DPP takes Kayihura battle to High Court

Gen Kale Kayihura’s supporters protest his prosecution at Makindye Chief Magistrate’s Court on Wednesday. Photo by Abubaker Lubowa

Kampala- The Director of Public Prosecutions (DPP) has run to the High Court seeking to be allowed to take over the prosecution of Inspector General of Police (IGP), Gen Kale Kayihura, and seven other senior police officers and commanders over brutality against civilians.

Gen Kayihura is being jointly prosecuted with seven of his senior commanders and officers for torturing civilians and supporters of Opposition leader, Dr Kizza Besigye, on separate occasions with, the latest being July 12 and July 13 at Kalerwe and on Busabala Road in Najjanankumbi, all Kampala suburbs. Dr Besigye supporters and other bystanders were brutally beaten up by police on the two successive days.

The background
The DPP decision to petition the High Court came after Makindye Chief Magistrate’s Court rejected their application to allow the State to take over the IGP’s prosecution, which was initiated by lawyers under a private prosecution process.

On Wednesday, the DPP applied to be allowed to take over the case but the magistrate declined, asking him to make a formal application to the court.

Speaking to Sunday Monitor at the closing of a five-day anti-corruption investors training in Kampala on Friday, the deputy DPP, Mr Charles Elem-Ogwal, disclosed that his office would challenge Makindye Chief Magistrate’s Court ruling that they should make a formal application to court for determination whether they can be allowed to take over the case proceedings.

The training was organised by Strengthening Uganda’s Anti-Corruption Response (SUGAR).

“We [DPP] believe it’s an automatic right to take over the case. The Chief Magistrate said we need to apply formally before the court allows us to take over the case, but our view is that the High Court must revisit this decision before August 29,” Mr Elem said.

“We have already resolved to take the matter to the High Court for revision, because the law does not provide for formal application. It is automatic whenever DPP decides to take over a particular case. We don’t need to apply to any court…” he insisted

Asked why the State is insisting on taking over the case from private prosecutors, Mr Elem said: “it’s dangerous to leave such a high-profile case in the hands of private individuals. The decision to charge a human being in court is as good as being declared guilty because for public officials, once you are charged, you must be interdicted.”
He said the evidence against Gen Kayihura and his seven commanders might be weak and requires the expertise of the DPP in making due diligence. He said before they sanction any charges, they are obliged to evaluate the evidence.
“Some cases have been hurriedly taken to court yet the evidence is wanting,” Mr Elem said.

“To prevent the abuse…we owe the people of Uganda a duty to check the evidence and ensure that it’s not wanting. The allegation of wanting to kill the case, does not hold water because even if we found the evidence wanting, we don’t just withdraw the case, we take it to court to withdraw the case. We must seek the consent of the court before withdrawing the case,” he added.

The private lawyers prosecuting Gen Kayihura are led by Mr Nicholas Opiyo, Mr Daniel Walyemera and Mr Abdullah Kiwanuka. They said they were sceptical about the DPP takeover of the case and they asked the Chief Magistrate to reject the application seeking the takeover since no formal application had been made to court by the State.

The lawyers also cited conflict of interest, saying the DPP relies on police to investigate such criminal matters and in this case, they cannot investigate their own boss.