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Mabirizi loses petition against DPP taking over Kyabazinga marriage case

Kyabazinga William Nadiope and wife Jovia Mutesi

Kyabazinga William Nadiope and wife Jovia Mutesi

Jinja Grade One Magistrate's court has upheld a decision by the director of public prosecutions (DPP) to take over the criminal case filed against Busoga king, William Wilberforce Gabula Kadhumbula Nadiope IV.

Kampala-based lawyer, Hassan Male Mabirizi dragged Nadiope and his newlywed wife, Jovia Mutesi to court others for allegedly engaging in “an illegal marriage”.

The royal couple was sued alongside Archbishop Stephen Kaziimba Mugalu who presided over the marriage vows, and Buganda queen Nnaabagereka Sylvia Nagginda who signed on the couple's marriage certificate as a witness. According to Mabirizi, at Christ Cathedral Bugembe being the scene of the crime, Nadiope, Mutesi, Kaziimba, and Nagginda participated in, officiated, and witnessed a ceremony of marriage, well aware that it was invalid, criminal and void. 

This, he states, is because Nadiope had reportedly earlier contracted marriage before the registrar of marriages in England with Alison Anna in December 2016 at Mildam House Bunbaby Road, Portsmouth. Mabirizi thus levied different charges against the accused including fictitious marriage, bigamy, marriage with a person previously married, unlawfully performing a marriage ceremony, and conspiracy to commit felonies against Kazimba and Nagginda.

The DPP through the resident state attorney of Jinja took over the case in a letter dated November 21, 2023. On Friday, grade one magistrate Anxious Atumanya, dismissed the application by Mabirizi, on the basis that the law does not provide at what stage the DPP should take over proceedings but rather gives that office power to take over proceedings instituted by other persons.

"The article does not require the consent of court when the DPP is taking over but rather the consent is necessary when the DPP is withdrawing the same Section 43 (1) of the Magistrates Act Cap 16 states that where criminal proceedings have been instituted by a person other than a public prosecutor or a police officer under section 42, the director of public prosecutions may take over and continue the conduct of those proceedings at any stage before the conclusion of the proceedings," ruled Atumanya.

In her ruling, Atumanya further found that Mabirizi wrongly sued the DPP, saying that much as it is a government department, it is not a corporate body with powers to sue or be sued.

"Based on the above authority, the DPP cannot be sued as that office cannot sue or be sued. I find that the application was wrongly instituted against the respondent and as such the same cannot stand and ought to be struck out," said Atumanya.

The magistrate said the DPP's take-over letter was properly filed before the court and as such, Mabirizi ceased being a prosecutor. Immediately after the decision, Mabirizi appealed against the decision in the High court and wants it to be set aside. 

He argued that the learned chief magistrate ignored statutory and constitutional provisions as well as decided cases placed before her and further acted in contravention of substantive justice by holding that the DPP's actions cannot be challenged other than suing the Attorney General. The matter will return to court on July 3. 

Comments

0 #1 Lakwena 2024-06-10 14:43
Love him or hate him, without fear or favor, Hassan Male (by name Hassan I didn't even know guy is a Muslim) is such a Daredevil, prolific and expeditious lawyer in town.

In other words,I wonder what drives him in as far as controversial court/legal cases are concern.
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