With the Judiciary still reeling from the horror of an empty plastic bottle that was thrown at grade one magistrate Gladys Kamasanyu on August 2 as she read out the 18-month jail term on Dr Stella Nyanzi, it is important to reflect on what the Judiciary should not do in response to the fiasco at Buganda Road court.
First and foremost, the Judiciary should not fiddle with facts that were telecast live to a worldwide audience through several independent media agencies. On the fateful day, Kamasanyu entered a packed courtroom at Buganda Road inordinately late as usual. For the second day in a row, she showed up nearly two hours late for a case that was supposed to start at 2 pm, but she did not apologise.
By this time, apprehension and anger had already set in among the court users gathered in the gallery as Dr Nyanzi, who had been convicted of cyber harassment by Kamasanyu on August 1 and ordered to return to court the following day for her sentencing, was nowhere to be seen. Kamasanyu, of course, offered no explanation for this anomaly.
Instead, she stayed ‘on script’ whilst ignoring what appeared like stern objections by an understandably irate Dr Nyanzi on a video link from Luzira prison. By the time she decreed the sentence, the video link was kaput. Dr Nyanzi was neither visible nor audible.
I find Kamasanyu’s actions as a case of ostrich head in the sand – see no evil, hear no evil. If the courts can callously demean a high-profile court user like Stella Nyanzi, what should the rest expect from these sanctimonious high priests of the Judiciary?
Secondly, the Judiciary should not whitewash the record of judicial misconduct and overt political interference in the Stella Nyanzi case. Kamasanyu, who took an oath to uphold the law, broke the law on this occasion or wilfully turned blind.
Contrary to Article 28(5) of the Constitution, section 123 of the Magistrate’s Court Act and Rule 9 of the Judicature (visual-audio link) Rules, Kamasanyu secretly endorsed the molestation of Dr Nyanzi who was physically obstructed from attending court in person for her sentencing but was instead forced into a recording studio in the male section of Luzira prison.
Thirdly, the Judiciary should not attempt to scapegoat or muzzle the media and critical voices of lawyers who bravely blow the whistle on the vices, crimes, scandals and unbecoming conduct of Kamasanyu-types in the Judiciary.
I won’t be bullied into silence as judicial corruption and hooliganism are on the rise. According to viral press reports in the wake of the imbroglio at Buganda Road court, the Chief Justice Bart Katureebe, who is set to retire on June 20, 2020, curiously called for a ban on cameras in court and sanctions of sorts on ‘press conference lawyers’ who criticize the Judiciary – ‘moreover on court premises.’
But, surely, isn’t shielding the Judiciary from public scrutiny and criticism an unconstitutional proposal? Or, rather, an own goal in the Twitter era?
Fourthly, the Judiciary should not overreact by accepting the temptation to be a ‘judge in its own cause’ and searching frantically for someone or anyone to fix for the mess in Kamasanyu’s court.
In a hastily-drafted press statement released by the Judiciary on August 3, it was claimed that “on August 2, a charged group of political activists overran security at Buganda Road court, vandalizing court property, including video conferencing and security equipment. They also hit magistrate Gladys Kamasanyu in the face with a bottle, while delivering her verdict in a case of social activist Dr Stella Nyanzi.”
There could be no better exhibit for institutional bias and undue influence on the police and prosecutors than this one-sided account of controversial events inked on a Judiciary-headed paper, before any official investigation had been concluded.
The Judiciary’s failure to leave the door open for the possibility of some explanation after the hearing of evidence or submissions from concerned stakeholders by an impartial tribunal or committee of inquiry gives rise to an impression of bias because it suggests that no explanation will be considered.
The impression of bias is further confirmed by the charges preferred against the six miserable souls who were selected for fervently associating with the Forum for Democratic Change (FDC) while on court premises on the fateful day.
They were arrested and detained beyond the constitutionally-prescribed 48 hours, and later arraigned at the scene of crime for the same acts that were previously described in the Judiciary’s press statement, including the absurd allegation that [this group of political activists] jointly threw a bottle at Kamasanyu!
Although the FDC-6 could have been joined in one charge and tried together because they are accused of different offences committed in the course of the same transaction, the prosecutor presented four separate charges or cases against them, contrary to Section 87(d) of the Magistrates Courts Act, purposely to hinder their bail applications and other arrangements concerning their legal representation.
It took a totally avoidable 11 days in detention of the FDC-6 before their bail application was reluctantly accepted. What happened to the Judiciary’s war on case backlog and its much-vaunted campaign for prison decongestion?
Fifthly, the Judiciary should not lionize Kamasanyu whilst demeaning court users like Stella Nyanzi or members of the political opposition who actually disavow violent behaviour, and played no part in the magistrate’s misfortune.
In their August 3 missive, the Judiciary quoted CJ Katureebe as having “commended the magistrate [Kamasanyu] for remaining calm throughout the proceedings and the assault on her” and to have expressed the hope that the “culprits are quickly identified and brought to book.”
This line was parroted by the chief registrar, Esta Nambayo, who is quoted as follows: “We know that Her Worship Kamasanyu dutifully played her part in the case of Dr Nyanzi, and anyone dissatisfied with her decision has a right of appeal rather engaging in violence. We find it callous for litigants to organise crowds to try and undermine judicial independence [and the rule of law].”
Now, having appeared before Kamasanyu for nine months as lead counsel for Dr Stella Nyanzi, I must respectfully object to the fallacious conclusions and insidious innuendo attributed to the two Judiciary honchos, particularly the heaping of unwarranted praise on Kamasanyu while assigning blame elsewhere.
The subtle insinuation by the chief registrar that Dr Nyanzi or her FDC comrades orchestrated the plastic missile should be withdrawn at once. Dr Nyanzi and the FDC have always rallied Ugandans to adopt nonviolent methods in their bid to restore state power to the people.
Whatever one may think of her antics, the defiance queen Nnaalongo Stella Nyanzi is not the ‘callous’ or cowardly type of litigant who would ‘organise crowds to try and undermine judicial independence or the rule of law’ as implied by the chief registrar.
Since 2016, I have represented Dr Nyanzi in numerous court cases and disciplinary proceedings brought by and against her in connection with her status as a member of staff of Makerere University, Ugandan citizen and supreme heckler of the establishment. We have lost some of these cases, but not once has my client organised a crowd, solely or in conjunction with the FDC or other political activists, to try and undermine judicial independence or the rule of law.
I have also represented numerous FDC loyalists since I joined the bar in 2011, and I can confidently vouch for the party’s commitment to judicial independence, the rule of law, peace, unity, democracy, social justice and other constitutional values.
Lastly, it should be recalled that Dr Nyanzi terminated my mandate in the ‘Vagina Case’ on July 16 and asked all defence counsel to stay away from Buganda Road court as it had become apparent that the presiding magistrate was irreparably bent.
This was more than two weeks before the bizarre proceedings for which a bottle was thrown at Kamasanyu. She may be a victim, according to the Judiciary’s ‘official’ statement, but there was contributory negligence and misconduct on her part.
Let Kamasanyu’s improprieties in the Nyanzi case, and even long before that, be quickly and fairly investigated as well because, to paraphrase CJ Katureebe, they are equally ‘uncivilized, offensive and disrespectful of the sanctity of the courts.’
They are ‘acts of (judicial) hooliganism that have no place in a civilized society.’