On Friday last week, the High Court in Kampala quashed all the proceedings held in camera by Buganda Road Court in a case where a police officer Ronald Poteri, is accused of leaking Gen Kale Kayihura’s confidential information to the public.
The court ruled on grounds that Buganda Road Chief Magistrate Lillina Bucyana should have heard from the side of journalists in order to balance the competing rights of access to information and guarding against the threat of exposing the secrets of national security.
The run-ins of the court reporters under their umbrella body, the Uganda Court Reporters Association (UCRA), and the State begun on June 25 when Mr Lino Anguzu, the Resident State Attorney at Buganda Road Court, without prior warning to the defence, successfully applied orally and briefly to have the trial of officer Poteri heard in camera.
In support of his application, the State submitted that Mr Poteri was charged with disclosure of official secrets and that the evidence would include classified information, secrets of police investigative tactics and calling informants whose identity should not be revealed, hence need to bar journalists.
Additionally, the State submitted that if the evidence is published, it may cause friction between police and the Executive.
Judicial review
But being dissatisfied with the decision of the magistrate to bar them from covering the Poteri hearings, the reporters, through their lawyer Isaac Semakadde, ran to court to challenge the same by way of judicial review.
Judicial review is the process by which the High Court exercises its supervisory jurisdiction and evaluates proceedings and decisions of inferior courts, tribunals of whether they were properly taken or not.
To that effect, on August 1, the application came for hearing before High Court judge Mugambe, with the State being represented by Mr Oburu Odoi.
Mr Oburu majorly relied on the sworn in statements of Mr Anguzu, and those of Geoffrey Wangolo Madete, a State attorney from the Attorney General’s chambers, to oppose the journalists’ application to review magistrate Bucyana’s decision.
The State argued that this was not a good case for judicial review and the court reporters should have instead appealed against Buganda Road Court decision of barring them from covering the proceedings.
The State also insisted that the decision taken by the magistrate was legal and she committed no error.
The State further submitted that the journalists had other options such as applying for revision of the decision of the court or should have gone to the Constitutional Court to seek for a constitutional interpretation.
Court’s take
But justice Mugambe disagreed with the State’s submission that the journalists should have appealed Buganda Road Court’s decision before citing Section 204 (1) (a) and (7) of the Magistrates Court Act that she said reserves the right of appeal in criminal cases only to the convicted persons.
“So appeal is not an available remedy for the applicants (court reporters) before me who were not party to the proceedings before the trial court,” held Justice Mugambe.
Adding: “I also do not see any serious question warranting constitutional interpretation as suggested by the respondent (State).”
The judge went on to say the court reporters had one remedy of revision of the decision of Buganda Road Court and that they had not exploited the same.
However, she was quick to say she was mindful of the delays that are associated with revisions cases which could delay of justice for the journalists.
Taking the circumstances into account, the judge exceptionally allowed to hear the journalists complaint by way of judicial review.
How Mugambe faulted Bucyana’s decision
Justice Mugambe in her ruling concentrated on evaluating the procedure that Buganda Road Court Magistrate Bucyana used to bar the journalists from attending the Poteri proceedings.
The judge noted that Magistrate Bucyana was confronted with two competing rights of proceedings in camera by excluding the press and the public not to expose the secrets of national security and on the other hand, the right of access to information by the press and the public.
Justice Mugambe went on to explain that both sets of rights/interests are legally protected in the law and she should have weighed both carefully before coming up with a decision of locking out journalists.
In further faulting Buganda Road Chief Magistrate, Justice Mugambe observed that she was duty bound to evaluate whether the limitation to ban the press, being sought by the State, was sufficient in a free and democratic society and also whether the State had evidence to back the same, but she did not.
“The trial magistrate in reaching her decision was duty bound to inquire into the evidence concerning the alleged secrecy of the audio recordings and communications that were the subject of the application, in order to satisfy herself that indeed the limitation requested by the State was objectively verified, justified and necessary.” ruled Justice Mugambe
She added: “The State attorney should have assisted the trial magistrate by providing this evidence but he did not. This, however, does not excuse the trial magistrate; she had a duty to ask for this evidence in order to make an informed and evidence-based analysis in determining the application to proceed in-camera, but she did not.”
Further, Justice Mugambe observed that the journalists were condemned unheard despite being present in court when the magistrate was pronouncing her decision to exclude them from the proceedings.
“Without the said balancing and weighing of the competing rights/interests in her ruling, it is not demonstrably clear to me if the trial magistrate properly took the public interest into account when making her decision as required by Article 43 (1) of the Constitution,” she held.
She added: “Moreover, by giving such a blanket cover of in-camera proceedings for the entire trial, the trial magistrate sucked in the defence case proceedings. Such in-camera proceedings for the defence case should have been only at the request of the defence if they felt it necessary….This, in my view, also keeps the trial magistrate’s decision/ruling marred in procedural impropriety.”
While signing off, the judge quashed all the proceedings held in camera before directing magistrate Bucyana to first weigh and balance the competing rights and interests in issue by hearing all the parties concerned and also have a critical analysis of relevant evidence of the State.
The journalists were awarded costs to that effect for having successfully challenged the media ban.
About the tapes
The State alleges that in March 2014 at the Criminal Investigations and Intelligence Directorate (CIID) headquarters in Kampala, Mr Ronald Poteri, being in possession of an official secret entrusted to him as a person holding an office of the government, passed on the confidential information to persons not authorised to receive it.
The recordings are part of the 87 tapes of different persons interviewed in various investigations, including an alleged plot to assassinate Gen Kayihura.
Police say detective Poteri handed the recordings to Ms Jacqueline Mbabazi, the wife of former Prime Minister, Mr Amama Mbabazi.
Ms Mbabazi, who addressed a couple of press conferences in the months after the leaked tapes, said she had recordings of Gen Kayihura coaching youths to pin her husband Mr Mbabazi on nurturing presidential ambitions to contest against President Museveni in 2016.
In one of the tapes, Kayihura, after hearing from a National Resistance Movement member from Kayunga District (Alex Kasirivu) how Mbabazi’s group had allegedly mobilised against Museveni, asks his informer which advice he had for Museveni. SRC: Monitor
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