Wakilii

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

High Court · [2023] UGHCACD 9 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for declarations and remedies alleging violations of fundamental rights arising from criminal investigation and prosecution
Decision
Application for declarations and remedies dismissed; criminal trial to proceed

Observed later treatment

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Holding

The High Court dismissed the application, holding that the applicant failed to prove violations of her fundamental rights. The court found that the State's obligation to disclose additional evidence requested by the defence should be determined by the trial court, as the trial had not commenced. The court rejected claims of torture, finding the applicant's account of events incredible and contradicted by credible police evidence. No denial of food or illegal detention beyond 48 hours was proven. Failure to inform the applicant of her right to counsel during witness interview did not affect fair trial rights as no suspect statement was recorded. Media coverage did not compromise the right to fair trial.

Outcome

Application for declarations and remedies dismissed; criminal trial to proceed

Facts

The applicant, Minister for Karamoja Affairs and Member of Parliament for Manafwa District, was charged with loss of public property and conspiracy to defraud relating to alleged diversion of iron sheets meant for the Karamoja community development program. Before trial commenced, she filed an application alleging violations of her fundamental rights during investigation, including torture, inhuman treatment, denial of food and water, illegal detention exceeding 48 hours, blindfolding, denial of access to lawyers, forced statement recording, and prejudicial media coverage. She sought declarations that the investigation and resultant charges were tainted by rights violations rendering the trial a nullity. The respondent denied all allegations, presenting evidence from multiple police officers and other officials that the applicant was treated with decorum, offered food which she declined, detained lawfully within 48 hours, and not subjected to any torture or degrading treatment.

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 order as to costs.
  • The trial in HCT-00-AC-SC-0005-2023 is to proceed.

Rules and key headnotes

Pre-Trial Disclosure — Constitutional Right to Adequate Facilities for Defence Preparation
Article 28(3)(c) of the Constitution entitles an accused person to adequate facilities for the preparation of defence, including disclosure of not only evidence the prosecution intends to rely on, but also exculpatory material in the possession of the prosecution or complainant that the defence requires to disprove charges, subject to limitations for state secrets, witness protection, and other justifiable grounds established by the prosecution with leave of court.
Pre-Trial Disclosure — Materiality and Timing — Role of Trial Court
Where there is disagreement between prosecution and defence on what should be disclosed, particularly regarding the materiality and availability of requested documents, the question must be resolved by the trial court in exercise of its discretion to determine what is required to meet the ends of the accused's right to a fair trial, balancing the risk of prejudice to the accused against the risk of prejudice to proper administration of justice.
Prosecutorial Discretion — Selective Prosecution
The Director of Public Prosecutions has discretion under Article 120 of the Constitution to institute criminal charges, and there is no justification for an expectation that all suspects in a case be treated identically; an applicant alleging selective prosecution must establish by evidence that the decision to prosecute was exercised in contravention of Article 120(5) and in a manner that is unfair, oppressive, discriminative, and persecutory.
Torture — Definition — Severe Pain or Suffering
To constitute torture under the Prevention and Prohibition of Torture Act 2012, acts must intentionally inflict severe pain or suffering, whether physical or mental, for purposes such as obtaining information or confession, punishment, or intimidation, and the acts must meet the threshold of severity required by section 2 of the Act.
Right to Fair Trial — Violation Alleged — Burden of Proof
A person alleging violation of the non-derogable right to a fair trial has the burden to prove, on the balance of probabilities, that fundamental rights have been violated as pleaded, and once such infringement is established, the court must declare the trial a nullity.
Standard of Proof — Credibility Assessment — Contradictions
Where there are significant contradictions and inconsistencies in an applicant's evidence, including contradictions between affidavit evidence and cross-examination testimony, and where documentary evidence and multiple corroborative witnesses support a different version of events, the court is entitled to find the applicant's account incredible and reject it.
Freedom of Press — Fair Trial — Balance
Freedom of speech and expression under Article 29(1) of the Constitution, including freedom of the press, is not absolute and must be balanced against the right to a fair trial under Article 28; the court has authority to direct how the media handles proceedings to protect the accused's right to a fair trial, but media reporting of matters of public concern about ongoing investigations does not per se violate fair trial rights where the accused is not portrayed as guilty and is not singled out for prejudicial treatment.

Legislation cited (30)

Cases cited (25)

  • Wilson Ndege and Another v Uganda (Criminal Appeal No. 121 of 1978)
  • Dallison versus 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 versus State of Maryland 83 S.Ct. 1194
  • Regina V Horseferry Magistrates' Exparte Bennet 1994 AC 42
  • Soon Yeon Kong Kim and Kwang Mao v Attorney General (Constitutional Reference No. 6 of 2007)
  • Uganda v Mpanga and 6 Others (HCT-00-SC-14-2014)
  • Juma and others versus Attorney General (2003) 2EA 461; (2003) AHRLR 179
  • 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 versus Attorney General of the Transvaal and another, 1995 (1.2) BCLR 1593
  • Reynolds V Times Newspaper Ltd (2001) AC 727
  • Gulf Oil (GB) Ltd v Page and others (1987) 3 ALL ER 14
  • Sheppard versus Maxwell, Warden 384 US 333 (1965)
  • John Kagwa v Attorney General and Another (Civil Suit No. 279 of 2016)
  • Issa Wazembe v Attorney General (Civil Suit No. 154 of 2016)
  • Paulo Baguma Mugarama v URA (Civil Suit No. 93 of 2014)
  • Dr. Laghu Charles v Attorney General (Miscellaneous Cause No. 370 of 2020)
  • Ireland versus United Kingdom ECHR Application No 5370/77
  • Premchard Raichard vs Quarry Services Ltd (1969) EA 514
  • Sundus Exchange and Money Transfer Ltd and Others v Attorney General (Miscellaneous Cause No. 16 of 2019)
  • Cairo International Bank v Attorney General (HCM AS 2 of 2014)
  • 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)

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 9 (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.