Male Mabirizi v Attorney General (Constitutional Petition No. 21 of 2014)

Constitutional Court · [2020] UGCC 15 · 2020 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 challenging acts of the Resident State Attorney and trial magistrate

Decision

Petition dismissed with costs; the petitioner's criminal trial in the Magistrate's Court was not found unconstitutional

The full judgment

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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 petitioner challenged the continuation of his criminal trial and the amendment of the charge sheet while his request to the DPP to discontinue proceedings was pending, and the refusal to give him the entire police file. The Constitutional Court held that the power to discontinue proceedings before judgment is exercised solely and exclusively by the DPP, who cannot be coerced by any person. Continuing a trial while a discontinuance request is pending does not infringe the accused's rights, and criminal proceedings may arise from facts that also found a civil dispute. Pre-trial disclosure is subject to limitations and lies within the trial court's discretion, raising no question for constitutional interpretation. The petition was dismissed with costs.

Facts

The petitioner, managing director of a money-lending company, was arrested in July 2013 and charged before the Buganda Road Magistrate's Court with theft of a land title arising from loan transactions secured by that title. He pleaded not guilty and was granted bail. He then complained to the DPP, contending the matter was contractual and that the charge had been improperly sanctioned by the Resident State Attorney, and requested discontinuance of the proceedings. The DPP's complaints desk acknowledged the complaint. While the request remained pending, the petitioner's bail lapsed and a warrant issued; on his return the prosecution amended the charge sheet from one to six counts and produced a witness who testified. The petitioner protested but pleaded not guilty to the amended charges. After the first witness testified, he asked the Resident State Attorney for the entire police file to prepare his defence; the request was declined because the file contained confidential investigation records. He petitioned the Constitutional Court alleging breaches of his equality and fair-hearing rights.

Issues

Whether the act of the Resident State Attorney of prosecuting the petitioner while a decision on discontinuance was pending before the DPP is inconsistent with or in contravention of Articles 120(4)(b), 120(5), 21(1), 28(1) and (3)(c) and 44(c) of the Constitution.
Whether the act of the Magistrate Grade 1 of proceeding with the criminal trial pending the DPP's decision on discontinuance is inconsistent with or in contravention of Articles 28(3)(c), 44(c) and 120(4)(b) and (5) of the Constitution.
Whether the act of the Magistrate Grade 1 of allowing a witness to testify against the petitioner in a session where the charge sheet had been amended from one count to six counts is inconsistent with Articles 21, 28(3)(c) and 44 of the Constitution.
Whether the act of the Resident State Attorney in denying the petitioner an entire copy of the police file for preparation of his defence is inconsistent with or in contravention of Articles 21(1), 28(3)(c) and 44 of the Constitution.
Whether the parties are entitled to the remedies sought.

Orders

The petition is dismissed with costs.

Key headnotes

Director of Public Prosecutions — Exclusive power to discontinue criminal proceedings

The power to discontinue criminal proceedings at any stage before judgment is delivered is, under Article 120(4)(b), exercised solely and exclusively by the Director of Public Prosecutions, who is not subject to the direction or control of any person and cannot be compelled or coerced to exercise that power.

Concurrent civil and criminal proceedings — Same facts

Criminal proceedings may be instituted on facts that also give rise to a civil dispute; the existence or pendency of a civil relationship between the parties does not bar criminal prosecution arising from the same facts.

Continuation of trial pending request for discontinuance (nolle prosequi)

A court may lawfully continue a criminal trial while a request to the Director of Public Prosecutions to discontinue the proceedings remains pending; doing so does not infringe the accused's rights to equality, fair hearing or freedom from derogation.

Pre-trial disclosure — Right to facilities for defence under Article 28(3)(c)

An accused person is prima facie entitled to pre-trial disclosure of witness statements and exhibits under Article 28(3)(c), but disclosure may be denied where justified by evidence on grounds of state secrets, protection of witnesses or informers, or the simplicity of the case; whether the denial is justified lies within the trial court's discretion.

Constitutional Court — Jurisdiction limited to questions of interpretation

The Constitutional Court has jurisdiction only where the petition shows on its face that interpretation of a provision of the Constitution is required; a matter resolvable in the exercise of a trial court's discretion raises no question for constitutional interpretation.

Constitutional petition — Burden of proof and cause of action

The burden of proving that an act or omission contravenes the Constitution rests on the petitioner, whose petition must describe the impugned act and the constitutional provision said to be contravened; such a petition is given a liberal and broader interpretation than an ordinary civil plaint.

Constitutional interpretation — Plain meaning and the rule of harmony

Where the words of a constitutional provision are clear and unambiguous they must be given their primary, plain, ordinary and natural meaning, and the Constitution must be read as a whole, with provisions bearing on the same subject considered together so that none destroys another.

Legislation cited (11)

Constitution of Uganda 1995 art.2(2)
Constitution of Uganda 1995 art.20(1)
Constitution of Uganda 1995 art.21(1)
Constitution of Uganda 1995 art.28(1)
Constitution of Uganda 1995 art.28(3)(c)
Constitution of Uganda 1995 art.43
Constitution of Uganda 1995 art.44(c)
Constitution of Uganda 1995 art.120(4)(b)
Constitution of Uganda 1995 art.120(5)
Constitution of Uganda 1995 art.120(6)
Constitution of Uganda 1995 art.137

Cases cited (12)

Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Petition No. 1 of 2008)
Ismail Serugo v Kampala City Council and Attorney General (Constitutional Petition No. 2 of 1998)
Davis Wesley Tusingwire v Attorney General (Constitutional Petition No. 2 of 2013)
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
South Dakota v North Carolina, 192 US 268 (1940)
Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Twinobusingye Severino v Attorney General (Constitutional Petition No. 47 of 2011)
Paul Semogerere v. Attorney General Constitutional Appeal (supra)
Attorney General v Susan Kigula and Others (Constitutional Appeal No. 3 of 2006)
Sarah Kulata Basangwa v Uganda (Criminal Appeal No. 3 of 2018)
Soon Yeon Kong Kim and another v Attorney General (Constitutional Reference No. 6 of 2007)

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.