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Tumwesige Francis v Attorney General (Consitutional Petition No. 36 of 2018)

Constitutional Court · [2022] UGCC 5 · 2022 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the validity of statutory provisions under article 137(3)(a)
Decision
Petition granted; sections 168(1)(c) and (d) of the Penal Code Act declared void for unconstitutionality

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Holding

The Constitutional Court held that sections 168(1)(c) and (d) of the Penal Code Act, creating the offence of being a rogue and vagabond, are void for inconsistency with the Constitution. Their elements — "suspected person", "reputed thief", "no visible means of subsistence", "good account", and being found in circumstances suggesting an "illegal or disorderly purpose" — are too vague, ambiguous and broad to satisfy the principle of legality under article 28(12). The provisions also reverse the burden of proof and deem guilt, contravening the presumption of innocence under article 28(3)(a), and unjustifiably curtail personal liberty under article 23. The discrimination claim under article 21 failed for lack of evidence.

Facts

The petitioner brought a constitutional petition challenging section 168(1)(c) and (d) of the Penal Code Act, which deem a "suspected person or reputed thief" with no visible means of subsistence who cannot give a good account of himself, and a person found wandering in circumstances suggesting an illegal or disorderly purpose, to be rogues and vagabonds liable to imprisonment. The petitioner contended these provisions were vague and undefined contrary to article 28(12), displaced the presumption of innocence by imposing a reverse onus, criminalised social status, and permitted arbitrary arrest of mainly poor persons, infringing the rights to equality, liberty and freedom of movement. The supporting affidavit asserted that police applied the provisions to sweep up apparently poor people going about lawful business. The respondent contended the petition raised no question for constitutional interpretation and that the provisions were properly defined and constitutionally valid. The provisions originated in the 1950 Penal Code, predating the 1995 Constitution.

Issues

  1. Whether the petition raised any questions for constitutional interpretation by the court.
  2. Whether section 168(1)(c) and (d) of the Penal Code Act contravenes articles 28(12), 21(1) & (2), 28(3)(a), 23(1)(c) and 23(4)(b) of the Constitution.
  3. Whether section 168(1)(c) and (d) of the Penal Code Act contravenes articles 29(2)(a) and 20(1) & (2) of the Constitution.
  4. What remedies are available to the parties.

Orders

  • Sections 168(1)(c) and (d) of the Penal Code Act are declared void for inconsistency with the Constitution.
  • Each party shall bear its own costs.

Key headnotes

Criminal Law — Principle of Legality — Vagueness and Definition of Offences under Article 28(12)
A criminal offence must be defined with sufficient precision that its elements are clear to all; where the elements of an offence are ambiguous, vague or too broad to constitute a precise definition, the offence is void for contravening the principle of legality under article 28(12) of the Constitution.
Rogues and Vagabonds — Penal Code Act s.168(1)(c) & (d) — Unconstitutionality
The offences of being a rogue and vagabond under section 168(1)(c) and (d) of the Penal Code Act are unconstitutional, the terms "suspected person", "reputed thief", "no visible means of subsistence", "good account" and "illegal or disorderly purpose" being too uncertain to form the foundation of a criminal offence.
Fair Trial — Presumption of Innocence — Reverse Onus under Article 28(3)(a)
A statutory provision that requires an accused to give a good account of himself as a full element of the offence, or that deems an offence to have been committed, reverses the burden of proof and contravenes the non-derogable presumption of innocence guaranteed by article 28(3)(a) of the Constitution.
Personal Liberty — Article 23(1)(c) — Deprivation under Unconstitutionally Vague Offences
Where an offence is not sufficiently and precisely defined, any deprivation of personal liberty founded upon that offence contravenes the right to personal liberty protected under article 23(1)(c) and (4)(b) of the Constitution.
Constitutional Interpretation — Jurisdiction under Article 137(3)(a)
A claim that particular sections of an Act contravene particular articles of the Constitution falls squarely within the court's jurisdiction under article 137(3)(a) and raises questions for constitutional interpretation.
Discrimination — Article 21 — Standard of Proof of Pleaded Case
A petitioner alleging discriminatory application of a law on the basis of social status must adduce evidence supporting the pleaded case; general averments not sworn by any victim and lacking particulars of dates and persons cannot establish a contravention of article 21(1) and (2).

Legislation cited (13)

  • Penal Code Act s.168(1)(c)
  • Penal Code Act s.168(1)(d)
  • Penal Code Act s.167
  • Constitution of Uganda article 20
  • Constitution of Uganda article 21
  • Constitution of Uganda article 23
  • Constitution of Uganda article 28(3)(a)
  • Constitution of Uganda article 28(12)
  • Constitution of Uganda article 29(2)(a)
  • Constitution of Uganda article 43
  • Constitution of Uganda article 44
  • Constitution of Uganda article 137(3)(a)
  • Constitution of Uganda article 212

Cases cited (21)

  • David Tusingwire v Attorney General [2017] UGSC 11
  • Rtd Dr Col Kizza Besigye v Y K Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • P K Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev Christopher Mtikila (2010) EA 13
  • Okello Okello John Livingstone and 6 others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • South Dokata v. South Carolina 192, usA 268. 1940
  • Attorney General v Major David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Charles Onyango Obbo and Anor v Attorney General [2004] UGSC 81
  • Mark Gova & Another vs. Minister of Home Affairs & Anor, S.C. 36/2000: Civil Application No. 156/1991
  • Centre for Health, Human Rights and Development & 3 Others v Attorney General [2015] UGSC 69
  • Ashmore v Corporation of Lloyd's [1992] 2 All ER 486
  • P K Ssemwogerere & Anor v Attorney General [2004] UGSC 10
  • Christopher Madrama Izama v Attorney General [2019] UGSC 1
  • Mayeso Gwanda v The State (Constitutional Cause No. 5 of 2015) [2017] MWHC 23
  • Omar Awadh Omar and 10 Others v Attorney General, Foundation for Human Rights Initiative v Attorney General Constitutional Appeal No. 3 of 2009 (unreported)
  • Godfrey Kazinda v Attorney General (Constitutional Petition No. 50 of 2012)
  • Fernandes v Commercial Bank of Africa Ltd [1969] EA 482
  • King v Attorney General [1981] IR 245
  • Kolender v Lawson 461 U.S. 352
  • Hattie Mae Ricks v District of Columbia 134 U.S. App. D.C. 201
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.