Kazinda & 2 Others v Uganda (Criminal Appeal No. 183 of 2017)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Constitutional Court held that the successive, piecemeal prosecution of the petitioner for offences of the same or similar character arising from his tenure as Principal Accountant in the Office of the Prime Minister, which could have been joined in a single trial, deprived him of the right to a fair and speedy hearing and contravened Articles 28(1) and 28(9) of the Constitution (excluding the distinct illicit enrichment charge). The Court further held that Sections 90 and 91 of the Magistrates Courts Act and Sections 29 and 30 of the Trial on Indictments Act are inconsistent with Article 28(9) and are null and void. The petition succeeded and proceedings were permanently stayed.

Outcome

Petition granted; successive prosecutions declared unconstitutional, proceedings permanently stayed and petitioner discharged; impugned statutory provisions struck down

Facts

The petitioner was a Principal Accountant in the Office of the Prime Minister until 2012, when he was arrested and charged in the Anti-Corruption Court. He was tried under multiple criminal cases arising from his handling of government funds between 2010 and 2012, including charges of abuse of office, embezzlement, causing financial loss, fraudulent false accounting, forgery, unlawful possession of government stores and conspiracy. In Criminal Case No. 138 of 2012 he was convicted and sentenced to five years. Further cases (No. 105 of 2012, No. 47 of 2013, No. 62 of 2014, No. 101 of 2014, No. 59 of 2016, No. 56 of 2018) were charged, some withdrawn and re-instituted with the same facts. The offences were committed in the same accounts department and related to obtaining government money unlawfully. The petitioner alleged that these successive prosecutions for offences of similar character amounted to double jeopardy and denied him a fair and speedy trial.

Issues

1. Whether the respondent's act of successively prosecuting the petitioner after the first conviction contravenes Article 28(9) of the Constitution.
2. Whether Sections 90 and 91 of the Magistrates Courts Act and Sections 29 and 30 of the Trial on Indictments Act are inconsistent with Article 28(9) of the Constitution.
3. Whether the respondent's act of successively prosecuting the petitioner after the first conviction contravenes Article 120(5) of the Constitution.
4. Whether the respondent's act of successively prosecuting the petitioner after the first conviction contravenes Articles 28(1) and 28(3)(a),(c),(d) of the Constitution.
5. What remedies are available to the petitioner.

Orders

• All declarations sought in the petition granted.
• Sections 90 and 91 of the Magistrates Courts Act and Sections 29 and 30 of the Trial on Indictments Act declared null and void for inconsistency with Article 28(9).
• Proceedings in Criminal Cases No. 47 of 2013, No. 62 of 2014 (now No. 101 of 2014) permanently stayed and the Anti-Corruption Court directed to discharge the petitioner in those and any future cases founded on the same facts.
• State permanently prohibited from prosecuting the petitioner for any offences similar in character or founded on the same facts arising from his former employment.
• Each party to bear its own costs.

Rules and key headnotes

Legislation cited (24)

• Constitution of Uganda 1995 art.2
• Constitution of Uganda 1995 art.28(1)
• Constitution of Uganda 1995 art.28(3)
• Constitution of Uganda 1995 art.28(9)
• Constitution of Uganda 1995 art.43
• Constitution of Uganda 1995 art.44(c)
• Constitution of Uganda 1995 art.120(5)
• Constitution of Uganda 1995 art.137
• Constitution of Uganda 1995 art.166(4)
• Magistrates Courts Act s.86(1)
• Magistrates Courts Act s.90
• Magistrates Courts Act s.91
• Trial on Indictments Act s.23(1)
• Trial on Indictments Act s.29
• Trial on Indictments Act s.30
• Anti-Corruption Act 2009 s.11(1)
• Anti-Corruption Act 2009 s.19(b)
• Anti-Corruption Act 2009 s.20
• Anti-Corruption Act 2009 s.23(b)
• Anti-Corruption Act 2009 s.33
• Penal Code Act s.342
• Penal Code Act s.347
• Penal Code Act s.355
• Penal Code Act s.309

Cases cited (11)

• Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
• Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
• Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
• South Dakota V North Carolina 192 US 268 (1940) 448
• Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
• Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Block Burger Vs United States 284 (1932) U.S 304
• State Vs Allen, 59 NM 139 (1955)
• State Vs Quintana 69 NM 51 314
• Packett v The King (1937) 58 CLR 190
• R v Kray [1970] 1 QB 125

The original judgment as reported. Read the original PDF before relying on any passage.