It was during Father’s Day of 2016 when Tom Voltaire Okwalinga shared a moment with his Facebook audience that felt very raw. There was an innocence and a truthfulness to the lived experience he recounted. It was an all too familiar sinking feeling that 1970s children were accustomed to. They, after all, had ringside seats to a horror show that was startlingly awful in every conceivable way as Uganda sat at the edge of an incredibly violent moment in history. “Happy Fathers’ [sic] Day to my dad,” Okwalinga, widely known by the acronym TVO, wrote in a 19 June 2016 Facebook post. That day in 1978 when Idi Amin soldiers assaulted you in front of us, at my tender age of 4,I [sic] saw everything and I think, it was from there that I decided I shall always fight bad governance wherever and whenever it pops up its ugly head.”
When Uganda found itself, per TVO, held in a thunderously dark embrace under Yoweri Museveni’s presidency, the dissident used the social network Facebook to situate himself in opposition to the state-controlled public sphere. In an 11 August 2012 Facebook post, TVO pledged to be a defender of “the freedoms of the voiceless” and “a supporter of good governance.” His choice of the nickname Voltaire, he would later disclose, was because the French Enlightenment writer’s defence of free speech and religious tolerance was infectious. Ditto his satirical writing style. And so in 2009, riled by the maladministration that happened on an unacceptable scale after Uganda hosted the 2007 Commonwealth Heads of Government Meeting (CHOGM), a steady stream of posts gushed out from TVO’s new Facebook account. The tone of the posts was notably unapologetic, and they became much blunter in their portrayals of enduring wrongs in the country.
The end, when it came, felt like the beginning.
TVO’s last Facebook post, radical in purview, is written in a matter-of-fact tone, using short, clipped sentences suited to the wretchedness of his subject.
“Looking forward to,” the 1 November 2020 post starts, “[the] electoral commission receiving M7 [Yoweri Museveni’s] academic papers and displaying them for the press, just like other candidates.”
The post shows that sarcasm, such as it was, and to which the dissident was prone never vanished. The archetype of what the anthropologist James C. Scott called a “hidden transcript”, the manner in which such sarcasm homed in on success explains why Uganda’s architecture of surveillance attempted—albeit unsuccessfully—to unravel TVO’s online pseudonymity. The endeavour was undertaken with such enormous, unfathomable depths because state actors could, as they presumably hoped, use draconian legislations like the Computer Misuse Act to address a reprimand to TVO.
TVO’s low-profile form of resistance fitted the bill of, or even embodied, an offence committed when one, as the impugned Section 25 of the law put it back then, disturbs “the peace, quiet, or right of privacy of the President through electronic communication.” The so-called offensive communication provision would be struck down by the country’s Constitutional Court in January of 2023. It was however, in November of 2020, a clear and present danger that reared an ugly head. Stella Nyanzi, another dissident, had learnt this the hard way three years earlier. A Facebook post in which the academic called Museveni “a pair of buttocks” was met with a punishment that, in its cruelty, reflected the punishing lengths the state was prepared to go to forcibly silence opposing opinions. Incarceration.
Veneer of pseudonymity.
A similar twinge of frustration settled over the comprehension of TVO’s Facebook posts, not least what would eventually be his last one. To understand why the state was beside itself with fury, some context does suffice. The academic credentials of Robert Kyagulanyi Ssentamu, alias Bobi Wine, the leading challenger in the 2021 presidential poll, had—in a moment that questioned the procedural exactitude (or lack thereof) of the Electoral Commission (EC)—been leaked. TVO read the development as one intended to disrobe the opposition leader. In fact, he had come to the conclusion that there was “something fishy” about the “M7 [Museveni] Electoral Commission” following the “snail pace in verifying some presidential candidates.”
Suspicions, most of whose unknowable immensities were the subject of perpetual fascination and disbelief, loomed suffocatingly large on TVO’s Facebook wall. It is no wonder that enemies, hardly in scant supply, were relentless in having the dissident fingered. Such success was by no means assured. Nixon Agasirwe, a former commander of the Uganda Police Force’s Special Operations Unit and Flying Squad, once—per TVO’s 20 November 2017 Facebook post, “came to one joint to arrest me and he went empty handed, although I was at the venue.” Such episodes, in their ludicrousness, saw the dissident’s legend grow that bit more. They also strengthened the resolve of his foes (variously defined) to use all means possible to crack his veneer of pseudonymity.
Between 2016 and 2017, a legal interpretation was sought to establish if there were any limitations to protecting anonymous speech. Fred Muwema, a lawyer attuned to others’ weaknesses and not above exploiting them, sued Facebook in Ireland to unmask TVO. Muwema was convinced that he saw core flaws in TVO’s sweeping accusations that the lawyer had received UGX 900 million from a government functionary to pull the plug on a 2016 presidential election petition. The accusations were made on the 17th, 19th and 24th March 2016, the plaint shows. The Facebook posts on the 19th and 24th March 2016 appear to have been deleted.
Donald Binchy, the jurist in the Irish High Court to whom the case was assigned, found himself with the unenviable task of reconciling tensions between seeking justice for perceived reputation-damaging falsehoods and protecting anonymous speakers from the threat of reprisal. In Fred Muwema v Facebook Ireland Ltd (2016-2017), Justice Binchy opted not to force the removal of the cloak of pseudonymity. His decision not to disclose TVO’s identity was anchored in the ‘balance’ test where Muwema’s right to repair a reputation painstakingly built was counterposed with TVO’s right to communicate without fear of retribution.
Justice Binchy’s ruling was rooted in Norwich Pharmacal Co. and ors v. Commissioner of Customs and Excise [1974] AC 133. The 1974 House of Lords case birthed what has come to be known as a “Norwich Pharmacal” order. To be a beneficiary of the order an applicant typically must, per the Thomson Reuters Practical Law’s glossary, show “a good arguable case of wrongdoing; that the information is necessary to bring a claim against the wrongdoer; that the respondent is ‘mixed up’ in the wrongdoing.” Muwema was unsuccessful in proving either, and not just in Justice Binchy’s book but also that of Justice Michael Peart who duly dismissed the appeal on 19 April 2018.
Beyond the ‘balance’ test
The Fred Muwema v Facebook Ireland Ltd case offers an illuminating insight into the legal challenges presented insofar as upsetting the delicate balance between regulating online defamation that is transnational in reach, on the one hand, and, on the other hand, protecting pseudonymous activists in politically sensitive contexts. In explaining, as this article does, surveillance concerns within the lens of digital privacy, user identification, and potential dangers faced by users from state actors, a range of issues emerge. It is vitally important to note, as Columbia University’s Global Freedom of Expression did, that the outcome in the Fred Muwema v Facebook Ireland Ltd case could quite possibly have gone the other way. As the academic initiative succinctly put it, “[…] it is noteworthy that a judge (Justice Baker) took the opposite approach in an earlier judgment (Petroceltic International plc v. Aut O’Mattic A8C Ireland Ltd, 20 August 2015), granting an injunction requiring the defendant to remove allegedly defamation posts hosted on its site.”
Ultimately, though, the Global Freedom of Expression proceeds to note, the High Court of Ireland “recognized that where an ISP [internet Service Provider] has a reasonable likelihood of succeeding with a defense in a defamation claim, an injunction cannot be granted to ‘takedown’ or prevent publication of the impugned content.” In doing so, the academic initiative adds, “the Court followed the approach adopted by courts in Ireland and other jurisdictions of reluctantly and sparingly handing down orders that amount to prior restraint of expression.”
The juridical reluctance makes clear that the sheath extended to ISPs under Irish defamation law invites an introspection of the application of the Bill of Rights in Chapter Four of Uganda’s Constitution to an online speech context. Since articles 29 (Protection of freedom of conscience, expression, movement, religion, assembly and association), 41 (Right of access to information); and 43 (General limitation on fundamental and other human rights and freedoms) espouse US-type First Amendment Principles, the America Online, Inc. v. Anonymous Publicly Traded Company, 261 Va. 350, 542 S.E.2d 377 (2001) case suffices. The Supreme Court of Virginia held thus: “In this age of communication in cyberspace, the potential dangers that could flow from the dissemination of such information increase exponentially as the proliferation of shareholder chat rooms continues unabated, and more and more traders utilize the Internet as a means of buying and selling stocks. As such, the wrongful dissemination of such information through the Internet may also fall outside the scope of First Amendment protections.”
Abhorring an information vacuum
Notwithstanding, it is instructive to mull over the implications of the ruling in the Global Telemedia Intern., Inc. v. Doe 1, 132 F. Supp. 2d 1261 (C.D. Cal. 2001) case. The general tenor of the ruling was such that bulletin boards (forums) and chat rooms, considered early and foundational components of Web 2.0, were deemed too casual to be taken seriously. At least by a reasonable reader. Their light-hearted chatter marked by streams of sarcasm, invective, and hyperbole were just that—chatter. Social networks like Facebook, which TVO used regularly, have taken the core Web 2.0 principle of user-generated content and active participation to another level. They also teem with light-hearted chatter and banter. These types of discursive exchanges serve a fundamental purpose in jurisdictions like Uganda where the ruling elite are stingy with information. They compel such leaders into joining communicative processes. More so when serving the ultimate purpose of a so-called hidden script.
From Son of Muzinge and the Protestant Preacher in the late colonial period to TVO in the postcolony, Uganda’s track record of pseudonymous activists is richly detailed and hauntingly beautiful. While they were/are celebrated for defying most of the established surveillance tools at the state’s disposal, the subset was/is seemingly conscious of the fact that most—if not all—its feats are crucial and hard-won. Faced with the practical difficulties of showing that plaints are brought in good faith and that, above all, their claims are backed with prima facie evidence, odds continue to be stacked against plaintiffs.
The law of averages…
While pseudonymous activists continue to enjoy a good run thanks—in no small part—to the ‘balance’ test, the law of averages suggests that the balance/scales could yet be tipped. The string of tangibles that threaten to remove the cloak of pseudonymity include anti-terrorism/national security statutes, data retention mandates, and anti-trafficking laws. These have gained some notoriety for demanding user identities from platforms like Facebook, X, and TikTok, to mention but three. Uganda, for one, has draconian laws on its books that are used to suppress dissent through mandatory identification. These include the Registration of Persons Act (ROPA) 2015. Sections 65(1)(j) and 66 of the ROPA make the National ID mandatory for accessing essential services, allowing the government to keep dissidents on an uncomfortably short leash. ROPA works in concert with other draconian laws.
If the aforesaid digital identification is taken together with the Computer Misuse (Amendment) Act, 2022 (that frowns upon online dissent), the Public Order Management Act, 2013 (whose Section 8 gives the police wide-ranging powers to run the rule over public meetings), and the Anti-Terrorism (Amendment) Act, 2022 (that stifles debate by framing criticism as a security threat), the toll of Uganda’s authoritarian bent will become clear only gradually. The country will not countenance using the veil of pseudonymity to make the education of its long-serving president—Museveni—the butt of all jokes as TVO did in what proved to be his last Facebook post.