Wakilii

Captain Benjamin Ahimbisibwe v Attorney General (Constitutional Petition No. 44 of 2011)

Constitutional Court · [2020] UGCC 1 · 2020 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 seeking declarations that the petitioner's trial by the General Court Martial for an offence he had already been tried for contravened the constitutional protection against double jeopardy.
Decision
Petition dismissed with no order as to costs; declarations and orders sought denied.

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Holding

The petitioner, an army officer, had been tried and convicted by the Unit Disciplinary Committee for conduct prejudicial to good order and discipline, and was later charged with a similar offence in the General Court Martial. He petitioned alleging double jeopardy under Article 28(9). The Constitutional Court held that, although the Unit Disciplinary Committee is a competent court within Article 28(9), the two offences were not directly or substantially the same: though arising from the same general scheme, they concerned different victims and different sums of money. The trial therefore did not amount to double jeopardy. The petition was found to raise no question of constitutional interpretation, lacked merit, and was dismissed with no order as to costs.

Facts

The petitioner, an army officer, was tried by the Unit Disciplinary Committee of the Military Police at Makindye for conduct prejudicial to good order and discipline contrary to section 178 of the UPDF Act, 2005. He was convicted, sentenced to three years' imprisonment, and dismissed from the defence forces. On appeal, the General Court Martial dismissed his appeal, but the Court Martial Appeals Court quashed the conviction and set aside the sentence. Before that appeal was disposed of, the petitioner was charged afresh with conduct prejudicial to good order and discipline in the General Court Martial. The Unit Disciplinary Committee charge concerned diversion of the death benefits of one Kidega (about 40 million shillings); the General Court Martial charge concerned the pension/survivors' benefits of the family of the late Capt. Edward Musoke (about 61 million shillings). The petitioner brought this petition alleging the second trial offended the protection against double jeopardy.

Issues

  1. Whether the trial of the petitioner in the General Court Martial for an offence for which he had previously been tried and convicted by the Unit Disciplinary Committee contravened the protection against double jeopardy under Article 28(9) of the Constitution.
  2. Whether there are remedies available to the parties.

Orders

  • Petition dismissed.
  • All declarations and orders sought denied.
  • No order as to costs.

Key headnotes

Constitutional Law — Right to Fair Hearing — Double Jeopardy (Article 28(9)) — Meaning and Scope
The protection in Article 28(9) of the Constitution against being tried more than once means a person should not be tried or punished more than once on the same facts or for the same actus reus; a constitutional provision relating to a fundamental right must be given an interpretation that realises the full benefit of the guaranteed right.
Criminal Law & Procedure — Autrefois Convict — Conditions for Double Jeopardy
To establish double jeopardy or autrefois convict, the previous offence must have been determined by a competent court, the previous offence must be directly or substantially the same as the present offence, and the parties in the previous and present cases must be the same.
Criminal Law & Procedure — Competent Court — Unit Disciplinary Committee under the UPDF Act
A Unit Disciplinary Committee constituted under the UPDF Act, having power to try any person for any non-capital offence under the Act and to impose any sentence authorised by law, has jurisdiction over such offences and is a competent court within the meaning of Article 28(9) of the Constitution.
Criminal Law & Procedure — Double Jeopardy — Offences Arising from the Same Transaction but Affecting Different Victims
Two offences are not directly or substantially the same for the purposes of double jeopardy where, although arising from the same general transaction, they are committed against different persons and involve different sums; a conviction or acquittal on the first does not necessarily entail the same result on the second.
Constitutional Law — Constitutional Interpretation — Petitions Raising No Question of Interpretation
A petition that can be resolved merely by re-evaluating the evidence raises no question for constitutional interpretation under Article 137 and is liable to dismissal on that basis.

Legislation cited (7)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 28(9)
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 45
  • UPDF Act 2005 s.178
  • UPDF Act 2005 s.195
  • UPDF Act 2005 s.77

Cases cited (3)

  • Connelly v DPP (1964) AC 1254
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Karia and Another v Attorney General and Others [2005] 1 EA 83
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.