The head of the police directorate of Crime Intelligence, Lt Col Ndahura Atwooki Birakurataki, has asked High Court in Kampala to disqualify FDC candidate, Kizza Besigye, from taking part in the February 2016 presidential elections.
Ndahura sued Besigye in October 2012 for allegedly defaming him in interview with The Observer including the newspaper and its editor as well.
Besigye allegedly said that Ndahura, while commanding the then Presidential Protection Unit (PPU), was behind the killing of John Baronda in Rukungiri, and that the army after that incident, promoted him to the rank of Lieutenant Colonel.
Ndahura in a letter dated January 7, 2016, asks Justice Steven Musota, the head of High Court civil division, to speed up the hearing of a defamation case he filed against presidential candidate Dr Kizza Besigye.
According to Ndahura, it would have been better if the case is tried before the February 18 elections so Besigye can be disqualified before then.
Ndahura argues that probably after elections, Besigye could have an office that makes him immune of such trials but that the case should be handled before that happens.
Here is the full letter:
Lt. Col. Ndahura Atwooki Birakurataki
Date: 7th January 2016
The Trial Judge
High Court of Uganda,
RE: CIVIL SUIT NO.319 OF 2012: LT. COL. NDAHURA ATWOOKI BIRAKURATAKI- VS- COL. (RTD) DR. KIZZA BESIGYE AND CIVIL SUIT NO. 320 OF 2012: LT. COL. NDAHURA ATWOOKI BIRAKURATAKI- VS- DR. OLIVE KOBUSINGYE
The above refers wherein I am the plaintiff
Reference is made to the Constitution:
Article 28(1) Provides that “In the determination of civil rights and obligations or any criminal charge, a person is entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.”
Article 21(1) provides that “All persons are equal before the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
Article 44 provides for the prohibition of derogation from particular human rights and freedoms like the right to a fair hearing.
My Lord these are cases that have taken over three years without a hearing. After extensive consultations with various legal authorities following your decision to adjourn the cases to the 3rd of March 2016 I do humbly pray that the hearing be brought forward. The current date constitutes a mockery of justice as it is a hearing deemed in vain as one of the defendants, Rtd. Col Dr Besigye aims at defeating justice by running for immunity against any court proceedings. He is a presidential candidate. Election date is 18th February 2016. My Lord Article 98(4) of the Constitution of the Republic of Uganda provides that “While holding office, the president shall not be liable to proceedings in any court.”
In Ojuku v Nnruka (2000) I NWLR 348, State v. Duke & Anor. (2003) FWLR 1654 1683 C.A Notably, Ceekay Traders Ltd. V. General Motors Ltd. (1992) 2 NWLR state that “unnecessary and prolonged adjournments lead to frustration of litigants and sometimes, they may lead to a miscarriage of justice. Application for adjournment which are designed to delay or defeat justice should be refused”
My Lord the state of the matter raises issues of natural justice. In English law, natural justice is the rule against bias and the right to a fair hearing or by extension the general “duty to act fairly”. The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias.
My Lord I’m informed that apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behavior gives rise to a suspicion that he or she is not impartial.
My lord justice delayed is justice denied. I am afraid my conscience sees apparent bias in the handling of the cases at hand. I do therefore pray that you excuse yourself from the cases in case you find my conscience correct for whatever reasons best known to yourself.
In R v Aberdare Justices exp DPP  155 JP 324. Bingham LJ said: “It has been said time and time again that delays in the administration of justice are a scandal…” Also Local Government Board v. Arlidge (1915) AC 120 (138) HL, Viscount Haldane observed, “…those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to met out justice.”
My Lord with the last adjournment I cannot help recall the dismissal of the same cases first time they came before you. Whereas at your discretion there was a wide range of options, you chose the worst when I delayed to turn up for the first time. I was late by only 10 minutes. I had been attending from abroad several times without a hearing as if court was only waiting for the slightest delay.
My Lord I believe courts owe the people of Uganda the duty to determine dishonesty when brought before the temple of justice. This is more pertinent now as the defendant (Besigye) aims at a false political victory of whatever percentage since his campaign package includes the falsehood complained about if not resolved. Ugandans need a leveled ground free of lies in order to make a free choice.
Under paragraph 12 of my plaint against Besigye and others I did state that as a matter of fact the Defendants jointly and severally intended to and did for political and financial gain lower my reputation with their baseless sensational fabrications.
Accordingly therefore I did under paragraph 18 pray for “(a) A permanent injunction restraining the defendants by themselves, their servants or agents from publishing and / or causing to be published of any defamatory words or any words of a like effect against the Plaintiff. ….. (d) Defendants publish an apology to the Plaintiff in the 2nd Defendant’s Newspaper with prominence and wording agreed to by the Plaintiff in advance.” These prayers have not been granted to date.
My Lord it is now a fact that the defamation statement by the defendants was a political statement as well. There is no doubt that the lies contained therein have a bearing on the decision Ugandans are about to make in the forthcoming elections. Besigye unwittingly refers to 2001 petition judgment as testimony in his allegation and defence. On the contrary the reasoning of Justice Mulenga just reveals his hidden motive that he “relied on the fact that the soldiers, being charged with the President’s personal security, were under his intimate direction, so that he would know their activities, which in turn they did with his consent or approval.
My Lord the persecution threats manifested in Besigye’s WSD calls for a special and expeditious disposal of the matter before the general elections. Paragraph 6 (i) states that “the 1st Defendant did intend to convey the message that persons with command responsibility can become culpable for actions of their subordinates.”
My Lord Article 102 (c) provides that a person is not qualified for election as President unless that person is—a person qualified to be a Member of Parliament. According to Article 80(2) (f) “A person is not qualified for election as a Member of Parliament if that person— has, within the seven years immediately preceding the election, been convicted by a competent court of a crime involving dishonesty or moral turpitude”. In other words if the judgment had been given earlier maybe the said defendant would not have been eligible.
My Lord, to this end I am informed that “where adjournment is sought by a party to a case, the application must first be resolved before a decision is reached as to whether or not to proceed with the hearing of the matter so as not to violate the right to fair hearing under s. 36(1) CFRN 1999: Etim v.Registere Trustees of the Presbyterian Church of Nigeria (2004) All FWLR [pt. 227] 574 @ 587 C.A.].”
I am also informed that “discretion to grant adjournment should be exercised judicially and judiciously. An application for adjournment should be refused where the adjournment being sought is done with the aim of delaying the hearing of the substantive appeal; expeditious hearing of appeals to reduce period of uncertainty of unsuccessful party at the trial inevitably made to experience: Agbonkpolor v. Adubor (2000) FWLR [pt. 66] 144@ 752 C.A.”
“[No encouragement should be given to counsel who are not ready to prosecute their cases.873. Unnecessary and prolonged adjournments lead to frustration of litigants and sometimes, they may lead to a miscarriage of justice. Application for adjournment which are designed to delay or defeat justice should be refused: State v. Duke & Anor. (2003) FWLR [pt.171]1654@ 1683 C.A Notably, Ceekay Traders Ltd. V. General Motors Ltd. (1992) 2 NWLR [pt.222] 132 and Ojuku v Nnruka (2000) I NWLR [pt. 641] 348 further stipulate that unnecessary adjournments which lead to delays and miscarriage of justice must be refused.”
In R v Hereford Magistrates’ Court ex p Rowlands  QB 110. Lord Bingham CJ said at para 30: “It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should examine the circumstances leading to applications to delay, the consequences both for the prosecution and defence. Ultimately they must decide what is fair in the light of all those circumstances. … ”
My Lord considering paragraph 18 of my plaint against Besigye and others, and the threat under paragraph 6(i) of Besigye’s WSD in addition to the context of his allegations as well as his defense in general I do therefore pray that;
The Defendant is stopped from running for the office which gives him immunity as well as power until the matter is resolved. I also pray that the hearing date be brought forward to a date before elections slated for the 18th February 2016 and that you excuse yourself from these cases just in case you find that my fears have merit. It is also my humble prayer that justice is not only done but also be seen to be done.
Most obliged My Lord
Copy to:Col. Ndahura Atwooki Birakurataki