[Preliminary draft. Case might change. Final version will be published by December 31, 2016.]

Facts – On April 11, 2011, Kizza Besigye, the leader of Ugandan opposition party Forum for Democratic Change was charged with rioting and inciting violence. At the time Mr. Besigye was on his way to the Walk to Work Protest. This protest was initiated in response to high fuel prices. Over 3,000 participants protested outside of the Kampala police station.

Issue – Does Besigye’s arrest, conviction, and sentencing on incitement charges under Swaziland law comply with international law standards?

Rule – Under the Universal Standard of the ICCPR, incitement laws must pass the scrutiny of a six-prong test. The first prong requires legality of the law – the charges must be formalized by law, and the law must be sufficiently precise. The second prong requires legitimate grounds for the incitement charge. Legitimate grounds include protecting the rights of others, national security, public order, public health, or morals. The third prong requires necessity – the restrictive measures must be necessary for a legitimate purpose, and must be the only way to achieve protection. The fourth prong requires proportionality – the restriction on expression should not be overbroad. It must also be the least intrusive instrument among those that might achieve the protective function, and be proportionate to the interest being protected. The fifth prong requires the existence of intent, specifically, the intent to incite discrimination, hostility, or violence. The sixth prong requires causation between the expression and threat.

Analysis – “Inciting violence” is governed by Article 83 of the Penal Code which states the following: “Article 83: Incitement to violence. (1) Any person who incites any other person to do an act of violence against any person by reason of his or her race, place of origin, political opinions, colour, creed or sex or office commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years. (2) For the purposes of subsection (1), “office” means the office of a Minister of the Government, a member of Parliament or a councillor, a public office, employment in the service of the administration of a district or the council or board of a municipality or town, any religious office and employment as a director, officer or other official.

First prong: Legality – The crime of “inciting violence” is codified under Article 83 of the Penal Code.  Pursuant to the first prong, the law on incitement is formalized by the law and is precise. The law specifies, who can be charged for incitement “any person”, and specifies the grounds “who incites any other person to do an act of violence against any person by reason of his or her race, place of origin, political opinions, colour, creed or sex or office”.   The law is formalized and precise, and therefore complies with the international standard. However, the law was not properly applied in this case. There is no evidence that Mr. Bisegye was inciting any persons to commit an act of violence. He was arrested as he was on his way to attend to the rally.  Article 83 does comply with the first prong, but was not properly applied in Mr. Bisegye’s case.

Second prong: Legitimate grounds – Pursuant to the international standard, legitimate grounds include protecting the rights of others, national security, public order, public health, or morals grounds.  The grounds that the criminal statute seeks to protect are “acts of violence against any person by reason of his or her race, place of origin, political opinions, colour, creed or sex or office”. These grounds comply with the second prong of the international standard, as they relate to issues of national security, public order, public health and moral grounds. However, just as with prong one, the application of the law is impermissible based on the above facts. There was no evidence of incitement of violence.

Third prong:  Article 83 complies with the third prong of the international standard. The law is necessary  to protect individuals against violence based on an individual’s race, place of origin, political opinions, colour, creed or sex or office.  [missing the second part of the prong – is outlawing these actions the only way to achieve protection? Most likely yes when the law is not overbroad. If the law is overbroad in the first prong – usually no.]

Forth prong: It is unclear if this prong complies with the international standard. The law states that anyone convicted of inciting violence based on individuals race, place of origin, political opinions, colour, creed or sex or office, will be sentenced to a prison term not exceeding 14 years. Depending on the facts of the case, and the sentenced rendered, the sentence may be considered proportional. With regards, to Mr. Bisegye’s case, the charges were subsequently dropped, and no sentence was rendered against.

Fifth prong: Article 83 complies with the international standard because the law specifies that the person charged must have the intent to incite violence against another person. However, the law was not properly applied in this case. There was no evidence that Mr. Bisegye intended to incite violence, he was arrested as he was going to the protest.  This prong fails.

Sixth prong: Article 83 complies with the sixth prong.  Causation must exist between the incitement, and the subsequent threat of violence. Here, there was no evidence that Mr. Bisegye committed an act of incitement in the first place. The law as written complies with the sixth prong, however, the application of the law does not justify charges against Mr. Bisegye

Conclusion – The Ugandan law on incitement as written complies with the international standard, however the law is not applied in a manner that would justify a charge against Mr. Bisegye.