Wakilii

Kasande & Anor v Uganda (Constitutional Reference No. 52 of 2010)

Constitutional Court · [2019] UGCC 6 · 2019 Reference Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference under Article 137(1) from the Chief Magistrate's Court in a pending criminal trial
Decision
Reference allowed in part; prosecution of the applicants stayed and the applicants discharged.

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Holding

On a constitutional reference, the Court held that detaining the applicants for seven days before charge contravened article 23(4)(b), but this breach did not nullify the subsequent prosecution; the remedy lay in compensation under article 23(7). On the second issue, although the DPP's power to withdraw proceedings before judgment under article 120(3)(d) is lawful, it must be exercised under article 120(5) with regard to public interest and avoiding abuse of process. Where the state, through its own laxity, caused over 18 months' delay and then withdrew charges only to reinstate identical ones, the reinstated prosecution abused the applicants' right to a fair and speedy trial under article 28(1). The reference was allowed in part; prosecution was stayed and the applicants discharged.

Facts

The applicants, employees of Capital Finance Corporation Ltd, were jointly charged with embezzlement and causing financial loss before the Chief Magistrate's Court. They were arrested on 28 July 2008 and held in police custody for seven days before being produced in court and charged on 6 August 2008. The High Court granted bail on 25 August 2008. The trial extended over almost two years, marked by repeated adjournments: of about 20 hearing dates in 2009 and early 2010, the prosecution caused 13 adjournments through avoidable failures — absent police files, absent prosecutors and witnesses, and failure to disclose ordered documents. The defence was absent twice and the magistrate twice. On 22 February 2010 the court closed the prosecution case for its failure to proceed, and parties were to address whether a prima facie case existed. Before the ruling, the DPP elected to withdraw the case and reinstate it in the Anti-Corruption court, citing a change in law. The applicants sought a constitutional reference contending the police and DPP conduct violated their fundamental rights.

Issues

  1. Whether detention of the applicants in police custody for a period exceeding forty-eight hours invalidates the consequent criminal proceedings against them.
  2. Whether the delay in prosecuting the charges and the DPP's decision to withdraw the case in order to prefer fresh charges in the Anti-Corruption court infringed the applicants' right to a fair and speedy trial under articles 28(1) and 120(5) of the Constitution.

Orders

  • Holding the applicants in detention for over 48 hours after arrest before being brought to court to be formally charged contravened article 23(4)(b) of the Constitution.
  • The contravention of article 23(4)(b) does not render the consequent proceedings against the applicants a nullity.
  • The actions of the DPP in withdrawing the charges against the applicants in the chief magistrate's court and reinstating the same in the Anti-Corruption court, though permissible in law, in the circumstances of this case violate articles 28(1) and 120(5) of the Constitution.
  • The delay in the prosecution of the case against the applicants for over a period of 18 months contravened article 28(1) of the Constitution.
  • A stay of prosecution of the applicants on these charges is granted.
  • The applicants are consequently discharged.
  • The file is returned to the trial court to comply with the directions of this court.

Key headnotes

Fundamental Rights — Arrest and Detention — Article 23(4)(b) — Effect of Detention Beyond 48 Hours
Detaining an arrested person beyond forty-eight hours before bringing them to court contravenes article 23(4)(b) of the Constitution, but the contravention does not by itself render the consequent prosecution a nullity; the remedy for the unlawful detention lies in compensation under article 23(7).
Director of Public Prosecutions — Power to Withdraw Proceedings — Article 120(3)(d) and Section 121 Magistrates Courts Act
The DPP's power to discontinue criminal proceedings before judgment under article 120(3)(d) and section 121 of the Magistrates Courts Act, though discretionary, must be exercised under article 120(5) with due regard to the public interest, the administration of justice and the prevention of abuse of process, and may be challenged where its exercise infringes the accused's right to a fair and speedy trial.
Fair Hearing — Right to a Speedy Trial — Article 28(1) and Non-Derogable Status under Article 44(c)
The right to a fair, speedy and public hearing under article 28(1) is non-derogable under article 44(c); the 1995 Constitution's deliberate substitution of 'speedy' for the former 'reasonable time' standard imposes a heightened obligation on the state to prosecute criminal offences with minimal delay.
Speedy Trial — Test for Unreasonable Delay — Balancing of Factors
Whether prosecutorial delay infringes the right to a speedy trial is determined not by a mathematical formula but by balancing the length of the delay, any waiver, the reasons for the delay (inherent requirements of the case, the conduct of the accused and of the prosecution, and limits on institutional resources) and the prejudice caused to the accused.
Abuse of Process — Withdrawal and Reinstatement of Charges to Cure Prosecution Failures
Where the state, having caused inordinate delay through its own laxity, withdraws charges only to reinstate identical charges in order to obtain a second opportunity to prosecute, the reinstated prosecution constitutes an abuse of the accused's right to a fair and speedy trial and ought to be stayed.

Legislation cited (15)

  • Constitution of Uganda art.23(4)(b)
  • Constitution of Uganda art.23(7)
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.28(3)(a)
  • Constitution of Uganda art.44
  • Constitution of Uganda art.120(3)(d)
  • Constitution of Uganda art.120(5)
  • Constitution of Uganda art.126(2)(c)
  • Constitution of Uganda art.137(1)
  • Penal Code Act s.268(b)
  • Penal Code Act s.268(e)
  • Penal Code Act s.269(1)
  • Magistrates Courts Act s.121
  • Magistrates Courts Act s.196
  • Anti-Corruption Act s.51

Cases cited (6)

  • Foundation for Human Rights Initiative ... Constitutional Petition No.20 of 2006
  • Dr Kizza Besigye and Others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Bruce Robert Sanderson v The Attorney General of Eastern Cape CCT 10 of 1997
  • Mills v Cooper [1967] 2 QB 459
  • Regina v Humphreys [1977] AC 1
  • R v Morin [1992] 1 SCR 771
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.