{UAH} Murangira’s revision ruling erroneous
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12:02 PM |
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eph Murangira's revision ruling erroneous
Written by NICHOLAS OPIO
This was after police beat up people who cheered an opposition leader upon his release from detention on court bail. This case, privately filed, was based on the provisions of Prevention and Prohibition of Torture Act, a law that provided for prosecution of commandments of the offence of torture if they, having reason to believe that acts of torture were being committed, failed to investigate or stop them.
When the case came up for hearing, the accused person snubbed court and some rowdy demonstrators attempted to stop court proceedings. When they failed, they sought to lynch the lawyers.
The director of public prosecutions (DPP), a constitutional office that failed, even when it had the powers to do so, to institute its own investigation into the incident, sought to take over the case. The private prosecutors objected and the Chief Magistrate's court upheld their objection. The DPP ran to the High court for a revision of the ruling of the Chief Magistrate's court.
In his ruling, Justice Joseph Murangira held that the chief magistrate erred in law and fact when he barred the DPP from taking over the matter. The judge may not have had the benefit of perusing the entire record of proceedings of the Makindye chief magistrate. If he did, he certainly may have been misled or misdirected himself to the facts and the law.
On the day of the hearing, the DPP had a team of three state attorneys in court, led by Immaculate Angutoko, the resident state attorney (RSA) of the Makindye magisterial area.
There was also a private lawyer, David Oundo, who filed a constitutional petition challenging the prosecution of the IGP in the Magistrate's court. When the Chief Magistrate's court called the case file, the RSA addressed court seeking to introduce a letter she had written indicating intentions of the DPP to take over the private prosecution of the police chief and his subordinates.
Counsel Oundo also informed court of his constitutional petition challenging the IGP's trial. The private prosecutors objected to the two submissions arguing that both the DPP and Counsel Oundo did not have the locus standi (standing) to address the court as they were strangers in the case before the court.
The objections were premised on three arguments. First, the intended takeover was communicated to the court by way of a letter signed by the resident state attorney of the Makindye magisterial area, not the DPP.
The private prosecutors pointed out that the powers to take over prosecution were conferred upon the DPP, not the directorate. It's a power to person that can only be exercised by the DPP or on his delegation. The lawyers argued that in the case before court, the letter was written by the RSA, and not the DPP and that there was no evidence of delegation by the DPP.
Second, the private prosecutors argued that in exercising his powers under article 120 of the Constitution, the DPP must show that he is doing so in public interest, to meet the ends of justice and to avoid the abuse of court processes in accordance with article 120 (5) of the Constitution.
In the letter tabled before court, the DPP demonstrated none of the three conditions. When the acts being complained about – the beating of people by the police and their accomplices – were reported in the mass media eliciting wide public condemnation, the DPP, the country's chief crime investigator and prosecutor, showed no interest at all.
The lawyers pointed out that in such circumstances, the DPP could not reasonably be presumed to be acting in public interest.
Third, the private prosecutors argued that a letter does not move courts. Courts are either moved by a formal or oral application. In the absence of an application stating clear grounds for his action, the DPP did not have locus standi (standing) to address court.
The state attorneys did not object to this argument. Justice Murangira is, therefore, factually and legally wrong in holding that the DPP was not given a chance to be heard. The DPP was heard in open court. The chief magistrate upheld the objection on locus standi, holding that they can only be heard properly in the privately-instituted prosecution upon filing a formal application.
The second reason why the judge is erroneous is that this decision provides a carte blanche (free reign) to the DPP to simply walk into a court and take over any prosecution without satisfying the court that he is doing so in public interest.
The judge held that the DPP is independent and cannot be directed by any authority. The independence of the DPP was never in doubt. It was not challenged in the Chief Magistrate's court. The argument was that the DPP in exercising his powers ought to do so in accordance with the constitution.
In a country where the widely-held view – real or imagined – is that state institutions are steeped in regime security other than protecting public interest, it is perilous for court not to examine whether state institutions exercise their powers in accordance with the constitution.
The judge imputes that the concession on the part of the private prosecutors for the DPP to take over the prosecution was because they must have realized that the decision of the chief magistrate was erroneous.
Nothing could be further from the truth. The private prosecutor believed and still believes that the chief magistrate was right in his interpretation of the law.
nickopiyo@gmail.com
The author is a lawyer.
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