Kasule and 2 Others v Uganda (Constitutional Reference 33 of 2019)

Constitutional Court · [2023] UGCC 119 · 2023 Reference Answered ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional reference from the Chief Magistrate's Court, Buganda Road, under Article 137(5) of the Constitution

Decision

Reference answered with declarations; file returned to the trial court with directions that the DPP effect proper withdrawal of charges against the third accused before the trial of the first and second accused proceeds.

The full judgment

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Holding

On a reference from the Chief Magistrate's Court, the Constitutional Court held that no genuine question of constitutional interpretation under Article 137(5) arose, because Article 120(3)(d) and (4)(b) are clear: the power to discontinue criminal proceedings is exercisable exclusively by the Director of Public Prosecutions personally. The trial magistrate ought to have applied the clear law rather than refer. Nonetheless, to avoid protracted proceedings, the court declared that presenting an amended charge sheet dropping the third accused, without the DPP discontinuing the case, was contrary to Article 120(3)(d) and (4)(b); proper withdrawal must be effected by the DPP before the trial of the remaining accused proceeds.

Facts

The three applicants were jointly charged at Buganda Road Chief Magistrate's Court with obtaining money by false pretences contrary to section 305 of the Penal Code Act. It was alleged that in 2014 at Muyenga they defrauded Remmy Segujja of UGX 190,000,000 by falsely pretending to sell him land. The applicants were granted bail, and the trial proceeded over almost three years amid adjournments. During the hearing, the complainant and the accused entered a settlement; the third accused, Joseph Katongole, signed and complied with a settlement deed. The State then tendered an amended charge sheet excluding Katongole, with no evidence that the Director of Public Prosecutions had authorised the withdrawal. Counsel for the accused contended that the State Attorney's amendment dropping Katongole contravened Articles 120(3)(a) and 120(4) of the Constitution, the DPP's powers being exclusive. The Principal Magistrate framed that question and referred the matter to the Constitutional Court for interpretation.

Issues

Whether the withdrawal or amendment of charges against the third accused by the State Prosecutor or State Attorney was contrary to Articles 120(3)(a) and 120(4) of the Constitution.
Whether the reference raised a substantial question of constitutional interpretation warranting a reference to the Constitutional Court under Article 137(5).

Orders

The discontinuation of all criminal matters is the exclusive mandate of the DPP, personally.
Presenting an amended charge sheet without the DPP discontinuing the case against the third accused was contrary to Article 120(3)(d) and (4)(b) of the Constitution.
Proper withdrawal of charges against the third accused should be done.
The trial of the first and second accused should thereafter proceed.
File returned to the trial court to comply with the directions of the court.

Key headnotes

Constitutional Law — Constitutional References — Threshold under Article 137(5)

A question may be referred to the Constitutional Court only where it involves a substantial question of constitutional interpretation; where the relevant provisions are clear and unambiguous, the trial court must apply the law rather than make a reference.

Constitutional Law — Director of Public Prosecutions — Discontinuance of Criminal Proceedings

The power to discontinue criminal proceedings before judgment is conferred on the Director of Public Prosecutions and is exercisable by him or her exclusively and personally under Article 120(3)(d) and (4)(b) of the Constitution.

Criminal Law & Procedure — Withdrawal of Charges — Amendment of Charge Sheet

Presenting an amended charge sheet that drops an accused person amounts to a withdrawal or discontinuance of the charges against that accused and must be authorised by the Director of Public Prosecutions; a withdrawal entered during trial before the prosecution closes its case operates as a discharge.

Statutory Interpretation — Plain Meaning — 'Exclusively'

Where a constitutional provision is clear and unambiguous, its words are given their plain meaning; the word 'exclusively' confines the discontinuance of criminal proceedings to the Director of Public Prosecutions alone.

Legislation cited (6)

Constitution of Uganda art.137(5)
Constitution of Uganda art.137(1)
Constitution of Uganda art.120(3)(a)
Constitution of Uganda art.120(3)(d)
Constitution of Uganda art.120(4)(b)
Penal Code Act s.305

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