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Thursday, May 11, 2017

#Uganda #FreeStellaNyanzi bail hearing - court proceedings verbatim

Dr Stella Nyanzi in court. Photo by Alex
Dr Stella Nyanzi in court. Photo by Alex Esagala 
State prosecutor Mr Jonathan Muwaganya: I have received a copy of high court ruling No 9 of this year. I believe the defense has got the same. So, we are ready for your guidance your worship on how to proceed with today's business in light of the high court guidance.

Dr Stella's lawyer Mr Nicholas Opiyo: May I please your honour and the honourable court as presented by the prosecution, its indeed true that when we appeared before this court, the court adjourned the case to today to await the judgment of the high court. Your honour, as indicated, we have been able to receive the ruling of the high court in revision application No 9 of 2017. I got my copy as well yesterday. I have read the revision guidance of the high court; my understanding is that for the purpose of today's proceeding, we will hear the court's understanding of the guidance offered by the learned judge.

Our understanding your honour, the purpose of today's hearing is to agree on the orderly court of this matter hereafter. We will take the guidance of this court in reference to the guidance by the learned judge. We would also like to make an application for bail.

Your honour, the reason for application is simple. That the accused person has been in jail for well now over a month or there about and that it would only be proper for us to get full proper and instruction from her when she is out of detention. To enable us have a meaningful and thorough response to the mental health application. We need to access her medical records; we need to speak to her about her medical history something we cannot do when the accused person is still in detention. She is the one best placed to get those documents for us and to give us further instruction on how deal with the application under the mental health act.

For those reasons your honour, we make a bail application and pray that the accused person be released on bail today under section 75 and subsequent sections of the magistrate's court act. Your honour, needless to say, bail is a legal right and this court has all legal arguments regarding jail.

We would therefore your honour love to present to court substantial sureties for the purpose of bail application. Your honour, before we present the sureties, we would like to highlight that the accused person has a permanent residence within jurisdiction of this court. And we here submit a letter from her LC I - Kungu LC I, Kira municipality in Wakiso district. Your honour, we further submit a photocopy of her passport - passport No B0890700 issued on 31st August, 2011 and expires in 2021 on the same date. We submit a photocopy your honour in absence of the original which is in the hands of police. It was confiscated when she was prevented from travelling out of the country. We pray that the state make arrangement to deposit the passport in court for easy reference.

Having established that the accused person is a resident of the said area (Kungu LC I, Kira municipality), we now present sureties for the purpose of bail application. The first surety is Dr Moses Khisa. Dr (Moses Khisa) would you stand up?

Chief magistrate Mr James Eremye Mawanda: create space here (in front) for sureties. Dr Khisa walks from backside to stand adjacent lawyers' table.
What is his name once again?

Mr Nicholas Opiyo: He is Dr. Moses Khisa. He is a resident of Kakuju zone, Bweyogerere town council, Wakiso district. Your honour, Dr Moses Khisa is a research associate at the center for basic research. He is a renowned columnist of the Observer newspaper. He is a public figure and well known person and a colleague of the accused person. He is a holder of Ugandan passport No B1210028, issued by the competent authorities in the country.

Your honour, the second surety is Nakaweesi Kimbugwe Solome. Your honour, madam Solome is a resident of Mbagwa, Kyaliwajara - Kira town council and holder of national ID No 005631050 and Ugandan passport No B1460937. Madam Solome is a women rights activist and feminists. She is a friend of the accused person.

Your honour, the third surety is Ms Shilla B Nyanzi who is advocate of judicature of good standing and a holder of law society ID No 2048. She is also a resident of Kungu LCI, Kira municipality. Your honour, she is a biological sister to the accused person.

The fourth surety your honour is Mr Wokulira Ssebagala. He is a holder ID No 002367826 and is a resident of Butasumbi in Wakiso district. Mr Wokulira Ssebagala is a digital rights advocate, a human rights defender. He is an associate and acquaintance of the accused person.

Last your honour but not least, the last surety is Nalongo Namata Annette. She is a holder of National ID number indicated and passport also indicated. Like the accused, she is a Nalongo - a mother of twins and shares close relationship with the accused person.
Your honour, given the stature of the sureties, we believe they are substantial sureties. We have explained the duties of the sureties and they appreciate them - mainly to produce the accused person when needed in court.

Your honour, we pray for release on court bond because the accused person is already out of employment and has been in detention for all this while and she is unable to raise money. Second; the number of sureties she has presented and their stature is substantial. We also pray that this court be inclined to release the accused person on lenient terms and condition. She is visibly ill as you can see and she had to attend to a doctor this morning. We pray that the accused person be released on bail your honour.

State prosecutor Mr. Jonathan Muwaganya: You see your honour, the state has not been opposing the release of the applicant at any stage. We believe that if she meets the requirement for bail, then she can he released. Why not? We only believed and honesty so and I must say we still hold the belief that the applicant has a healthy problem which she cannot manage on her own manage.

The question of the alleged mental illness is not one that the victim can on her own manage and your honour that is the basis of the application we made under the mental health act. Right now, she is alleged to be sick - only God and perhaps the doctors can tell this court what kind of sickness she is suffering from.

Your hour, having stated our prosecution general instructions, I would like to submit that we are still interested in the process of her mental examination. It's the duty of the state through due process to help the citizens overcome challenges such as those alleged in the application. We there move to ask your guidance on how that question will be addressed.

But your worship, should you find that the release of the applicant is tenable at this stage, then we request that three things should be followed. I must confess that I have shared these three things to the defense and they appear accepted.

No 1; if you are inclined to release her pending determination of the application. Then as part of her bail condition, she should be require to refrain during the substance of this case from making any adverse cyber-attacks or any derogatory statements against the person of the victim in count of close members of his household.

No 2; that she refrains during the substance of this case from writing or discussing in any manner the merits of the matter under trial. Your honour, I propose, this should include making comments on discussion on members of this court - the bar and the bench. Your worship, I simply restating the sub-judice rule so much that these terms are for emphasis sake. For avoidance of doubt, in any case, no litigant should be seen to do the above two but just for clarity, we pray that those two should be clearly spelt out in the bail conditions.

The third and last and I am happy the defense so requests that her passport be deposited in court. May I pray your worship that the same apply to passports of the sureties should you feel comfortable to entertain it at this stage. I think that is enough.

Dr Stella's lawyer Isaac Semakadde: I am presenting a rejoinder to the submission of the prosecutor…your worship; bail should not be reduced to conditions that the prosecution wants. This is again exhausted in the rule of the land by the constitution court in two land mark cases. I shall only cite one - that is constitutional petition No 20 of 2006 - foundation for human rights vs attorney general. Your worship, the particular line of reference is page two line 29 and page 21 line 30 where the constitutional court referred to its earlier of ruling constitutional reference No 2o of 2005 - DPP vs Kizza Besigye. That case left no stone unturned.

Your worship, it is therefore improper for the state to allude any clog on your discretion as you determine this question whether or not to grant bail merely because of the state's view of the appropriate care and treatment that the accused should receive. That will be a misdirection your worship. Your worship, at pages 25 to 26 of this ruling, the constitutional has made it clear and stated two considerations to guide your discretion.

No 1; have you made sure that the accused will be again to attend court again once released? And we submit no. not all for the reasons provided by Counsel Nicholas Opiyo. Second consideration is whether the state has provided considerations that tend to satisfy that the accused will interfere with the case once released. Again, the state has not provided no such evidence.

In this circumstance, your worship, the only controlling consideration is the presumption of innocence and non - derogable rights of the accused. Any other consideration on bail application will be unlawful. This case states that there is provision of law regarding bail that she should be interpreted as mandatory regarding bail. Your worship, in the revision order, the high court has also reiterated this position in no uncertain terms that you have full desertion on bail condition.

Let me move to the second point or law to assist you in making a decision. That is a law regarding conditions that can be attached to bail. The law on conditions that may be attached to bail again is discussed in constitutional petition No 20 of 2006 at pages 24 line 30 and pages 26 line 30 to page 27 line 1. The constitutional court guides, I quote, "clearly the court has a discretion grant bail and impose reasonable conditions without contravening the constitution."
All that is required of the court of the court is to impose reasonable conditions acceptable and demonstrably justifiable in a free and fair society as provided under article 43 sub article 2 of the constitution. Your worship, it is therefore clear that the discretionary powers vested in court to set bail conditions which are deemed reasonable must be exercised with caution.
Nyanzi is supported by Prison warders. Photo by
Nyanzi is supported by Prison warders. Photo by Alex Esagala.
Your worship, the point of caution in this case is that the terms proposed by the state are plainly prejudicial, prejudgmental and prematurely intrusive of the merits of the case. They are also plainly unconstitutional insofar they violate article 29 (1) clause (a) the right to freedom of speech and expression (b) right to freedom of thought, conscience and belief which include academic freedom in institution of learning. Article 29 (2) (a), (b) and (c) right to movement, right to move freely throughout Uganda, leave and return to Uganda and hold a passport at leisure.

Therefore, we request your worship that you precede cautiously as follows; by ignoring the first condition totally that the accused refrain from adverse cyber-attacks. Before I proceed to others, I need to make it profoundly clear, Mr Muwaganya's submission that we have agreed on these terms is untrue. There is no such consensus at the bar - my leader informs me that we only agreed to the state's right to apply for these conditions but it is the duty of this court to determine if they are constitutionally tenable. My client also informs me that she strongly opposes the three conditions on constitutional grounds and that is the position of defence.

In support of our opposition your worship, we submit the decision of the supreme court in constitutional appeal No 2 of 2002 - Charles Onyango Obbo and Andrew Mujuni Mwenda vs Attorney General which has been described as the encyclopedia of freedom of expression. Your worship, the main thrust of this landmark decision is to make it clear that under article 29 (1) (a), it's a legal impossibility to immunize any holder of political and other public office in a free and democratic society from speech or expression that is false, rude, shocking or pending and disturbing.

Your worship, I may refer you to the lead judgment of Justice Mulenga - may he rest in peace. At page 10 and 11, he discusses core content of freedom of expression, it being the bedrock of democracy. It's a very important ruling on this point…the Hector vs attorney general of the House of Lords was accepted. It very clearly and says that in a free and democratic society, those who hold public offices must always be open to criticism, any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable hand.

At the same time, it is no less obvious that the very purpose of criticism labeled at those who hold public offices by their political opponents is to undermine public confidence in their stewardship and persuade the electorate that the opponent will make a better job of it than those holding office…this is the point of caution your worship. The prosecutor invites you tread where the constitutional court has said you should never venture. The first condition is very vague and overly broad. It amounts to what justice Mulwnga called using a hedge hammer to kill a mosquito. It's disproportionate on its base and is prohibited by article 43 (2) which were referred to in the earlier constitution court ruling.

The president and his closest members of his household...there is no specificity; it fails for lack of specificity. The second condition to refrain from discussing merits of the case under trial fails for the same reason. That is largely because this is a special case - arises from charges based on freedom of expression. Freedom of expression is said in the Obbo ruling to be the bedrock of democratic governance. Meaning participation of the governed in their governance is the hallmark of democracy. 

Mr James Eremye Mawanda: why can't you leave those citations? Make your arguments so that we can finish.

Isaac Semakadde: we oppose the state conditions disguised as another version of the sub judice rule. It shall be the business of client and her advocate to determine the boundaries of the sub judice rule. She will be fully informed of sub judice rule.

The last condition is unduly insensitive to the sureties against whom no evidence of being flight risk or frequent flyers has been presented, especially those who brought passports. It also discriminatory because those (sureties) who came with other forms of identification shall be able to leave with them.

Let me again, your worship give you a land mark decision - that is Charles Onyango Obbo and Andrew Mwenda vs Uganda revision application No 145 of 1997 where the learned justice Bbosa (now justice of the court of appeal) found that the try magistrate acted improperly and injudiciously when she imposed harsh, outrageous and excessive conditions on sureties. Though in that case, the condition is monetary, the principles are the same.
Temporary relief.  Makerere University research
Temporary relief. Makerere University research fellow Stella Nyanzi is carried by her lead lawyer Nicholas Opiyo (right) and her relatives after she was granted bail at Buganda Road Court on Wednesday. PHOTO BY ALEX ESAGALA
Chief magistrate Eremye Mawanda: I want to know what is your point on sureties?

Isaac Semakadde: The sureties should treated fairly

Mr James Eremye Mawanda: And you talked about passports

Isaac Semakadde: those who have passports, they should be able to return back with them…your worship, I close the submission again by reiterating that there is no clog on your desecration and you should proceed cautiously to set bail terms.

Mr Jonathan Muwaganya: your honour, may I seek your wish to address you in one minute.

Mr James Eremye Mawanda: you can proceed.

Mr Jonathan Muwaganya: I am obliged. The caution here is, you proceed to release (the accused) in light of the pending application for her sanity. What are the safeguards that you should consider? Ordinarily, the caution is that court first determines the application so that you can proceed with certainty that you are dealing with an applicant of a particular state of mind. That should be the ordinary caution, but in an event that that is farfetched, the caution lies in setting reasonable terms. Your honour, with due respect to my learned brother's submission. We think that these are reasonable terms.

In fact, am utterly shocked that these terms which fall in well-known sub judice rule are being rejected. The other shock is the conspicuous silence from the part of the defence as to the understanding that these would be necessarily terms as safeguards. Your honour, we invite you to determine the application in light of our submissions.

Chief magistrate James Eremye Mawanda: I have to look at the good law Mr Isaac Semakadde has put to us and all other arguments presented. I will need 20minutes.

20 minute break follows and chief magistrate returns to the chambers. And below is James Eremye Mawanda's ruling on Dr Stella bail application after the break.

You made submission and the applications of the defence including bail application. I will not restate the background of this case, I must say I had to evaluate the submissions of both, constitutionally defence and this matter has directions in light of the ruling of the division application No 9 2017 that was determined and directions sent to this court.

In the ruling of her lordship Elizabeth Kabanda, she ordered that (1) the Buganda Road chief magistrate expeditiously determine the pending application under the mental treatment act given that the outcome of the said application is crucial (2) that the applicant has constitutional right to apply to be released on bail. I have read that verbatim as from that ruling. The directions of the high court here were to ensure that this court expedite the trial and hearing of application under mental treatment act, the outcome of which being crucial and the accused person has right to apply for bail.

Mr Opiyo Nicholas has submitted that the defence team inadequately faults the mental health application …the accused has not been allowed to access her personal document…and the defence could not access these document unless the accused is allowed such opportunity. The defence applied for bail and presented five sureties to this court so that if the court pleases allow accused bail on such terms as court deem fit…allow the accused to access her documents that they would require for mental health application.

The prosecution in principal does not object but only prays that in event court allows this application while the mental health application is still pending, caution be taken to ensure that the accused and the mental health application is heard. The proposed conditions which in their view thought would help this court in exercising caution. I will not have to restate them. I will not restate the law on bail and constitutional guarantees of accused person like the applicant submitted.

I only want to say I looked at the submissions and the law as cited as I have heard opportunity to appreciate all arguments of the defence team visa vis state prosecution. The principal here is that defence is asking for ample opportunity - adequate time and being allowed to access materials of the accused that will inform their responses in the mental health application that the high court ordered to be determined expeditiously.

It was a submission of Mr Opiyo that if the accused is released on bail, she can then access her personal files - information which will aid in responding to this application.

This court notes that this is the same mental health examination that the court ordered to be tried expeditiously and the defence is seeking for adequate opportunity including the release of the accused person to allow them access materials and instructions from the accused person. This being the case and the prosecution not objecting, I had no reason not to allow this application to grant the accused person access material related to case.

But in so doing, this court can only ensure that the accused shall not abscond - it is very critical and principle for the bail application and she will not interfere with investigation.

On the above note, exercising my discretion, I proceed allow the accused her bail but on the following conditions. The accused shall execute a 10m bond not cash, the sureties who are five in number to execute a light sum bond of 10m not cash each. It was a submission of the defence that the applicant's passport be deposited in court and so I order.

Having allowed this bail application, I proceed to the directions of the high court that in the view of this court case and its peculiar circumstances requiring that she gets access to her personal information for defence team to respond. I fix 25th May for responses and determination of mental health application at 9:00am.
DAILY MONITOR

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