Update: Today the Buganda Road Magistrate Court convicted Stella Nyanzi of cyber harassment. The prosecution is requesting a custodial sentence. As detailed in the preliminary report, the Center has serious concerns about violations of the right to prepare a defense. A full report on such issues, as well as implications for freedom of expression, is forthcoming.
The American Bar Association’s Center for Human Rights is monitoring the trial of Dr. Stella Nyanzi in Uganda as part of the Clooney Foundation for Justice’s TrialWatch initiative. The Center is deeply concerned by the presiding magistrate’s abrupt closure of the defense case, an apparent violation of the right to a defense and the principle of equality of arms.
Dr. Stella Nyanzi is a prominent academic researcher and outspoken critic of the Museveni administration. In the present case, she has been charged with cyber-harassment and offensive communication under the Computer Misuse Act. These charges stem from a poem that Dr. Nyanzi posted on Facebook on President Museveni’s birthday. The poem, relying on the philosophy of “radical rudeness”, uses lewd language to proclaim that Uganda would have been better off if Museveni had died in the womb.
Dr. Nyanzi’s trial commenced on March 20, 2019, before the Buganda Road Magistrate Court, with the examination of the first prosecution witness. From that point forward, the proceedings were beset by numerous delays, largely caused by either the prosecution or the court itself, which routinely commenced hearings several hours later than scheduled. In all, the prosecution took approximately three months to examine three witnesses, concluding its case on June 19, 2019.
On July 1, 2019, the magistrate ordered the defense to present its first three witnesses at the next court session - on July 3. The court issued its summons to the witnesses on July 2. As a result, defense counsel had less than 24 hours to procure their attendance.
When the three defense witnesses did not appear in court on July 3, the magistrate ordered the defense to ensure the presence of and examine all 19 of its proposed witnesses on July 9-10. Only one witness appeared during the prescribed period and on July 16, the magistrate closed the defense case, citing the defense’s failure to produce witnesses.
The truncated timeline mandated by the magistrate undermines the right to adequate time and facilities for the preparation of a defense. Providing the defense with only 24 hours to obtain the attendance of its first three witnesses; ordering all 19 witnesses to be produced and examined over two days (July 8 -9); and – overall – requiring the defense to make its entire case within a two-week period (July 1-15), despite repeated representations from defense counsel that additional time was needed, falls short of African Charter and ICCPR standards.
In addition, there is a stark contrast between the time granted to the prosecution and the time granted to the defense. Whereas the prosecution had three months to examine three witnesses, the defense was permitted only two weeks to examine 19 potential witnesses. When the prosecution required leave for delays, the court was amenable: granting a request for time to respond to a defense submission; terminating a hearing early due to the one of the prosecution lawyer’s university commitments; and adjourning the proceedings for two weeks due to the fact that a prosecution witness was getting married.
Once the prosecution concluded its case, however, the court emphasized the need for a speedy trial at the expense of defense counsel’s requests for additional time to confirm and prepare witnesses. Such disparities raise concerns not only about the violation of the right to adequate preparation but also about violations of the principle of equality of arms and judicial impartiality. With the High Court scheduled to review the Magistrate Court's decision next week, the Center urges the Ugandan judiciary to uphold its international and regional treaty obligations and remedy any violations to Stella Nyanzi’s right to adequate time and facilities to prepare her defense and to a fair and impartial tribunal.
A full TrialWatch Fairness Report on the trial will be published following the judgment.