High Court over rules Makindye court on DPP takeover of Kayihura case

Aug 18, 2016

The land mark ruling delivered by Justice Joseph Murangira means that DPP no longer needs to make a formal application before a trial court in order to take over a private prosecuted criminal matter.

The High Court in Kampala on ruled that the Director of Public Prosecution (DPP) has automatic powers to take over any criminal matter, since he is the constitutional authority on all criminal prosecutions in Uganda.

The land mark ruling delivered by Justice Joseph Murangira means that DPP no longer needs to make a formal application before a trial court in order to take over a private prosecuted criminal matter.

Murangira stressed that DPP is not subject to any control or direction of anybody in exercise of his constitutional function and therefore not obliged to file a formal application if he wants to take over a case filled under private prosecution

Justice Murangira also faulted Makindye Court chief Magistrate Richard Mafabi decision of rejecting DPP's plea of taking over a torture case against the Inspector General of Police Gen. Kale Kayihura and seven other police officers.

On August 10th, Makindye Magistrates Court ordered the DPP to file a formal application if he wishes to take over the criminal case that had been filed against gen. Kayihura and 7 other officers. This was after the DPP sent a letter to the Makindye Magistrates court expressing his interest in taking over the matter.

 In his letter the DPP invoked article 120 of the constitution which mandates his office to take over any criminal proceedings instituted by any person in a court of law.  The Magistrate adjourned the matter to 29th August to allow DPP file a formal request to take over the matter.

The DPP made an application to Kampala High Court seeking to review the decision of Makindye Magistrate's Court which had denied him automatic right to take over the prosecution of the case.

Justice Murangira ruled that the DPP is mandated to do take over any criminal matter under  article120 [3],[5] and [6] of the constitution hence setting aside Magistrate Mafabi's order.

However Judge Murangira noted that, even though DPP had the powers to orally inform the presiding magistrate of his interest in a case, DPP should not just take over a matter with the intention of withdrawing it but should fully prosecute it to its end.

Last month, private lawyers under the Network of Public Interest Lawyers (NETPIL) instituted the proceedings against the police officers in their individual capacities. The officers were accused of ordering the torture of opposition supporters between July 12 and 13 at Kalerwe Market as they escorted former Presidential candidate Kizza Besigye back home after his release from prison on bail and Busabala Road on Entebbe Road as he went to the party offices.

Those indicted included Gen. Kale Kayihura, James Ruhweza, who then headed operations in Kampala Metropolitan; Andrew Kagwa, the then regional police commander for Kampala East, the then Field Force Unit commander for Kampala Metropolitan Police Samuel Bamuzibire; Geoffrey Kahebwa the then Kampala North deputy regional police commander, and the Aaron Baguma, former the divisional police commander for Kampala Central police station.

Three of the complainants however withdrew the case maintaining that they had been bribed to implicate Gen. Kayihura. Andrew Sebitosi, Rogers Ddiba and Joseph Kaddu were part of the five witnesses who swore affidavits in court claiming that they had been tortured by police. The three were also in the High Court.

On Tuesday, the Government through the Minister of Internal Affairs, Gen Jeje Odongo, announced that Gen Kale Kayihura would not appear in court to answer criminal charges of torture brought against him by private lawyers.

The Minister said Kayihura was carrying out his Constitutional duties and therefore prosecuting him amounted to prosecuting the government.

Gen. Odongo called upon the general public to help participate in cooperation with and building of the police and be wary of forces that are bent on weakening the very strong institution of Police.

"Is he being charged as an individual or as an institution?"  Gen Odongo asked the media.  He stressed, Gen. Kayihura and the other officer were performing a Constitutional duty while in office. "We should be talking about Inspector General of Police as the institution and not General Kale Kayihura the individual I think we need to make this distinction very clear: General Kale Kayihura is the Inspector General of Police.

 

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