Wakilii

David Welsey Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)

Supreme Court · [2017] UGSC 11 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the decision of the Constitutional Court dismissing a petition challenging the constitutionality of practice directions
Decision
Appeal dismissed; the decision and judgment of the Constitutional Court upheld; each party to bear its own costs.

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Holding

The Supreme Court held that the High Court (Anti-Corruption Division) Practice Directions 2009 were made by the Chief Justice in exercise of his administrative and supervisory functions under Article 133(1)(b), not as legislation, and did not usurp Parliament's powers under Article 79. Designating Magistrates to assist the Division did not add them to the constitutional composition of the High Court under Article 138, nor confer unconstitutional unlimited territorial jurisdiction, since sections 6, 7 and 31 of the Magistrates Courts Act authorise such assignment. The appellant failed to discharge the burden of proof; the proceedings did not violate the right to a fair hearing under Articles 28 and 44(c). The appeal was dismissed.

Facts

The Chief Justice issued the High Court (Anti-Corruption Division) Practice Directions 2009 on 18 August 2009 under Article 133 of the Constitution, establishing the Anti-Corruption Division of the High Court to adjudicate corruption and corruption-related cases under the Anti-Corruption Act, Penal Code Act and Leadership Code Act. The Division comprised High Court judges, a registrar and designated Magistrates (Chief Magistrates and Magistrates Grade I) attached to assist. The directions gave designated Magistrates territorial jurisdiction to try specified offences committed anywhere in Uganda. The appellant petitioned the Constitutional Court challenging directions 2, 8 and 10 as inconsistent with the Constitution, arguing they appointed Magistrates to the High Court, distorted its composition under Article 138, conferred unlimited territorial jurisdiction, and rendered proceedings before the Division a nullity that breached the right to a fair hearing. The Constitutional Court dismissed the petition by a majority of four Justices to one. The appellant appealed to the Supreme Court.

Issues

  1. Whether the High Court (Anti Corruption Division) Practice Directions 2009 added the designated Magistrates to the structure and composition of the High Court, or merely made them assistants to the judges.
  2. Whether the Chief Justice could, under Article 133 of the Constitution and sections 6 and 7 of the Magistrates Courts Act, alter the composition, structure and function of the High Court.
  3. Whether the Chief Justice could under Article 133 confer unlimited territorial jurisdiction on the designated Magistrates.
  4. Whether the proceedings before and arising from the designated Magistrates at the Anti Corruption Division violated the right to a fair hearing under Articles 28 and 44(c) of the Constitution.
  5. Whether the proceedings taken before the designated Magistrates should be nullified by consequential orders.

Orders

  • The appeal is dismissed.
  • The decision and judgment of the Constitutional Court are upheld.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Interpretation — Reading the Constitution as an integral whole
The entire Constitution must be read together as an integral whole, with no provision destroying another but each sustaining the other, in accordance with the rule of harmony, completeness and exhaustiveness.
Administrative Law — Powers of the Chief Justice — Article 133(1)(b) practice directions
Article 133(1)(b) of the Constitution empowers the Chief Justice to issue orders and directions to the courts necessary for the proper and efficient administration of justice; such directions are an exercise of administrative and supervisory functions, not legislation, and do not usurp Parliament's law-making power under Article 79.
Constitutional Law — Composition of the High Court — Article 138
Attaching designated Magistrates to a division of the High Court by practice directions does not add them to the constitutional composition of the High Court under Article 138, where they continue to exercise only their statutory magisterial jurisdiction and not the jurisdiction of High Court judges.
Statutory Interpretation — Meaning of 'designated' magistrates
The word 'designated' denotes a designee assigned to perform a specific role and does not connote a fresh appointment; designating a Magistrate to assist a High Court division is not an appointment to the High Court.
Statutory Interpretation — Territorial jurisdiction of magistrates — Magistrates Courts Act ss.6, 7, 31
Under sections 6, 7 and 31 of the Magistrates Courts Act the Chief Justice may assign a Magistrate to any magisterial area and authorise a court to sit outside the local limits of its jurisdiction; a reference to jurisdiction over offences committed anywhere in Uganda must be read within these provisions and does not amount to an unconstitutional conferment of unlimited territorial jurisdiction.
Evidence — Burden of proof in constitutional petitions — section 106 Evidence Act
A petitioner challenging the constitutionality of a directive bears the burden of proving its inconsistency with the Constitution; under section 106 of the Evidence Act facts especially within a person's knowledge must be proved by that person, and such petitions are determined on affidavit evidence.
Human Rights — Right to a fair hearing — Articles 28 and 44(c)
Where the heading of a document differs from its substance, the discrepancy is a matter of form that does not vitiate proceedings; absent evidence that magistrates acted outside their statutory jurisdiction, proceedings in the Anti-Corruption Division do not violate the right to a fair hearing under Articles 28 and 44(c) of the Constitution.

Legislation cited (30)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.133(1)(b)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.138
  • Constitution of Uganda 1995 art.139
  • Constitution of Uganda 1995 art.142(2)
  • Constitution of Uganda 1995 art.145
  • Constitution of Uganda 1995 art.150
  • Constitution of Uganda 1995 art.257(1)(d)
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.44(c)
  • Magistrates Courts Act (Cap 16) s.2
  • Magistrates Courts Act (Cap 16) s.6
  • Magistrates Courts Act (Cap 16) s.7
  • Magistrates Courts Act (Cap 16) s.9
  • Magistrates Courts Act (Cap 16) s.31
  • Magistrates Courts Act (Cap 16) s.161
  • Magistrates Courts Act (Cap 16) s.169
  • Judicature Act (Cap 13) s.14
  • Anti Corruption Act 2009 (No. 6 of 2009) s.51
  • Evidence Act (Cap 6) s.106
  • Civil Procedure Act (Cap 71)
  • High Court (Anti Corruption Division) Practice Directions 2009 directions 2, 4, 5, 8 and 10
  • Rule 12(1) of the Constitutional Court (Petitions and References) Rules
  • Penal Code Act
  • Leadership Code Act

Cases cited (19)

  • Gilbert Bukenya Balibaseka v Attorney General (Constitutional Petition No. 30 of 2011)
  • Constitution Petition No 46 of 211
  • Hon Sam Kuteesa and 2 Others v Attorney General (Constitutional Reference No. 54 of 2011)
  • Kenilorea v Attorney General [1986] LRC (Const) 126
  • Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2010)
  • Phillip Karugaba v Attorney General (Constitutional Petition No. 11 of 2002)
  • Advocates Coalition for Development and Environment v Attorney General (Constitutional Petition No. 14 of 2011)
  • Meme v Republic and Another (Miscellaneous Criminal Application No. 495 of 2003)
  • Rtd Col. Dr. Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v. Silvation Abuki Constitutional Appeal No. 1988 (SC)
  • 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 John Livingstone and 6 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • South Dakota v North Carolina 192 US 268 (1940)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Unity Dow v Attorney General of Botswana [1992] LRC (Const) 623
  • Hunter v. Southern Inc
  • Attorney General v Susan Kigula and Others (Constitutional Appeal No. 3 of 2006)
  • Paul Ssemwogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
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