Wakilii

Barihaihi & Anor. v Attorney General (Constitutional Petition No. 23 of 2011)

Constitutional Court · [2019] UGCC 8 · 2019 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of section 1 of the Trial on Indictments Act
Decision
Petition dismissed; petitioners entitled to none of the declarations or remedies sought

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Cited — treatment unverified cited in 2 (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, holding that section 1 of the Trial on Indictments Act is a procedural provision that does not oust the High Court's unlimited original jurisdiction under Article 139; unlimited jurisdiction must still be exercised in accordance with procedural law. Committal proceedings are a pre-trial mechanism that promotes, rather than infringes, the right to a fair and speedy hearing, the right to be informed of the charge, and the right to bail, all of which accrue independently of committal. The right to state-funded legal representation for capital offences accrues on being charged and is independent of committal proceedings. The petitioners were entitled to none of the declarations sought.

Facts

The petitioners were arrested in 2002 and charged with treason at Buganda Road Court. They were remanded for over a year and granted bail in 2013, answering bail before the magistrate's court for about nine years. The magistrate's court repeatedly stated it had no jurisdiction to discontinue, try, or order committal of the case to the High Court. The petitioners eventually obtained judicial review in the High Court, which quashed the proceedings and awarded them damages. Aggrieved by the system that produced this delay, they petitioned the Constitutional Court for a declaration that section 1 of the Trial on Indictments Act, which bars the High Court from trying a criminal case unless the accused has been committed for trial, is inconsistent with several constitutional provisions guaranteeing a fair and speedy trial, the right to be informed of charges, legal representation, and bail.

Issues

  1. Whether section 1 of the Trial on Indictments Act ousts the unlimited original jurisdiction of the High Court under Article 139 of the Constitution.
  2. Whether the requirement of committal proceedings infringes the right to a fair and speedy hearing under Article 28(1) of the Constitution.
  3. Whether committal proceedings infringe the accused's right to be informed of the charge under Article 23(3) and Article 28(3) of the Constitution.
  4. Whether the absence of legal representation during committal proceedings renders them unconstitutional under Article 28(3)(e).
  5. Whether section 1 of the Trial on Indictments Act violates the accused's right to apply for bail under Article 23(6)(a) of the Constitution.

Orders

  • The petition is dismissed.
  • No order as to costs.

Key headnotes

Constitutional Law — High Court Jurisdiction — Procedural Law and Unlimited Original Jurisdiction under Article 139
A procedural law that requires committal before trial does not oust the unlimited original jurisdiction of the High Court under Article 139; such jurisdiction, though unlimited, is not limitless and must be exercised in accordance with applicable procedural law.
Criminal Law & Procedure — Committal Proceedings — Right to a Fair and Speedy Hearing under Article 28(1)
Committal proceedings are a pre-trial procedural requirement that promotes rather than infringes the right to a fair, speedy and public hearing under Article 28(1) of the Constitution.
Criminal Law & Procedure — Right to be Informed of the Charge under Article 28(3)(b)
An accused is informed of the offence when produced before the magistrate's court and the charge is read out; the right to be informed accrues before committal proceedings and is not offended by them.
Human Rights — Legal Representation at State Expense — Capital Offences under Article 28(3)(e)
The right to state-funded legal representation for an accused charged with a capital offence accrues on being charged and is independent of committal proceedings; failure to provide counsel does not render the committal provisions unconstitutional.
Criminal Law & Procedure — Bail — Right to Apply under Article 23(6)(a)
The constitutional right to apply for bail applies to every person charged with a criminal offence regardless of whether they have been committed for trial; section 1 of the Trial on Indictments Act does not infringe the right to bail.

Legislation cited (11)

  • Trial on Indictments Act Cap 23 s.1
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.28(3)(b)
  • Constitution of Uganda art.28(3)(c)
  • Constitution of Uganda art.28(3)(e)
  • Constitution of Uganda art.23(3)
  • Constitution of Uganda art.23(6)(a)
  • Constitution of Uganda art.139
  • Constitution of Uganda art.79(1)
  • Constitution of Uganda art.44
  • Magistrates Courts Act s.168

Cases cited (3)

  • Zambia National Holdings Limited and United National Independence Party (UNIP) V. The Attorney-General S.C.Z. JUDGMENT NO. 3 OF 1994
  • Soon Yeon Kong Kim & Anor v Attorney General (Constitutional Reference No. 6 of 2007)
  • Attorney General v Tumushabe (Constitutional Appeal No. 3 of 2005)
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.