America bar association cites flaws, violations in Stella Nyanzi trial

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Stella Nyanzi in court [Reuters photo]

The High Court will on Thursday February 20 deliver its judgment in a case which Dr Stella Nyanzi appealed against her 18 months sentence and conviction over cyber harassment.

Nyanzi, a former Makerere University research fellow has been on remand since November 2018 having been implicated and convicted over the same.

However, the same court slated the state’s appeal against Nyanzi’s acquittal on the same date.

Nyanzi was on August 2, last year, convicted and sentenced to 18 months imprisonment for cyber harassment but acquitted over offensive communication against President Yoweri Kaguta Museveni.

Victoria University

Buganda Road Grade One Magistrate Gladys Kamasanyu passed onto the punishment having found prosecution evidence sufficient to convict her.

International Crimes Division of the High Court in Kololo, the trial judge, Justice Peter Adonyo said he will deliver both Nyanzi and the state’s appeals this month.

America bar association cites flaws

Staff at the American Bar Association Center for Human Rights in their February 2020 report, said “the trial entailed serious violations of international standards that affected the outcome and resulted in significant harm to Dr. Nyanzi”.

The Report lists the violations as; right to obtain attendance and examination of witnesses, right to adequate time to prepare a defence, right to an impartial tribunal, equality of arms and right to freedom of expression.

“Namely, Dr. Nyanzi was prosecuted and sentenced to prison for exercising her right to freedom of expression. The grade of D is based solely on the violation of Dr. Nyanzi’s right to freedom of expression and not on the identified fair trial violations, which may not have affected the outcome,” the report reads.

From March to August 2019, the American Bar Association (ABA) Centre for Human Rights monitored the criminal trial of academic and prominent women’s and LGBTQ rights activist Dr. Stella Nyanzi in Uganda as part of the Clooney Foundation for Justice’s TrialWatch initiative.

The prosecution and conviction of Dr. Nyanzi for political speech constituted a violation of her right to freedom of expression.

Additionally, the proceedings were marred by fair trial violations: in particular, the failure to provide the defence with adequate time to call and present witnesses.

In July 2019, following the court’s closure of the defence case, the Centre released preliminary conclusions raising concerns about potential violations of Dr. Nyanzi’s right to prepare a defence.

Prior to issuing final reports on cases, the Centre routinely issues preliminary reports in response to noteworthy developments.

The present report on Dr. Nyanzi’s case, which is based on the complete set of monitors’ notes as well as on court transcripts, replaces the preliminary report.

To the extent that anything in this final report elaborates on or refines the preliminary report’s conclusions, this report is dispositive.

Dr. Nyanzi is an outspoken critic of President Museveni’s administration and regularly invokes the philosophy of “radical rudeness”, a tactic developed by Ugandan activists under colonial rule.

Radical rudeness typically involves the use of public insult to criticize those in power.

In 2018, Dr. Nyanzi was charged with cyber harassment and offensive communication under the Computer Misuse Act on the basis of a poem she had posted on Facebook.

The poem, in line with radical rudeness precepts, employed graphic language to proclaim that Uganda would have been better served if President Museveni had died in the womb.

At the pretrial stage, proceedings were generally compliant with due process rights, excepting that the authorities reportedly detained Dr. Nyanzi for approximately four days before bringing her before a court for assessment of the legitimacy of her detention.

Under ABA Centre for Human Rights staff who are members of the TrialWatch Experts Panel assigned this trial a grade of D: The trial entailed serious violations of international standards that affected the outcome and resulted in significant harm to Dr. Nyanzi.

Namely, Dr. Nyanzi was prosecuted and sentenced to prison for exercising her right to freedom of expression.

The grade of D is based solely on the violation of Dr. Nyanzi’s right to freedom of expression and not on the identified fair trial violations, which may not have affected the outcome.

In international law, 48 hours is the maximum period that an accused may be held in custody prior to judicial review absent exceptional circumstances.

Once the trial started, the court allocated just two to three weeks for the presentation of the defence’s entire case while providing the prosecution with approximately three months.

When the defence 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 defence case, proceeding to judgment without the defence having completed examination of a single witness.

Although the court explained that this decision was based on the defence’s insufficient preparation for trial, the disparities between the time given to the prosecution and that given to the defence violated Dr. Nyanzi’s right to call and examine witnesses and, correspondingly, her right to adequate time and facilities to prepare her defence.

Finally, the prosecution and conviction of Dr. Nyanzi under the Computer Misuse Act contravened her right to freedom of expression.

In accordance with 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.

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.

As such, 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.

Furthermore, under the principle of proportionality a jail sentence far exceeds the permissible range of penalties for speech offenses: imprisonment is reserved for “serious and very exceptional circumstances for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people.”

Dr. Nyanzi’s comments clearly do not rise to the prescribed level of severity.

More broadly, the Computer Misuse Act’s criminalisation of language such as Dr. Nyanzi’s raises serious concerns.

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.

“The prosecution and conviction of Dr. Nyanzi violated her right to freedom of expression and the proceedings were marred by fair trial abuses. More broadly, the case against Dr. Nyanzi reflects a troubling trend of suppression of free speech in Uganda, enabled by the Computer Misuse Act’s sweeping provisions,” concludes the report.

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