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Muhwezi v Attorney General and Another (Miscellaneous Application No. 18 of 2007)

Court of Appeal · [2007] UGCA 88 · 2007 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim injunction pending the disposal of Miscellaneous Application No. 17 of 2007 (itself arising from Constitutional Petition No. 10 of 2007)
Decision
Interim injunction granted in part: demands for refund and Leadership Code punishment restrained, but criminal prosecution allowed to continue, pending disposal of Miscellaneous Application No. 17 of 2007

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Holding

The single judge granted an interim injunction in part. The application was held competent despite minor citation errors and alleged affidavit falsehoods, which were treated as technicalities avoidable under article 126(2)(e). The petition raised triable issues for constitutional interpretation. The court declined to halt the criminal prosecution, since the impugned Penal Code sections were not themselves challenged and the appeal system could remedy any prejudice. However, it restrained the IGG's demand for refund of GAVI funds, finding it presupposed the applicant's guilt and breached the inviolable right to a fair hearing under articles 28 and 44(c). It also suspended any attempt to remove the applicant from Parliament under the Leadership Code Act pending related proceedings.

Facts

The President directed the Inspector General of Government (IGG) to investigate alleged mismanagement and abuse of Global Alliance for Vaccines and Immunisation (GAVI) funds received by the Ministry of Health while the applicant was Minister of Health. The IGG's April 2007 report implicated the applicant. He was charged at Buganda Road Chief Magistrate's Court with abuse of office, causing financial loss, embezzlement and theft, to which he pleaded not guilty. The applicant filed Constitutional Petition No. 10 of 2007 challenging the validity of the report and the constitutionality of certain provisions. The Permanent Secretary, Ministry of Health, on the IGG's directive, demanded the applicant refund stated sums of GAVI funds, failing which provisions for vacating his parliamentary seat under the Leadership Code Act would be invoked. The applicant sought an interim injunction restraining enforcement of the IGG report's recommendations pending disposal of Miscellaneous Application No. 17 of 2007.

Issues

  1. Whether the application was defective for citing non-existent rules and for being supported by an affidavit containing falsehoods.
  2. Whether the court had jurisdiction to entertain the application for an interim injunction.
  3. Whether Constitutional Petition No. 10 of 2007 discloses triable issues and is not frivolous or vexatious.
  4. Whether refusal to grant the interim injunction restraining ongoing criminal prosecution would cause irreparable damage to the applicant.
  5. Whether refusal to restrain the IGG's demand for refund of GAVI funds would cause irreparable damage and prejudice the applicant's right to a fair trial.
  6. Whether the IGG could punish the applicant under the Leadership Code Act by removal from Parliament while related matters were pending in court.

Orders

  • The preliminary objection to the application is overruled with costs to the applicant.
  • The order for injunction is granted to the extent set out, applying only to the applicant and nobody else.
  • The prosecutions and other court actions arising from the GAVI report should continue.
  • All demands on the applicant to refund GAVI funds should stop forthwith until the disposal of Miscellaneous Application No. 17 of 2007.
  • All attempts to punish the applicant for alleged breach of the Leadership Code Act are suspended until that application is finalised.
  • The costs of this application should abide the results of Miscellaneous Application No. 17 of 2007.

Key headnotes

Affidavits — Defects and Falsehoods — Effect of Article 126(2)(e)
A minor or inconsequential falsehood in an affidavit, or omission of the standard recital that information was obtained from knowledge, information and belief, does not invalidate the affidavit where it is apparent on its face how the information was obtained; such matters are technicalities to be avoided under article 126(2)(e) of the Constitution.
Interim Injunction — Conditions in Constitutional Court — Jurisdiction, Triable Issues and Irreparable Damage
An interim injunction may be granted by the Constitutional Court where the court has jurisdiction, the suit from which the application arises discloses triable issues and is not frivolous or vexatious, and failure to grant the order would render the disputed matter nugatory in a manner that cannot be redressed by an award of damages.
Constitutional Petition and Criminal Prosecution — When Prosecution May Continue
A constitutional petition does not automatically halt a pending criminal prosecution; where the statutory provisions under which the accused is being prosecuted are not themselves challenged in the petition, the prosecution may continue, and any prejudice can be remedied through the appeal system.
Right to Fair Hearing — Presumption of Innocence — Demand for Refund Pending Criminal Trial
Once the State or the IGG has charged a person in court with offences relating to particular funds, it loses the right to demand refund of those funds until the courts have pronounced on the matter; such a demand presupposes guilt and violates the right to a fair hearing and presumption of innocence under articles 28 and 44(c), which is inviolable and non-derogable.
Leadership Code — IGG as Appropriate Tribunal — Article 83(1)(e)
While the IGG is the appropriate tribunal of first instance for purposes of article 83(1)(e) of the Constitution, where the IGG's findings are being challenged in a court vested with appellate or original jurisdiction, the person found guilty by the IGG cannot be punished under the Leadership Code Act until those proceedings are concluded, and the presumption of innocence continues to apply.

Legislation cited (19)

  • Constitution of the Republic of Uganda 1995 art.137
  • Constitution of the Republic of Uganda 1995 art.28(1)
  • Constitution of the Republic of Uganda 1995 art.28(3)
  • Constitution of the Republic of Uganda 1995 art.44(c)
  • Constitution of the Republic of Uganda 1995 art.83(1)(e)
  • Constitution of the Republic of Uganda 1995 art.126(2)(e)
  • Constitutional Court (Petitions and References) Rules 2005 r.23
  • Judicature (Court of Appeal Rules) Directions 2002 rr.2(3), 43, 44
  • Civil Procedure Rules Order 41
  • Leadership Code Act No.17 of 2002 s.35(c)
  • Leadership Code Act No.17 of 2002 s.20(3)
  • Leadership Code Act No.17 of 2002 s.15(7)
  • Leadership Code Act No.17 of 2002 s.10(1)
  • Inspectorate of Government Act No.5 of 2002 s.21
  • Penal Code Act s.87
  • Penal Code Act s.269(1)
  • Penal Code Act s.268
  • Penal Code Act s.254
  • Penal Code Act s.261

Cases cited (6)

  • Kabwimukya vs. Kesigwa [1978] HCB 25
  • Abdu Serunjogi vs. Sekitto [1977] HCB 242
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Petition No. 2 of 1998)
  • Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Arulu John v Attorney General (Constitutional Petition No. 4 of 1997)
  • John Lukyamuzi v Attorney General and Another (Constitutional Petition No. 19 of 2006)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.