Wakilii

Col. (Rtd) Dr. Kiiza Besigye and 22 Others v Attorney General (Constitutional Petition 12 of 2006)

Constitutional Court · [2007] UGCC 9 · 2007 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Articles 137(3) and 50 challenging the constitutionality of the continuation of the petitioners' High Court treason trial and their continued detention
Decision
Petition allowed in part; the 14 bailed petitioners ordered released forthwith on their existing High Court bail terms unless held on some other lawful ground.

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Holding

The Constitutional Court held that continuing the petitioners' High Court treason trial while 14 co-accused remained detained under General Court Martial orders earlier declared a nullity (ULS v AG, CP 18/2005) contravened Articles 28(1), 28(3), 44(c) and 128. That detention, falling outside the Article 23(1) exceptions, violated the right to personal liberty (Article 23) and the independence of the Judiciary (Article 128). The fair-trial guarantee in Article 28(1) is broader than the specific rights in Article 28(3). However, the DPP did not breach Article 120(5), since it cannot control Court Martial proceedings, and Magistrates' Courts Act s.168 was not inconsistent with the Constitution. The petition was allowed in part and the 14 bailed petitioners ordered released.

Facts

The petitioners were the accused in High Court Criminal Case No. 955 of 2005, charged with treason and misprision of treason. The 1st petitioner and 14 others were granted bail by the High Court in November 2005. The 1st petitioner ultimately gained his freedom through a writ of habeas corpus, but the 14 bailed petitioners remained in custody. While on bail, the petitioners were also charged before the General Court Martial (GCM) with terrorism and unlawful possession of firearms in Case No. UPDF/GEN/075 of 2005. In Constitutional Petition No. 18 of 2005 (ULS v AG), the Constitutional Court held that the GCM lacked jurisdiction over those offences and that the proceedings were a nullity. Despite that ruling, the GCM continued to remand the 14 bailed petitioners, who therefore remained detained while their High Court treason trial proceeded. The State argued the charge sheet had since been amended to bring the matter within the GCM's jurisdiction.

Issues

  1. Whether the continuation of the trial of the petitioners for treason and misprision of treason in the High Court, while the 14 bailed petitioners remained in detention, contravenes Articles 28(1), 28(3), 44(c), 128(1) & (2) and 137(3) of the Constitution.
  2. Whether the continued detention of the 14 bailed petitioners contravenes Articles 21(1), 23(1), 23(6), 128(1) & (2) and 137(3) of the Constitution.
  3. Whether, in conducting the prosecution of the petitioners while the 14 bailed petitioners remained in custody, the Director of Public Prosecutions contravened Article 120(5) of the Constitution.
  4. Whether section 168(1) & (2) of the Magistrates' Courts Act is inconsistent with Articles 28(1), 28(3)(a) & (c) and 44(c) of the Constitution.
  5. Whether the petitioners are entitled to the reliefs sought.

Orders

  • The continuation of the trial of the petitioners for treason and misprision of treason while the 14 bailed petitioners are in unlawful custody contravenes Articles 28(1), 28(3), 44(c) and 128 of the Constitution.
  • The continued detention of the 14 bailed petitioners, in disregard of this Court's declaration in Constitutional Petition No. 18 of 2005, is unlawful and contravenes Articles 23(1), 23(6) and 128 of the Constitution.
  • Section 168(1) & (2) of the Magistrates' Courts Act is not inconsistent with Articles 28(1), 28(3)(b) & (c) and 44(c) of the Constitution.
  • The 14 bailed petitioners are to be released forthwith under the terms of their bail granted by the High Court, unless held on some other lawful ground.
  • Each party shall bear its own costs of the petition.

Key headnotes

Constitutional Interpretation — Generous and Purposive Approach
A constitution, particularly the part protecting fundamental rights and freedoms, must be read as an integrated whole and given a generous and purposive interpretation that gives effect to the purpose of the instrument.
Fair Trial — Scope of Article 28(1) — Substantive Fairness
The right to a fair trial under Article 28(1) is broader than, and not exhausted by, the specific guarantees enumerated in Article 28(3)(a) to (g); a trial may satisfy each enumerated guarantee yet still fail to meet the standard of substantive fairness depending on the circumstances of the case.
Fair Trial — Presumption of Innocence — Production of Accused Under Tight Security
Producing an accused person for trial under very tight security, particularly where the accused is being unlawfully detained, conveys the impression of dangerousness and violates the presumption of innocence inherent in the right to a fair trial.
Personal Liberty — Detention Derived from Void Proceedings
Where the proceedings under which a person is detained have been declared a nullity by a competent court, the detention falls outside the exceptions in Article 23(1) and constitutes a violation of the right to personal liberty; a nullity cannot be cured by amending the charge sheet.
Independence of the Judiciary — Decision in Rem — Disobedience of Court Order
A declaration of the Constitutional Court binds the whole world as a decision in rem until set aside on appeal; ignoring it and continuing to detain persons under proceedings declared a nullity contravenes the independence of the Judiciary guaranteed by Article 128.
Disclosure — Magistrates' Courts Act s.168 — Reasonable Information
Section 168(1) & (2) of the Magistrates' Courts Act, requiring the prosecution to supply the accused with an indictment and a summary of the case giving reasonable information as to the nature of the charge, is not inconsistent with the fair-trial guarantees in Articles 28(1), 28(3) and 44(c); inadequacy of information in a given case can be cured by an application for further information.
Director of Public Prosecutions — Article 120(5) — No Control Over Court Martial
The Director of Public Prosecutions does not contravene Article 120(5) by continuing to prosecute accused persons in the High Court where co-accused are detained by a Court Martial, since the DPP has no power to institute or control criminal proceedings before a Court Martial and no means to secure their release.

Legislation cited (5)

  • Magistrates' Courts Act (Cap 16) s.168(1) & (2)
  • Firearms Act (Cap 299) s.3(1) & (2)(a)(b)
  • Uganda Peoples' Defence Forces Act No. 7 of 2005 s.119(1)(h)
  • Trial on Indictments (Amendment) Act No. 9 of 1998 (Cap 23) s.15(3)
  • Uganda Peoples' Defence Forces (Arms, Ammunitions and Equipment Ordinarily the Monopoly of the Defence Forces) Regulations, 2006 (Statutory Instrument No. 13 of 2006)

Cases cited (15)

  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Twagira v Uganda (2003) EA 689
  • Juma and others v Attorney General (2003) 2 EA 452
  • S v Zuma and others CCT5/94 (1995) 2 SA 642
  • S v Orlando Phiri, Waterval-Boven WC ref 2033
  • Attorney General of Gambia v Moden Jobe (1984) LRC 689
  • Unity Dow v Attorney General of Botswana (1992) LRC 662
  • The Queen vs Big Drug Mark Ltd (others intervening) (1996) LRC (Const) 332
  • Smith Dakola vs North Carolina 192 US 268 (1940) LED 448
  • Brooks v DPP (PC) [1994] 1 AC 568
  • Regina v Horseferry Road Magistrates' Court [1993] 3 WLR 90
  • Uganda (DPP) v Col (Rtd) Kizza Besigye (Constitutional Reference No. 20 of 2005)
  • The Republic v E.L. Manu (1969) EA 357
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