Lawyer Mabirizi loses appeal against DPP taking over Kyabazinga case

Jinja, Uganda | THE INDEPENDENT | The Grade One Magistrates Court in Jinja District has upheld a decision of the Director of Public Prosecutions (DPP) to takeover of the criminal case against the Kyabazinga of Busoga, His Royal Majesty, William Wilberforce Gabula Kadhumbula Nadiope IV, the Kyabazinga of Busoga.

Hassan Male Mabirizi dragged the Busoga King and his newlywed wife to court alongside others for engaging in what he called “an illegal marriage”.

The other sued persons include Archbishop Stephen Kaziimba Mugalu who presided over the marriage vows, and the Buganda queen Nnaabagereka Sylvia Nagginda who signed the marriage certificate of the couple as a witness.

According to Mabirizi, at Christ Cathedral Bugembe being the scene of crime, Nadiope, Jovia, Kazimba Mugalu, and the Buganda Kingdom Queen Sylvia Nagginda participated in, officiated, and witnessed a ceremony of marriage well aware that it was invalid, criminal and void.

This he states is because Nadiope had reportedly earlier contracted a marriage before the Registrar of Marriages in England with Alison Anna in December 2016 at Mildam House Bunbaby Road, Portsmouth, and during the continuance of the marriage.

Mabirizi thus levied different charges against them including fictitious marriage, bigamy, marriage with a person previously married, unlawfully performing a marriage ceremony, and conspiracy to commit felonies against Kazimba and the Buganda Queen Sylvia.

The DPP through the Resident State Attorney of Jinja took over proceedings in a letter dated November, 21st 2023.

On Friday, the Grade One Magistrate Anxious Atumanya, dismissed the application by Mabirizi, on the basis that the law does not provide at what stage should the DPP take over proceedings but rather gives that office power to take over proceedings instituted by other persons.

“The article does not require the consent of court when the DPP is taking over but rather the consent is necessary when the DPP is withdrawing the same Section 43 (1) of the Magistrates Act Cap 16 states that where criminal proceedings have been instituted by a person other than a public prosecutor or a police officer under section 42, the Director of Public Prosecutions may take over and continue the conduct of those proceedings at any stage before the conclusion of the proceedings”,  held Atumanya.

In her ruling,  Atumanya further found that Mabirizi wrongly sued the Directorate of Public Prosecutions saying that it is a government department but it is not a body corporate with powers to sue or be sued.

“Based on the above authority, the DPP cannot be sued as that office cannot sue or be sued I find that the application was wrongly instituted against the respondent and as such the same cannot stand and ought to be struck out”, said Atumanya.

She said the takeover letter was properly filed before the Court and as such, Mabirizi ceased being a Prosecutor.

Immediately after the decision, Mabirizi appealed against the decision in the High Court and wants it to be set aside.

He argued that the learned Chief Magistrate ignored statutory and constitutional provisions as well as decided cases placed before her and further acted in contravention of substantive justice by holding that the DPP’s actions cannot be challenged other than suing the Attorney General.

The matter will return to Court on July 3rd.

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