In the matter of a reference from High Court of Uganda and In the matter of Sheik Abdul Karim Sentamu and Another (Constitutional Reference 7 of 1998)

Constitutional Court · [1998] UGCC 5 Preliminary Objection Upheld ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional reference from the High Court under Article 137(5), arising out of a habeas corpus application.

Decision

Reference held not properly before the Constitutional Court and returned to the High Court trial judge to continue.

The full judgment

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Treatment recorded in citing cases applied in 2 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court held that a constitutional reference under Article 137(5) may only be made where a question of interpretation of the Constitution genuinely arises; a party's request does not oblige the court to refer a matter raising no interpretive question, nor can a party confer jurisdiction the court lacks. Habeas corpus concerns enforcement of the right to liberty, not interpretation, and the Constitution did not alter the law of habeas corpus: the relevant time for justifying detention is when the court considers the return to the writ, so charging after the order nisi raised no interpretive question. Preliminary objections may properly be raised in constitutional petitions and references. The reference was improperly before the Court and was returned to the trial judge.

Facts

The applicants, Sheik Abdul Karim Sentamu and Mustafa Bahiga, were among persons arrested by police in various places between 21 and 25 May 1998 and detained without being charged or produced before court. A habeas corpus application was filed against the Inspector General of Police, and the High Court granted an order nisi on 8 June 1998 directing production of the applicants. Successive returns were incomplete and the police initially did not know the applicants' whereabouts. A return eventually disclosed that the applicants had been charged with treason before the Kasese Magistrate's Court on 19 June 1998 and remanded in custody, but they were not produced in court. Counsel for the applicants argued that, because they were charged after the order nisi, Article 23(9) had been violated, and sought a constitutional reference. Tabaro J made the reference under Article 137(5). Before the Constitutional Court, the Attorney General raised a preliminary objection that the matter concerned enforcement of individual rights under Article 50, not interpretation of the Constitution.

Issues

Whether a preliminary objection may properly be raised in a constitutional reference and at what stage of the proceedings.
Whether the reference involved interpretation of the Constitution or merely enforcement of individual rights.
Whether charging the detainees after issue of the writ of habeas corpus raised a question requiring interpretation of Article 23(9) of the Constitution.

Orders

Preliminary objection upheld.
The reference is not properly before the Constitutional Court.
The matter is returned to the learned trial Judge to carry on.

Key headnotes

Constitutional Law — Constitutional Reference — Article 137(5) — When an Interpretive Question Arises

A reference to the Constitutional Court under Article 137(5) may only be made where a question as to the interpretation of the Constitution actually arises in the proceedings; a party's request to refer does not entitle that party to have referred a matter that involves no question of interpretation.

Constitutional Law — Jurisdiction — Parties Cannot Confer Jurisdiction

A party cannot, by consent or request, confer on a court a jurisdiction which the court does not possess by law.

Human Rights — Habeas Corpus — Enforcement Versus Interpretation

Habeas corpus proceedings secure the enforcement of the fundamental right to personal liberty under Article 50 and do not require interpretation of the Constitution; the 1995 Constitution did not change the practice and law applicable to habeas corpus.

Criminal Law & Procedure — Habeas Corpus — Time at Which Detention Must Be Justified

The relevant time at which the detention of a prisoner must be justified is the time at which the court considers the return to the writ; illegality in the original arrest or proceeding is immaterial where subsequent proceedings provide present justification for the detention.

Civil Procedure — Preliminary Objections — Points of Law in Petitions and References

A preliminary objection or point of law may properly be raised at the commencement of the hearing of a suit, petition or constitutional reference; whether to determine it before trial lies within the court's discretion.

Legislation cited (11)

Constitution of Uganda 1995 art.137(5)
Constitution of Uganda 1995 art.23(9)
Constitution of Uganda 1995 art.50
Civil Procedure Act s.101
Interpretation of the Constitution (Procedure) Rules 1992 (Modification) Directions 1996 r.7
Civil Procedure Rules Order 6 r.27
Civil Procedure Rules Order 6 r.28
Civil Procedure Rules Order 6 r.29
Civil Procedure Rules Order 7 r.11
Civil Procedure Rules Order 13 r.2
Civil Procedure Rules Order 25 r.2

Cases cited (13)

Uganda Journalists Safety Committee and Another v Attorney General (Constitutional Petition No. 6 of 1997)
Dr. James Rwanyarare and Another v Attorney General (Constitutional Petition No. 11 of 1997)
Major General D. Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
Everett v Ribbands and Another [1952] 2 QB 198
Barnardo v Ford [1892] AC 326
The Queen v Weil (1882) 9 QBD 701
Grace Stuart Ibingira and Others v Uganda (1966) EA 445
Emperor v Savarkar (1911) 13 Bom LR 296
Ex parte Lannoy [1942] 2 KB 281
R v Larsonneur (1933) 24 Cr App Rep 74
Re Alexander Terraz (1878) 39 LT 502
R v Secretary of State for the Home Department, ex parte Iqbal [1979] All ER 675
Attorney General v Milton Obote Foundation Ltd and Another (Civil Appeal No. 7 of 1992)

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