Basajjabalaba & Another v Attorney General (Constitutional Appeal 1 of 2018)

Supreme Court · [2021] UGSC 23 · 2021 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional appeal to the Supreme Court from a Constitutional Court decision that succeeded only in part

Decision

Appeal dismissed by a majority of 6 to 1; the Constitutional Court judgment was upheld and each party ordered to bear its own costs

The full judgment

Read the complete, verbatim text of this judgment.

Treatment recorded in citing cases followed in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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

The Supreme Court dismissed an appeal challenging a Constitutional Court judgment delivered after four of the five justices who heard the petition had ceased to be members of the court. The majority held that a judgment signed by the majority of a properly constituted panel while its members were still in office is valid; its later delivery, and the presiding judge's failure to sign or to write a separate opinion, are technicalities that Article 126(2)(e) of the Constitution will not allow to defeat substantive justice. The grounds attacking the merits offended Rule 82 of the Supreme Court Rules and failed. Kisaakye JSC dissented, holding the judgment invalid and would have ordered a rehearing before a fully constituted Constitutional Court.

Facts

The appellants filed a Constitutional Petition under Article 137 challenging the conduct of the Director of Public Prosecutions and the Uganda Police Force in their arrest and prosecution, the constitutionality of section 392(a) of the Penal Code Act, and the jurisdiction of the High Court Anti-Corruption Division. The petition was heard on 1 July 2014 by a panel of five Constitutional Court justices (Kavuma DCJ, Kasule, Mwangusya, Opio-Aweri and Bbosa, JJCC). The petition succeeded only in part. The judgment was signed by four of the justices; Kavuma DCJ neither signed nor wrote a separate opinion. By the delivery date, 2 May 2018, four of the five panel members had left the Constitutional Court (Kavuma DCJ having retired, Mwangusya and Opio-Aweri elevated to the Supreme Court, and Bbosa appointed to the International Criminal Court); only Kasule, who delivered the judgment, remained. The appellants appealed to the Supreme Court, attacking the validity of the judgment and its merits.

Issues

Whether the Constitutional Court judgment was a nullity because, at the time of its delivery, four of the five justices who heard the petition had ceased to be members of the Constitutional Court.
Whether the failure of the presiding judge (the Deputy Chief Justice) to sign the majority judgment or write a separate concurring or dissenting opinion rendered the judgment a nullity.
Whether grounds 3 and 4 of the memorandum of appeal offended Rule 82 of the Supreme Court Rules as argumentative and an abuse of court process.
Whether section 392(a) of the Penal Code Act is unconstitutionally vague and imprecise.
Whether the High Court (Anti-Corruption Division) had jurisdiction to try offences charged under the Penal Code Act, and whether Direction 8 of the Practice Directions unconstitutionally amended the Anti-Corruption Act.

Orders

Appeal dismissed for lack of merit.
Each party to bear its own costs.

Key headnotes

Civil Procedure — Validity of Judgment — Coram — Justices Ceasing to be Members of the Court Before Delivery

A judgment of a court of five justices is not invalidated merely because, at the time of its delivery, one or more of the justices who heard and decided the matter have ceased to be members of the court; what matters is that the judge was a member of the court at the time of writing and signing the judgment, since a judgment takes effect from the day it is pronounced but is made when it is decided and signed.

Civil Procedure — Majority Judgment — Absence of Presiding Judge's Signature or Separate Opinion

Where a matter is heard by a properly constituted coram and the majority of the panel sign a unanimous decision, the failure of one member, including the presiding judge, to append a signature or to write a separate concurring or dissenting opinion does not invalidate the majority decision, which constitutes the judgment of the court.

Constitutional Law — Substantive Justice — Article 126(2)(e) — Rules of Procedure as Handmaidens of Justice

The requirement under Rule 33(5) of the Court of Appeal Rules that each member of a panel sign or write a separate judgment in civil and constitutional matters is a technicality of authentication that must yield to Article 126(2)(e) of the Constitution, which requires substantive justice to be administered without undue regard to technicalities.

Civil Procedure — Memorandum of Appeal — Rule 82 Supreme Court Rules — Argumentative and Broad Grounds

A ground of appeal that is argumentative, or that is too broad and fails to specify the point alleged to have been wrongly decided, offends Rule 82 of the Supreme Court Rules, which requires grounds to be set out concisely and under distinct heads without argument or narrative.

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Matters Requiring Constitutional Interpretation

The jurisdiction of the Constitutional Court under Article 137 is limited to questions whose determination depends on the interpretation or construction of a provision of the Constitution; an alleged procedural irregularity, such as non-compliance with a statutory consent requirement or a defective indictment, that does not turn on constitutional interpretation is a matter for the trial court and not the Constitutional Court.

Statutory Interpretation — Penal Provisions — Use of the Disjunctive 'or' — Certainty of a Criminal Offence

The use of the disjunctive conjunction 'or' in a penal provision renders the listed ingredients mutually exclusive alternatives, each of which independently constitutes the offence; section 392(a) of the Penal Code Act is therefore neither ambiguous nor imprecise and does not offend the principle of legality or the Constitution.

Criminal Law & Procedure — Jurisdiction — High Court (Anti-Corruption Division) — Legal Notice No. 9 of 2009

The High Court (Anti-Corruption Division) is a competent court to try offences outside the Anti-Corruption Act; Legal Notice No. 9 of 2009 is merely an administrative instrument improving efficiency and does not, and could not constitutionally, limit the unlimited original jurisdiction of the High Court conferred by section 14(1) of the Judicature Act.

Legislation cited (25)

Constitution of the Republic of Uganda 1995 art.137(2)
Constitution of the Republic of Uganda 1995 art.137(1)
Constitution of the Republic of Uganda 1995 art.131
Constitution of the Republic of Uganda 1995 art.144
Constitution of the Republic of Uganda 1995 art.126(2)(e)
Constitution of the Republic of Uganda 1995 art.129(3)
Constitution of the Republic of Uganda 1995 art.133
Constitution of the Republic of Uganda 1995 art.79
Constitution of the Republic of Uganda 1995 art.28
Penal Code Act Cap 120 s.392(a)
Anti-Corruption Act s.49
Anti-Corruption Act s.51
Anti-Corruption Act s.52
Judicature Act s.14(1)
Judicature (Court of Appeal Rules) Directions r.33(5)
Judicature (Court of Appeal Rules) Directions r.33(11)
Judicature (Court of Appeal Rules) Directions r.33(3)
Judicature (Supreme Court Rules) Directions r.82
Judicature (Supreme Court Rules) Directions r.32(3)
Constitutional Court (Petitions and References) Rules S.I. 91 of 2005 r.23
Constitutional Court (Petitions and References) Rules S.I. 91 of 2005 r.12
Trial on Indictments Act s.22
Trial on Indictments Act s.50
Evidence Act s.106
Legal Notice No. 9 of 2009

Cases cited (24)

Orient Bank Ltd v Fredrick Zaabwe and Another (Civil Application No. 17 of 2007)
Sarah Kulata Basangwa v Uganda (Criminal Appeal No. 3 of 2018)
David Chandi Jamwa v Uganda (Criminal Appeal No. 2 of 2017)
Mohammed Mohammed Hamid v Roko Construction Ltd (Civil Application No. 1 of 2013)
Komakech Godfrey v Rose Akol Okullo and Others (Civil Appeal No. 21 of 2010)
Murisho Shafi and Others v IGG (Constitutional Application No. 2 of 2017)
Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
Paul K. Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
Davis Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
John Ken-Lukyamuzi v Attorney General and Another (Constitutional Appeal No. 2 of 2007)
Male Mabirizi and Others v Attorney General (Constitutional Appeal No. 1 of 2018)
Abdala Suleiman El Harthi Vs R (1954) 2 EACA 404
Kinyua Vs Republic (1972) EA 54
Makula International Ltd Vs His Eminence Cardinal Nsubuga & anor (1992) HCB 11
Meme Vs Republic and anor Criminal Application No. 495 of 2003
Beatrice Kobusingye and Another v Nyakana (Civil Appeal No. 5 of 2004)
Hwansung Ltd v M&D Timber Merchants and Transporter Ltd (Civil Appeal No. 2 of 2018)
Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
Phillip Karugaba v Attorney General (Constitutional Petition No. 11 of 2002)
Mwanji Stephen Mulethi Vs Daniel Arap Moi Petition No. 625 of 2009
Besigye v Attorney General and Others (Constitutional Petition No. 7 of 2007)
Kalungi vs. Uganda Corruption Division HCT-00-AC-CN-2015/41 [2016]

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