Why Lawyer Mabirizi Lost Appeal Against DPP Taking Over Kyabazinga Case

Ugandan lawyer Male Mabirizi. PHOTO/FILE


  • Hassan Male Mabirizi lost his appeal against the DPP’s takeover of the criminal case against the Kyabazinga of Busoga due to two main reasons: the law permits the DPP to assume control of criminal proceedings at any stage, and Mabirizi improperly sued the DPP, which, as a government department, cannot be sued directly. The court confirmed that the DPP’s actions were legally sound, thus ending Mabirizi’s role as prosecutor in the case.

KAMPALA, (Examiner) – The Grade One Magistrates Court in Jinja District has upheld the decision of the Director of Public Prosecutions (DPP) to take over the criminal case against the Kyabazinga of Busoga, His Royal Majesty William Wilberforce Gabula Kadhumbula Nadiope IV. This decision effectively removed Hassan Male Mabirizi from prosecuting the case he initiated, which involved the Kyabazinga and his newlywed wife, among others, for allegedly engaging in an illegal marriage.

Legal Basis for DPP’s Takeover

The crux of Mabirizi’s loss lies in the legal provisions that empower the DPP to take over criminal proceedings at any stage before their conclusion. According to Section 43 (1) of the Magistrates Act Cap 16, “where criminal proceedings have been instituted by a person other than a public prosecutor or a police officer, the Director of Public Prosecutions may take over and continue the conduct of those proceedings.” Magistrate Anxious Atumanya, who presided over the case, emphasized that this statute does not require court consent for the DPP’s intervention. Instead, consent is only necessary if the DPP seeks to withdraw the proceedings.

Improperly Instituted Case Against the DPP

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Another significant reason for Mabirizi’s appeal failure was his improper legal approach. Mabirizi sued the Directorate of Public Prosecutions directly. However, Magistrate Atumanya ruled that the DPP’s office, being a government department, is not a corporate body that can be sued. This misstep in Mabirizi’s legal strategy led to the dismissal of his application. The court held that any challenge to the DPP’s actions should be directed against the Attorney General, not the DPP’s office itself.

Factual Basis of the Original Case

Mabirizi’s original case was built on the allegation that the Kyabazinga’s marriage was invalid because he was already married to Alison Anna in England since December 2016. He charged the Kyabazinga and others, including Archbishop Stephen Kaziimba Mugalu and Buganda Queen Sylvia Nagginda, with fictitious marriage, bigamy, and conspiracy to commit felonies. Despite the potentially serious nature of these charges, the DPP’s decision to take over the case was within their statutory rights, thereby nullifying Mabirizi’s role as prosecutor.

Judicial Interpretation and Precedents

Magistrate Atumanya’s ruling reflected a strict interpretation of the law, emphasizing that the DPP’s statutory authority is clear and unchallengeable under the given circumstances. The magistrate referred to established judicial precedents that reinforce the DPP’s overarching powers in criminal proceedings. Mabirizi’s failure to acknowledge these legal frameworks in his appeal contributed to its dismissal.

Hassan Male Mabirizi’s appeal against the DPP’s takeover of the Kyabazinga case was dismissed due to two primary reasons: the statutory authority granted to the DPP to assume control of criminal proceedings at any stage and the improper legal action taken against the DPP’s office. The court upheld that the DPP’s intervention did not require consent and was conducted in accordance with the law, effectively ending Mabirizi’s role as prosecutor in this high-profile case. The appeal is set to return to court on July 3rd, where Mabirizi aims to have the decision reconsidered.

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