The Buganda Road Magistrates Court has allowed the Director of Public Prosecutions to take over a case in which Kyadondo East Member of Parliament, Robert Kyagulanyi, also known as Bobi Wine is accused of falsifying his age.
Lawyer Male Mabirizi filed a private prosecution before the Buganda Road Chief Magistrate Court accusing the legislator of giving false information, contrary to section 115(a) of the Penal Code Act.
However, in a September,2, 2020 letter to the Buganda Road Chief Magistrate, Jane Kitimbo, the Resident Chief State Attorney for Buganda Road Court said the DPP was taking over prosecution in the matter prompting Mabirizi to challenge the decision.
On Monday, Buganda Road grade one magistrate Stella Amabilis ruled that the Director of Public Prosecution is given powers under the Constitution to take over criminal private proceedings.
“Looking at article 120(3) ( c) of the Constitution, it provides the powers for the DPP to take over an continue any criminal proceedings instituted by a private person. This article is very clear and is not subject to an application to court,” Amabilis said.
Criminals proceedings are usually instituted by the state but private individuals are also allowed to institute proceedings against anyone.
Section 42(1) (c ) of the Magistrate Court Act provides that criminal proceedings may be instituted by any person other than a public prosecutor or a police officer who has reasonable and probable cause to believe that an offence has been committed by any person.
The law also gives powers to the state, through an application to magistrate to take over proceedings in any private prosecution.
On Monday, the Buganda Road grade one Magistrate told Mabirizi that the Constitution is the supreme law of the land and that it takes precedent.
“The Constitution of Uganda is paramount and is the supreme law of the land. It overrides the provisions of section 42 of the Magistrate Court Act. The DPP has powers to take over criminal proceedings at any point in time and does not need leave of court to do his mandated work.”
“In the result therefore, the application for private prosecution is disallowed. The DPP should take over the prosecution of this case and the complainant should avail him with evidence,” Amabilis ruled.
In his application, lawyer Mabirizi had asked court to issue criminal summons against Kyagulanyi but the magistrate said sine the charge sheet had not been prepared by court, the summons can’t be issued.
“The powers of drafting a charge sheet are only limited to court after receiving a complaint. It is the duty of the magistrate to consult the local chief and later draw a charge sheet and not counsel on private prosecution. The court later on will issue criminal summons but in this case it has not drawn any charge sheet and cannot issue criminal summons.”
Mabirizi to challenge ruling
Speaking after the ruling, lawyer Mabirizi who said he was bemused by the same asked the magistrate to avail him with details of the proceedings to enable him move to the High Court.
“I request you to expedite typing and certification of the proceedings and ruling so that the High Court can exercise revision of the ruling,” Mabirizi said.
In response, the trial magistrate asked the lawyer to get in touch with her clerk for everything he needs.
In the private prosecution case filed before the Buganda Road Chief Magistrate Court on Mabirizi accused Robert Kyagulanyi of giving false information, contrary to section 115(a) of the Penal Code Act.
“Kyagulanyi Ssentamu Robert on the 11thday of July 2017 at parliamentary building , Parliamentary avenue, Kampala Central Division in Kampala district , you gave false information to the Clerk to Parliament ,a public officer that you were born on February,12, 1982 knowing that it was false and you thereby caused the Clerk to Parliament to enter false information on Uganda Parliament’s records and website, a thing she ought not to have done had she known the truth,” Mabirizi’s charge sheet read in part.
The Kyadondo East legislator is also accused of obtaining registration by false pretence contrary to section 312 of the Penal Code Act when his name was entered into parliament’s records under false pretence that he was born on February,1, 1982 yet it was not true.
Kyagulanyi is also accused of declaring false information to immigration officers while applying for his passport on March,1, 2000.