Lawyers, citizens urged to embrace private prosecution as a check on impunity

Jinja, Uganda | THE INDEPENDENT | Lawyer Hassan Male Mabirizi has called on the public and fellow advocates to recognize and embrace private prosecution as a tool to counter impunity and address public interest cases that the Director of Public Prosecutions (DPP) and police overlook.

Known for his bold legal pursuits, Mabirizi is one of the few legal practitioners actively utilizing private prosecution to challenge powerful figures. His pursuit has gone for the Speaker of Parliament Anita Among, the Chief Justice, Police and Prison commanders, Pastors, business persons, ministers, and opposition politicians among others.

“It’s lawful and proper for any person to commence and continue criminal prosecutions against any individual or group of individuals to the point of disposing of the whole case,” Mabirizi remarked, referencing Justice Gadenya’s judgment in a 2023 private prosecution appeal he filed against the Attorney General and Norbert Mao.

Mabirizi emphasized that private prosecution as provided for in the books of law provides a direct path for every person to seek justice independently of state channels, which are often slow or reluctant to address certain cases.

He made these remarks during his keynote address at the National Symposium on Private Prosecution in Uganda, organized by the Network of Public Interest Lawyers. The event, themed; Advancing Justice: Exploring Best Practices in Private Prosecution in Uganda, gathered legal professionals, advocates and law students to discuss the role of private prosecution in promoting justice and accountability.

Citing various constitutional provisions and legal statutes, Male Mabirizi argued that, despite common misconceptions among many Ugandans and legal professionals, initiating and prosecuting a private prosecution case is both feasible and legally supported.

He added that private prosecution serves as a vital safeguard against perceived injustices, particularly when public authorities fail to pursue criminal investigations and proceedings that ensure culprits are brought before a criminal court.

JUSTICE shall be done TO ALL irrespective of their social or economic status pic.twitter.com/67sBNGbqZy

— MALE MABIRIZI East Africa Top-most LEGAL PERFORMER (@MaleMabiriziHKK) October 26, 2024

Section 42 of the Magistrates Courts Act empowers private individuals to file complaints and request the issuance of a warrant or summons following the prescribed procedures. With his characteristic wit and humor, Mabirizi criticized legal practitioners for their lack of engagement with private prosecution since the enactment of the Magistrates Courts Act in 1971.

He noted that, according to records from the courts of record (High Court and above), the first case filed under private prosecution was in 2013, specifically Bassaibalaba Vs Kakande Bernard. It wasn’t until three years later that a second case emerged, Uganda Vs Kayihura & Others.

“The sum of it is that we have a total of 14 decisions—six alone in 2024. Of the total, 83.3 percent come from one person: myself,” Mabirizi noted. “What could be the reason for this? Were there no lawyers? Were offenses not committed? Did police and State Attorneys stop taking bribes to bury cases? No,” he added, prompting laughter and reflection from the audience.

During the discussion, many lawyers acknowledged their hesitation to engage in private prosecution, often fearing the associated personal and professional risks involved. For instance, Dr. Josephine Ndagire, lecturer at Makerere University, acknowledged that private prosecution serves as a safeguard against impunity and injustice.

However, Dr. Ndagire pointed out that there are still gray areas, including the risk of malicious prosecutions. She also highlighted the financial burdens and the capacity required to effectively investigate such cases, suggesting that these factors contribute to the reluctance among legal practitioners to utilize private prosecution.

She added that in other jurisdictions where private prosecution has been expedited, the results have often been positive, citing several cases in the United Kingdom where private prosecutions have led to successful convictions.

The risks associated with private prosecution were highlighted as lawyers in the room recalled their attempts to take on the then Inspector General of Police Kale Kayihura and a former police commander on torture charges. Several discussants, including Dr. Christopher Mbaziira, who moderated the session, noted that many of their colleagues withdrew from the case, while others continued to leak information, jeopardizing the safety of those involved and their families.

George Musisi, another lawyer, noted that while private prosecution could serve as a valuable balance of power—allowing individuals to pursue cases that the DPP may be hesitant to tackle—there is still a need for greater public awareness and appreciation of this legal avenue. He pointed out that there is currently varied interpretation of private prosecution, particularly from the bench, and highlighted a significant concern: the tendency of the DPP to take over private prosecution cases and subsequently dismiss them.

The issue of the DPP taking over cases emerged as a significant concern, with nearly all participants citing it as one of the biggest obstacles to private prosecution. Ironically, George Musisi highlighted this same issue, despite having previously worked tirelessly to ensure that the DPP took over a case filed by Male Mabirizi against Robert Kyagulanyi, the president of the National Unity Platform party. This case involved multiple criminal charges, including allegations of illegal admission to Makerere University and academic fraud.

For Mabirizi, the biggest threat to private prosecution is the fear that advocates harbor. He believes that nothing should deter anyone from pursuing these cases; rather, advocates should embrace the opportunity and empower themselves.

“When you appear before a Magistrate in a private prosecution case, remind them that they have powers similar to those of the High Court. This will help you act without limits,” he said.

He emphasized that the essence of filing these cases might not necessarily be about securing a conviction, but rather about building jurisprudence, which is critical for future cases. He pointed out that while the DPP has traditionally taken over such cases, recent decisions since 2023 have clarified that courts should not prevent private prosecutors from proceeding and have limited the powers of the Director of Public Prosecutions to take over cases.

“In Rutarro Robert v. Attorney General, Constitutional Petition No. 27 of 2016, it was established that the DPP can only take over any private prosecution with the court’s consent,” he noted, challenging the notion that the DPP can simply assume control without request.

“Now that the biggest enemy to private prosecutions is cornered and under control, I have no doubt that the future is bright. It’s just a matter of you starting the journey by filing as many private prosecutions as possible. Always appeal if possible,” he added.

Mabirizi also remarked that private prosecutions can challenge and unsettle those who believe they are untouchable. With this concept taking root among practitioners and receiving support from the bench, he suggested that it wouldn’t be long before even high-ranking and powerful person could either be tamed or brought to justice.

During the debate, Timothy Amerit, a senior state attorney, defended the Office of the DPP, stating that it does not inherently oppose private prosecution. He explained that the DPP often takes over cases to assist private prosecutors, as the office has more resources and expertise, which can be crucial when private parties struggle to gather evidence.

Amerit further noted that when the DPP takes over a case, they often find it has been built on shaky grounds due to a lack of evidence, leading to many cases collapsing—not because the DPP simply unplugs them.

To advance private prosecution as a means of achieving justice, he emphasized that the Office of the DPP is looking toward a collaborative future in certain cases. He mentioned that they are in the final stages of establishing a private-public prosecution unit at the DPP, which would facilitate better cooperation and support for private prosecutors.

Lawyer Emmanuel Chandia, a member of the renowned group of lawyers that challenged the then Inspector General of Police over torture allegations, criticized Uganda’s law curriculum for neglecting private prosecution. He argued that law students are primarily trained in the public prosecution model, which explains why private prosecution has struggled to gain traction in the country for decades, despite being well documented.

“If the curriculum at universities and during the bar course at the Law Development Centre were revised to include private prosecution, it could lead to significant advancements in this area,” he added.

While there is an ongoing debate about the advancement of private prosecution, in 2023, Paul Akamba, the Member of Parliament for Busiku County, sought permission to introduce a bill that would eliminate the practice of allowing private individuals to initiate criminal proceedings.

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