Blow-by-blow account of what happened in court as Dr Nyanzi was found guilty

Sunday August 4 2019

Convicted. Suspended Makerere University

Convicted. Suspended Makerere University research fellow, Dr Stella Nyanzi, in the dock at Buganda Road Chief Magistrate’s Court on Thursday. PHOTOS BY ABUBAKER LUBOWA/ FILE 

By Betty Ndagire

Magistrate Gladys Kamasanyu:
Prosecution contends that on September 16, 2018, Dr Stella Nyanzi posted on her Facebook page suggestions deemed obscene against the President’s deceased mother.
It is stated that Dr Nyanzi also repeatedly posted messages to disturb or attempted to disturb the peace, quiet or right to privacy of the President.
Dr Nyanzi was not interested in applying for bail. In determining this case, the burden of proof was borne by prosecution. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt because the law would fail to protect citizens. Evidence of prosecution should be weighed against that of defence.
In defence the accused opted to stay silent, never brought witnesses and never filed any submissions.
The first prosecution witness, Mr Bill Ndyamuhaki, in this matter the investigating officer, testified that he had been a cybercrime officer for the last five years, that he did investigation on cybercrime in this instant case.
He said when he read the post on “Stella Nyanzi” Facebook page, he printed it out. He found that there were proposals authored by the author. There was a wish for Yoweri Kaguta to have died at birth.
Obscenity is the state of being morally impure. These proposals of the private part of a woman, talking about the private part of a dead woman in this case a vagina, Mr Ndyamuhaki said he did not see any sense in the post. He said the lewd words are mentioned six times.
He said the post should not have been put out in the public domain. Talking about a private part of a woman in that manner like it was in the post is immoral.
The second prosecution witness, Mr Charles Dalton Opwonya, a lawyer, a counsellor and a citizen said violation of the law, written or unwritten cultural law, is quite unacceptable. He said to describe the private part of a woman nicely or badly is immoral. He said he had known the President’s mother before her death.
He said whereas in the first paragraphs it was only the name Yoweri mentioned, in the last paragraph of the questionable post all the names of the said Yoweri Kaguta Museveni were mentioned.
I had the benefit of seeing the entire post and it was displayed in court on the monitor. The post in question was shared 417 times and gathered 1,700 reactions in total from the Facebook community.
Suggestions or proposals put by the accused described parts of a dead woman, may her soul rest in peace. The description of Estelí’s vagina in a Facebook post viewed by people of rightful mind does not display any sense.
It is so shameful, corrupts the mind of the young generation. This could offend any other reasonable person as it is indecent. This could only be made by an immoral person, not properly brought up. No man or woman who has sense can make sense out of such a post. The author could have packaged it in a proper way.
The post was put in the public domain; no reasonable person can wish for such a post. In the last paragraph all the names of the said Yoweri were mentioned.
The investigating officer, Mr Ndyamuhaki, said he got to know the accused in early 2017 when he was investigating another matter in which the accused was accused of cybercrimes. The complainant was President Museveni. He said he looked at the phone number and email used to activate the “Stella Nyanzi” Facebook page.
He processed a court order to allow him check on the owner of the number which was used to activate the page at MTN. He as well checked on bio data forms of the accused from Makerere University which showed her profession as an anthropologist. The documents had an email address similar to that which was used to activate the Facebook account.
They were for no other Stella Nyanzi other than the accused. I had the benefit of seeing the page; it was in the name of the accused. The page had a fundraising campaign in which the accused appeared. There was overwhelming evidence that indeed the accused is the owner of that Facebook page in which the questioned post was posted. The prosecution witnesses testified that the page was for the accused; it carried her photographs.
I recall Dr Nyanzi at one time during the hearing shouting in court that “I wrote the post, court should determine whether it is obscene”.
She did not object to being the owner of the account on which the post displayed and never at one time did she complain that her account was hacked and the post is still on her Facebook.
The accused is hereby found guilty over cyber harassment contrary to Section 24 (1) (2) (a) of the Computer Misuse Act, 2011, and hereby convicted.
In count two of offensive communication, no witness was brought to show how the post disturbed the privacy of the complainant. So offensive communication was not proved, the accused is hereby acquitted on that count.

State prosecutor Janat Kitimbo:
The convict does not have a previous criminal record and, therefore, regard her a first time offender. She has also been on remand from November, 2018. However, your honour the convict has been found guilty of cyber harassment contrary to Section 24 (1) (2) (a) of the Computer Misuse Act, 2011. That offence upon conviction attracts a fine not exceeding 72 currency points, which is Shs1.4m, or imprisonment not exceeding three years.
Section 180 of the Magistrates Court Act provides that where the offence to which the convict has been found guilty is punishable with a fine or a period of imprisonment, the imposition of a fine or a period of imprisonment shall be a matter for the discretion of court.
In this case your honour, prosecution prays that this court sentences the convict to custodial sentence based on the following aggravating facts.
Your honour, the post in issue, or the impugned post for this matter, was directed to the fountain of honour who is the President of the Republic of Uganda and his dearest deceased mother. These vulgarities were despicable and the rarest of the rare.
The post is not an acceptable political post, but a brutish attack on the person of the President and his late mother. Prosecution further submits that the convict all through the trial until now remained unregretful and unremorseful of the offence she has been found guilty of.
The convict has wasted court’s time by taking us through a whole practice trial, since November 2018, for an offence she knew very well she committed.
This cyber harassment has become very rampant as people continue settling scores using such demeaning, humiliating and repulsive approaches.
This court needs to send a serious signal to deter the offenders that are increasingly abusing the use of the computer. This court also needs to protect the young generation as many have access to the internet and the same is leading to degeneration of morals.
I reiterate my earlier prayer for a custodial sentence.

State prosecutor Timothy Amerit:
Your honour, this post was brought up as one of the ventures of demonstrating the freedom of speech and expression as guaranteed by the Constitution of the Republic of Uganda.
Freedom of speech is a notion that every person has the natural right to freely express themselves through any media and frontier without outside interference such as fear of reprisal, threats and prosecution.
It is not worth it though that freedom of expression is not absolute, it carries with it special duties and responsibilities that are prescribed by any law. This right does confer on the citizens the autonym to speak irresponsibly.
Under Article 19(3) of the International Covenant on Civil and Political Rights, to which Uganda is a signatory, the freedom of expression is limited in two areas. One is need to respect the rights and reputation of others, and two, respect and protection of public order with decency or morals.
Actions of the convict outrightly go against those provisions. Internet is broadly beneficial. However, it is also open to misuse lately and it is incumbent upon the State to regulate its use and incumbent upon this honourable court to sanction its misuse as the court takes into account the rights of the convict as an internet user.
This honourable court is also clocked with responsibility to protect the victims and put into consideration public interest.
It is, therefore, the submission of the prosecution for offences committed by the convict is not one of freedom of expression, but one of gross abuse and misuse the freedom of expression.
And it is of utter intrusion of the rights of privacy, decency, morality and respect of others and in this case respect of a deceased mother and the President of the Republic of Uganda.
Your honour, no better sanction can exhibit honour than a custodial sentence. Clearly there is no mitigating factor to warrant the contrary.
We thus pray that in considering Article 23(8) of the Constitution, court sentences the convict for the rest of the time in prison, we so pray your honour.

Magistrate Kamasanyu:
Dr Nyanzi, you have heard the mitigating factors. Do you have anything to say?

Dr Stella Nyanzi:
After listening to the mitigating factors, I am not going to go down that road. I could raise the issue of my children and cry about being a mother that is incarcerated, but I will not do that.
I could talk about my children because very many mothers may say ‘I have children who are minors, please do not send me to jail’. Your honour, I will not say that. My children celebrate my protest actions.
I am not going to raise the issue of my children today. My children have protested. I have trained them to freely express themselves. My children are taken care of by Ugandans who believe in the ideas of change of power.
My children deserve much better from mothers of Uganda; they do not deserve a mother who is silent in the face of oppression, in the face of dictatorship.
I will sacrifice motherhood to whatever alter I have to sacrifice motherhood to. I have to raise my voice against dictators such as Yoweri Kaguta Museveni.
I am happy; I can take a break and call me when you are prepared. I was born for this moment and so as a mother I can sacrifice motherhood if I can speak to a dictator in whatever language, be it the language of vaginas, I will.
Your honour, since you are going to sentence me, anyway, I have a lot of respect for you your honour since you have given me a platform. Many will not touch me because I speak against dictators. I will not do mitigating factors just like any mother would. My children are doing well, but not doing so well because of dictator Museveni.
Jail me if you want and let my children be motherless if it means I will speak truth to power. It is not a viva moment because I am disappointed because you did not find me guilty of offending the President. I wanted you to find me guilty of offensive communication against Museveni Kaguta.
I wanted to be found guilty of offensive communication but not cyber harassment. I planned to offend Museveni Kaguta because he has offended us for 30 plus years; find me guilty of anything else but please find me guilty of offensive communication against Museveni Kaguta.
Prosecution was not good enough, State [prosecutor] Timothy you were not good enough to prove offensive communication! Your honour, find me guilty of offensive communication because that is what serious mothers do. We are tired of the dictatorship.
We are in a courtroom but we did not come to do legal staff, we came for politics. I ask for one moment to protest. Can we have one viva Opposition your honour?

Magistrate Kamasanyu:
Allowed. You have asked for one viva, go ahead.

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Dr Nyanzi and her sympathisers shout:
Viva Opposition… viva Opposition… viva Opposition… viva Opposition

Dr Nyanzi:
Your honour, thanks for that one viva because they were dying for that. Thanks your honour, my ladyship, your worship, I hope those are your titles.

Magistrate Kamasanyu:
Dr Nyanzi, you only asked for one viva but that was more than one!

Dr Nyanzi:
People please respect her honour because she has given us an opportunity to speak. We do not get such opportunities as Opposition speakers to be recorded like this. If it meant going to jail for nine months I was ready for this. Send me to Luzira if my crime… they say I should respect the right of a dictator to privacy, me I cannot do that.
What has become of courtrooms and rule of law in this country? Why are we using the assumed law that we have to abuse citizen and protect dictators, why?
Why should I lower myself as a mother with children that I teach?
Your honour, you found me immoral. I understood you because you have a very difficult job. You got to find me guilty; I am that immoral woman because when I had nothing on the day they were celebrating the President’s birthday, on that day, I wondered what does a Ugandan woman without a job, without a voice, without a public, do!
I decided as a woman who does not have a job, to raise my voice through that post which raises a morality question to you, your honour.
It is immoral for us to keep quiet when dictatorship is continuing. I intend to destroy the dictator, put that on record your honour.
This is to embolden the young people. I do not want to give them poison instead of food or poison instead of bread. They must learn to use their voices to speak whatever word they want to.

Timeline

November 7, 2018: Dr Stella Nyanzi is remanded to Luzira prison for allegedly harassing President Museveni in a Facebook post.
November 9, 2018: Dr Nyanzi denies the two charges of cyber harassment and offensive communication.
January 13, 2019. Dr Nyanzi fails to halt her trial on grounds that the charges are duplicated and cannot independently stand on their own.
July 31, 2019: High Court declines to prevail over the lower court (Buganda Road Court) to stop passing its judgment in Nyanzi case.

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