KAMPALA – The American Bar Association (ABA) Center for Human Rights that monitored the criminal trial of Makerere University lecturer, Dr. Stella Nyanzi has released a report revealing that the trial was marred with irregularities and violations of her rights.
The Association is said to have monitored the trial from March to August 2019, as part of the Clooney Foundation for Justice’s Trial Watch initiative, with the report highlighting that the prosecution and conviction of Dr. Nyanzi for political speech constituted a violation of her right to freedom of expression.
The report also noted that the proceedings were marred by fair trial violations: in particular, the failure to provide the defense with adequate time to call and present witnesses.
In 2018, Dr. Nyanzi was charged with cyber harassment and offensive communication under the Computer Misuse Act following a poem she had posted on Facebook, whose content was described by prosecution as radical rudeness precepts, employed graphic language to proclaim that Uganda would have been better served if President Museveni had died in the womb.
The American Bar Association highlighted that at the pretrial stage, proceedings were generally compliant with due process rights, except when Police detained Dr. Nyanzi for approximately four days before bringing her before a court for assessment of the legitimacy of her detention, contrary to the international law, 48 hours as the maximum period that an accused may be held in custody prior to judicial review.
At the trial, court allocated 2-3 weeks for the defense to present witnesses of their entire case while providing the prosecution with approximately three months. When the defense was unable to secure witnesses’ attendance, the court in the face of defence requests for more time and for court compulsion of certain witnesses’ presence closed the defense case, proceeding to judgment without the defense having completed examination of a single witness.
The Association stated that although the court explained that this decision was based on the defense’s insufficient preparation for trial, the disparities between the time given to the prosecution and that given to the defense violated Dr. Nyanzi’s right to call and examine witnesses and, correspondingly, her right to adequate time and facilities to prepare her defense.
The lawyers also argued that the prosecution and conviction of Dr. Nyanzi under the Computer Misuse Act contravened her right to freedom of expression, citing the International Covenant on Civil and Political Rights and the African Charter, restrictions on the right to freedom of expression must (i) be prescribed by law, (ii) serve a legitimate objective and (iii) be necessary to achieve and proportionate to that objective.
They argued that speech critical of public figures, particularly when part of ongoing public dialogue, is worthy of the highest level of protection.
“While the proceedings against Dr. Nyanzi may have been geared towards safeguarding the rights and reputation of the President and his family, the President is the quintessential public figure and Dr. Nyanzi’s poem was political commentary situated within a larger public debate on the President’s policies,” read in part the report.
They added that the graphic nature of the poem was insufficient justification to remove it from the ambit of free speech protection and into the criminal justice system.
The report also warned, “Affording the judiciary unfettered discretion to jail individuals for speech perceived as offensive and/or obscene will undoubtedly chill public debate and criticism, eroding the democratic fabric.”