Prosecution opts for retrial of MP stalker Brian Isiko
Prosecution was moved to ask for retrial after the defence team poked holes into the conviction and sentence of Brian Isiko
SEXUAL HARASSMENT | The man convicted of sexually harassing a woman legislator could face retrial before the same Magistrate Court that handed him a two-year jail term.
In a turn of events, the Directorate of Public Prosecutions (DPP) on Wednesday asked the High Court to consider sending back the file of Brian Isiko, 25, to the magistrate court for re-trial.
Isiko was in July convicted on own guilty plea of inundating Kabalore Woman Member of Parliament Sylvia Rwabwogo with love messages sent through mobile phone texts.
After being sent to spend two years in Luzira Prison, rights activists protesting, saying the sentence was harsh and moved to appeal the decision of Grade One Magistrate Gladys Kamasanyu. Isiko was subsequently granted temporary reprieve pending the High Court’s decision.
However, on Wednesday, State Attorney Joan Tumwikirize was forced into asking Justice Jane Frances Abodo of the High Court Criminal Division for retrial after Ramadhan Waiswa, Isiko’s lawyer, poked holes into the conviction by the Buganda Road Court Grade One Magistrate.
Waiswa had just told Justice Abodo that the whole process that led to Isiko‘s conviction was null and void since he never pleaded guilty to the charges of cyber harassment and offensive communication as Kamasanyu ruled.
Isiko, a 25-year- old student of YMCA Jinja Branch, according to Waiswa, wasn’t equivocal in admitting the charges as the law mandates.
Waiswa proceeded to quote verbatim what Isiko told Kamasanyu: “Everything she [Rwabwogo] said is correct. I wanted her to become a personal friend. I ask for forgiveness. I also wanted her to give me ideas on how to run my poultry project.
“I did not have any bad intention. In fact, that is why I agreed to meet her so that we could talk.”
With that, Waiswa argued that such wording doesn’t amount to clear and equivocal admission of guilt that the law demands.
Waiswa said that Isiko had initially denied the charges upon being read to him and so in order to change his plea, Kamasanyu’s court had to go through another process of re-reading the charges and telling him the ramifications of admitting to charges, something he said was never complied with.
“So we contend that that the magistrate erred in law when she changed the plea of the applicant,” Waiswa said.
Defence attacks further
The defence team appears to have done a thorough homework and were in an aggressive mode when they told the High Court they had more reasons for it to quash the conviction and sentence.
Waiswa cited the failure by Kamasanyu to properly evaluate the specific evidence supporting each count on the charge sheet.
He said a look at the messages that Isiko sent Rwabwogo show that they were but not limited to a line from the late Don Williams song, “Some Broken Hearts Never Nend,” Akon’s “Sorry, Blame It On Me,” and Enrique Iglesias’ “Number One”–, which, he argued, don’t contain any offensive, luscious, obscene or indecent message to compel Kamasanyu to invoke the offensive communication charge.
“Evaluation of evidence is not done in general; it must be done specifically factoring in every specific charge,” Waiswa, of Katuntu and Company Advocates, submitted, saying that Kamasanyu didn’t do so when convicting Isiko.
“There is no evidence to prove either cyber harassment or offensive communication charges,” he said.
Another mistake that Kamasanyu committed if Waiswa’s arguments are go by, is accepting Rwabwogo to tender in her mobile phone printouts which showed the barrage of messages Isiko had sent her last November.
“The law requires the person who retrieved and printed out this phone records, who in this case was a police officer, tenders in the evidence but it was the complainant who tendered in the evidence, That’s not how things are done because records can be doctored,” Waiswa said.
The prosecution had responded to the submissions by asking the court to instead refer the case file back to the originating magistrate court for retrial.
The defence team plea to Judge Abodo was that n the event that the court does not agree with prayer that the conviction and sentence are quashed, “at least the judge should reduce the latter to “a mere fine.”
Judge Abodo set September 25 to pronounce herself on the matter.