Wakilii

Prof Gilbert Balibaseka Bukenya v Attorney General (Constitutional Petition No. 30 of 2011)

Constitutional Court · [2011] UGCC 9 · 2011 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution seeking declarations that criminal charges preferred against the petitioner are unconstitutional
Decision
Petition dismissed; petitioner not entitled to the declarations sought; file remitted to the trial court to proceed with the criminal trial.

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court dismissed the petition. It held that the immunity in Article 98(4) and (5) is the exclusive preserve of the President and does not extend to the Vice President, even when deputising for the President; Article 108, which creates the Vice Presidency, is deliberately silent on Article 98, and immunity being a privilege conferred by law cannot be inferred. The petitioner had not been treated unequally under Article 21: a person cannot resist prosecution merely because others he wishes jointly charged are not charged, prosecution being within the IGG's discretion. The substantive Deputy IGG carrying out the IGG's duties while the office is vacant retained capacity to prefer charges; this was a valid internal administrative arrangement.

Facts

The petitioner was Vice President of Uganda from 23 May 2003 to 23 May 2011. During that term, on the directive of the President, he chaired Cabinet sub-committee meetings preparing for the Commonwealth Heads of Government Meeting (CHOGM) 2007 held in Kampala. After he left office, the Inspectorate of Government charged him before the Anti-Corruption Court on 16 June 2011 with abuse of office contrary to section 11 of the Anti-Corruption Act and a fraudulent practice contrary to section 95(1)(d) of the Public Procurement and Disposal of Public Assets Act, based on acts done while chairing the sub-committee. The charge sheet was signed by Mr. Raphael Obudra Baku, a substantive Deputy IGG then carrying out the functions of IGG because the substantive IGG position was vacant, and co-signed by the Director of Legal Affairs. The petitioner contended the charges related to acts done in his official capacity as Vice President, that he enjoyed presidential immunity, that charging him alone was discriminatory, and that the Acting IGG lacked authority.

Issues

  1. Whether the petitioner was entitled to immunity under Articles 98(5), 108(3), 111(1), (2) & (4) and 112(1) of the Constitution for acts arising from his chairing the Cabinet Sub-Committee meetings for CHOGM.
  2. Whether the prosecution of the petitioner contravenes Article 21(1) of the Constitution (equality and freedom from discrimination).
  3. Whether the Acting Inspector General of Government has authority to perform the functions of the IGG under Article 223 of the Constitution.

Orders

  • The petition fails and is dismissed.
  • The petitioner is not entitled to any of the declarations sought.
  • The file is remitted to the trial court to proceed with the trial.
  • No order as to costs.

Key headnotes

Constitutional Law — Presidential Immunity — Scope of Article 98(4) and (5) and non-extension to the Vice President
The immunity conferred by Article 98(4) and (5) of the Constitution is the exclusive preserve of the President and does not extend to the Vice President, even where the Vice President deputises for or performs functions assigned by the President.
Statutory Interpretation — Constitutional Interpretation — Primacy of the literal rule
Where the words of a constitutional provision are precise and unambiguous they must be given their ordinary and natural meaning; the literal rule takes primacy and a liberal interpretation arises only where there is imprecision or ambiguity in the language.
Constitutional Law — Immunity — Requirement of express conferment
Immunity is a right or privilege conferred by law that cannot be inferred from the language used; there must be a clear and unequivocal expression conferring it, and no person, not even the President who assigns duties, can grant such immunity to another.
Human Rights — Equality before the law (Article 21) — Selective prosecution and prosecutorial discretion
A person cannot resist prosecution on the ground that others he wishes to be jointly charged with him are not charged; the decision whom to charge lies within prosecutorial discretion and such selectivity does not, without more, amount to discrimination contrary to Article 21.
Administrative Law — Inspectorate of Government — Capacity of a substantive Deputy IGG to act as IGG
A substantive Deputy Inspector General of Government who carries out the duties of the IGG while the substantive office is vacant retains capacity to investigate and prefer charges; this is an internal administrative arrangement that does not nullify his constitutional powers.

Legislation cited (18)

  • Constitution of Uganda 1995 art.98(4)
  • Constitution of Uganda 1995 art.98(5)
  • Constitution of Uganda 1995 art.99
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.108(3)
  • Constitution of Uganda 1995 art.108(6)
  • Constitution of Uganda 1995 art.108(8)
  • Constitution of Uganda 1995 art.112
  • Constitution of Uganda 1995 art.117
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.223
  • Constitution of Uganda 1995 art.225
  • Anti-Corruption Act 2009 s.11
  • Public Procurement and Disposal of Public Assets Act 2003 s.95(1)(d)
  • Inspectorate of Government Act 2002 (Act No. 5/2002) s.2
  • Inspectorate of Government Act 2002 (Act No. 5/2002) s.3
  • Inspectorate of Government Act 2002 (Act No. 5/2002) s.8
  • Inspectorate of Government Act 2002 (Act No. 5/2002) s.14(6)

Cases cited (8)

  • Pinochet's case
  • Tumukunde v Attorney General (Constitutional Petition No. 5 of 2006)
  • Tumukunde v Attorney General (Constitutional Petition No. 6 of 2005)
  • Waweru V Republic 2006 EE 349 HCK
  • Eddie Kwizera v Attorney General (Constitutional Petition No. 14 of 2005)
  • Republic V E. L. Mann (1969) E A 357
  • Soliven V Makasiar 167 SCRA 393, 1988
  • Gordon Sentiba v IGG (Supreme Court Civil Appeal No. 6 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.