How the state ambushed Nyanzi with insanity claim

Makerere University researcher Dr Stella Nyanzi was on Monday charged at Buganda Road magistrate's court with cyber harassment for largely calling President Yoweri Museveni a "pair of buttocks" in a Facebook post.

DERRICK KIYONGA writes that when Nyanzi returns to the very court on April 25, 2017, the battle between her lawyers and the prosecution will be about her sanity.

On Monday, when lawyers representing Makerere University researcher Dr Stella Nyanzi entered the Buganda road chief magistrate’s court at around 1pm, they expected to deal with a routine legal matter.

Their client would be charged and they would make a case for her bail. The four lawyers, armed to the teeth for a bail battle, carried to court – and were seen arranging – documentation for Nyanzi’s sureties. But that bail plan was turned on its head in a split second. 

Minutes before court commenced, lawyers Nicholas Opiyo, Eron Kizza, Isaac Kimaze Ssemakadde and Julius Galisonga were served with an application from the state asking for Nyanzi’s sanity to be ascertained before the case proceeds. 

Taken aback, the lawyers asked the magistrate to stay proceedings in the open court. They asked to meet the magistrate in his chambers to raise their objections. The meeting behind closed-doors took about two hours and all sides didn’t agree on anything.

Nyanzi’s lawyers, we are told by sources that attended the meeting, wanted the application to be thrown out because they had not been served prior to coming to court. They described the prosecution’s action as “trial by ambush” but the chief magistrate, James Ereemye Mawanda, rejected their request. He ordered Jonathan Muwaganya, the Buganda Road court resident state attorney, to proceed with the application.   

In the middle of his lengthy and rather repetitive application, Muwaganya was interrupted by a clearly irritated Galisonga.

“For the last one hour, he has been mentioning the same thing over and over again,” Galisonga said. “This must come to an end.”

Galisonga grew impatient after Muwaganya evoked the 1938 Mental Treatment Act and asked court to commit Nyanzi to a mental asylum for a checkup. Though court had ostensibly convened so that Nyanzi, who had been in police custody since the night of April 7, 2017, could take plea, Muwaganya amused court when he asked court to stay that process.

He instead asked court to commit Nyanzi to Luzira Murchison Bay prison for 14 days, where her sanity will be ascertained by experts in that field. Muwaganya, who was repeatedly booed by Nyanzi’s supporters, relied on an affidavit sworn by Emmanuel Mbonimpa, the head of Police’s Media Crime unit, to ask court to commit the researcher to a psychiatric hospital, preferably Butabika national mental hospital.     

Muwaganya asserted that Mbonimpa, who is not a psychiatrist, arrived at the conclusion that Nyanzi has a mental problem when he interacted with her following her arrest on April 7. The arrest, he said, was prompted by her failure to respond to police summons.

According to Muwaganya, in paragraph five of his affidavit, Mbonimpa said that during her detention at Kira police station, he keenly observed Nyanzi’s conduct and behavior. Mbonimpa claimed that during her detention, Nyanzi allegedly went through “erratic episodes” and “made unusual behavior,” which according to him was characterized by “gross indecent utterances.” 

In trying to prove that indeed Nyanzi is a “psycho,” Mbonimpa, in his affidavit, attached a photo of the half-naked researcher when she undressed last year at Makerere Institute of Social Research (MISR) in protest at being locked out of her office.

“Your honor, the deponent [Mbonimpa] believes, and we submit, that no sane person of her age and stature can exhibit such a conduct,” Muwaganya said.
“The deponent suspects and has no reason to doubt that this person [Nyanzi] is of unsound mind and must be placed under care and treatment as per provisions of Mental Treatment Act.”

Muwaganya pointed to paragraph nine of the policeman’s affidavit where he said that through “intelligence,” it has been “revealed” that because of her psychiatric problems, Nyanzi was at one time admitted to “Butabika mental facility.” However, Muwaganya informed court that they don’t have evidence because the said hospital cannot disclose records of their patients on ethical grounds.

In response, a rather shocked Opiyo said they were not ready to respond to the merits of the prosecution’s application, adding that it was brought in “bad faith.”
Opiyo said the application was never served to Nyanzi nor her lawyers and, according to him, that was “an outmost act of trial by ambush meant to deny the accused a proper response…”

Opiyo said they need more time to respond to the application and as well as cross-examine Mbonimpa on the contents of his affidavit.

“We need to cross-examine the deponent because he has made a lot of sweeping and unfounded allegations,” Opiyo said, adding, “We need to determine the character of this police officer [Mbonimpa]. We need to determine if this police officer is competent to talk about mental issues...”

Opiyo also attacked the prosecution for using the Mental Treatment Act, which he said was instituted by colonialists and cannot be in line with the current constitutional order.

“What is in conformity with the Constitution is presumption of innocence, which includes soundness of mind, until evidence is produced showing that the accused is of unsound mind, she should be judged to be of sound mind...”

Kiiza, another defense lawyer, trashed the Mental Treatment Act, saying it was used by British colonialists as a tool of “oppression, tyranny and subjugation” against Ugandans who were demanding for independence. Kiiza also questioned the mental status of Mbonimpa.

“How do we know these allegations are made by a sane person [Mbonimpa]? Such allegations can only be a product of an ignorant person who is of unsound mind...”

With such emotional submissions, magistrate Mawanda bowed to pressure and adjourned to April 25 to enable the defence respond appropriately to the prosecution’s application.

However, on Tuesday, Ssemakadde told The Observer by phone that the magistrate’s court doesn’t have authority to entertain such an application in which one party seeks to ascertain the mental status of another.

“We are going to fight tooth and nail such that the application is not heard,” Ssemakadde said. “We have already told him [Mawanda] that he is being used by the state to commit an illegality and trust me that application won’t be heard.”     

dkiyonga@observer.ug