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State wants Nyanzi's bail cancelled

By Farooq Kasule

Added 8th June 2017 05:08 PM

Nyanzi was earlier warned against posting nugatory statements on her Facebook page until the completion of her case as part of her bail terms

State wants Nyanzi's bail cancelled

Nyanzi was earlier warned against posting nugatory statements on her Facebook page until the completion of her case as part of her bail terms

Buganda Road Court resident attorney has requested for cancellation of Makerere University researcher, Dr Stella Nyanzi's bail after accusing her of attacking him on social media.

Nyanzi while in court continuously smiled when Jonathan Muwaganya submitted a printout of what she posted on her Facebook page, stating that he (Muwaganya) allegedly tucks his shirt into his boxer shorts made in China while wearing his dark suit, neck tie and spectacles.

Muwaganya complained about Nyanzi's action and asked court to either cancel her bail or reprimanded her by way of caution under the subjudice rule.

He reminded court that Nyanzi was earlier warned against posting nugatory statements on her Facebook page until the completion of her case as part of her bail terms and conditions but she has abused it.

"The accused is abusing the grace of her bail by attacking the member of court in a matter under trial which is also an attack to court itself. Integrity of court cannot be upheld when its members are under cyber-attack. This will be over stretching Nyanzi's freedom of expression," Muwaganya stated.   

Nyanzi also allegedly questioned the purpose of Muwaganya going to law school and earning a salary as a state prosecutor.

"What is the point of carrying a diary, scheduling hearing dates and adjourn to an agreed dates" Nyanzi allegedly posted.

Nyanzi's lawyers led by Peter Walubiri asked court to give them time to respond to an application in which the state prosecutor claims he was attacked by Nyanzi on Facebook.

They also asked court to give them permission to cross examine Muwaganya about the posts.

"It is not strange because under the Advocate Act, a lawyer can disqualify himself from the case when he is the complainant and becomes a witness".

Nyanzi, who is battling charges of cyber harassment and offensive communication under the Computer Misuse Act, 2011 was appearing before Chief Magistrate James Ereemye Mawanda for the hearing of her application for a mental examination. Nyanzi spent over one month on remand before she was granted bail.

Walubiri asked court to temporarily stay proceedings against Nyanzi under the Mental Treatment Act (MTA) pending the determination of an application filed before the Constitutional Court.

"Your worship Nyanzi is likely to suffer irreparable damage that could amount to violation of her rights and freedom if the proceedings are not stayed," he submitted.

But in reply, Muwaganya submitted that Nyanzi's application for stay was made in a wrong court.

"Filing a constitutional petition does not result into an automatic stay of the trial in the lower courts" he said.

Muwaganya further submitted that the remedies sought by Nyanzi in the Constitutional Court were remedied by the High Court in Kampala.

"While at High Court, Nyanzi's lawyers raised Constitutional Court matters but it made its findings and directed this court to determine the application which was never appealed by Nyanzi and High Court directives should be executed," he said.

According to Muwaganya, it is only the Constitutional Court which has powers to stay proceedings against Nyanzi.

"In my view the petitioner should have applied for interim remedy before the Constitutional Court because staying matters does not apply to direct constitutional petition," he said.

In rejoinder, Walubiri said that state misconceived the application because it does not seek for a stay of the criminal proceedings against Nyanzi but only seeks to stay proceedings against her under the MTA.

"Nyanzi is eager to have her trial completed so that she can prove her innocence but she is opposed to her trial under the MTA which is for the care and special treatment of persons who may be found to be of unsound mind," he submitted.

Walubiri submitted that they are not asking court to interpret the Constitution but to apply it.

"Magistrates have powers under section 2 of the Magistrates Court Act to make any orders deemed fit including the stay of the proceedings since court cannot apply a law whose validity is questionable," he said.

According to Walubiri, the Director of Public Prosecution (DPP) is only mandated to pursue criminal proceedings against a suspect but not to bend on MTA.

Prosecution alleges that on January 28, 2017 in Kampala or there about Nyanzi used a computer to post on her Facebook page "Stella Nyanzi" and made a suggestion which is obscene or indecent under the law against President Yoweri Museveni.

It further alleges that between January and March 2017 in Kampala district, Nyanzi willfully and repeatedly used electronic communication to post offensive messages via her Facebook account, transmitted over the internet to disturb the peace or right of privacy of the President with no purpose of legitimate communication.

In her constitutional petition, Nyanzi claims that sections 1 to 6, of the mental act, which provide for an inquiry into the person's state of mind, adjudication of insanity, admission to mental hospital and compulsory detention of a person suspected to be of unsound mind, contravenes the constitution.

She contends that having taken plea at the lower court, the impugned inquiry under MTA was a travesty of justice intended to humiliate her, hence infringing on her right to a speedy trial.

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