Wakilii

Attorney General v Kabaziguruka (Constitutional Application 5 of 2021)

Supreme Court · [2021] UGSC 3 · 2021 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for stay of execution of Constitutional Court orders pending appeal
Decision
Stay of execution of the Constitutional Court's orders and declarations granted pending disposal of the intended appeal

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court granted the Attorney General a stay of execution of the Constitutional Court's orders and declarations in Constitutional Petition No. 45 of 2016, pending disposal of the intended appeal. Applying the settled conditions for a stay, the Court found a prima facie case and likelihood of success because the intended appeal raised serious, hitherto untested constitutional questions — notably the interpretation of Article 210 of the Constitution in relation to the jurisdiction of military courts and the declared unconstitutionality of sections 2, 179 and 119(1)(h) of the UPDF Act. The Court was satisfied that the applicant would suffer irreparable injury and that the status quo should be preserved so a successful appeal would not be rendered nugatory.

Facts

The respondent had filed Constitutional Petition No. 45 of 2016 in the Constitutional Court challenging the jurisdiction of military courts. On 1 July 2021 the Constitutional Court delivered judgment, declaring sections 2, 179 and 119(1)(h) of the UPDF Act inconsistent with Articles 28(1) and 44(c) of the Constitution, holding that the General Court Martial did not offer a fair hearing, and ordering that persons charged before military courts for offences outside Part 6 of the UPDF Act be transferred to the civil courts within 14 days and that persons serving sentences imposed by military courts have their cases transferred to the High Court for retrial. The Attorney General, dissatisfied with that judgment, lodged a notice of appeal on 9 July 2021 and applied for a stay of execution of the Constitutional Court's orders and declarations pending the appeal, contending that implementing the orders would render a successful appeal nugatory.

Issues

  1. Whether the applicant established a prima facie case or a likelihood of success on the intended appeal.
  2. Whether the applicant would suffer irreparable injury or the intended appeal would be rendered nugatory if a stay of execution were not granted.
  3. Where the balance of convenience lay as between the parties.
  4. Whether the application was brought without undue delay and a notice of appeal had been filed.
  5. Whether the orders and declarations of the Constitutional Court should be stayed pending the disposal of the intended appeal.

Orders

  • Execution of and giving effect to the orders and declarations issued by the Constitutional Court in Constitutional Petition No. 45 of 2016 are stayed until disposal of the applicant's intended appeal.
  • Constitutional Application No. 6 of 2021, filed for an interim order of stay, lapses.
  • The costs of this application shall abide the outcome of the intended appeal.
  • The matter being of great public importance, the appeal shall be accorded urgency and immediately fixed for hearing.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Conditions
An applicant for a stay of execution pending appeal must establish that the appeal has a likelihood of success or a prima facie case; that he or she will suffer irreparable injury or that the appeal will be rendered nugatory if a stay is refused; (where the first two are not established) that the balance of convenience favours a stay; that the application was instituted without undue delay; and that a notice of appeal has been filed.
Civil Procedure — Stay of Execution — Preservation of the Right of Appeal
Where a party is exercising an undoubted right of appeal, the court ought to make such orders staying execution of the judgment appealed from as will prevent a successful appeal from being rendered nugatory, provided the appeal is bona fide.
Civil Procedure — Inherent Powers of the Court
The Supreme Court may invoke its inherent powers under Rule 2(2) of its Rules to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of the court, including on an application for stay of execution.
Constitutional Law — Stay of Execution — Serious Constitutional Questions as a Prima Facie Case
An intended appeal that raises serious and hitherto untested questions of constitutional interpretation — such as the effect of Article 210 of the Constitution on the jurisdiction of military courts and the constitutionality of provisions of the UPDF Act — establishes a prima facie case with a likelihood of success warranting a stay of execution.

Legislation cited (13)

  • Judicature (Supreme Court Rules) Directions SI 13-11 r.2(2)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.6(2)(b)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.42
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.43(1)
  • UPDF Act s.2
  • UPDF Act s.179
  • UPDF Act s.119(1)(h)
  • UPDF Act Part 6
  • Constitution of Uganda 1995 art.2(1)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.210

Cases cited (12)

  • Hon. Theodore Ssekikubo v Attorney General (Constitutional Application No. 6 of 2013)
  • Attorney General vs Eddie Kwizera
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 1 of 2014)
  • Hwan Sung Industries Ltd v Tajdin Hussein & Others (Civil Application No. 19 of 2008)
  • Republic vs Anoop S. Sundaral Trean Civil Appeal No 11 of 1988
  • Cropper v Smith (1883) 26 Ch D 305
  • Wilson v Church (No. 2) (1879) 12 Ch D 454
  • Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448
  • Lawrence Musitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Akankwasa v Uganda (Constitutional Application No. 7 & 9 of 2011)
  • Ssekikubo & Others v National Resistance Movement (Consolidated Constitutional Application No. 6 of 2013)
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.