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

Constitutional Court · [2021] UGCC 5 · 2021 Petition Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 seeking declarations that prosecutorial and trial acts in two criminal cases were unconstitutional

Decision

Petition struck out for raising no question for constitutional interpretation; no order as to costs

The full judgment

Read the complete, verbatim text of this judgment.

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 Constitutional Court struck out the petition for raising no question requiring interpretation of the Constitution. The complaints — alternative and duplicated charges, want of DPP consent, indictment and committal irregularities, and alleged double jeopardy — were matters of enforcement within the High Court's jurisdiction, raisable at trial, on appeal, or by judicial review, not by constitutional petition. Charging offences founded on the same facts, including alternative counts, is permitted by s.86(1) Magistrates Courts Act and s.23(1) Trial on Indictment Act and does not offend Article 28. The DPP's prosecutorial discretion is reviewable only by judicial review, and the DPP, not being a body corporate, cannot be sued; the proper respondent is the Attorney General.

Facts

In January 2010 the petitioner, a Senior Health Planner at the Ministry of Health, was charged at Buganda Road Chief Magistrates' Court (criminal case No. 80/2010) with embezzlement and, in the alternative, causing financial loss under the Anti-Corruption Act 2009, arising from the alleged misappropriation of ministry funds in September 2009. He was committed to the Anti-Corruption Division of the High Court, where an indictment (criminal case No. 41/2010) charged embezzlement as the main count and causing financial loss in the alternative. The petitioner contended the particulars of the two offences were identical, that the charge sheet was endorsed by the DPP without disclosing the financial-loss offence, that he faced concurrent trials on the same facts, and that he was indicted and committed without a proper trial. He petitioned the Constitutional Court alleging these acts contravened Articles 28, 120(5) and 125(5). He conceded there was no evidence of any trial or judgment in some of the cases he relied on.

Issues

Whether the petition raised any questions for constitutional interpretation.
Whether including in the indictment in criminal case No. 80/2010 an alternative charge that was neither a lesser nor a minor and cognate offence violated Article 28 of the Constitution.
Whether the DPP's endorsement of a charge sheet whose particulars duplicated those of the embezzlement count amounted to an abuse of process contravening Article 120(5).
Whether conducting two criminal trials with identical particulars contravened Articles 28(1) and 120(5).
Whether conducting criminal case No. 41/2010 without an indictment violated Article 28.
Whether indicting and committing the petitioner to prison under criminal case No. 80/2010 without a trial contravened Article 28.
Whether conducting the criminal trials without a substantive endorsement by the DPP contravened Article 125(5).

Orders

The petition is struck out.
No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — interpretation versus enforcement

The jurisdiction of the Constitutional Court under Article 137 is confined to questions requiring interpretation of the Constitution; where the rights alleged to have been violated are enforceable by a competent court under Article 50, the Constitutional Court has no jurisdiction and the petition must be struck out.

Criminal Procedure — Charges — Joinder and alternative counts founded on the same facts

Offences founded on the same facts, or forming part of a series of offences of the same or a similar character, may lawfully be charged together in the same charge sheet or indictment, including as alternative counts, under s.86(1) of the Magistrates Courts Act and s.23(1) of the Trial on Indictment Act, and doing so does not contravene Article 28 of the Constitution.

Criminal Procedure — Defects in charge sheet, want of DPP consent and indictment irregularities — proper forum

Defects such as the absence of the DPP's consent, duplicated particulars, or irregularities in the indictment or committal must be raised before the trial High Court — which may grant mandamus, prohibition or certiorari under s.36(1) of the Judicature Act — or on appeal, and do not found a constitutional petition.

Criminal Procedure — Stay of prosecution — allegation of unfair trial

A criminal prosecution cannot be stopped merely on an allegation that the trial will not be free and fair; the trial court can fairly pronounce on the matter and the appellate system provides any necessary remedy, so the Constitutional Court will not halt ongoing criminal proceedings.

Judicial Review — Prosecutorial discretion of the DPP — reviewability

Where the DPP exercises prosecutorial powers parallel to or in breach of constitutional parameters, or unreasonably, the decision is challengeable by judicial review applying established principles, having regard to the wide discretion and polycentric character of prosecutorial decision-making, rather than by constitutional petition.

Constitutional Law — Capacity to sue and be sued — office of the Director of Public Prosecutions

The office of the Director of Public Prosecutions, created under Article 120 of the Constitution, is not a body corporate and cannot sue or be sued; under Article 250(2) legal proceedings by or against the government must be instituted by or against the Attorney General, save that an impugned institution may be cited in judicial review.

Legislation cited (27)

Constitution of Uganda art.28
Constitution of Uganda art.28(1)
Constitution of Uganda art.28(7)
Constitution of Uganda art.28(9)
Constitution of Uganda art.44(c)
Constitution of Uganda art.50
Constitution of Uganda art.120
Constitution of Uganda art.120(5)
Constitution of Uganda art.120(6)
Constitution of Uganda art.125(5)
Constitution of Uganda art.137
Constitution of Uganda art.137(3)(b)
Constitution of Uganda art.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.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
Penal Code Act s.18
Judicature Act s.36(1)
Public Finance and Accounting Regulations, SI No. 72 of 2003 reg.65

Cases cited (14)

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 v Kampala City Council (Supreme Court Civil Appeal No. 2 of 1998)
Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
Trop Vs Dulles 356 US 86 [1958]
Hernaman v. Smith (18855)6 Exch 659
Cook v. Gill (1873) LR8 CP 107
Abdulla v. Esmail (1969) EALR 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 (Supreme Court Civil Appeal No. 4 of 2007)

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