Wakilii

Hon Sam Kuteesa & 2 Ors v Attorney General (Constitutional Reference No. 54 of 2011)

Constitutional Court · [2012] UGCC 2 · 2012 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petition and constitutional reference from the Anti-Corruption Court (Chief Magistrate), which stayed the criminal proceedings pending interpretation.
Decision
Constitutional Petition No. 46 of 2011 allowed; reference questions (i), (iii) and (iv) answered (question (ii) abandoned); the Anti-Corruption Court directed to act in accordance with the declarations.

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Holding

On a consolidated constitutional petition and reference, the Constitutional Court held that the Inspectorate of Government must be fully constituted under Article 223(2) — the Inspector General of Government alone cannot exercise the Inspectorate's quasi-judicial power to prosecute corruption cases — and applied that ruling prospectively only. It further held that section 168(4) of the Magistrates Courts Act, which automatically lapses bail on committal to the High Court without a hearing, is inconsistent with Articles 23(6)(a), 126(1) and 28(1), and must be construed under Article 274 so that bail does not automatically lapse. Finally, it held that Article 137(5)(b) is not inconsistent with Article 128 on judicial independence.

Facts

The three petitioners, all government ministers, were jointly charged at the instance of the Inspector General of Government with abuse of office and causing financial loss contrary to sections 11 and 20 of the Anti-Corruption Act, before the Chief Magistrate, Anti-Corruption Court, in Criminal Case No. 184 of 2011. Each pleaded not guilty, was released on bail with stringent conditions, breached no condition, and took leave from office. They petitioned the Constitutional Court challenging section 168(4) of the Magistrates Courts Act, fearing loss of their bail on committal to the High Court for trial. On the application of the petitioners and the Inspector General as prosecutor, the Anti-Corruption Court referred four constitutional questions to the Constitutional Court and stayed the criminal proceedings. It was undisputed that the Inspectorate of Government had not been duly constituted: no Deputy Inspectors General had been appointed, leaving only an Inspector General acting in office. The consolidated petition and reference were heard together.

Issues

  1. Whether the Inspectorate of Government can prosecute or cause prosecution of corruption, abuse of authority or public office cases under Article 230 of the Constitution when it is not duly constituted under Article 223(2) and section 3(2) of the Inspectorate of Government Act with the Inspector General and two Deputy Inspectors General.
  2. Whether the automatic lapse of bail under section 168(4) of the Magistrates Courts Act, on a person being committed to the High Court for trial, violates Article 23 of the Constitution.
  3. Whether Article 137(5)(b) of the Constitution, which requires a court to refer a question of constitutional interpretation on a party's request, is inconsistent with Article 128 of the Constitution on the independence of the judiciary.

Orders

  • Constitutional Petition No. 46 of 2011 allowed.
  • Declared that the Inspectorate of Government cannot, through the Inspector General of Government alone when he or she is the only one in office, prosecute or cause prosecution of corruption, abuse of authority or public office cases when not duly constituted under Article 223(2) of the Constitution and section 3(2) of the Inspectorate of Government Act; this declaration operates prospectively only, from the date of delivery of the judgment.
  • Declared that the automatic lapse of bail under section 168(4) of the Magistrates Courts Act is inconsistent with and in contravention of Articles 23(6)(a), 126(1) and 28(1) of the Constitution.
  • Section 168(4) of the Magistrates Courts Act to be construed so that bail does not automatically lapse on committal to the High Court and the committing court retains power to maintain, grant or cancel bail after hearing the parties.
  • Declared that Article 137(5)(b) is not inconsistent with Article 128 of the Constitution.
  • The Anti-Corruption Court, Kololo, in Criminal Case No. 184 of 2011 directed to act in accordance with these declarations.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Inspectorate of Government — Capacity to Prosecute When Not Fully Constituted
The Inspectorate of Government must be fully constituted with the Inspector General of Government and the prescribed Deputy Inspectors General before it can lawfully prosecute or cause prosecution of corruption, abuse of authority or public office cases; the Inspector General cannot alone exercise the Inspectorate's quasi-judicial prosecutorial powers as if he or she were the whole Inspectorate.
Statutory Interpretation — Existing Law — Article 274 — Modification to Conform with the Constitution
A law that pre-dates the 1995 Constitution is an existing law which, under Article 274(1), must be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring it into conformity with the Constitution, and courts may so modify it without a reference.
Criminal Law & Procedure — Bail — Automatic Lapse on Committal to the High Court
Section 168(4) of the Magistrates Courts Act, in automatically lapsing bail on committal to the High Court without affording a hearing and overriding the discretionary judicial power to grant bail, is inconsistent with Articles 23(6)(a), 126(1) and 28(1) of the Constitution and must be construed so that bail does not automatically lapse.
Human Rights — Right to Personal Liberty — Bail as a Constitutional Right
The entitlement to apply for bail is embedded in the constitutional right to personal liberty under Article 23 and may be derogated from only in the circumstances expressly provided for in the Constitution.
Constitutional Law — Constitutional References — Article 137(5)(b) and Judicial Independence
Article 137(5)(b), which obliges a court to refer a constitutional question on a party's request, does not infringe the independence of the judiciary under Article 128 because the referring court must first satisfy itself that a prima facie question of constitutional interpretation arises.
Constitutional Law — Interpretation — Harmonisation and the Integrated Whole
The Constitution must be interpreted broadly, liberally and purposively and read as an integrated whole, with no provision destroying another and conflicting provisions harmonised to give effect to the entire Constitution.

Legislation cited (24)

  • Constitution of Uganda 1995 art.23(6)(a)
  • Constitution of Uganda 1995 art.23(1)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.137(5)(b)
  • Constitution of Uganda 1995 art.139
  • Constitution of Uganda 1995 art.223(1) and (2)
  • Constitution of Uganda 1995 art.225
  • Constitution of Uganda 1995 art.230
  • Constitution of Uganda 1995 art.274(1) and (2)
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.20(2)
  • Inspectorate of Government Act No. 5 of 2002 s.3(2)
  • Inspectorate of Government Act No. 5 of 2002 s.14(1) and (6)
  • Inspectorate of Government Act No. 5 of 2002 s.32
  • Inspectorate of Government Act No. 5 of 2002 s.8
  • Magistrates Courts Act Cap. 16 s.168(4)
  • Anti-Corruption Act 2009 s.11
  • Anti-Corruption Act 2009 s.20
  • Anti-Corruption Act 2009 s.49
  • Anti-Corruption Act 2009 s.51
  • Judicature Act Cap. 13 s.4

Cases cited (22)

  • Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • John Harun Mwau & 3 Others v Attorney General of Kenya & 20 Others [2012] eKLR
  • Attorney General v Tumushabe [2008] 2 EA 26
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • State v Acheson 1991 (2) SA 805 (Nm)
  • Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319
  • South Dakota v North Carolina 192 US 268 (1904)
  • Thomas Kwoyelo alias Latoni v Uganda (Constitutional Petition Reference No. 36 of 2011)
  • Ssemogerere & Others v Attorney General [2004] 2 EA 276
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Nsimbe Holdings Ltd v Attorney General & Another (Constitutional Petition No. 2 of 2006)
  • Radio Pulpit v Chairperson of the Council of the Independent Communications Authority (09/19114) [2011] ZAGPJHC 83
  • Prof. Gilbert Balibaseka Bukenya v Attorney General (Constitutional Petition No. 30 of 2011)
  • Attorney General v Osotraco Ltd (Civil Appeal No. 32 of 2002)
  • Ephrahim v Pastory & Another [1990] LRC (Const) 757
  • Bull v Minister of Home Affairs [1987] LRC (Const) 547
  • In the Matter of the Interim Independent Electoral Commission (Constitutional Application No. 2 of 2011)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Uganda v Atugonza Francis (Constitutional Reference No. 31 of 2010)
  • Martins v Fowler [1926] AC 746
  • R v Board of Education [1910] 2 KB 165
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.