Lawyer Isaac Ssemakadde has asked the Court of Appeal to immediately order the release of fellow lawyer Male Mabirizi but also to allow the application for stay execution of the High Court orders for him to be imprisoned 18 months as well as paying shs300 million in fine for contempt of court.
Mabirizi was sentenced to 18 months imprisonment by Justice Musa Sssekaana and was yesterday arrested and sent to Kitalya to serve the sentence.
On Tuesday, the Court of Appeal heard the application by Mabirizi for stay of execution of the 18 months imprisonment and the shs300 million fine imposed on him pending the determination of the case challenging the two punishments.
Representing Mabirizi, lawyer Isaac Ssemakadde said the state took the law in its hands by ignoring the application for stay of execution when it caused the arrest of the controversial lawyer and consequently sent him to Kitalya.
“Government should have upheld the rule of law by halting the enforcement of the arrest warrant until this application for stay of execution is disposed of. As a principle of rule of law, government ought to have desisted from any action seen as preempting the ruling in this application,”Ssemakadde told court presided over by Justice Christopher Mandrama.
“Instead, government took the law in its hands by throwing to the wind the court’s direction. “
Ssemakadde told court that since there was an application for stay of execution, the only wise move was for government to halt any actions of the High Court pending the decision of the Court of Appeal on the matter.
He said that instead, government put all its efforts in looking for its citizen Mabirizi to ensure he is arrested and taken to prison, a move he described as political persecution.
“He(Mabirizi) was instead made the subject of unjustified manhunt by deploying the highest level of national security alert. He has been deprived of his civility.”
The lawyer said that the punishment of 18 months for which Mabirizi was sent to Kitalya has a minimum of 540 days and that having served not less than a day, it is only prudent that court orders for his release since the state would lose nothing by having him out having already been arrested and detained.
“There are 593 days to go(for the 18 months to elapse) and therefore, the argument that status quo has changed is not right. The order(for imprisonment) has not been conclusively executed and therefore he can be released.”
According to the lawyer, it is only wise that Mabirizi is released from prison pending the determination of his appeal challenging the 18 months imprisonment but also the shs300 million fine imposed on him by Justice Musa Ssekaana.
Attorney General drags feet
In his reply, the Attorney General represented by State Attorney Patricia Mutesi told court that there is nothing for determination since Mabirizi has already been arrested and sent to prison.
“The status quo that he is seeking to be stayed has already been executed(by arrest and imprisonment). There cannot be any interim order staying the execution of the arrest,”Mutesi said.
The Attorney General’s representative also told court that Mabirizi’s application for an interim order for stay of execution is in regards the shs300 million but not the imprisonment for 18 months.
However, Mutesi was advised by the judge that Mabirizi later filed additional evidence to challenge his arrest and imprisonment.
In response, she noted that the only wise move for Mabirizi’s lawyer is not to ask for stay of execution since sentencing him to 18 months imprisonment was a criminal and not civil matter but ask for bail until the appeal is disposed of.
“The application is incompetent and misconceived as far as seeking a civil remedy in response to a criminal offence of contempt of court,”Mutesi told court.
She asked court to dismiss the application.
However, in response, lawyer Ssemakadde said as the procedure would, the criminal process was null and void as there was no formal charge sheet for Mabirizi as is required before a plea is taken and later sentenced to 18months imprisonment.
He asked the judge to grant the application for stay of execution and also order for Mabirizi’s release.
Court of Appeal’s Justice Christopher Mandrama set Friday, February 25 as the date for delivering his ruling in the matter.