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Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)

Constitutional Court · [1997] UGCC 2 · 1997 Objection Overruled ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ruling on an objection to the admissibility of a document tendered during the hearing of a constitutional petition.
Decision
Objection to admissibility overruled and the document admitted; proceedings relating to the document ordered to be held in camera, with the public and press excluded.

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Holding

The court held the document relevant under sections 8, 9 and 14 of the Evidence Act and rejected the argument that it was inadmissible merely for not being an original or in the expected form. It held that section 121 of the Evidence Act can be invoked only where the state proves the document is an official record relating to affairs of state, the privilege being narrow. Construing existing law under Article 273, the court found section 121's unfettered discretion inconsistent with the Article 41 right of access to information, which the state had led no evidence to displace. The right to fair hearing under Article 44 is non-derogable. The court overruled the objection but ordered the related proceedings be heard in camera.

Facts

During cross-examination of the respondent's witness, Hon. Amama Mbabazi, counsel for the petitioner put to him a document said to be a copy of a radio message from the President to members of the High Command, including the petitioner, calling a High Command meeting. The witness admitted receiving such a message but declined to confirm the document was a true copy without checking his records, and described communications of that nature as restricted army information. The Solicitor General objected to admissibility, contending the document was not an original, that it related to affairs of state and was protected under section 121 of the Evidence Act absent the consent of the head of department, and that the petitioner had not followed the procedure for accessing public documents under section 74. The petitioner contended the document was relevant and that excluding it would breach his non-derogable right to a fair hearing and his right of access to information.

Issues

  1. Whether the document sought to be tendered was relevant and admissible in evidence.
  2. Whether section 121 of the Evidence Act, protecting unpublished official records relating to affairs of state, barred admission of the document.
  3. Whether section 121 of the Evidence Act is inconsistent with Article 41 of the Constitution (the right of access to information).
  4. Whether the right to a fair hearing under Article 44 of the Constitution is derogable on grounds of state security or public order.
  5. Whether proceedings relating to the document should be held in camera under Article 28(2).

Orders

  • Mr. Kabatsi's objection to the admissibility of the document overruled.
  • The proceedings, as much as they relate to the document in question, to be held in camera.
  • The public and the press to accordingly leave court.

Key headnotes

Evidence — State Privilege — Official Records Relating to Affairs of State — Section 121
The privilege under section 121 of the Evidence Act over unpublished official records relating to affairs of state can be invoked only where the state establishes that the document is in fact an official record relating to affairs of state; the privilege is narrow, most sparingly exercised, and the burden of proving it applies rests on the state.
Evidence — Admissibility — Relevance — Form of Document
A document is not inadmissible merely because it is not the original received by a witness or is not in the form the witness expected; where it sets out the substance of a communication relevant to the issues, it cannot be rejected on those grounds, the witness being free to dispute its contents.
Constitutional Law — Supremacy of the Constitution — Construction of Existing Law — Article 273 and Article 2(2)
Existing law saved by Article 273 must be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring it into conformity with the Constitution; by Article 2(2) any law inconsistent with the Constitution is void.
Constitutional Law — Right of Access to Information — Article 41 — State Security Exception
Article 41 confers on every citizen a right of access to information held by the state, restricted only where release is shown by evidence to be likely to prejudice security, sovereignty or privacy; the unfettered discretion conferred on a head of department by section 121 of the Evidence Act is inconsistent with Article 41 and cannot bar admissibility, and the court, not the head of department, determines whether the exception applies.
Constitutional Law — Right to Fair Hearing — Non-Derogable Rights — Article 44
The right to a fair hearing under Article 44(c) is non-derogable and cannot be limited even on grounds of public order or national security; Article 44 is not to be read down by Article 41, and the court instead protects security interests by hearing the matter in camera under Article 28(2).
Constitutional Law — Interpretation — Generous and Purposive Construction
Constitutional provisions are vital, living principles to be given a generous and purposive construction, consistent with the threefold injunction under Article 20(2) to respect, uphold and promote the fundamental rights and freedoms enshrined in Chapter Four.

Legislation cited (16)

  • Evidence Act s.8
  • Evidence Act s.9
  • Evidence Act s.14
  • Evidence Act s.74
  • Evidence Act s.121
  • Indian Evidence Act s.123
  • Constitution of Uganda 1995 Article 2
  • Constitution of Uganda 1995 Article 2(2)
  • Constitution of Uganda 1995 Article 20(2)
  • Constitution of Uganda 1995 Article 23(2)
  • Constitution of Uganda 1995 Article 28(1)
  • Constitution of Uganda 1995 Article 28(2)
  • Constitution of Uganda 1995 Article 41
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 44
  • Constitution of Uganda 1995 Article 273

Cases cited (7)

  • Robinson v State of South Australia [1931] AC 704
  • Conway v Rimmer & Another [1968] AC 910
  • British Steel Corporation v Granada Television [1981] AC 1096
  • Burmah Oil Co Ltd v Governor & Co of the Bank of England [1980] AC 1090
  • Trop v Dulles 356 US 86 (1958)
  • A Juvenile v The State 1989 LRC (Const) 774
  • Chng Suan Tze v Minister of Home Affairs [1989] LRC (Const) 683
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.