How Journalists Defeated Government In Mbabazi-Kayihura Secrets Case

Mbabazi and Gen Kayihura at a recent function
Mbabazi and Gen Kayihura at a recent function

Journalists who report court stories have made a major historic breakthrough is preserving their position and that of the general public in court. Through their Uganda Court Reporters’ Association led by our own Raymond Wamala and Alex Bukumunhe, the Journalists challenged the decision of Buganda Road Chief Magistrate Lillian Bucyana blocking them from covering the trial of Detective Ronald Poteri and Justice Lydia Mugambe of the High Court Civil Division agreed with them that Bucyana illegally threw them out.

Uganda Court Reporters’ Association celebrate their victory outside court
Uganda Court Reporters’ Association celebrate their victory outside court

Minister Amama Mbabazi who is expected to contest for presidency in 2016. It is the first time in the history of media in Uganda and East
Africa that a Journalist organization succeeded in asking court to pronounce itself on the right to access information vis-à-vis the
threat to National security.

“This ruling cements our watchdog position in all courts and other hearings. It is an end to the bastardization we have been going through as journalists who cover court proceedings involving family, security and other high profile matters where government and other influential people in society have interest. The ruling also gives hope to the members of the public who have been suffering injustices as a result of Magistrates or Judges preferring to hear their cases in chambers so as to protect untruthful witnesses and concocted evidence from public scrutiny.

It is a ruling that recognizes the important role the media plays in the dispensation of justice in a free and democratic society where all hearings are supposed to be in the open and barring journalists is the exception,” the association noted in a statement signed by its President Raymond Wamala and Alex Bukumunhe,  the Director Research and Training, on behalf of the Executive Committee on Saturday October 18, 2014 after the victory on Friday.

Below is the full historic judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(CIVIL DIVISION)
MISCELLANEOUS CAUSE NO 87 OF 2014
IN THE MATTER OF THE JUDICATURE (JUDICIAL REVIEW) RULES OF 2009
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

UGANDA COURT REPORTERS ASSOCIATION LTD……………………APPLICANT
Versus
ATTORNEY GENERAL………………………………………………………..RESPONDENT

BEFORE: THE HON. LADY JUSTICE LYDIA MUGAMBE
RULING
    A)      Introduction, Background and Context
1.      Vide Criminal Case No. 303 of 2014, Poteri Ronald stands charged with wrongful communication and leaking of information contrary to
Section 4 (1) (a) of the Official Secrets Act before the learned Chief Magistrate – Lillian Bucyana at Buganda Road Court. At the beginning
of the hearing on 25 June 2014, Mr. Lino Anguzo – State Attorney leading the prosecution, without prior warning to the Defence, applied orally and briefly to have the hearing of the case in camera. In support of his application, Mr. Anguzo relying on Articles 28 (2) of the Constitution, Section 40 of the Magistrates Court Act and Section 14 (2) of the Official Secrets Act, submitted that the Magistrate could grant the application for reasons of morality, public order, and national security. Further, the State Attorney submitted in support of his application that the accused was charged with disclosure of official secrets; the evidence would include classified information, secrets of police investigative tactics and calling informants whose identity should not be revealed. In addition the State submitted that if the evidence is published, it may cause discourse (sic) between the police and executive leadership. Summing up the State prayed that the proceedings are restricted to parties to the case, who were the
Prosecution, Defence Counsel and Court.

2.      In response, Mr. Mugisha Vincent for the Accused submitted expressing reservations related to trampling of the rights of the
Accused continuously. He argued the application was not brought in good faith. In sum, Mr. Mugisha prayed for an adjournment to prepare
once again for the new idea that had come up if Court is inclined to accept the application.

3.      The learned Chief Magistrate followed with her ruling here below and I quote verbatim from the record of proceedings:

“The application to hear the case in camera is allowed in public interest and for protection of witnesses whose identity once revealed
may prejudice the trial process and put their security at risk.  This is in line with Section 40 of the MCA which grants court discretion to “order at any stage of inquiry into or trial of any particular case that the public generally or any   particular person shall not have access to, or be, or remain in the room or building used by the court.”.  I disagree with submissions of defence counsel in opposition to the prosecution’s application for a hearing in camera, reasoning that the information is already before a public wider than court.
Although the information was allegedly leaked, the channels of the alleged leakage are unknown and as prosecution submitted the chain of leakage is likely to be adduced in the course of hearing.  The interests of justice will best be served if whoever is involved in the chain is protected from the public eye until they have at least been heard.  An order is accordingly made that journalists or any person with recording equipment vacate court, and continue to do so for this particular case.

For clarity, the trial of this case is restricted to court and a court interpreter, the accused person, his defence lawyer and his or her clerk, the trial State Attorney and the court orderly.

The application for adjournment by defence counsel on grounds of new idea is rejected for lack of merit.  Let the trial begin.”

4.      On 1 August 2014, the Applicant now before me, through Counsel Isaac Semakadde and Catherine Anite of Centre for Legal Aid and Peter
Kibirango of M/S. R.M Ruhinda and Co. Advocates, filed the application by Notice of Motion supported by affidavits of Raymond Wamala – the Chairman and Executive Director of the Applicant and Alex Bukumunhe – senior court reporter employed by the Red Pepper, for judicial review of this Decision of the Trial Magistrate. The Applicant prays for:

a)      an order of certiorari to be issued to call for and quash the proceedings, ruling and orders of the Trial Magistrate in which the
press and the general public were excluded and thus prohibited from publishing, broadcasting or otherwise disseminating any information relating to all or any part of the trial:

b)      an order of certiorari to be issued calling for and quashing any and all of the proceedings of the trial which have been heard in
camera;

c) an order of prohibition restraining the Trial Magistrate or any other agent of or servant of the Respondent from hearing all or any
part of the trial.

5.      In the alternative but without prejudice, the Applicant prays for:

a)      a declaration that the decision or order of the trial court to conduct the entire trial in camera is unjustifiable;

b) a declaration that all proceedings in the trial which have been heard in camera are invalid;

c) an order that the restrictions imposed on press and media coverage of the trial  by the trial court be lifted or varied by this Court in order to bring those proceedings in conformity with the great principle of open justice;

d) an injunction restraining the trial Court and any other agent or servant of the Respondent from enforcing the impugned Decision and
order and from interfering unjustifiably with the operations and activities of the media.

6.      The Applicant contends that the decision of the Trial Magistrate was reached through irrationality, illegality and procedural
impropriety warranting judicial review of the same.

7.      The Respondent on the other hand, represented by Mr. Oburu Odoi, and through the affidavits of Anguzu Lino- Senior State Attorney  with
the Directorate of Public Prosecutions and Resident State Attorney at Buganda Road Court and Geoffrey Wangolo Madete  State Attorney in the
Chambers of the Attorney General, opposed the application arguing that this is not a good case for judicial review; the Applicant had a rights of appeal. Revision and constitutional reference which they failed to exercise and that the trial Magistrate committed no error when in her discretion, she granted the application to hear the trial in camera. In sum, that the trial Magistrate acted legally, the Applicant has not exhausted all available remedies and the application is bad in law, an abuse of court process and should be dismissed with
costs.

8.      I have carefully read all the pleadings of both parties. I must thank Counsel for both the Applicant and the Defendant for the
spirited and exhaustive presentation of their cases.

B)      The Law
         i) Judicial Review
9.      The law on judicial review, certiorari and prohibition is now well settled in Uganda. Judicial review is the process by which the High
Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions, or who are engaged in the performance of public acts and duties.  Those functions/duties/acts may affect the rights or liberties of the citizens.  Judicial review is a matter within the ambit of Administrative Law. It is different from the ordinary judicial review of the court of its own decisions, revision or appeal in the sense that in the case of ordinary review, revision or appeal, the court’s concerns are whether the decisions are right or wrong based on the laws and facts whereas the remedy of judicial review, as provided in the orders of mandamus, certiorari and prohibition, the court is not hearing an appeal from the decision itself but a review of the manner in which the decision was made.

10.     Lord Hailsham of Marylebone LC stated in Chief Constable of North Wales Police v. Evans (1982)3 ALL ER 141 that the purpose of judicial
review is to ensure that the individual receives fair treatment. A decision reached without observing the rules of natural justice is no
decision at all.

11.     The remedy of judicial review is discretionary in nature and can only be granted on three grounds namely: illegality, irrationality and
procedural impropriety with guiding principles like common sense and justice; whether the application is meritorious; whether there is reasonableness; vigilance and not any waiver of rights by the Applicant.

      ii) Certiorari

12.     In John Jet Tumwebaze v. Makerere University Council and 3 ors Civil Application No. 353 of 2005 (unreported), it was held that the orders for declaration, mandamus, certiorari or prohibition are discretionary in nature.  In exercising its discretion with respect to prerogative orders, the court must act judicially and according to settled principles.  Such principles may include; common sense and
justice; whether the application is meritorious; whether there is reasonableness; vigilance and not any waiver of rights by the Applicant. Justice Kasule pointed out that “prerogative orders look to the control of the exercise and abuse of power by those in public offices, rather than at providing final determination of private rights which is done in normal civil suits….”

13.     In the case of John Jet Tumwebaze v. Makerere University Council and ors (Civil Application No. 78 of 2005), Ag. Justice Remmy Kasule
(as he then was) gave the definition of Certiorari as a prerogative writ issued to quash a decision which is ultra vires or vitiated by an error on the face of the record. Certiorari is a prerogative order designed to control inferior courts, tribunals, administrative and
statutory authorities.

14.     In John Jet Tumwebaze v. Makerere University Council and 3 ors, Civil Application No. 353 OF 2005; Re: Mustafa Ramathan (1996) KALR 86 at p.87; Owor Arthur & 8 ors v. Gulu University H.C.M.A No. 0018 of 2007, it was explained that no order of certiorari can issue unless it is premised on a decision of a body that was mandated to determine a dispute.

15.     In Stream Aviation Ltd v. The Civil Aviation Authority Misc. Application No. 377 of 2008 (Arising from Misc. Cause No. 175 of 2008)
Justice V. F. Musoke Kibuuka held that the prerogative order of certiorari is designed to prevent the access of or the outright abuse of power by public authorities.  The primary object of this prerogative order is to make the machinery of Government operate properly, according to law and in the public interest.

16.     In Re – An Application by Bukoba Gymkhana Club, it was explained that certiorari issues to quash decisions which are ultra vires or which are vitiated by error on the face of the record or are arbitrary and oppressive. Thus certiorari looks at the past as a corrective
remedy.

           iii) Illegality, Irrationality and Procedural impropriety

17.     Illegality is when the decision making authority commits an error of law in the process            of taking the decision or making the
 ct, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality.

18.     In the locus clascus case of Council of Civil Service Unions v. Minister for the Civil                                    Service
[1985] AC 375 (cited with approval in Mugabi Edward v. Kampala District Land Board & Wilson Kashaya Misc. Cause No 18 of 2012), Lord
Diplock had this to say on illegality: “Illegality as a ground for judicial review means that the decision maker must understand correctly the law that regulated his decision-making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decided in the event of dispute by those persons the judge, by whom the judicial power of the state is exercised…”

19.     Micheal Allen, Braun Thompson and Bernadette Walsh in their book “Cases and Materials on Constitutional and Administrative Law” also explain what amounts to illegality as hereunder:
(a) An authority must not exceed its jurisdiction by purporting to exercise powers which it does not possess.
(b) An authority must direct itself properly on the law
(c) An authority must not use its powers for an improper purpose
(d) An authority must take into account all relevant considerations and disregard all irrelevant considerations.
(e) An authority must not act in bad faith.
(f) An authority acts unlawfully if it fails to fulfill a statutory duty.

20. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision, such a decision is usually in defiance of logic and acceptable moral standards.

21. On procedural impropriety, in Twinomuhangi v. Kabale District & ors (2006) HCB Vol 1 page 130, Justice Remmy Kasule (as he then was)
stated at page 131 that: Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in the non-observance of the rules of natural justice or to act with procedural unfairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.
C)      The Evidence
i)      Is this a proper case for judicial review

22.     The Respondent argues that this is not a good case for judicial review as the Applicant had the remedies of appeal, revision or constitutional interpretation. In my view, Section 204 (1) (a) and (7) of the Magistrates Court Act reserves the right of appeal in criminal
cases only to the convicted person and the Directorate of Public Prosecutions. So appeal is not an available remedy for the Applicant before me who was not party to the proceedings before the Trial Court.

23.     I also do not see any serious question warranting constitutional interpretation as suggested by the Respondent.

24.     Instead I take the view that the Applicant had the remedy of revision under S. 50 (5) of the Criminal Procedure Code Act Cap 116 ofthe Laws  of Uganda which is not exhausted. On this basis alone this ground as argued by the Respondent makes the application unsustainable. To this end, I am also mindful of the exceptional nature of the supervisory remedy of judicial review.

25.     Be that as it may, taking all the circumstances before me in to account, considering that referring the case for revision will only
result in delayed justice, I have exceptionally allowed to entertain this application, purely to avoid delays and in the interest of delivering substantive justice and not have technicalities stand in its way, as required under Article 126(2) (e) of the 1995 Constitution.

26.     For purposes of judicial review, Rule 5 (1) of the Judicature (Judicial Review) Rules of 2009 requires that an application for judicial review be brought promptly and within three months always from the date when the grounds of the application first arose and the court may only extend the time if good cause is demonstrated. In the circumstances before me, the ruling of the Magistrate was on 25 June 2014 and the application was filed on1 August 2014. This was within time.

27.     In addition there is a clear ruling of the Magistrate in a lower Court and the challenge here is of the process reaching this ruling or
decision.
            ii) Judicial review analysis of the Decision of the Learned Trial Magistrate

28.     Both the Applicant and Respondent went to great lengths demonstrating the correctness or incorrect nature of the Trial Magistrate decision/ruling. I will, however, not concern myself with any evidence or submissions on this because it is irrelevant to judicial review. Rather, I’ll strictly evaluate the decision-making of the Trial Magistrate in reaching her decision, which is the concern of judicial review as explained in the jurisprudence above.

29.     From the construction of the application for the in-camera hearing by the State Attorney and the ruling of the Trial Magistrate, the
ruling concerned the right to proceed in- camera, excluding journalists and the public on the one hand and the right of access to information by the press and the public. The exclusion rights are contained in Article 28 (2) of the Constitution and Section 14 (2) of the Official Secrets Act, Cap. 302, while access to information is embodied in Article 41 (1), and by virtue of Article 41 (2),  the Access to Information Act of 2005. Article

28(1) provides for a fair, speedy and public hearing of criminal cases. Article 43(1) prohibits limitations on enjoyment of rights and freedoms or the public interest. Under Article 43 (2) public interest shall not permit, among others, any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this Constitution. So both sets of rights/interests are legally protected and the Trial Magistrate was dealing with competing rights and/or interests.

30.     In the South African case of Independent Newspapers (Pty) Ltd v. Minister for Intelligence Services (2008) ZACC 6, the issues there
were largely similar to the case at bar. They concerned consideration of in-camera proceedings on the basis of national security and access to court proceedings/information by the press and public. I am persuaded by it as well as the other foreign authorities I cite below and I’ll refer to them for relevant guidance.

31.     The different judges discuss thoroughly the importance of open justice through hearings in open court and the role of media access to
legal proceedings as well as the process to be adopted in such applications. Justice Masenke DCJ at page 39 explains that although the right to open justice is not absolute, in each case where derogation is sought the court will have to weigh the competing rights or interests carefully with a view to ensuring that the limitation it places on open justice is properly tailored and proportionate to the end it seeks to attain. The Court is obliged to have regard to all factual matters and factors before it in order to decide whether a limitation on the right to open court rooms passes constitutional muster. In evaluating the competing constitutional claims premised on open justice on one hand and national state security on the other, the starting point is to recognize the vital significance of openness of court proceedings and court records.”

32.     Justices Mosenke and Yacoob  explain that the mere fact that documents in a court record carry a classification does not oust the jurisdiction of the Court to decide whether they should be protected from disclosure from the media and public.

33.     Justice Sachs emphasized that open justice is an integral part of the constitutional vision of an open and democratic society.

34.     In Biffo s/o Mandirire v. R (1960) EA 965 at pages 967H-968C, it was held that justice should be done openly save in special circumstances for which statutory provision to the contrary is made, and save in certain other very unusual circumstances… It is better that a man should  not be brought to justice at all than that justice should be done to him without the public being given the opportunity of seeing it done.

35.     The same principle was enunciated in Scott v. Scott (1913) AC 417, at pages 438, 439 & 445 where it was explained that the inveterate
rule is that justice shall be administered in open court unless it be strictly necessary for the attainment of justice, there can be no power in the court to hear in camera either a matrimonial cause or any other where there is contest between parties. To justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.

36.     In Maj. General David Tinyefuza v. Attorney General, Constitutional Petition No. 1 of 1996, the Justices of the Court of
Appeal relying on Field’s Law of Evidence at p. 5290, explained that it is not enough for the officer at the head of the Department or Counsel for the State to claim privilege. The Court has a duty to establish that privilege applies. It is possible for the court to find that the privilege does not apply depending on the facts of the case.

37.     Quoting Fields Law on Evidence, the court explained that “an invocation of a supposed inherent secrecy in all official acts and records can lend itself “to mere sham and evasion and applied in such a spirit, it tends to become merely a technical advantage on the side
 f the party who happens to be interested as an official and to be in possession of important proof. There is a long catena of decisions in which warnings have been given by courts of the menace which the supposed privilege implies to individual liberty and private right, and to the potency of its abuse. The highest courts consider the privilege is a narrow one and most sparingly to be exercised.”

38.     If the State objects to the release of the information, it must show that the release of that information is likely to prejudice the security of the State. This can only be established by evidence to show the prejudice the security of the State would suffer. It is not enough to raise state security without more.. It is for the Court to determine whether a matter falls within the exception of Article 41 or not. And to do this, the State must produce evidence upon which the court can act.

39.     In Raichura Ltd v. Sondhi (1967) EA 624, at p. 629, it was held that when a claim of priviledge is made by a police officer, it becomes the duty of the court to inquire in to the circumstances of the claim and decide whether, in those circumstances, it is justifiable for the police officer to make the claim.

40.     In Re- Officer L (2007) UKHL 36 paras 19-29, Lord Carswell explained that any and all claims of public interest immunity must be
objectively verified and justified. It is dangerous for a court of law to grant any public interest immunity privilege on the basis of subjective fears alone.

41.     In R v. Mentuck (2001) 3 SCR 442 at p.459 and 463 paras 26 and 34 respectively, and page 465 paras 38-39, it was explained that the
burden of displacing the general rule of openness of judicial proceedings lies on the party making the application and that there must be a sufficient evidentially basis from which the trial Court must assess the application and upon which it may exercise its discretion judicially.  A sufficient evidentially basis permits a reviewing court to determine whether the evidence is capable of supporting the decision of the trial court.

42.     The import of having both the Applicant and the Respondent before the Trial Magistrate with constitutional protection of their
rights/interests was a high duty on the Trial Magistrate to conduct a weighing or balancing of the two sets of rights or interests in reaching her decision. The Trial Magistrate in reaching her decision was duty bound to inquire into the evidence concerning the alleged secrecy of the audio recordings and communications that were the subject of the application, in order to satisfy herself that indeed the limitation requested by the State was objectively verified, justified and necessary.

43.     The State Attorney should have assisted the Trial Magistrate by providing this evidence but he did not. This, however, does not excuse
the Trial Magistrate; she had a duty to ask for this evidence in order to make an informed and evidence-based analysis in determining the
application to proceed in-camera, but she did not.

44.     As part of the weighing and balancing the Trial Magistrate was also duty bound to evaluate the nature of the right; the nature, extent and importance of the limitation sought by the State and the relationship between the limitation and its intended purpose, especially whether the purpose could be achieved through less means. There is no evidence in her ruling or the record that this was done.

45.     As part of the weighing and balancing, the Trial Magistrate under Article 28 of the Constitution was duty bound to caution herself of
the importance of open hearings and in some way warn herself of the dangers of in-camera proceedings before proceeding to allow the limitation. Unfortunately, she did not.

46.     By virtue of Article 41 and 43, the Trial Magistrate was duty bound to evaluate whether the limitation being sought by the State was sufficient in a free and democratic society. Unfortunately, there is no scintilla of such considerations by the Trial Magistrate.

47.     The cumulative effect of the Trial Magistrate’s failures above, elevant considerations. The trial Magistrate therefore acted unreasonably and unfairly in the process of making her ruling. For this she committed an illegality, was irrational and her decision is clothed in procedural impropriety.

48.     In so doing, the Trial Magistrate indulged in procedural unfairness to the Applicant when she reached a decision concerning the
rights and core modus operendi of members of the Applicant without hearing from any member of the Applicant. This fettered the cardinal
right to a fair hearing under Article 44 (c) of the Constitution. The Trial Magistrate condemned the Applicant members unheard. This clearly, is an error on the face of the record warranting the judicial review remedy of certiorari.

49.     This is compounded by evidence in paragraph 3 and 8 of Mr. Raymond Wamala’s affidavit and paragraph 3 of Mr. Alex Bukumunhe’s affidavit that members of the Applicant were present in Court on 25 June 2014. To the extent that the wording of the ruling specifically targeted the Applicant in words like “…An order is accordingly made that journalists or any person with recording equipment vacate court, and continue to do so for this particular case…” the Trial Magistrate should have been mindful to hear from these members of the Applicant present before reaching her decision/ruling targeting them.

50.     Without the said balancing and weighing of the competing rights/interests in her ruling, it is not demonstrably clear to me if
the Trial Magistrate properly took the public interest in to account when making her decision as required by Article 43 (1) of the
Constitution.

51.     I am mindful that the application before me is not by Mr. Poteri Ronald. Nonetheless, I have something concerning judicial review in his regard. It is not clear in her ruling what the Trial Magistrate based on to find that the Defence prayer for an adjournment to respond
to the issues of the in-camera application was unmeritorious. In the end the Trial Magistrate appears to have reached her decision only on the submissions on the substance from the State Attorney alone. This
is not in line with the right to a fair hearing for the accused. It gives the impression Mr. Poteri was also condemned unheard.

52.     Moreover by giving such a blanket cover of in-camera proceedings for the entire trial, the Trial Magistrate sucked in the Defence case
proceedings. Such in-camera proceedings for the Defence case should have been only at the request of the Defence if they felt it necessary. This, in my view, also keeps the Trial Magistrate’s decision/ruling marred in procedural impropriety.

            iii) Remedies.

53.     Based on the above findings, I hereby quash the ruling/decision of the Learned Trial Magistrate of 25 June 2014, ordering in-camera
proceedings in Criminal Case No. 303 of 2014 against Poteri Ronald.

54.     Any proceedings carried out under this ruling/order are also accordingly quashed.

55.     With these remedies, the other remedies prayed for by the Applicant are catered for and it is not necessary to address them.

56.     I also hereby, under Rule 10 (4) of the Judicature (Judicial Review) Rules, order and remit the matter to the Trial Magistrate with the direction to reconsider it and reach a decision in accordance with
the above findings of this Court. The Trial Magistrate, in particular, is directed to weigh and balance the competing rights and interests in
issue by hearing all the parties concerned, have a critical analysis of relevant evidence, and taking all relevant considerations
enumerated above in to account.

57.      Costs for the Applicant.

I so order.

Complied By Alex Bukumunhe

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