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Dr. Kamba Baleke v Attorney General and Another (Constitutional Petition No. 2 of 2014)

Constitutional Court · [2021] UGCC 16 · 2021 Petition Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution seeking declarations and termination of criminal proceedings
Decision
Petition struck out for disclosing no question for constitutional interpretation; no order as to costs.

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Holding

The Constitutional Court struck out the petition for failing to raise any question requiring interpretation of the Constitution. The petitioner's grievances about the inclusion of alternative counts, duplicate charge particulars, endorsement of charge sheets, and concurrent criminal trials were matters of enforcement and procedure within the jurisdiction of the High Court, which had power under the Judicature Act and the appellate process to remedy them. Mere allegation that constitutional provisions were violated, without a genuine interpretive question, does not confer jurisdiction under Article 137. The Court also held that the Director of Public Prosecutions, not being a body corporate, could not be sued; proceedings should have been brought against the Attorney General under Article 250(2).

Facts

In January 2010 the petitioner, a Senior Health Planner at the Ministry of Health, was charged before the Chief Magistrates Court at Buganda Road with embezzlement and, in the alternative, causing financial loss, contrary to the Anti-Corruption Act 2009, in respect of funds belonging to the Ministry. He was committed to the Anti-Corruption Division of the High Court, where he was tried and convicted on the alternative count of causing financial loss. The petitioner complained that the indictment improperly combined a main count with an alternative count founded on identical particulars, that the DPP had endorsed a charge sheet that did not disclose the alternative offence, and that he had been subjected to overlapping criminal proceedings (criminal cases No. 80/2010 and No. 41/2010). He petitioned the Constitutional Court seeking declarations that these acts contravened the Constitution and orders terminating the prosecutions. The respondents contended the petition raised no question for constitutional interpretation and that the DPP lacked capacity to be sued.

Issues

  1. Whether the petition raised any questions for constitutional interpretation.
  2. Whether the inclusion in the indictment of an alternative charge that was neither a lesser offence nor minor and cognate to the main offence violated Article 28 of the Constitution.
  3. Whether the DPP's endorsement of a charge sheet whose particulars duplicated those for embezzlement amounted to an abuse of legal process contravening Article 120(5) of the Constitution.
  4. Whether the conduct of two criminal trials with identical particulars contravened Articles 28(1) and 120(5) of the Constitution.
  5. Whether the conduct of a criminal case without an indictment violated Article 28 of the Constitution.
  6. Whether indicting and committing the petitioner to prison without a trial contravened Article 28 of the Constitution.
  7. Whether the second respondent (DPP) had legal capacity to sue or be sued.

Orders

  • Petition struck out.
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Question for Interpretation under Article 137
The Constitutional Court's jurisdiction under Article 137 is limited to the interpretation of the Constitution; a petition that merely alleges contravention of a constitutional provision, without disclosing a genuine question requiring interpretation, confers no jurisdiction and must be struck out.
Constitutional Law — Enforcement of Rights — Distinction from Interpretation under Article 50
Where the rights alleged to have been violated are enforceable under Article 50 by a competent court, the matter is one of enforcement and the Constitutional Court cannot be called upon to interpret the Constitution.
Criminal Law & Procedure — Indictments — Joinder of Counts and Alternative Charges
Section 86(1) of the Magistrates Courts Act and section 23(1) of the Trial on Indictment Act permit offences founded on the same facts, or forming part of a series of offences of the same or similar character, to be charged together, including by way of an alternative count; doing so does not contravene Article 28 of the Constitution.
Criminal Law & Procedure — Stay of Prosecution — Reluctance to Halt Criminal Trials
Criminal trials cannot be stopped at the wish of an accused on allegations that the trial would not be free and fair, because crime affects society generally; the trial court can fairly pronounce on the matter and any prejudice is remediable through the appellate system.
Administrative Law — Prosecutorial Discretion — Reviewability of DPP Decisions by Judicial Review
The exercise of prosecutorial discretion by the Director of Public Prosecutions is reviewable by way of judicial review on established principles, having proper regard to the width of that discretion and the policy and public-interest considerations involved, rather than by constitutional petition.
Civil Procedure — Capacity to Sue and Be Sued — Director of Public Prosecutions
The office of the Director of Public Prosecutions is not a body corporate and, absent any constitutional or statutory provision conferring such capacity, cannot sue or be sued; proceedings by or against government must be instituted by or against the Attorney General under Article 250(2) of the Constitution.

Legislation cited (22)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 28(9)
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 50
  • Constitution of Uganda Article 120
  • Constitution of Uganda Article 120(5)
  • Constitution of Uganda Article 125(5)
  • Constitution of Uganda Article 250(2)
  • Anti-Corruption Act 2009 s.19
  • Anti-Corruption Act 2009 s.20
  • Anti-Corruption Act 2009 s.47
  • Anti-Corruption Act 2009 s.49
  • Magistrates Courts Act s.86(1)
  • Magistrates Courts Act s.168(1)
  • Trial on Indictment Act s.23(1)
  • Trial on Indictment Act s.25
  • Trial on Indictment Act s.26
  • Trial on Indictment Act s.135
  • Judicature Act s.36(1)
  • Penal Code Act s.18
  • Public Finance and Accounting Regulations SI No. 72 of 2003 Reg.65

Cases cited (15)

  • Intoil & Another v The Permanent Secretary Ministry of Energy & Others [2009] 1 EA 157
  • Kazinda Geoffrey v Attorney General (Constitutional Petition No. 30 of 2014)
  • Ismail Serugo, Constitutional petition No. 14 of 1997
  • Ismail Serugo v Kampala City Council & Anor (Supreme Court Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General David Tinyefuza (Supreme Court Constitutional Appeal No. 1 of 1997)
  • Trop v Dulles 356 US 86 (1958)
  • Hernaman v. Smith (18855)6 Exch 659
  • Cook v Gill (1873) LR 8 CP 107
  • Abdulla v Esmail (1969) EA 111
  • Read v Brown (1888) 22 QBD 128 (CA)
  • Ssekikubo and 10 Others v National Resistance Movement (Constitutional Petition No. 9 of 2019)
  • Dr. Tiberius Muhebwa v Uganda (Constitutional Petition No. 9 of 2012)
  • Jim Muhwezi & 3 Others v Attorney General and Inspector General of Government (Constitutional Petition No. 10 of 2008)
  • Matalulu v DPP (2003) 4 LRC 712
  • Charles Harry Twagira v Attorney General & Anor (Supreme Court Civil Appeal No. 4 of 2007)
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