By Sania Babirye
Kampala high court Jane Francis Abodo has set this Wednesday to rule on whether to stop Buganda road court from delivering its judgement and order fresh case hearing under a new magistrate in the concluded cyber harassment and offensive communication case against troubled Jailed Makerere University researcher Dr. Stella Nyanzi in which she is accused of disturbing the peace of President Museveni and that of his late mother Esteri Komuntale.
On the 16th of this month, Grade one magistrate Gladys Kamasanyu set this Friday the 1st of August to deliver her judgement after she forcefully closed the case after Nyazi’s alleged 19 witnesses failed to turn up in court to testify in her favor since Nyanzi had herself chosen to stay silent and defend herself through her alleged witnesses.
However, being dissatisfied with the magistrates’s decision to close the case, Nyanzi and her legal team led by Isaac Ssemakade appealed in the High court against her decision citing unfair hearing and biaseness by the trial magistrate. .
These now want justice Abodo to stop the said ruling and order that a new magistrate be assigned to the case to be retired.
Accordingly to Ssemakade, Kamasanyu failed to effectively summon their witnesses as the law requires including the president whom they claimed to be their key witness despite him being the complainant.
Other witnesses included CID boss Grace Akullo, linguistic and cultural experts plus senior citizens .
Specifically, Ssemakade is accusing Kamasanyu of leaving them with the burden of making sure that their own defense witnesses honor court summons since her summons did not state the consequences if the said witnesses who were issued with criminal summons failed to honour them.
Ssemakade is further accusing Kamasanyu of dictating the manner and order in which the witnesses had to be presented which he says contributed to those summoned of failing to show up in court.
However, prosecution led by Timothy Emilit has asked court to dismiss the said application saying it is baseless.
Emilit has submitted that the trial magistrate was very fair to the defense team and gave them ample time to present their witnesses by allowing numerous adjournments as asked by lawyer Ssemakade to serve the said witnesses with court summons to come to court.
Emilit further has submitted that Ssemakade kept on prolonging the case by making numerous court applications all in an effort to interrupt court proceedings which delayed the conclusion of the case in time.
He says that the trial judge did her duty in issuing court summons to the alleged witnesses including Grace Akullo but Ssemakade instead neglected his duty o also to ensure that the their own alleged witnesses receive the said summons and come to court to defend his client who deliberately chose to stay silent instead of the magistrate pleading with her to defend herself.
He has now asked justice Abodo to let the lower court continue and determine the case this friday submitting that the trial magistrate gave the defense team a fair trial including allowing a defense witness who was not briefed about the case to come in court but only for the to tell court that he did not know whu he had been summoned since Ssemakade did not brief him about the case .
On the 11th of July, after failing to have any of her alleged 19th defense witnesses to come to court and testify in her favour, Ssemakade told court that they had resorted to use newspaper advertisement to ask her would be defence witnesses to voluntarily come to court and testify in her favour which court refused to grant.
The magistrate had given Nyanzi and her lawyer two days (9th and 10th of July ) to present all their witnesses, however, by 11th July only one witness an IT expert in computer hacking Mustapha Mugisa appeared in court and informed court that he cannot testify because he did not know why he had been summoned since he had retired 10 years ago and had no material evidence to provide making his opinion not relevant to Nyanz’s case in anyway.
Ssemakade further informed court that they had been able to fully serve CID boss Grace Akullo and Makerere university associate professor Dr.Kakungulu Nayambala with the summons but all had deliberately declined to attend court asking the magistrate to issue a warrant of arrest for the witnesses which submission was declined.
He further informed court that they will be mobilizing their witnesses through Newspaper adverts and asked court to give them one month since its their remaining option since even court summons could not compel the witnesses to attend court.
However, Ssemakade put the whole blame for the failure of their alleged witnesses to attend court on the trial magistrate saying she refused to supply them with certified copies of the proceedings which some defense witnesses has requested for in order to accept the court summons.
State prosecutor,Timothy Amerit however accused the defense team of asking requests to prolong the case which only adds another number to the ongoing increased case backlog and asked court to dismiss their request.
According to Amerit, the defense team needed to just close its case because since they had failed to secure their own defense witnesses to attend court and defend his client which the magistrate agreed to.
On the 26th of June, Ssemakade revealed to court that although his client was not in position to defend herself now, however, she had 20 witnesses lined up to defend her.
These were led by President Museveni who is also the complainant and asked court to summon them.
However, the magistrate declined to summon President Museveni because as sitting President,he has immunity from prosecution or any other court proceedings and can only appear to testify voluntarily.
Others included CID boss Grace Akullo whom Ssemakade marked as their “star”witness, Dr.Mayambala.
Other witnesses included Prof.Sylvia Tamale(Feminist activist) prof.Fredrick Juko a former law prof.at Makerere university, Columnist Allan Taaka, Feminist Mildred Apenyo, princess Solome Nakaweesi, ass.prof.Dr.Ronald Kakungulu Mayambala at the Makerere university school of law , Bishop Zaaka Niringiye,Rev.Father Gaetano Batanyenda among others.
Ssemakade further asked court to prioritize the first witnesses to be summoned to testify led by President Museveni, Grace Akullo, Dr.Mayambala,Eng.Frank Kitumba who heads ICT at Makerere university and others can follow later but non of them responded to the summons.
Nyanzi is at Luzira prison after refusing to seek bail and she is facing charges including attacking the privacy of President Museveni and that of his late mother , Esteri Kokundeka through her social media Facebook page.
Prosecution states that on the 16th of September 2018, while armed with a motive to disturb the peace of President M7 and that of his late mother Esteri Komumtale, Nyanzi posted obscene messages on her official face book page(Stellah Nyanzi) while attacking the privacy of the President .