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Uganda v Hassan (Criminal Appeal 9 of 1990)

Supreme Court · [1991] UGSC 19 · 1991 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a High Court revisional order (treated as a first appeal) concerning the sufficiency of a charge under section 51 of the Penal Code Act
Decision
Appeal allowed in part; High Court's "no case to answer" order set aside, with liberty to the prosecution to amend or substitute the charge

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Holding

On a second appeal from a High Court revisional order, the Supreme Court held that the word "publishes" in section 51 of the Penal Code Act, which creates the offence of defaming a foreign dignitary, refers only to matter expressed in a written, printed or other readable form, not to spoken words. A charge alleging publication "by asking questions" therefore disclosed no offence. The High Court's order, though it referred to "no case to answer", was not an acquittal but a striking out of a defective charge, so the appeal was competent. The appeal was allowed in part: the "no case to answer" order was set aside, leaving the prosecution free to amend or substitute the charge.

Facts

The respondent was charged before a Magistrate Grade 1 under section 51 of the Penal Code Act with publishing defamatory matter against the President of Zambia, Dr Kenneth Kaunda, by asking him questions intended to disturb peace and friendship between Uganda and Zambia. The respondent objected that the particulars disclosed no offence, because section 51 required a libel (written or printed matter), whereas asking questions amounted only to spoken words. The Magistrate refused to strike out the charge, holding it sufficiently particularised. On revision, the High Court held the particulars insufficient and ordered that the respondent had no case to answer under section 51. The Director of Public Prosecutions, though served, failed to appear at the revision hearing, and the High Court proceeded ex parte after waiting over an hour. The State appealed to the Supreme Court.

Issues

  1. Whether the High Court's revisional order amounted to an acquittal, which would bar a second appeal to the Supreme Court.
  2. Whether the revisional order was invalid because it was made in the absence of the Director of Public Prosecutions.
  3. Whether the word "publishes" in section 51 of the Penal Code Act extends to spoken words (slander) or is confined to written or printed matter (libel).

Orders

  • Appeal allowed in part.
  • The order of the High Court insofar as it related to "no case to answer" is set aside.
  • The prosecution is at liberty, if it wishes to proceed further against the respondent, to amend the charge or to substitute or add a new charge.

Key headnotes

Criminal Statutes — Defamation of a Foreign Dignitary — Meaning of "Publishes" in Penal Code Act s.51
The word "publishes" in section 51 of the Penal Code Act, creating the offence of defaming a foreign dignitary, is confined to matter expressed in a written, printed or other form capable of being read, and does not extend to defamation by spoken words.
Charges — Sufficiency of Particulars — Charge Disclosing No Offence
Where the particulars of an offence allege conduct that does not fall within the section charged, the charge discloses no offence and must be struck out; this is distinct from a finding of no case to answer made at the close of the prosecution case.
Appeals — Second Appeal — Striking Out of Defective Charge Is Not an Acquittal
An order setting aside a charge as defective for disclosing no offence is not an acquittal, and therefore does not, by virtue of the prohibition on a second appeal against an acquittal, oust the appellate jurisdiction of the Supreme Court under section 337 of the Criminal Procedure Code Act.
Revision — Hearing the Director of Public Prosecutions — Effect of Non-Appearance
Where the Director of Public Prosecutions has been served and afforded an opportunity to be heard on a revision but fails to appear, the court may proceed ex parte, and the resulting order is not invalidated by section 342(2) of the Criminal Procedure Code Act.

Legislation cited (11)

  • Penal Code Act s.51
  • Penal Code Act s.20
  • Penal Code Act s.42(1)
  • Penal Code Act s.174
  • Penal Code Act s.175
  • Penal Code Act s.176(1)
  • Criminal Procedure Code Act s.337(1)
  • Criminal Procedure Code Act s.337(6)
  • Criminal Procedure Code Act s.342(2)
  • Trial on Indictments Decree s.132A
  • Magistrates' Courts Act s.130
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.