Wakilii

Uganda v Atugonza (Constitutional Reference No. 31 of 2010)

Constitutional Court · [2011] UGCC 14 · 2011 Reference Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the High Court (Anti-Corruption Division) under Article 137 of the Constitution, arising from an objection to a criminal charge
Decision
Reference dismissed with costs; matter remitted to the trial judge to proceed with the hearing

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Holding

The Constitutional Court held that charging the accused under section 11 of the Anti-Corruption Act 2009 for abuse of office allegedly committed in 2007–2008 did not offend articles 28(7) and 28(12). Section 11 is a reproduction of the repealed section 87 of the Penal Code Act, differing only as to the fine. Where a statute is repealed and its provisions simultaneously re-enacted, the re-enactment reaffirms the old law and neutralises the repeal, so the provisions continue in force without interruption. A grandfather clause was therefore superfluous, and the offence existed when the acts were committed. The reference was dismissed with costs as not brought in good faith.

Facts

Francis Atugonza was charged before the High Court (Anti-Corruption Division) with abuse of office contrary to section 11(1) of the Anti-Corruption Act 2009. The acts were alleged to have been committed between December 2007 and December 2008. The Anti-Corruption Act came into force on 25 August 2009, after the alleged acts. Section 69 of that Act repealed sections 85–89 of the Penal Code Act, including section 87, which had created the offence of abuse of office. Counsel for the accused objected that, at the commencement of the 2009 Act, section 87 had been decriminalised, so the accused was charged with a non-existent offence, and that section 11 imposed a heavier penalty, making the charge retrospective and inconsistent with articles 28(7) and (12). The High Court referred the constitutional question to the Constitutional Court for interpretation.

Issues

  1. Whether charging the accused under the Anti-Corruption Act 2009, which commenced on 25 August 2009, for an offence allegedly committed between December 2007 and December 2008 is consistent with articles 28(7) and 28(12) of the Constitution.
  2. Whether the absence of a grandfather clause in the Anti-Corruption Act 2009 renders the charge retrospective and unconstitutional where the repealed Penal Code offence was simultaneously re-enacted.

Orders

  • Reference dismissed with costs.
  • The trial judge directed to proceed with the hearing of the case without any further delay.

Key headnotes

Statutory Interpretation — Repeal and Simultaneous Re-enactment — Continuity of Re-enacted Provisions
Where a statute is repealed and all or some of its provisions are at the same time re-enacted, the re-enactment is a reaffirmation of the old law and a neutralisation of the repeal, so that the re-enacted provisions continue in force without interruption and all rights and liabilities under them are preserved and enforceable.
Criminal Law & Procedure — Retrospective Charging — Article 28(7) and (12) — Re-enacted Offence
A person may be charged under a re-enacted statutory provision for an act or omission that constituted a criminal offence at the time it was committed, even though the original enacting provision has since been repealed, without offending the prohibition on retrospective charging in articles 28(7) and (12) of the Constitution, where the new provision reproduces the repealed offence.
Statutory Interpretation — Grandfather Clause — Whether Necessary on Continuous Re-enactment
A transitional or grandfather clause is superfluous where a repealed offence is simultaneously re-enacted in the same or substantially the same terms, because there is no interruption in the operation of the law to bridge.
Constitutional Law — Constitutional References — Article 137(5) — Threshold for Interpretation
A constitutional reference must show on its face that interpretation of a provision of the Constitution is genuinely required; it is not enough merely to allege that a constitutional provision has been violated, and the applicant must show prima facie the alleged violation and its effect.

Legislation cited (11)

  • Constitution of Uganda art.28(7)
  • Constitution of Uganda art.28(8)
  • Constitution of Uganda art.28(12)
  • Constitution of Uganda art.137(5)
  • Anti-Corruption Act 2009 s.11(1)
  • Anti-Corruption Act 2009 s.69
  • Penal Code Act s.87
  • Interpretation Act s.13(1)
  • Interpretation Act s.1(3)
  • UPDF Act No 7 of 2005
  • Labour Disputes (Arbitration and Settlement) Act No 8 of 2006

Cases cited (1)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
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.