9 January 2019

Uganda: People Power Activist Unconditionally Released From Jail Over Non-Existent Charge

A People Power activist who had been in incarceration for close to two weeks, has this morning been released unconditionally by the Law Development Centre (LDC) on grounds that the charge of publication of false news no longer exists in the law books.

Mr Moses Bigirwa, was charged before Law Development Center court (LDC) last Friday with publication of false news when he allegedly went on Top Radio located in Kampala and allegedly said the NRM government had planned to kill Kyadondo East MP, Robert Kyagulanyi aka Bobi Wine during the Arua by-election fracas last year.

But when the case resumed on Wednesday morning for a ruling on bail application, presiding Grade One Magistrate Roselyn Nsenge, faulted both the prosecution side and the defence team for not having brought to the attention of court that the charge Mr Bigirwa was battling with was struck out of the law books over 15 years ago.

To that effect, the magistrate who described the charge as 'fatally defective', dismissed the charge of publication of false news against Mr Bigirwa and released him unconditionally.

"The charge of publication of false news is non-existent. As such, I find that the same charge is fatally defective," ruled magistrate Nsenga

"I order for the release of the accused person unless being held on other lawful charges," the magistrate added.

After the ruling, state prosecutor Ms Roselyn Kipola told court that she had instructions from the Director of Public Prosecutions (DPP), to seek for an adjournment in a bid to strategize for the next move.

However, Mr Birigwa's lawyers, led by Mr Samuel Muyizi and Mr Asuman Basalirwa, objected to the adjournment arguing that since the charges have been dismissed, there is nothing for court to adjourn.

But since the state prosecutor insisted on having an adjournment and yet the matter had been dismissed, the magistrate asked both parties to put in written submissions so that a ruling can make a ruling on whether to refer this matter to the Constitutional Court for interpretation or not.

The Court has given both parties two weeks to file their written submissions. They return to court on January 21.

In 2004, the Supreme Court, annulled the offense of publication of false news and the same was struck down as being at odds with the constitutional right to freedom of expression as envisaged in democracies.

The annulment of the criminalisation of publication of false news, followed a successful appeal by then Daily Monitor editor, Mr Charles Onyango Obbo and senior reporter, Mr Andrew Mwenda.

The two journalists had sought to invoke constitutional protection from criminal prosecution for publishing false news.

"[A] person's expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant ... Indeed, the protection is most relevant and required where a person's views are opposed or objected to by society or any part thereof, as "false" or "wrong"..." held justice Joseph Mulenga (RIP) who wrote the lead judgment.

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