The prosecution yesterday advised Makerere University Research fellow, Dr Stella Nyanzi, to withdrawal her Constitutional Court petition challenging government attempt to have her taken for mental examination if her case before Buganda Road Chief Magistrates Court is to proceed.
Dr Nyanzi is facing charges of cybercrime and offensive communication for allegedly referring to President Museveni as a "pair of buttocks" on her Facebook page.
The opinion given by state prosecutor, Mr Jonathan Muwaganya, follows earlier submissions by defence lawyer, Mr Isaac Ssemakadde, to have the case dismissed over state delay to present its witnesses to testify against the accused.
"... if the accused (Nyanzi) wants the main suit to proceed, who by her own motion petitioned the Constitutional Court, she should withdraw that petition so that the lower court proceeds with Mental Treatment Act (MTA) as advised by the High Court," Mr Muwaganya submitted.
Mr Muwaganya said that: "The second option is for stay of the main suit as court awaits guidance of the Constitutional Court on the petition filed by the accused. If this main suit is stayed, then what happens in due course is that the lower court continuously mentions the accused's case every after 30 days as provided for by the Magistrates Court Act (MCA) until such a time when court will be given light."
"Fixing the main case for hearing will amount to abandoning the main interim matter of having Dr Nyanzi taken for mental examination which issue the state still has interest in and is pursuing it," he said.
Mr Muwaganya examined that: "... if the state is alleging by formal application that the accused has a mental issue, how then can the same state proceed to prosecute her before determining that issue! I therefore pray for the reasons advance for the main case to be stayed."
In reply, Mr Ssemakadde said where the question of unsoundness of mind exists, then court could not have let his client take plea.
He explained that the prosecution appears to have taken its allegation of insanity so serious. That it is now acting as a roadblock to hearing of the main case of cyber harassment against Dr Nyanzi.
"... it is for court before whom a person is presented to determine soundness of mind. If the matter proceeds and the unsoundness surfaces, the court gives directions to have the accused examined," he argued.
Mr Ssemakadde insisted that the case should be dismissed since Dr Nyanzi a public officer has been greatly inconvenienced due to the excessive delay in hearing of her case ever since she was suspended from the University.
He further asserted that his client suffers unlimited travel restrictions and unlimited restrictions on her political activities as she is unaware of court interpretation of whether her use of social media is unlawful. He says all this is as a result of the DPP's failure to present witnesses.
The presiding Chief Magistrate, James Ereemye, adjourned the matter to March 7 for a ruling.
In Dr Nyanzi's application before the Constitutional Court, she contends that before she could plead to the two charges against her, the prosecutor at Buganda Road Court ambushed her and her lawyers by making an application under the 1938 Mental Treatment Act to have her first subjected to a mental test.
She further accuses the State of plotting to subject her to compulsory treatment without her consent and an automatic detention in a mental hospital as an 'idiot' in accordance with the Mental Treatment Act.