Lawyer Hassan Male Mabirizi has petitioned the High Court in Kampala contesting the decision of Wakiso Magistrates Court to allow the Director of Public prosecutions take over his case.
Mr Kyagulanyi is accused by city lawyer Male Mabirizi of obtaining registration by false pretence contrary to section 312 of the Penal Code Act when his name was entered into Parliament’s records under false pretence that he was born on February,1, 1982 yet it was not true.
Mr Mabirizi also accused Kyagulanyi of declaring false information to Immigration officers while applying for his passport on March,1, 2000.
Recently, the Directorate of Public Prosecution (DPP) wrote to the Buganda Road court seeking to take over the private criminal proceedings instituted against the legislator.
But the lawyer protested the State’s intervention that if the State wants to take over the proceedings, it should make an application to the court with reasons.
Mr Mabirizi said his matter is an extraordinary one because the offences against Mr Kyagulanyi were committed 20 years ago and the State has been silent about those crimes which forced him to investigate.
Appearing before Wakiso Chief magistrate Court today, the State attorneys led by Ms Ninsiima Emily noted that the law mandates them to take over all the criminal proceedings in the country.
The State Attorney has consequently asked Mr Mabirizi to furnish the DPP’s office with all evidence regarding the matter but the lawyer declined the request.
The Wakiso Chief magistrate, Justice Nyadoi Esther, ruled that the Director of Public prosecution (DPP) can at any stage take over the criminal case.
“Article 1(23) of the Constitution is operationalised by Section 43 (1A) of the Magistrates Court Act (MCA) which provides for powers of the DPP to take over Private Prosecutions of any criminal case instituted at Magistrate Court at any stage of the proceedings before the judgement,” Justice Nyadoi states.
“Article 120 (4A) states that the function conferred upon the DPP under clause 3 of article 3, and I quote; “To take over and continue any criminal proceedings against any person or authority be exercised by him or her in person or by officers authorized by him or her in accordance with general or specified instructions.”
“The letter filed in Court dated the 8th September 2020 was signed by RSA on behalf of the DPP hence for the private prosecutor to say that the State Attorney should show instructions isn’t correct.”
Justice Nyadoi ruled that DPP has a right to appear in any court during a trial of any criminal matter which has been instituted under private prosecution.
She says DPP doesn’t have to give reasons why he or she should take over private prosecutions in any court in Uganda.
She states that private prosecutor’s submission that the State Attorney hasn’t shown instructions to take over from DPP before writing a letter is erroneous because the constitution mandates them to act on behalf of the DPP.
Mr Mabirizi asked the state to prove to court that the takeover of the case is in public interest, administration of justice and intended to prevent abuse of court process but the Magistrate says this submission is also untenable since this contravenes the constitution.
“Under section 43 (1) of the Magistrates Court Act states that where criminal proceedings have been instituted by person other than Public Prosecutor under section 42, The DPP may take over and continue the conduct of those proceedings at any stage before conclusion of the proceedings,” she notes.
The court also declined to accept Mabirizi’s request of issuing criminal summons against Mr Kyagulanyi for failure to appear in court in person.
“Since he is a president of a known political party, court finds this reasonable and therefore sees no reasons as why it should grant a warrant to the accused given that it is the first time the matter is in court,” she notes.
Kyagulanyi lawyers led by Anthony Wameli said after the court ruling, they don’t expect Mr Mabirizi back in court since he is no longer in charge of the case.
“So, the court has agreed that we bring him (Kyagulanyi) on 22nd October 2020. The DPP had taken over the matter because private prosecutor had opposed the request of the DPP to take over the case but court has ruled and we believe rightly so,” he said.
However, Mr Mabirizi disagreed with the court ruling and he intends to appeal to high court saying that the Magistrate has failed to make a ruling on whether it was proper to proceed in the absence of Kyagulanyi or not hence going ahead to make a ruling that the state should take over the matter.
“I am challenging it. I don’t agree with the ruling. This is my case and if the state wants to take over my case it must prove that they are complying with article 120(5) which is specific to public interest,” he noted.
The Magistrate Court adjourned the case to 22nd October 2020.
