Wakilii

Kaitale & 3 Ors v Uganda (Constitutional Reference No. 11 of 2014)

Constitutional Court · [2018] UGCC 1 · 2018 Reference Dismissed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the trial court under Article 137(1) of the Constitution, raising questions of constitutional interpretation arising in a pending criminal murder case
Decision
Reference answered substantially against the petitioners; the Court declared only that re-arresting the petitioners within the court precincts violated Article 128(2), while finding no other constitutional violation and allowing the criminal proceedings to continue.

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Holding

The Constitutional Court held that the DPP acted within his constitutional and statutory powers under Article 120 and section 134 of the Trial on Indictments Act when he entered a nolle prosequi and later reinstated the murder charges; a nolle prosequi discharge is not a bar to subsequent proceedings on the same facts, and bail lapses automatically on its entry, requiring fresh application. The reinstatement did not amount to persecution and the Magistrate's Court did not err in entertaining the fresh charges. However, the Court found that re-arresting the petitioners within the precincts of the High Court immediately after their release violated the sanctity of the court contrary to Article 128(2). Complaints of rights violations were unproven and properly fell under Article 50 enforcement.

Facts

The petitioners were accused persons jointly charged with the murder of Joseph Lwanga and remanded to Kigo Prison. After two co-accused pleaded guilty, were convicted and sentenced, and exonerated the petitioners in their charge-and-caution statements, the prosecution sought the DPP's opinion. The DPP filed a nolle prosequi dated 10 April 2014, and the trial judge ordered the petitioners released. They were re-arrested within the court precincts immediately after release and charged afresh with the same murder on the same facts. The DPP explained he was dissatisfied with how the case had unfolded and held a second set of charge-and-caution statements implicating the petitioners. At the petitioners' request, the trial court referred questions of constitutional interpretation to the Constitutional Court concerning the lawfulness of the re-arrest, the reinstated charges, the lapse of bail, and whether the proceedings abused the court process.

Issues

  1. Whether the conduct of the police in re-arresting the petitioners after their release by the High Court on 11 April 2014, upon entry of a nolle prosequi by the DPP, contravened Articles 20(1) and (2), 23, 24, 28(1), 44(c), 126 and 128 of the Constitution.
  2. Whether charging the petitioners afresh with murder after discontinuation of a similar charge on similar facts by the DPP amounted to persecution contravening Articles 20, 23, 28(1) and 44(c) of the Constitution.
  3. Whether the actions of the security operatives and the State towards the Court, the Judiciary and the petitioners contravened Articles 28, 44(c), 126 and 128 of the Constitution.
  4. Whether discontinuation of the charges by the DPP and the subsequent reinstatement of the same charges automatically led to the lapse of bail of the petitioners, contravening Articles 20, 23, 24, 44(c), 126 and 128 of the Constitution.
  5. Whether the subsequent proceedings before the Chief Magistrate's Court amounted to an abuse of court process, the rule of law and natural justice, contravening Articles 20, 126 and 128 of the Constitution.
  6. Whether the Chief Magistrate's Court, in proceeding to entertain the reinstated charges, contravened Articles 20, 123(6) and 128 of the Constitution.

Orders

  • The conduct of the Police in re-arresting the petitioners after their release on 11 April 2014, upon entry of a nolle prosequi by the DPP, did not contravene Articles 20(1) and (2), 23(1), (3) and (6), 44(c), 126 and 128(1) and (3) of the Constitution.
  • The charging of the petitioners afresh with murder after discontinuation of a similar charge on similar facts did not amount to persecution and did not contravene Articles 20(1) and (2), 23(1), (3) and (6), 28(1) and 44(c).
  • The actions of the Police and the State towards the Court, the Judiciary and the petitioners contravened Article 128(2) of the Constitution.
  • The entry of a nolle prosequi by the DPP automatically led to the lapse of the petitioners' bail and did not contravene Articles 20, 23, 24, 44(c), 126 and 128 of the Constitution.
  • The subsequent proceedings before the Chief Magistrate's Court do not amount to an abuse of court process and do not contravene Articles 20, 126 and 128 of the Constitution.
  • The Chief Magistrate's Court, in entertaining the reinstated charges, did not contravene Articles 20, 123(6) and 128 of the Constitution.

Key headnotes

Constitutional Law — Jurisdiction — Article 137 — Interpretation versus Enforcement of Rights
The Constitutional Court's jurisdiction under Article 137 is confined to interpreting the Constitution; it is not concerned with the enforcement of alleged violations of rights, which fall to be redressed under Article 50 before any court of competent jurisdiction.
Criminal Law & Procedure — Nolle Prosequi — DPP's Power to Withdraw and Reinstate Charges (Trial on Indictments Act s.134)
Under Article 120 of the Constitution and section 134 of the Trial on Indictments Act, the DPP has power to institute, withdraw and reinstate any charge before verdict without assigning reasons; the discharge of an accused following a nolle prosequi is not an acquittal and is not a bar to subsequent proceedings against the accused on the same facts.
Criminal Law & Procedure — Bail — Automatic Lapse on Entry of a Nolle Prosequi
On the entry of a nolle prosequi, the bail of the discharged accused lapses automatically and the recognizances are discharged forthwith; where charges are subsequently reinstated, the accused must apply for bail afresh, this being distinct from committal for trial where subsisting bail does not automatically lapse.
Constitutional Law — Independence and Sanctity of Courts — Article 128(2) — Arrest within Court Precincts
Arresting suspects within the precincts of a court, particularly immediately after their release by that court, is disrespectful to the court, may amount to contempt, and violates the sanctity of the court contrary to Article 128(2) of the Constitution.
Criminal Law & Procedure — Interference with Prosecutions — Restraint of the Constitutional Court
The Constitutional Court should not interfere with criminal prosecutions without just cause; the trial court is capable of fairly pronouncing on a matter and the appeal system can remedy any prejudice, so it is improper to invoke the Constitutional Court to stop a prosecution merely on allegations that the trial will be unfair.

Legislation cited (10)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 120
  • Constitution of Uganda Article 23
  • Constitution of Uganda Article 50
  • Constitution of Uganda Article 128(2)
  • Constitution of Uganda Article 274(1)
  • Trial on Indictments Act s.134
  • Police Act 2006 ss.3, 23, 32
  • Magistrates Courts Act s.168(4)
  • Penal Code Act

Cases cited (8)

  • Dr. Kizza Besigye & Others v Attorney General (Constitutional Reference No. 7 of 2007)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General David Tinyefunza (Constitutional Appeal No. 1 of 1987)
  • Uganda Law Society v Attorney General (Constitutional Reference No. 18 of 2005)
  • Dr. Kiiza Besigye and Others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Dr. Tiberius Muhebwa v Uganda (Constitutional Petition No. 09 of 2012)
  • Jim Muhwezi & 3 Others v Attorney General and Inspector General of Government (Constitutional Petition No. 10 of 2008)
  • Hon. Sam Kuteesa, Hon. John Nasasira and Hon. Mwesigwa Rukutana v Attorney General (Constitutional Petition No. 46 of 2011)
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.