Dr Stella Nyanzi, a Researcher at Makerere University and human rights activist has returned to court today for hearing of her application challenging the manner in which she was sent on remand at Luzira prison and also to apply for bail.
Nyanzi arrived at court at 11am and she was taken to the judge’s chambers where only her lawyers and relatives were allowed. Public and media were blocked from the proceedings.
Through her lawyers, Isaac Ssemakadde and Nicholas Opiyo, Nyanzi submitted before High Court Judge Elizabeth Kabanda that Buganda Road Court Magistrate, James Eremye erred in entertaining a Motion to Adjudicate (MTA) application (which sought Nyanzi to undergo a mental examination) when that law doesn’t apply to criminal proceedings.
“It’s the Trial on Indictments Act (TIA) and Magistrates Court Act (MCA) that govern inquiries into mental state of accused. The proceedings under MTA were therefore civil in nature, not a criminal inquiry,” her lawyer, Isaac Ssemakadde argued.
He further added that the MTA application was a classic abuse of court process and that court should declare it so.
On denying Nyanzi bail, Ssemakadde argued that the magistrate had a duty to explain the right to bail to the accused but failed to do so.
“(The) lower court had no power to make a detention order of more than 14 days and yet it did. The magistrate’s decision was inconsistent with constitutional provisions regarding bail. Bail must never be suspended or denied mechanically.”
He added that the refusal of hearing her bail application, in effect, subjected Nyanzi to detention without trial, hence infringing on her right to a fair, speedy hearing “for an indefinite period and for no legitimate reason.” He requested Court to strike out the MTA proceedings.
However, the judge advised him to stop arguing for bail and stick on the lower court’s refusal to grant bail. She told Court that bail can’t be granted on revision.
But Nyanzi’s lawyer disagreed with her, citing previous authorities and adding that the High Court’s jurisdiction is unlimited and she can therefore grant bail in interest of justice.
Kabanda agreed with him but said she wanted to dispose of the application first.
Representing the State, Principal State Attorney, Vicky Nabisenke argued that the lower court had jurisdiction to entertain the MTA application.
Though, she agreed with Nyanzi’s lawyers that the moment the lower court allowed her to take plea, she should have been allowed to apply for bail.
She also informed Court that she was ready to respond to bail but only when “properly scheduled”.
Nabisenke claimed not to have been served with the application but said she would be ready once properly served.
She, however, requested court not to strike out the MTA proceedings and allow the lower court to proceed.
In a rejoinder, Nyanzi’s lawyers argued that there is no legitimate purpose for proceedings under MTA except to damage Nyanzi’s reputation.
He added that MTA relates to civil confinement and not criminal matters and supplies relevant authorities. “The purpose of MTA applications is to forestall physical damage by a mental patient. This doesn’t apply to Dr. Nyanzi.”
The case has been adjourned to 3:30pm for the judge to make a ruling.
Stella Nyanzi’s lawyers wrote to the High Court on Monday, challenging the manner in which she was sent on remand on April 10 by Buganda Road Court Chief magistrate James Ereemye Mawanda.
Nyanzi is accused of having tampered with the peace and privacy of President Yoweri Museveni between January and March this year when she used Facebook to call the president among other things a ‘pair of buttocks’.
She faces two counts of Cyber Harassment and Offensive Communication contrary to the Computer Misuse Act 2011.