By Sania Babirye
Buganda road court has adjourned to the 29th of August hearing of a case in which a 25 year old YMCA student Brian Isiko is charged with stalking Woman Member of Parliament for Kabarole district Sylvia Rwabwoogo bu sending her unsolicited love messages.
Isiko is charged with cyber harassment and offensive communication and the case had come up for re trying after the high court referred it back for retrial.
Grade one magistrate Stella Amabirisi was meant to give her much anticipated ruling on state’s application to introduce fresh evidence against Isiko which his defense is also objecting to but instead state asked for an adjournment since their client was outside the country .
In May the court was forced to issue criminal summons yo Rwabwoogo after failing to turn up in court on several occasions.
The grade one magistrate will rule on whether or not prosecution can introduce fresh electronic evidence (text messages) that is not authenticated bu police or the communications company as evidence
However, Isiko’s lawyer Waiswa Ramathan from Katuntu and Company advocates has expressed frustration on the way this ruling has prolonged on without any valid reason .
Ramathan says the said ruling was meant to be delivered since August 2018 and that state is just games since they do not have any case or evidence against his client to sustain the said charges.
He says that if court throws out the application, state will be left with no choice but to withdraw the said allegations for luck of evidence.
On the 19th of December 2018, Buganda road court grade one magistrate Amabirisi referred the case to the High court for interpretation after state wanted to bring in new evidence against Isiko including sendeting in the alleged unsolicited love messages which Isiko allegedly sent to Rwabogo.
However Brian Isiko’s lawyer Waiswa Ramadhan from Katuntu and Company advocates raised an objection to state’s move to tender in the alleged love messages from his client on grounds that MP Rwabogo or state did not have any right to tender in the said alleged love messages since MP Rwabogo is not the author of the said messages.
Ramadhan also objected to state’s alleged new witness on ground that state can not produce a new witness when the case was referred back for a re-trial and they have never appealed against the said order.
He explained that as the case stands right now, state’s move for an interpretation on Whether or not they should tender in the alleged love messages and also produce witnesses is baseless since the high court ordered for a retrial and state has never appealed the said retrial.
Counsel Waiswa then advised state to either appeal the high court order or continue with the retrial of the case as ordered.
Brian Isiko is charged with cyber harassment and offense communication a charge he denies.l contrary to computer misuse act.
On the 27th of November 2018 , the trial magistrate Stellah Amabirisi adjourned the case because court did not have the right DVD to play and listen to recorded CDs containing love songs from which Isiko claims to have borrowed words he used to send texts to the MP.
Isiko’s lawyer Waiswa Ramadhan says they have collected over 5 CDs of International musicians and poets such as Don Williams, Enrique Igletiaus, P-Square and Akon to prove that Rwabwoogo’s allegations that the messages he sent to her were obscene rude and harmful to her life are baseless .
Lawyer Ramadhan says his clients can not be accused of sending harmful messages because he used the exact words he lifted from these songs and the artists have never been charged or convicted of singing and distributing harmful messages per their songs.
Prosecution states that some of the contentious messages sent by Isiko that the MP found to be offensive, obscene and disturbing read as follows “I Can Kill for my country and for you my love “, “Good morning baby Angel ” and If love is a crime , Tell me which sword to fall on”.
On the 29th of May 2018,Isiko was arrested at cafe Javas along Lugogo bypass by parliamentary police for allegedly stalking the MP and in June 2018, he was charged by Buganda road court grade one magistrate Gladys Kamasanyu of cyber harassment and offensive communication.
And without a lawyer, Isiko pleaded guilty to the charge and was sentenced to two years and 8 months in Luzira government prison.
However, the case and sentencing received massive public criticism forcing Katuntu’s law firm to take up the matter and appealed both the conviction and sentence in the high court .
Ramathan Waiswa advanced 3 grounds upon which he based to challenge Kamasanyu’s judgement.
He faulted magistrate Kamasanyu of changing his client’s plea of not guilty to a plea of guilty without following the prescribed procedure in the law.
To prove this, lawyer Waiswa reproduced the record of the lower court where his client admits downloading MP Rwabwogo’s contact from the parliamentary Website and expressed his freedom of speech through sending her love messages he picked in love songs and poems of American celebrites; Don Williams and Enrique Iglesiaus .
Lawyer Waiswa argued that it’s this elaborate explanation of Isiko’s actions that court mistakenly took as Isiko’s admission of offenses on 20th/June 2018.
Waiswa informed high court justice Jane Frances Abodo that Isiko’s conviction was un called for because he sent the love messages thinking it was an easier way of befriending and seeking guidance from the Mp and not necessarily to harass or harm her .
He further faulted court for convicting Isiko on charges of cyber harassment and offensive communication basing on inadequate pieces of evidence .
He submitted that in the absence of a single love message or phone call that is rude , obscene or indecent tendered in court by MP Rwabogo as originating from Isiko, the magistrate acted unreasonably to convict his client of offensive communication.
The lower court was also faulted of failing to treat Isiko as a first time offender whose actions had caused no harm or injury to MP Rwabwogo yet he was handed a harsh and execcisve sentence.
He then asked court if it’s inclined to uphold Isiko’s connviction , it should reduce his 2 year jail term to a fine .
The DPP however opposed Isiko’s appeal maintaining that the 2 counts were audibly read to him before he pleaded guilty .
Thorough state Attorney Joanita Tumwishirize , the DPP said that if there are any irregularities observed during the trial process in the lower court ,the High court should instead order for a re-trial instead of setting Isiko free.
Isiko who is out on bail has since returned back at YMCA -Jinja campus to complete his studies.
And as a result, the high court reversed both the conviction and sentence and reffered the case back to Buganda road for a retrial .