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Kitutu Mary Gorreti Kimono v Attorney General (Miscellaneous Application 53 of 2023)

High Court · [2023] UGHCACD 10 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application challenging constitutional rights violations arising from a pending criminal trial in the High Court Anti-Corruption Division
Decision
Application dismissed and underlying criminal trial to proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant failed to prove violations of her non-derogable constitutional rights. The court found that pre-trial disclosure issues should be resolved by the trial court; the evidence did not establish torture or inhuman treatment during investigation; and media reporting did not irreparably violate the right to a fair trial. The application was dismissed and the criminal trial ordered to proceed.

Outcome

Application dismissed and underlying criminal trial to proceed

Facts

The applicant, a government minister charged with criminal offenses relating to alleged diversion of iron sheets for the Karamoja community development program, filed an application alleging violations of her constitutional rights during investigation and detention. She claimed she was subjected to torture, incommunicado detention, denial of food and water, blindfolding, forced interrogation, and denial of access to counsel. She further alleged prosecutorial misconduct through non-disclosure of exculpatory material and that prejudicial media coverage violated her right to a fair trial. The State denied all allegations and provided evidence from police officers involved in the investigation and detention showing the applicant was treated with decorum, was not subjected to torture, was detained within constitutional time limits, and was produced in court within 48 hours.

Issues

  1. Whether the applicant's non-derogable right to a fair hearing has been violated through prosecutorial misconduct and the deliberate non-disclosure of exculpatory evidence in the State's possession
  2. Whether the applicant's non-derogable right to a fair hearing and freedom from torture, inhuman and degrading treatment were violated by the respondent's agents during her investigation and interrogation
  3. Whether the applicant's non-derogable right to a fair hearing has been violated through prejudicial, targeted and malicious media coverage against her
  4. Whether the applicant is entitled to the remedies sought

Orders

  • Application dismissed.
  • No orders as to costs.
  • The trial in HCT-00-AC-SC-0005-2023 is to proceed.

Rules and key headnotes

Right to Fair Hearing — Pre-trial Disclosure — Scope of Prosecution's Duty
The prosecution has a constitutional duty to disclose not only material evidence it intends to rely on at trial, but also exculpatory material in possession of the prosecution or complainant that the defense requires to prepare its case, provided the evidence exists, is relevant, and its disclosure is justified for purposes of a fair trial.
Right to Fair Hearing — Pre-trial Disclosure — Trial Court's Discretion
Where there is an impasse between prosecution and defense on what should be disclosed, and the trial has not commenced, it is the trial court's role to exercise discretion and determine what disclosure is required to meet the ends of the accused's right to a fair trial, balancing the materiality and relevance of requested documents against the prosecution's right to withhold disclosure on justifiable grounds.
Freedom from Torture — Definition and Standard of Proof
To constitute torture under the Prevention and Prohibition of Torture Act 2012, acts complained of must intentionally inflict severe pain or suffering, whether physical or mental, for specified purposes including obtaining information or a confession, punishing the person, or intimidating or coercing them, and the burden rests on the applicant to prove torture on the balance of probabilities.
Rights of Detained Persons — Notification of Right to Counsel
While failure to inform a detained person of the right to counsel during a witness interview contravenes Article 23(3) of the Constitution, where no statement was recorded from the person as a suspect and they were generally aware of the nature of the investigation, such failure does not render a subsequent trial a nullity or violate the right to a fair trial.
Right to Fair Hearing — Media Coverage and Presumption of Innocence
Fair media reporting of matters of public concern, including ongoing investigations into public officials, does not violate an accused person's right to a fair trial or presumption of innocence where the reporting does not portray the accused as guilty, single them out for targeted prejudicial coverage, or contain statements by public officials declaring the person guilty prior to conviction.
Director of Public Prosecutions — Discretion to Prosecute
The Director of Public Prosecutions' discretion to institute criminal charges under Article 120(5) of the Constitution is not exercised improperly merely because some suspects are prosecuted while others implicated in the same matter are not, absent evidence establishing that the decision to prosecute was exercised in a manner that is unfair, oppressive, discriminative and persecutory.

Legislation cited (30)

Cases cited (25)

  • Wilson Ndege and Another v Uganda (Court of Appeal Criminal Appeal No. 121 of 1978)
  • Dallison v Caffery [1965] 1 QB 348
  • Paul Wanyoto Mugoya v Sgt. Oumo and Another (Civil Appeal No. 91 of 2021)
  • Rtd Dr. Kizza Besigye v Attorney General (Constitutional Petition No. 7 of 2007)
  • Brady v Maryland 83 S.Ct. 1194
  • Regina v Horseferry Road Magistrates' Court, Ex parte Bennett [1994] AC 42
  • Soon Yeon Kong Kim and Kwang Mao v AG (Constitutional Reference No. 6 of 2007)
  • Uganda v Mpanga and 6 Others (HCT-00-SC-14-2014)
  • Juma and Others v Attorney General (2003) 2 EA 461
  • Aniket Patel v Attorney General (Constitutional Petition No. 2 of 2019)
  • Uganda v Okumu Reagan and Others (Criminal Revision No. 18 of 2013)
  • Shabalala and Others v Attorney General of the Transvaal and Another 1995 (1) 21 BCLR 1593
  • John Kagwa v AG and Another (Civil Suit No. 279 of 2016)
  • Issa Wazembe v AG (Civil Suit No. 154 of 2016)
  • Paulo Baguma Mugarama v URA (Civil Suit No. 93 of 2014)
  • Dr Laghu Charles v AG (Miscellaneous Cause 370 of 2020)
  • Ireland v United Kingdom ECHR Application No. 5370/77
  • Sundus Exchange and Money Transfer Ltd and Others v Attorney General (Civil Division Miscellaneous Cause 16 of 2019)
  • Premchard Raichard v Quarry Services Ltd (1969) EA 514
  • Sheppard v Maxwell, Warden 384 US 333 (1965)
  • Reynolds v Times Newspapers Ltd [2001] AC 727
  • Gulf Oil (GB) Ltd v Page and Others [1987] 3 All ER 14
  • Dr. Charles Lagu and Others v Attorney General (Miscellaneous Cause No. 370 of 2020)
  • Dr Stella Nyanzi v Uganda (Criminal Appeal No. 0079 of 2019)
  • Cairo International Bank v AG (HCM AS of 2014)

Full judgment

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

Kitutu Mary Gorreti Kimono v Attorney General (Miscellaneous Application 53 of 2023) [2023] UGHCACD 10 (28 November 2023)
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.