Lawyer Male Mabirizi has run to the High Court to challenge a ruling by the Wakiso chief magistrate’s court in which it allowed the Director of Public Prosecution to take over the private prosecution case against Kyadondo East MP Robert Kyagulanyi over his academic documents.
Mabirizi filed a private prosecution against Kyagulanyi accusing him of five counts of giving false information, obtaining registration by false pretence and uttering false documents contrary to the Penal Code Act while being nominated to stand for Kyadondo East in 2017.
On Wednesday, the court ruled that the DPP has powers to take over any private prosecution.
However, the lawyer has moved a step further to the High Court challenging the ruling arguing that it was done unlawfully.
“Pursuant to section 17 of the Judicature Act and sections 48 and 50 of the Criminal Procedure Code Act, I hereby apply for revision of the said lower court’s proceedings, finding and orders made on August,16,2020 on the grounds that the lower court acted illegally, irregularly, improperly and without jurisdiction,”Mabirizi says.
The lawyer says it was wrong for the magistrates court in Wakiso to fail to issue an arrest warrant against Kyagulanyi or fresh criminal summons after finding that the accused person was effectively served.
“It was unlawful when the court entertained the Resident Chief State Attorney to apply to take over the case and allowed her application in the absence of the accused. The magistrate also failed to ensure that the Resident Chief State Attorney’s application to take over the matter was in public interest, or the interest of administration of justice or the interest of preventing abuse of court process.”
Mabirizi wants the High Court to set aside the ruling by the Wakiso Chief Magistrates Court and re-instate the private prosecutor as the prosecutor of the cases as well as directing the lower court to only take any action in the case in presence of the accused.
According to the charge sheet filed before the Wakiso chief magistrate’s court, Mabirizi accuses Bobi Wine of five counts of giving false information, obtaining registration by false pretence and uttering false documents contrary to the Penal Code Act.
“Kyagulanyi Ssentamu Robert on the 31st day of May 2017 at Wakiso district Electoral Commission returning officer’s office located at Wakiso, Wakiso town council at 9:56 am, you gave false information to the Electoral Commission returning officer for Wakiso district, a public officer that you were 35 years of age knowing that it was false and you thereby caused the returning officer to nominate you as a candidate for Kyaddondo East constituency Member of Parliament, a thing he/she ought not to have done had he known the truth,” the charge sheet prepared by Mabirizi.
The lawyer also accuses Kyagulanyi of giving false information to the Electoral Commission that he had completed the minimum formal education of Advanced Level standard knowing that it was false.
Kyagulanyi is also accused of obtaining registration by false pretence as well as forging documents, contrary to sections 312 and 351 of the Penal Code Act.
“On the 31st day of May 2017, you knowingly and fraudulently uttered a false document, to wit, a Uganda National Examinations Board letter of verification of results number V0006677 reference number EA/GEN/40 to the Electoral Commission returning officer for Wakiso district.”
According to Mabirizi, being a male adult Ugandan of sound mind, lawyer by profession and a civically active Uganda who has been closely following the constitutional, human rights and rule of law trends in the country, he recently wrote to the Electoral Commission requesting for Kyagulanyi’s academic documents to satisfy his doubts over the matter over information that he was born in 1982 and sat A –level in 1998.
“The above was peculiar because to me, if the birth was true, it meant that he sat A-level at 16 years, O-level at 13 years, PLE at nine years and joined primary one at two years,”Mabirizi says in his affidavit.
He says that he was also availed with copies of documents including the Makererere University academic transcript and other documents from UNEB in Kyagulanyi’s names.
“Makerere University academic transcript reveals that the accused’s age differs from what he wrote in the nomination document as it shows that he was born on February 1980 yet the accused claimed to be 35 years as of May, 31st, 2017 meaning he was born in 1982,” Mabirizi says.
The lawyer has consequently asked the Wakiso Chief magistrate to issue an arrest warrant against Kyagulanyi so he can answer charges against him in the private prosecution case.
Article 120 (3c) of the Constitution recognises initiation of prosecution by any private person or authority.
Section 115(a) of the Penal Code Act states that whoever gives to any person employed in the public service any information which he or she knows or believes to be false, intending thereby to cause, or knowing it to be likely that he or she will thereby cause, any person employed in the public service commits a misdemeanor.
Section 312 of the Penal Code Act also states that any person who willfully procures or attempts to procure for himself or herself or any other person any registration, licence or certificate under any law by any false pretence commits a misdemeanour and is liable to imprisonment for one year.
Any person who knowingly and fraudulently utters a false document commits an offence of the same kind and is liable to the same punishment as if he or she had forged the thing in question and is liable to imprisonment for seven years on conviction.