Kibaya v Uganda (Consitutional Petition 8 of 2012)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
On a constitutional reference, the Constitutional Court held that a trial magistrate has no power to refuse a withdrawal of prosecution lawfully effected by the DPP under Section 121 of the Magistrates Courts Act and Article 120(3)(d) of the Constitution. Once the DPP terminates a trial, the magistrate must discharge or acquit the accused as the section dictates and cannot order the State to close its case. The Court further held that Section 121 replicates Article 120(3)(d) and so cannot be declared unconstitutional. Fears that the accused would be re-prosecuted were speculative; an aggrieved party may instead petition the Constitutional Court under Article 137 or seek redress under Article 50(1).
Outcome
Both constitutional questions answered in the negative; Section 121 of the Magistrates Courts Act held not unconstitutional; file returned to the Chief Magistrate's Court for completion of proceedings.
Facts
Andrew Kibaya was charged in the Chief Magistrate's Court at Buganda Road (Criminal Case No. 1092 of 2009) with forgery, uttering forged documents and offences under the Advocates Act. The trial ran for over sixteen days and nine prosecution witnesses testified. When the prosecution called its tenth witness, a handwriting expert, defence counsel objected on the ground of inadequate advance disclosure, and the magistrate excluded that evidence. The prosecution sought an adjournment, then stated that the Director of Public Prosecutions had decided to discontinue the proceedings under Section 121 of the Magistrates Courts Act. Defence counsel objected, contending that withdrawal at that stage was an abuse of process designed to allow the State to re-arrest and re-try the accused on the same facts, and that the magistrate should be able to refuse the withdrawal and order the State to close its case. At counsel's request, the magistrate referred two constitutional questions to the Constitutional Court under Article 137(5).
Issues
- Whether a trial magistrate presiding over criminal proceedings initiated by the DPP can refuse or decline to effect a withdrawal of those proceedings and discharge the accused where, before judgment, the DPP has discontinued the proceedings in writing under Section 121 of the Magistrates Courts Act and Article 120(3)(d) of the Constitution.
- Whether Section 121 of the Magistrates Courts Act is inconsistent with the provisions of the Constitution.
Orders
- Section 121 of the Magistrates Courts Act is a replica of Article 120(3)(d) of the Constitution and cannot be declared unconstitutional.
- A party aggrieved by the DPP's decision to discontinue proceedings in a criminal trial may petition the Constitutional Court under Article 137 for a determination of whether the decision contravened any provision of the Constitution or violated the constitutional rights of an individual.
- A party aggrieved by the DPP's decision to discontinue proceedings may apply to a court of competent jurisdiction for redress under Article 50(1) of the Constitution.
- The file is returned to the Chief Magistrate's Court for completion of proceedings.
Rules and key headnotes
Legislation cited (13)
- Magistrates Courts Act s.121
- Constitution of Uganda Article 137(5)
- Constitution of Uganda Article 137(1)
- Constitution of Uganda Article 120(3)(d)
- Constitution of Uganda Article 120(5)
- Constitution of Uganda Article 120(6)
- Constitution of Uganda Article 28(1)
- Constitution of Uganda Article 44(c)
- Constitution of Uganda Article 126(1)
- Constitution of Uganda Article 126(2)(e)
- Constitution of Uganda Article 2(2)
- Constitution of Uganda Article 50(1)
- Advocates Act
Cases cited (7)
- Marshall v Director of Public Prosecutions [2007] UKPC 4
- R v DPP, ex parte Manning [2000] 3 WLR 474
- Legal Brains Trust (LBT) Limited v Attorney General of Uganda (EACJ Appeal No. 4 of 2012)
- Baku Rapheal Obudra and Another v Attorney General (Constitutional Appeal No. 1 of 2003)
- Akankwasa Damian v Uganda (Constitutional Petition/Reference No. 05 of 2011)
- Attorney General v Major General David Tinyefunza (Constitutional Appeal No. 1 of 1997)
- Hon. Maria Matembe and 2 Others v Attorney General (Constitutional Petition No. 02 of 2005)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.