[2025] UGHCCRD 26

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **CRIMINAL DIVISION**

## CRIMINAL REVISION NO 0013 OF 2025

(Arising from Chief Magistrate's Court Of Mengo at Nateete/Rubaga Criminal Case No CO-605-2023)

1. WAKAMALA ALEX 2. MWANDHA JAMILU.................................... **VERSUS** UGANDA...................................

# **BEFORE: HONOURABLE JUSTICE DAVID MATOVU RULING**

#### **INTRODUCTION**

- 1. Wakamala Alex and Mwandha Jamilu (hereinafter referred to as the "applicants") filed Criminal Revision Application No 0013 of 2025 in the Criminal Division of the High Court of Uganda seeking the following reliefs: - i. That the ruling and orders of His Worship Byarugaba Adams passed on the 5^th April, 2024 banning all media houses from audio and video recording of proceedings in CO-605-2023 using cameras, phones or any recording gadget be revised and or set aside.

- That the above orders be reviewed and replaced with fair and ii. just orders allowing all media houses to record verbatim audios and videos of the proceedings in CO-605-2023 using cameras, phones or any recording gadgets. - The orders only be limited to restricting anybody or individuals iii. or groups from offending the sub judice rule and to hold anybody or any such individuals or groups irrespective of rank in contempt of the sub judice rule.

#### **BACKGROUND FACTS.**

- 2. The applicants together with seven (7) other persons were charged with four (4) counts namely: Conspiracy to defeat justice contrary to Section 103(a) of the PCA (currently Section 90), Conspiracy to commit a felony contrary to Section 390 (currently Section363), Criminal Trespass contrary to Section 302 (currently Section282) and Giving false information to police contrary to Section115(c) (currently Section102). - 3. When the above charges were read to the accused persons who included the applicants they all pleaded not guilty and their trial commenced before His Worship Byarugaba Adams a Principal Magistrate Grade 1 at the Chief Magistrate's Court of Mengo sitting at Nateete/Rubaga vide CR-CO-605-2023 **Uganda versus Serugo Peter & 8 others.** - 4. PW1 Magumba Aggrey testified on 6^th October, 2023 and thereafter two (2) other witnesses testified without any of the parties raising any concerns until the 10^th November, 2023 when PW4 Juliet Naiga was about to testify and this is when the counsel for the state sought protection from the media exposing the identity of PW4.

- 5. After the testimony of PW4 hearing of the case proceeded normally with the media publishing court proceedings in this case and perhaps the only incident worth mentioning was on 11^th December, 2023 when counsel for the state attempted to address court on the breach of the sub judice rule but the learned trial Magistrate advised him to raise this matters later. - 6. Other prosecution witnesses PW5, PW6, PW7 and PW8 testified without any counsel raising issues about breach of the sub judice rule or any form of misconduct by the media, until the 5^th April, 2024 when counsel for the state raised a formal complaint relating to the vulgarization of the trial by the media. - 7. The learned trial magistrate recorded the concerns of counsel for the state and he also listened to the responses of counsel for the accused persons before issuing the orders now the subject matter of the instant application. - 8. Upon court issuing the orders on 5^th April, 2024 the prosecution proceeded to present PW9 on the same day of 5^th April, 2024 and thereafter produced an additional four (4) witnesses until they closed their case on 17^th October, 2024, without any counsel or party raising any concerns about the impropriety of the orders issued by the learned trial magistrate on 5^th April, 2024. - 9. The case is now at the stage of hearing the defence and one $(1)$ defence witness A6 Kagoro Martin has already testified. - 10. The applicants filed the instant revision application on 14^th March, 2025 and the same has been heard on its merits by this court hence this ruling.

#### **LEGAL REPRESENTATION**

11. Mr. Boniface Lukwago together with Mr. Ronald Ssali represented the applicants while Mr. Jonathan Muwaganya appeared for the state.

### EVIDENCE OF THE APPLICANTS

- 12. According to the affidavit of Wakamala Alex the 1^st applicant, deponed on 13^th March, 2025, he stated that he is one of the accused persons in Criminal Case No CO-605-2023 being handled by His Worship Byaruhanga Adams. - 13. That hearing of the above criminal case had substantially proceeded as the prosecution had closed its case and all the nine (9) accused persons had been put to their defence. - 14. That during the hearing of the prosecution case, court allowed media houses and members of the public to attend court and record all the proceedings in audio and video form and thereafter they published audios, videos of their recordings in the print media platforms. - 15. That indeed the prosecution evidence was extensively published without the 1st applicants" version of the story. - 16. That on 5^th April, 2024 after several prosecution witnesses had testified and uttering very damning accusations against the accused persons, the state made an oral application seeking to ban all media houses from audio and video recording of the proceedings in CO-605-2023 under the pretext of observing the sub judice rule. - 17. That the basis of the above oral application was Tiktok videos of some pastors including Pastor Robert Kayanja the complainant in CO-605-2023 discussing the merits of the case in their different churches.

18. That the learned trial magistrate then issued an order banning all media houses from audio and video recordings in CO-605-2023 using cameras, phones or recording gargets.

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- 19. That in the 1st applicant's view the above order was unfair and unjust as it offended the cardinal principle of fairness and equal treatment before courts of law and it gags the media without lawful justification. - 20. That the order has the effect of tarnishing the image of the accused persons in the eyes of the public who have already convicted them and even if the court acquits them at the end of the trial members of the public will not believe their innocence. - 21. That whereas the `1st applicant agreed with the order in as far as not offending the sub judice rule, but according to him this did not justify the banning of media houses from recording audio and video coverage of the proceedings. - 22. That the defence was in essence being treated differently from the prosecution in this case. - 23. That the order banning recording of audio and video coverage of the proceedings ought to be revised and set aside. - 24. The affidavit evidence of Mwandha Jamilu the 2^nd applicant is not very different to that of Wakamala Alex the 1^st applicant and for this reason court will not reproduce the evidence of the $2^nd$ applicant as the same has been considered while analyzing that of the $1^{st}$ applicant.

## EVIDENCE OF THE RESPONDENT

25. According to the affidavit in reply by Caroline Mpumwire filed on the 24^th June.2025 she stated that she was a Senior State attorney in the Office of the Director of Public Prosecutions and one of the prosecutors in CO-605-2023 and she is well acquainted with the facts of this case.

- 26. That the prior to April, 2024 the defence team had also raised a complaint against unfair and misleading media reports on court proceedings in CO-605-2023. - 27. That after the testimony of every prosecution witness the social media would be awash with manipulated, sensationalized video and audio clips of what the witnesses had purportedly said in court with images of the witnesses, learned counsel and even the trial magistrate. - 28. That on 11^th December, 2023 counsel for the state asked court to allow him address the issue of the sub judice rule but court did not permit him to do so on this date but court allowed counsel for the state to raise this issue on 5^th April, 2024. - 29. That even defence counsel addressed court on this issue before court made the orders now the subject of this application. - 30. That the order made by the learned trial magistrate was passed while the prosecution case was still ongoing and not at the commencement of the defence as the applicants seem to suggest in their affidavits. - 31. That the prosecution closed its case after the testimony of PW13 and this was on the 17^th October, 2024 and a ruling on case to answer was made on the 20^th December, 2024 requiring all the nine (9) accused persons to defend themselves. - 32. That the order in issue was passed on 5^th April, 2024 with no complaint being raised until the 14^th March, 2025. - 33. That the accused persons refused/declined/delayed to make their defence on the 24thJanuary, 2025, 26^th February, 2025, 28^th March, 2025, 25 April, 2025 until the 5^th May.2025 when A6 Kagoro Martin gave his evidence as the first defence witness. - 34. That that the learned trial magistrate did not ban media coverage but only regulated the manner of coverage of proceedings for the orderly management of the trial. 

35. That the applicants are interested in vulgarizing the proceedings by creating a false misrepresentation of the testimony of witnesses.

## **LEGAL ARGUMENTS BY COUNSEL FOR THE APPLICANTS**

- 36. Counsel Boniface Lukwago submitted that order of the learned trial magistrate passed on 5^th April, 2024 gagged media houses and other interested parties in CO-605-2023 from enjoying their constitutional rights enshrined in Articles 28 and 126(2) of the Constitution of the Republic of Uganda. - 37. Counsel submitted that the prosecution case was conducted in the presence of the media but when it came to the defence case the learned trial magistrate changed the rules of the game by gagging the media. - 38. Counsel relied on the case of Tinyefunza versus Attorney General Constitutional Petition No 1 of 1996 to argue that the media can only be stopped from covering court proceedings in special circumstances which special circumstances did not exist in CO-605-2023. - 39. Counsel implored court to allow this application and set aside the order of the learned trial magistrate passed on 5^th April, 2024.

## LEGAL ARGUMENTS BY COUNSEL FOR THE RESPONDENT

- 40. Counsel Jonathan Muwaganya submitted that this application was an abuse of court process as it was filed after ten $(10)$ months from the date when court issued the order complained of and counsel relied on the provisions of Sections 28 and 50(8) of the Criminal Procedure Code Act which give the state 14 days and 30 days respectively within which to file such applications. - 41. Counsel also argued that there was no order capable of revision in terms of Section50(1) of the Criminal Procedure Coed Act as according to him no

miscarriage of justice had been occasioned to the applicants by the order complained of.

$\mathbf{I}$

- 42. Counsel argued that initially defence counsel raised a similar concern and even when counsel for the state raised this matter, counsel for the accused agreed with them. - 43. It was argued for the respondent that after the order was passed the prosecution went ahead to present four (4) witnesses without any complaint from the applicants and as a matter of fact the case is now on defence and media still appears in court but in strict compliance of the court order passed on 5^th April, 2024. - 44. Counsel implored court to invoke the provisions of Section 17 of the Judicature Act and dismiss this application. - 45. In a brief rejoinder Counsel Boniface Lukwago conceded that he did not have the full record of proceedings in CO-605-2023 as he only relied on extracts and he also argued that since the decision in this case was a final decision the same could be subjected to an application for revision.

## **DECISION OF COURT**

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- 46. It is rather unfortunate that counsel for the applicants filed this application relating to breach of constitutional rights without perusing the entire court record of proceedings in CO-605-2023. Fortunately, this court has had an opportunity of perusing the entire record of proceedings and has relied on the same in making this ruling. - 47. With due respect to counsel for the respondent court finds the provisions of Section 28 of the Criminal Procedure Code Act as relevant to appeals and not applications for revision. - 48. Court also finds the provision of Section 50 (1)(b) as relevant to this matter and they read as follows:

- (1) In the case of any proceedings in a magistrate's court the record of which has been called for or which has been reported for orders, or which comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court may- - (a) In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 34 and 41 and may enhance the sentence: - (b) In the case of any other order, other than an order of acquittal, alter or reverse the order. - 49. Court finds the above provisions as empowering this court to entertain such revisional applications where a party feels that a miscarriage of justice has occurred and such applications can be filed any time provided the Director of Public Prosecutions is notified of any such an application. Therefore court cannot fault the applicant for filing the instant application. - 50. However, court agrees with counsel for the respondent that in the instant case this application was filed rather late when the order complained of had been in operation for close to ten (10) months. Such inordinate delay is inexcusable because a lot of evidence has been put onto the court record under the operation of the orders passed by the learned trial magistrate on 5^th April, 2024. - 51. If this court were to allow this application it would open up audio and visual recordings of some defence witnesses without capturing the testimony of the four $(4)$ prosecution witnesses and the one $(1)$ defence witness A6 Kagoro Martin who has already testified in strict conformity of the orders of the learned trial magistrate issued on 5^th April, 2024. Court cannot permit such a state of anarchy to prevail as it would prejudice the five (5) witnesses who testified during the subsistence of the court order.

- 52. Court has also carefully perused the proceedings of the lower court and on the 10^th November, 2023 counsel for the state made an application to stop the media from covering the testimony of PW4 for security reasons and after listening to both counsel the learned trial magistrate found merit in this application and ordered that the media would not cover, take a picture of the witness or record her voice as she testified. - 53. Interestingly, the applicants did not find any problem with this order passed by the same court on 10^th November, 2023 and soon after the testimony of PW4 this order ceased to operate. Court finds to be proof that the learned trial magistrate at all material times acted in good faith while issuing orders relating to media coverage in CO-605-2023. - 54. Similarly, on the 1^th December, 2023 counsel for the state tried to address court on the sub judice rule but the learned trial magistrate directed him to address court on this issue later. Court also finds this as further proof that indeed the learned trial magistrate was not acting maliciously in the management of the case before him. - 55. The relevant record of proceedings of 5^th April, 2024 is found at pages 184-189 of the certified record of proceedings in CO-605-2023 and perhaps if counsel for the applicants had perused the same he would have advised the applicants appropriately. - 56. From the record, the learned trial magistrate listened to all counsel on this application and apparently even defence counsel in principle agreed with the strict adherence to the sub judice rule and the learned magistrate before issuing the order complained of, found that the different versions of evidence were creating an avenue to breach the sub judice rule in this case. - 57. Court banned live broadcasts of the proceedings but allowed verified media personnel to sit in court and make write ups of their stories for publication in the

print media and indeed there are no other complaints on court record in CO-605-2023 relating to media coverage after the orders issued on 5^th April, 2024.

- 58. The High Court should as much as possible desist from interfering with orders issued by the lower courts, especially where such orders are made in good faith and main the reason for this is that the presiding judicial officers are in the best position to assess the court environment and should therefore be allowed to issue appropriate orders to ensure effective management of cases before them. - 59. Therefore, court finds that whatever the learned trial magistrate did in this case including the orders passed on 5^th April, 2024 was done in good faith and was necessary for the proper and effective management of proceedings in CO-605-2023 and these orders should remain in place until the logical conclusion of CO-605-2023. - 60. This application is accordingly dismissed and hearing of the defence case should proceed in strict compliance with the orders of the learned trial magistrate passed on 5^th April, 2024.

... Day of $\mathcal{M}$ ....................................... Dated this...

David Matovu Judge