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Chandi Jamwa v Attorney General (Consitutional Petition 26 of 2021)

Constitutional Court · [2023] UGCC 101 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of appellate proceedings, criminal convictions, and a statutory limitation on appeals
Decision
Petition dismissed for raising no question for constitutional interpretation and being res judicata

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Holding

The petitioner challenged his conviction for causing financial loss under section 20 of the Anti-Corruption Act 2009 for acts committed in 2007, alleging retrospective application and breaches of fair-hearing rights, and challenged section 5(3) of the Judicature Act barring appeals on severity of sentence. The Constitutional Court, by majority, dismissed the petition, holding it raised no question for constitutional interpretation under Article 137: the constitutionality of section 20 was res judicata, having been settled in Akankwasa and Atugonza; section 20 merely re-enacts section 269 of the Penal Code so no offence was created retrospectively; and severity of sentence is a discretionary matter of fact, not a question of law, so section 5(3) raised no constitutional question. No order as to costs.

Facts

The petitioner was appointed Managing Director of the National Social Security Fund (NSSF) in February 2007 and interdicted in December 2008. He was charged with Causing Financial Loss contrary to section 20 of the Anti-Corruption Act 2009 and Abuse of Office contrary to section 11. The High Court acquitted him of Abuse of Office but convicted him of Causing Financial Loss, sentencing him to 12 years' imprisonment and barring him from public office for 10 years. On the State's cross-appeal, the Court of Appeal upheld that conviction and also convicted him of Abuse of Office, adding 4 years concurrent. The Supreme Court upheld all convictions and sentences. The petitioner then petitioned the Constitutional Court, contending that the acts underlying his conviction occurred in 2007 before the Anti-Corruption Act came into force on 25 August 2009, that the courts had applied the Act retrospectively, that appellate delay and single-justice delivery denied him a fair hearing, and that section 5(3) of the Judicature Act unconstitutionally barred appeals on sentence severity.

Issues

  1. Whether the judgments of the Court of Appeal and the Supreme Court denied the petitioner the right to be heard through inordinate delay and the single-justice delivery of judgment, contrary to Articles 2(2), 126(2)(b), 128(1), 129(2) and 44(c) of the Constitution.
  2. Whether the conviction and sentencing of the petitioner for Causing Financial Loss under section 20 of the Anti-Corruption Act 2009 applied that Act retrospectively and thereby contravened Articles 28(7), 28(8), 28(12), 44(c) and 79 of the Constitution.
  3. Whether section 5(3) of the Judicature Act, which limits the right to appeal to the Supreme Court on the severity of a sentence, is inconsistent with the Constitution.
  4. Whether the petition raised any question requiring interpretation of the Constitution under Article 137, or was barred as res judicata.

Orders

  • The petition is dismissed.
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Threshold for a question of interpretation
For the Constitutional Court to assume jurisdiction under Article 137, the petition must show on its face that interpretation of a provision of the Constitution is required; it is not enough merely to allege that a constitutional provision has been violated, the petitioner must show a prima facie case of the violation alleged and its effect.
Constitutional Law — Res judicata — Binding effect of constitutional interpretation
An interpretation by the Constitutional Court of any legal provision vis-a-vis the Constitution binds beyond the parties to the case in which it was made, and the court cannot hear and determine the same substantive constitutional questions more than once, as they become res judicata.
Statutory Interpretation — Retrospectivity — Re-enactment of a repealed provision
Where a statute is repealed and its provisions are at the same time re-enacted, the re-enactment is a reaffirmation of the old law and a neutralisation of the repeal, so that the re-enacted provisions continue in force without interruption; charging an accused under the re-enacted provision does not amount to retrospective creation of an offence.
Criminal Law & Procedure — Principle of legality — Article 28(7) — Offence existing at time of the act
Article 28(7) is satisfied where the act or omission charged constituted a criminal offence at the time it was committed; Causing Financial Loss, defined under section 269 of the Penal Code Act and re-enacted as section 20 of the Anti-Corruption Act, was a criminal offence when the petitioner's acts occurred, and an enhanced sentence in the later Act does not offend the principle of legality where the convict is sentenced within the limits of the earlier law.
Criminal Law & Procedure — Appeals — Severity of sentence as a matter of discretion
The severity of a sentence is a discretionary matter of fact rather than a question of law; section 5(3) of the Judicature Act, which confines appeals to the Supreme Court to points of law and excludes the severity of sentence, does not bar appeals against the legality of a sentence and raises no question for constitutional interpretation.
Constitutional Law — Enforcement versus interpretation — Article 137 and Article 50
A complaint that a clear and unambiguous constitutional provision, such as Article 28(8), has been misapplied is a question of enforcement of rights, not of interpretation; such matters are litigated before competent courts under Article 50 and do not invoke the interpretive jurisdiction of the Constitutional Court.

Legislation cited (21)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.28(7)
  • Constitution of Uganda 1995 art.28(8)
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.126(2)(b)
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.132(2)
  • Anti-Corruption Act 2009 s.20
  • Anti-Corruption Act 2009 s.11
  • Anti-Corruption Act 2009 s.46
  • Anti-Corruption Act 2009 s.69
  • Penal Code Act s.269
  • Penal Code Act s.87
  • Penal Code Act s.270
  • Penal Code Act s.274
  • Judicature Act Cap 13 s.5(3)
  • Criminal Procedure Code Act s.34(1)
  • Interpretation Act Cap 3 s.13(2)
  • Acts of Parliament Act Cap 2 s.14
  • Prevention of Corruption Act s.25

Cases cited (28)

  • David Chandi Jamwa v Uganda (Criminal Appeal No. 2 of 2017)
  • David Chandi Jamwa v Uganda (Criminal Appeal No. 2 of 2018)
  • Damian Akankwasa v Uganda (Constitutional Reference No. 4 of 2011)
  • Francis Atugonza v Uganda (Constitutional Reference No. 3 of 2010)
  • Akankwasa Damian v Uganda (Constitutional Applications No. 7 and 9 of 2011)
  • Uganda v Godfrey Onegi Obel (Constitutional Petition No. 24 of 2011)
  • Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Abdul Rehman Antulay & Ors v R.S Nayak & Anor Supreme Court of India No. 831 of 1990
  • TSS Grain Millers Ltd v Attorney General (2003) 2 EA 685
  • National Westminster Bank PLC v Spectrum Plus Ltd & Ors, HLS (2005)
  • Polyukhovich v The Commonwealth [1991] HCA 32
  • Secretary of State for Services v Tunnicliffe [1991] 1 All ER 712, 724
  • McCulloch v Maryland 17 US 316
  • Norton v Shelby County 118 U.S. 425 (1886)
  • Nzabaikukize Jamada (Supreme Court)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Busiku Thomas v Uganda (Criminal Appeal No. 33 of 2011)
  • Mpagi Godfrey v Uganda (Criminal Appeal No. 63 of 2001)
  • Sewanyana Livingstone v Uganda (Criminal Appeal No. 19 of 2006)
  • Bonyo Abdul v Uganda (Criminal Appeal No. 7 of 2011)
  • Goodman v Goodman 68 Nev. 484
  • Norris v Clinkscales 47 S.C. 488
  • Sekitoleko Yudah v Uganda (Criminal Appeal No. 33 of 2013)
  • Commissioner of Wealth Tax, Amritsar v Suresh Seth; 1981 AIR 1106, 1981 SCR (3) 419
  • Gangaram Patel v. State of Orissa 1995 I OLR 333
  • Donald Veldman v The Director of Public Prosecutions (Witwatersrand Local Division) [2005] ZACC 22; 2007 (3) SA 210 (CC)
  • Re School Board Election for the Parish of Pulborough (1894) 1 QB 725, at 737
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