Anti-Pornography Commission commissioned a sample review of Blue Uganda internet subscribers.  The resulting forensic and statistical analysis based on this review indicated that Blue Uganda subscribers have used Blue Internet services to access pornographic material, as defined in the Anti-Pornography Act, over 982 Million times.  Based on a fine of 2000 currency points per violation this results in Blue Uganda owing up to 4M UGX per violation for a total possible fine of nearly 4 Quadrillion UGX.  The Anti-Pornography Commission sent Blue Uganda a letter on 3 October 2014 demanding that it pay a fine of 500 Billion UGX in order to avoid the filing of formal criminal charges.  

The demand letter also indicated that Blue Uganda had the right to challenge the fine by submitting a filing a written complaint within ten days of the receipt of the letter.  Blue Uganda submitted a timely letter challenging the fine on the grounds that it amounts to a violation of human rights and questioning the forensic analysis.  Officials from the Anti-Pornography Commission conducted a hearing on 1 November 2014 that was attended by Blue Uganda and their legal representatives.  As a result of the hearing, the fine was reduced to 400 Billion Uganda Shillings.  However, the Anti-Pornography Commission also ordered the immediate seizure of Blue Uganda’s network, offices and all other equipment located in Uganda. 

Blue Uganda is aware of similar fines and seizures that have been assessed each of the six largest Internet Service Providers in Uganda. 

On 15 November 2014 the Anti-Pornogrpahy Commission sent a letter to Blue Uganda indicating that it took ownership Blue Uganda’s network in Uganda as partial payment of the fine issued for the violation of the Anti-Pornography Act.  According to the letter Blue Uganda will receive a credit of 300 Billion Uganda Shillings for their network in Uganda leaving a balance of 100 Billion Uganda Shillings on the assessed fine.  The letter states that the Blue Uganda network is now the property of Crested Internet Services which purchased the network from the Government of Uganda for 300 Billion Uganda Shillings.

Crested Internet Services is a State owned telecommunications company launched in July of 2014.   It has quickly acquired the network capacity of the Internet Service Providers that have been the subject to fines and seizures.  At this time Crested Internet Services has become the leading internet service provider in Uganda and has the fastest and most reliable network of any provider.

The Chinese Government has provided Crest Internet Service complementary access to its Internet filtering technology and has provided a team of experts to enable Crest Internet Services to develop a filtering service that will enable Crest to successfully keep material that can violate the Anti-Pornography Act.  Most notably the filtering service will block access to all photographic images, all GIFs and all video image content.  In announcing this initiative, the Chinese foreign minister to Uganda announced “China joins Uganda in its concern over the Internet’s capacity to damage the collective will and purpose of its people though base distractions and harmful rabble rousing.  The people of China a happy to offer its expertise to Uganda as it seeks to keep the benefits offered by the Internet while limiting the Internet’s capacity for harm.”       

Spokespeople for liberal democracies around the globe have spoken out against the actions of the Ugandan Government with respect to private internet providers and the consolidation of Internet services under Crest Internet Services.  At a recent press conference in Pretoria, Secretary of State John Kerry seemed to be referring to Uganda when he asserted that ‘when governments aggressively control the channels of information and speech they cripple democracy and slouch towards despotism.’  Queen Maxima of the Netherlands decried the actions taken against Blue Uganda as ‘an unfortunate violation of the human rights of the royal family of Belgium.’ 

Officials at Blue Uganda believe that the Ugandan Government is seeking to take control of all Internet providers in order to control Internet access and communication during the time leading up to the 2016 Elections.  While they do not have any direct proof to support their beliefs they do know that all of the six largest private Internet service providers in Uganda have had their networks seized by the Ugandan government.   

Blue Uganda and Mahesh Patel have brought this petition under Article 137 of the Ugandan Constitution claiming violation of their constitutional rights.

Blue Uganda and Mahesh Patel claim the following:

There is a right to Internet Access in Uganda based on the Ugandan Constitution, applicable and binding international treaties and customary international law and the actions of the Government of Uganda amount to a violation of that right.

Provisions of the Anti-Pornography Act and the Public Order Management Act are inconsistent with or in contravention of provisions of the Uganda Constitution and the binding international instruments that inform the Constitution.

The Anti-Pornography Act as applied against Blue Uganda amounts to a violation of the Constitution of Uganda and the binding international instruments that inform the Constitution.

The Public Order Management Bill as applied against Blue Uganda amounts to a violation of the Constitution of Uganda and the binding international instruments that inform the Constitution.

Blue Uganda is also seeking compensation for the seizure of their networks, offices and equipment.

The Government of Uganda opposes all of the claims asserted above.