Wakilii

Basajabalaba & Anor v Attorney General (Constitutional Petition No. 12 of 2013)

Constitutional Court · [2018] UGCC 3 · 2018 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of acts of the DPP, the Uganda Police Force, the Anti-Corruption Division of the High Court, and certain Practice Directions
Decision
Petition partly succeeded; certain acts of the DPP and Police declared unconstitutional; Petitioners held entitled to compensation with quantum referred to the High Court; stay of criminal proceedings denied and the criminal trial directed to proceed.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court held the petition partly succeeded. The conduct of the DPP and Police in arresting and re-charging the 1st Petitioner on offences for which he was on bail, without first withdrawing the earlier charges, and the automatic cancellation of bail on committal without a hearing, contravened the Constitution and entitled the Petitioners to compensation. However, the violations were not so aggravated or prolonged as to justify staying the criminal proceedings. The Court further held that the Anti-Corruption Division has valid jurisdiction, that Section 392(a) of the Penal Code Act is clear and constitutional, and that challenges to the charge sheet were premature. Quantum of compensation was referred to the High Court.

Facts

The Petitioners faced private prosecution at Buganda Road Chief Magistrate's Court for conspiracy to defeat tax laws and uttering false documents, arising from compensation paid to Haba Group (U) Limited after the Government cancelled its market leases. They were granted bail on cash deposits. The 1st Petitioner, allowed to retrieve his passport to travel to Nairobi, was intercepted at Entebbe Airport, detained, and produced in the Anti-Corruption Division of the High Court where he was charged afresh with similar offences. Parallel proceedings then took place at Buganda Road, where the DPP moved to discontinue the original charges in the Petitioners' absence. The DPP did not provide the Anti-Corruption Division with evidence that the earlier charges had been withdrawn before re-charging the Petitioners. On committal to the High Court, the Petitioners' bail was cancelled without a hearing. The Petitioners challenged these acts as unconstitutional.

Issues

  1. Whether the Petition discloses a cause of action.
  2. Whether the acts of the DPP and the Uganda Police Force complained of are inconsistent with or in contravention of the Constitution.
  3. Whether the concurrent trial and proceedings in the Buganda Road Chief Magistrate's Court and the Anti-Corruption Division of the High Court are inconsistent with or in contravention of the Constitution.
  4. Whether Directions 2, 8 and 10 of the High Court (Anti-Corruption Division) Practice Directions, 2009 are inconsistent with or in contravention of the Constitution.
  5. Whether Section 392(a) of the Penal Code Act Cap 120 is inconsistent with or in violation of the Constitution.
  6. Whether the charges and indictment preferred against the Petitioners are inconsistent with or in violation of the Constitution.
  7. Whether the Petitioners are entitled to damages.
  8. What reliefs are available to the parties.

Orders

  • The Uganda Police and the DPP contravened Articles 2, 28(1), 28(3)(a), 120(5), 126(1) and 128(2) by arresting, detaining and re-charging the 1st Petitioner with the same offences without first withdrawing the charges in Buganda Road Chief Magistrate's Court.
  • The DPP's withdrawal of charges in Buganda Road Magistrate's Court in the absence of the Petitioners contravened Articles 2, 28(1), 28(3)(a), 29, 44, 120(5) and 126(1).
  • The cancellation of the Petitioners' bail upon committal without a right to be heard contravened Articles 2, 23, 28(1), 28(3)(a), 29, 44, 120(5) and 126(1).
  • The charging of the Petitioners in the Anti-Corruption Division does not contravene the Constitution.
  • The continued prosecution before the Anti-Corruption Division is not unconstitutional as the creation of the Division was not unconstitutional.
  • Section 392(a) of the Penal Code Act is not inconsistent with the Constitution.
  • The Petitioners are entitled to compensation for the violations, the quantum to be determined by the High Court in appropriate proceedings.
  • The prayer for stay of criminal proceedings in High Court Criminal Case No. 0003 of 2013 (Uganda v Hassan Basajjabalaba) is denied.
  • The Registrar is directed to remit the file in Criminal Case No. 0003 of 2013 to the High Court for the trial to proceed.
  • The Petitioners are entitled to 50% of the costs; the remaining grounds are dismissed.

Key headnotes

Constitutional Petitions — Cause of Action — Article 137
A petition brought under Article 137(3) of the Constitution sufficiently discloses a cause of action where it describes the act or omission complained of, identifies the constitutional provision said to be contravened, and prays for a declaration to that effect; a liberal and broader interpretation applies than to an ordinary plaint.
Right to Liberty — Re-arrest and Re-charging While on Bail
Arresting and arraigning an accused on facts, charges and offences for which he has already been charged and granted bail, without first providing the earlier court with evidence that those charges have been withdrawn, violates the right to liberty and the protections under Articles 2, 28(1), 28(3)(a), 28(9), 120(5), 126(1) and 128(2) of the Constitution.
Bail — Cancellation on Committal — Right to be Heard
The automatic cancellation of an accused's bail upon committal to the High Court, without affording the accused a right to be heard, is not an expressly stipulated circumstance of derogation from the right to liberty and violates Articles 2, 23, 28(1), 28(3)(a), 29, 44, 120(5) and 126(1) of the Constitution.
Abuse of Process — Stay of Proceedings — Remedy for Non-Trial-Related Breach
A stay of criminal proceedings for abuse of process is justified only where the violation of rights is so aggravated and prolonged that no fair trial can result; where a liberty breach is not trial-related, the appropriate remedy is compensation, not discharge of the accused.
Double Jeopardy — Requirement of a Prior Completed Trial
Double jeopardy arises only where a person has already been tried and the court has made its finding; the mere existence of parallel proceedings in two courts, later resolved by withdrawal of one set of charges, does not amount to double jeopardy.
Anti-Corruption Division — Jurisdiction — Administrative Division of the High Court
The Anti-Corruption Division is an administrative division of the High Court, not a separate court; judges and magistrates attached to it are not precluded from trying offences outside the Anti-Corruption Act so long as they possess general jurisdiction, and Directions 2, 8 and 10 of the 2009 Practice Directions are not unconstitutional.
Penal Code Act s.392(a) — Certainty of a Penal Provision
Section 392(a) of the Penal Code Act, creating the offence of conspiracy to prevent or defeat the execution or enforcement of any written law, is clear and unambiguous; its elements are not cumulative and the provision does not offend the constitutional requirement of precision in defining a criminal offence.

Legislation cited (19)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.23
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.120(5)
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.133
  • Constitution of Uganda 1995 art.221
  • Penal Code Act s.392(a)
  • Penal Code Act s.351
  • Penal Code Act s.349
  • Anti-Corruption Act s.49
  • Anti-Corruption Act s.52
  • Magistrates Courts Act s.88
  • Magistrates Courts Act s.168(4)
  • Judicature Act s.17(2)
  • Constitutional Court (Petitions and References) Rules S.I. 91 of 2005
  • High Court (Anti-Corruption Division) Practice Directions 2009 (Directions 2, 8 and 10)

Cases cited (21)

  • Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Okello Okello John Livingstone & Others v Attorney General (Constitutional Petition No. 4 of 2005)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Petition No. 2 of 2013)
  • Uganda Law Society v Attorney General [2006] UGCC 11
  • Dr. Kiiza Besigye & Others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No. 3 of 2006)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor [1982] HCB 11
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Hon. Sam Kuteesa & Others v Attorney General (Constitutional Petition No. 46 of 2011)
  • Albanus Mwasia Mutua v Republic (Criminal Appeal No. 120 of 2004)
  • Republic v Amos Karuga Karatu (High Court Criminal Case No. 12 of 2006)
  • Moevao v Department of Labour [1980] 1 NZLR 464
  • Shabahuria Matia v Uganda [1999] UGHC 1
  • R v Horseferry Road Magistrates' Court, Ex p Bennett (No. 1) [1994] 1 AC 42
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Omar Awadh Omar & Others v Attorney General (Constitutional Petitions Nos. 55 and 56 of 2011)
  • Julius Kamau Mbugua v Republic (Criminal Appeal No. 50 of 2008)
  • Abdalla Suleiman El Harthi v R (1954) 21 EACA 404
  • Kinyua v Republic [1972] EA 54
  • Charles Onyango Obbo & Anor v Attorney General (Constitutional Appeal No. 2 of 2002)
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.