Red Pepper: security takes precedence over rights - state

Angered by the decision by Buganda road Chief Magistrate James Ereemye Mawanda to defer their bail application ruling to December 19, the Red Pepper editors have threatened to dash to the High court for revision of the application.

The threat was made by Maxim Mutibingwa, the suspects’ lead lawyer, outside court minutes after Mawanda had told the fully packed courtroom how he needed more time to scrutinize both submissions made by the editors’ lawyers and the state.

This, as expected did not go down well with Mutabingwa, who argued that by delaying to give ruling on the application amounted to denial of bail.  

“It takes a court a month to rule on the bail application. Definitely this something we can challenge in the High court through revision,” Mutabingwa explained.

“The High court can recall the file even before the magistrate gives the ruling.”

In recalling the file, the High court invokes its supervisory powers under Section 17 of the Judicature Act and powers under section 48 of the Criminal Procedure Code Act. The said laws empower the High court to examine records from the Magistrate's court for the purpose of satisfying itself about the correctness and legality of the orders passed by a chief magistrate.

Mutabingwa’s clients are facing seven counts including; publication of information prejudicial to security, libel and offensive communication, inter-alia.

The suspects include Richard Tusiime, Johnson Musinguzi, Patrick Mugumya, and Arinatiwe Rugyendo. Others are Richard Kintu, Ben Byarabaha, Francis Tumusiime and James Mujuni. They were arrested on November 21, a day after the tabloid published a story titled; 'M7 plotting to overthrow Kagame - Rwanda.'

The gist of the case according to court documents is, that that on November 20, at the Red pepper offices in Namanve, Mukono district, the accused unlawfully caused publication and distribution of a newspaper headline regarding the military operations, strategies and troop location well knowing that such publication can disrupt public order and security.

Mawanda had to give himself 14 days to write the bail ruling after Abdul-Salam Waiswa, the prosecutor who was co-opted from the Uganda Communications Commission (UCC) - thanks to the ongoing strike by the Director of Public Prosecutions [DPP’s] prosecutors, made lengthy submissions therein saying that the accused should be denied bail.  

To back up his position, Waiswa cited a case from the Nigerian Supreme court in which according to this prosecutor held that matters of national security take precedent over human rights.

Waiswa accordingly said that since the article that was published by the Red Pepper had the potential to jeopardize not only relations between Uganda and Rwanda but also the security of the Great Lakes region, the editors shouldn’t be granted bail.

“Once national security is in jeopardy and security is in pieces not in peace,” Waiswa quoted the Nigerian judgment, “the individual’s liberty or rights might not exist.”

Waiswa also cited the affidavit in opposition of granting bail sworn in by Isaac Oketcho who is the police officer, investigating the case. Oketcho apparently deponed that the editors shouldn’t be granted bail because they are accused of unique offences which involve using computer systems and electronic systems which according him, means that  if the suspects are released from jail they will  regain access to the computes, mobile phones and emails which they might use to delay investigations.

“The charges against the accused are serious,” Waiswa argued. “Basing on the evidence so far collected it points to serious evidence against the accused persons.”      

If the accused are given bail, Waiswa argued that they may further reconnect to other networks and either disorganize the evidence so far collected and if not, he said that they can publish more information which jeopardizes national security.  

Waiswa wasn’t done, he said that the accused don’t deserve bail because previously they have been found guilty of criminal libel by court.

He cited the July 28, 2017, scenario in which Tumusiime was convicted in a Magistrate’s court on counts the criminal libel, the same offence he is currently facing.  

“The antecedents are not good…And we are not talking about just powerful editors but they are also known as hyenas” said Waiswa.          

Mutabingwa, in rebuttal, asked Mawanda to treat Oketcho’s averments as “speculation”, “imagination” and “rumors” which should be disregarded such that his clients are awarded bail.

“The state is citing authority [case] from Nigeria yet we have our own Constitution and Supreme court,” Mutabingwa said, “This court should ignore such submissions.”      

Specifically the eight are accused of publishing and distribution of newspaper story lines that injured the reputations of President Museveni, his brother Gen Salim Saleh and security minister Lt. Gen Henery Tumukunde, which publication allegedly subjected the three people to hatred, contempt and ridicule.

The accused are further said to have willfully and repeatedly used their computers for no legitimate purposes to disturb the peace and privacy of  Museveni , Gen Saleh and Lt Gen Tumukunde by portraying them as people who plotted to overthrow the president of the republic of Rwanda.

The suspects first applied for bail last week, a week after they were arrested on November 21.

dkiyonga@observer.ug