Col. (Rtd ) Besigye v Attorney General (Constitutional Petition No. 6 of 2018)

Constitutional Court · [2023] UGCC 15 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition challenging the constitutionality of a statutory provision and the practice of repeated committal-pending appearances before a Magistrates Court.

Decision

Petition Dismissed

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

In this lead judgment, Mugenyi JCC held that section 23(2)(a) of the Penal Code Act, which creates the offence of treason, is not so vague as to be void. Construed under the rules of statutory interpretation and Article 274 of the Constitution, the terms compel/constrain, measures/counsels and intimidate/overawe are synonyms that give a reasonable citizen fair warning of the prohibited conduct, so the provision does not offend Article 28(12). The provision is a justifiable limitation on the freedoms in Article 29(1), being supported by the prohibition in Article 3(2) against unlawful abrogation of the constitutional order and the public-interest limits in Article 43. No political persecution or discrimination was proved against the petitioner.

Facts

The petitioner, a self-styled socio-political activist, was arrested in February 2016 and arraigned in May 2016 before the Chief Magistrates Courts of Moroto and then Nakawa on a charge of treason contrary to section 23(2)(a) of the Penal Code Act. The indictment alleged that he formed an intention to compel by force or constrain the Government to change its measures or counsels, manifested by overt acts including demanding an independent international audit of the 2016 presidential election results, declaring himself the winner of that election, inciting and mobilising the public to attend his swearing-in, and purportedly taking the presidential oath and undertaking to establish a Cabinet. After being released on bail in July 2016 he appeared repeatedly before the Magistrates Court but was neither committed to the High Court nor were investigations concluded over some eighteen months. He petitioned the Constitutional Court challenging the constitutionality of the treason provision and of the repeated pre-committal appearances.

Issues

Whether section 23(2)(a) of the Penal Code Act is inconsistent with or in contravention of Articles 20(2), 21(2), 28(12), 29, 43 and 44 of the Constitution.
Whether, in respect of offences only triable by the High Court, requiring an accused person to appear repeatedly for mention before a Magistrates Court without being committed to the High Court for trial is inconsistent with Articles 20(2), 21(2), 24, 28, 43(2)(a), 44 and 120(5) of the Constitution.
What remedies, if any, are available to the parties.

Key headnotes

Constitutional Law — Existing Law — Article 274 — Construing pre-existing legislation in conformity with the Constitution

A law existing before the 1995 Constitution must, under Article 274(1), be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring it into conformity with the Constitution; any ambiguity in such a provision that has since been clarified by the Constitution is resolved by harmonisation, and the void-for-vagueness test applies only where such harmonisation is untenable.

Constitutional Law — Void-for-vagueness Doctrine — Definiteness of penal offences under Article 28(12)

A penal statute must define the criminal offence with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement; the meaning of a provision must be interrogated through the rules of statutory interpretation before it can be found vague.

Statutory Interpretation — Noscitur a sociis — Construing uncertain terms by their surrounding words

Where a word or phrase is of uncertain meaning it is construed in the light of the surrounding words; in section 23(2)(a) of the Penal Code Act the terms compel and constrain, measures and counsels, and intimidate and overawe are synonyms juxtaposed for emphasis, so the offence of treason it creates is sufficiently ascertainable.

Constitutional Law — Freedom of Expression — Justifiable limitation under Articles 43 and 29(1)

The freedoms of speech, expression, thought, conscience and belief in Article 29(1) are not absolute and must be exercised with regard to the rights of others and the public interest; a limitation in defence of the public interest is valid only where it is acceptable and demonstrably justifiable in a free and democratic society, and section 23(2)(a) of the Penal Code Act is such a justifiable limitation.

Constitutional Law — Treason — Protection of the constitutional order under Article 3(2)

Section 23(2)(a) of the Penal Code Act supplements the offence of treason created by Article 3(2) of the Constitution, which prohibits abrogation of the constitutional order by violent or other unlawful means; it is therefore in the public interest as it protects and preserves a lawfully established constitutional order and is reasonably justifiable in a free and democratic society.

Evidence — Burden of Proof — He who alleges must prove

Contestations in court are not determined on the basis of unproven inferences and innuendos; in accordance with the principle that he who alleges must prove, a petitioner alleging political persecution and discriminatory application of a statutory provision bears the onus of proving those allegations.

Legislation cited (28)

Penal Code Act, Cap. 120 s.23(2)(a)
Penal Code Act, Cap. 120 s.23(1)
Penal Code Act, Cap. 120 s.23(2)(b)
Penal Code Act, Cap. 120 s.32
Penal Code Act, Cap. 120 s.39(2)(a)
Penal Code Act, Cap. 120 s.1
Penal Code Act, Cap. 120 s.50
Constitution of Uganda 1995 art.3
Constitution of Uganda 1995 art.19
Constitution of Uganda 1995 art.20(2)
Constitution of Uganda 1995 art.21
Constitution of Uganda 1995 art.24
Constitution of Uganda 1995 art.28(1)
Constitution of Uganda 1995 art.28(12)
Constitution of Uganda 1995 art.29(1)
Constitution of Uganda 1995 art.38
Constitution of Uganda 1995 art.43
Constitution of Uganda 1995 art.44
Constitution of Uganda 1995 art.79
Constitution of Uganda 1995 art.104
Constitution of Uganda 1995 art.120(3)
Constitution of Uganda 1995 art.120(5)
Constitution of Uganda 1995 art.126(1)
Constitution of Uganda 1995 art.274
Magistrates Courts Act, Cap. 16 s.166
Magistrates Courts Act, Cap. 16 s.168(1)
Prevention and Prohibition of Torture Act 2012 s.2(1)
International Covenant on Civil and Political Rights art.19(3)

Cases cited (12)

Olara Otunnu v Attorney General (Constitutional Petition No. 12 of 2010)
Katiba Institute & Others v Attorney General & Others [2018] 2 EA 97
Charles Onyango Obbo & Another v Attorney General (Constitutional Appeal No. 2 of 2002)
Moses Mwandha v Attorney General (Constitutional Petition No. 5 of 2007)
Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)
Andrew Karamagi & Another v Attorney General (Constitutional Petition No. 5 of 2016)
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
Kolender v Lawson, 461 U.S. 352 (1983)
Francis Tumwesigye Ateenyi v Attorney General (Constitutional Petition No. 36 of 2018)
Attorney General v Joseph Tumushabe (Constitutional Appeal No. 3 of 2005)
Capital Radio (Private) Ltd v The Broadcasting Authority of Zimbabwe & 2 Others (Civil Application No. 162 of 2001)

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