Court orders fresh hearing of forgery case against Justice Minister

Kampala, Uganda | THE IDEPENDENT | The High Court in Kampala has ordered for fresh hearing of a case in which Justice and Constitutional Affairs Minister Nobert Mao is accused of uttering a false document and forging the minutes of Democratic Party Delegates’ meeting.

Criminal Division Judge Paul Gadenya Wolimbwa made the decision following a successful appeal filed against Mao, by the President General of Democratic Party, Kiwanuka Mayambala, the National Chairman and the Secretary General Gerald Siranda Blacks challenging the decision by the Law Development Centre Court to dismiss charges against them instituted by Male Mabirizi as a Private Prosecutor.

On September 9th 2022, Mabirizi filed a complaint on oath as a Private Prosecutor against the trio accusing them of forgery, uttering a false document and conspiracy to defraud.

Court heard that on September 3rd 2021 at the Electoral Commission Office and Democratic office in Central Division Kampala City made a false document that is Minutes of Democratic Party Delegates Conference held September 18-20th with intent to deceive and to defraud both the Electoral Commission and the Public.

He further accused them of conspiring to utter a false document which they gave to the Electoral Commission and conspired to defraud the members of DP.

Basically, his issue was that the trio sat and forged minutes of the delegates to show that that during the COVID 19 lockdown, they had sat at Sir Samuel Baker School in Gulu City and reviewed the leadership of Democratic Party for five years , whereas such was a sham.

But on December 15th 2022, the LDC Magistrate Martins Kirya dismissed his complaint on oath because Mabirizi had failed to present a letter from the local Chief to support his complaint.

He reasoned further that Mabirizi failed to demonstrate that the Director of Public Prosecutions mandated with conducting criminal prosecutions has failed in her duty and that the court had no territorial jurisdiction to handle the matter.

Being dissatisfied with the decision, Mabirizi on February 8th 2023 appealed in the High Court raising five grounds including that the learned LDC Magistrate erred in law and fact in proceeding with the case in the absence of the accused persons whom he refused to even summon and also erred in law in holding that he lacked jurisdiction.

Further he said the Magistrate had erred in law and fact in dismissing the complainant on account of lack of a letter from a local Chief which duty is imposed on him under the Magistrates Act among others.

He thus asked Court to set aside the LDC court decision and matter be reinstated and determined on merits and the accused persons appear before it for plea taking. In his judgement, the Judge has agreed with Mabirizi that the trial Magistrate erred in law and fact and set aside his decision.

He said the record lacks proof that the Magistrate consulted the local Chief of the area where the complaint arose.

“Instead, the Magistrate placed the primary burden into him to provide a letter from the local area chief rather than on himself which position is wrong,” said Gadenya.

He has added that the correct position of the law is that even if a complainant files a complaint on Oath without a letter from the local area Chief to support the complaint, that fact does not render the Complaint on Oath incompetent.

“Presentation of a letter from the local area chief is discretionary on the part of a complainant, and they need not request that such be done by the Magistrate. A complaint on Oath can only be judged incompetent on grounds of jurisdiction , non-establishment of a primafacie case and the institution of frivolous and vexatious claims,” added Gadenya

Gadenya has elaborated clearly that a Magistrate presented with a complaint on oath bears the primary burden of consulting and fact finding from the areas local Chief. And if a zealous complainant provides that letter, he or she will have done a favor to the Magistrate, otherwise it is his or her duty.

He also noted that based on the current lass that repealed the Kampala City Council law and resulted to KCCA Act, Kampala has no local Chief, and considering the scene of crime Mabirizi indicated, the LDC Court had the jurisdiction to hear his complaint and as such, the dismissal was done erroneously.

As such, Gadenya has ordered that the matter is heard afresh and ordered the Deputy Registrar of the Criminal Division to ensure compliance with his directive.

The parties also agreed to work with each other in supporting the overall governance agenda and supporting parliamentary votes on matters in confidence and supply for the full term of the 11th parliament.

In August 2022, Mabirizi instituted common nuisance charges against Constitutional Affairs Minister Mao and Siranda of DP over their 42 clause memorandum of understanding with President Yoweri Kaguta Museveni of the ruling National Resistance Movement which was signed at State House Entebbe

Mabirizi accused Siranda and Mao and others still at large, to have signed a document titled ‘Memorandum of Understanding’ with Museveni holding out as Chairman NRM which was an act not authorized by law thereby causing annoyance or inconvenience to the public.

He said that this was between July 20th and 27th 2022 when the duo was well aware that their respective five year terms expired in 2020.

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