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R O 133 Major General James Kazini v Attorney General (Constitutional Petition No. 08 of 2008)

Court of Appeal · [2009] UGCA 55 · 2009 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Articles 137 and 50 challenging the constitutionality of the petitioner's trial before the General Court Martial and related regulations
Decision
Petition dismissed; petitioner denied all declarations and remedies sought

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Holding

The Constitutional Court dismissed the petition. It held that although Article 120(3)(b) prohibits the DPP from instituting proceedings in a court martial, it does not bar such proceedings taking place there; a serving officer charged with service civil offences under s.179 of the UPDF Act may lawfully be tried by the General Court Martial without DPP consent. Complaints about panel constitution, denial of documents and appeal rights were procedural matters remediable under civil court rules applicable via s.183 of the UPDF Act, and did not raise constitutional violations. Regulations 22 and 23, which provide checks against interference by the convening authority, were not unconstitutional. The petitioner had failed to exhaust available remedies.

Outcome

Petition dismissed; petitioner denied all declarations and remedies sought

Facts

The petitioner, a serving Major General and immediate past commander of the UPDF, was charged before the General Court Martial with several offences under the Penal Code Act, including abuse of office (s.87(1)) and causing financial loss (s.239(1)). On 27 March 2008 he was convicted of causing financial loss and sentenced to three years imprisonment in case UPDF/GCM/024/04, and appealed to the Court Martial Appeal Court while released on bail. He faced further ongoing trials in other court martial cases. He petitioned the Constitutional Court contending his trial, conviction and continued prosecution were unconstitutional because the offences required DPP consent, the trial panels were irregularly constituted, he was denied documentary evidence and access to the High Command Probe Committee Report, the Convening Authority interfered with proceedings, and certain UPDF regulations discriminatorily restricted his appeal rights. He is number R.033, a serving officer subject to military law under the UPDF Act.

Issues

  1. Whether the petition raises matters for constitutional interpretation.
  2. Whether the petitioner's trial for abuse of office under s.87(1) of the Penal Code Act in the General Court Martial without the consent of the DPP contravenes Articles 28(1), 44(c) and 120(3) of the Constitution.
  3. Whether the trial of the petitioner by different or inconsistently constituted court panels contravened his right to a fair trial under Articles 28(1) and 44(c).
  4. Whether refusal by prosecution to provide the petitioner with documentary evidence contravened his right to a fair hearing under Articles 28(1) and 44(c).
  5. Whether interference by the Convening Authority with the General Court Martial's judicial duties, and whether Regulations 22 and 23 of the UPDF (Rules of Procedure) Regulations, contravened Article 128(1) and (2).
  6. Whether Regulation 20(1) and (2) of the UPDF (Court Martial Appeal Court) Regulations discriminated against the petitioner by restricting his right of appeal.

Orders

  • The petition is dismissed.
  • The petitioner is not entitled to any of the declarations or remedies sought.
  • Costs awarded (majority); one judge would have made no order as to costs.

Rules and key headnotes

Constitutional Interpretation — Access to the Constitutional Court — Threshold for Article 137(3)
Once a party alleges that he is aggrieved by an act or omission of any authority which contravenes the Constitution and thereby infringes his rights, this is sufficient to move the Constitutional Court to examine the allegation under Article 137(3), even where the petition is poorly drafted.
Military Justice — Court Martial Jurisdiction — DPP Consent and Article 120(3)(b)
Although Article 120(3)(b) prohibits the Director of Public Prosecutions from instituting proceedings in a court martial, it does not prohibit such proceedings from taking place there; a serving officer who commits a civil offence under the Penal Code Act commits a service offence under s.179 of the UPDF Act and may lawfully be tried by the General Court Martial without the consent of the DPP.
Constitutional Interpretation — Exhaustion of Remedies — Procedural Matters Not Constitutional Questions
Where an aggrieved party has procedural remedies available under the civil court rules made applicable to court martial proceedings by s.183 of the UPDF Act, or a statutory right of appeal, complaints of irregularity in the constitution of panels, denial of documents or restricted appeals are procedural matters that do not amount to contraventions of the Constitution requiring constitutional interpretation.
Fair Trial — Non-Derogable Right — Distinction Between Serving and Retired Officers
A serving army officer is subject to military law and may constitutionally be tried by the General Court Martial for service civil offences; authority concerning retired officers who were not subject to military law is inapplicable to the trial of a serving officer.
Savings Provisions — Continuation of Subsidiary Legislation on Repeal — UPDF Act s.256
Regulations made under a repealed Act remain in force by virtue of a savings provision, so far as consistent with the new Act, until they expire according to their terms or are expressly revoked by competent authority; the UPDF (Rules of Procedure) Regulations S.I. 307-1 therefore remained in force notwithstanding the repeal of Cap.307 by s.256 of the UPDF Act.

Legislation cited (24)

Cases cited (4)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Col (Rtd) Kizza Besigye and 22 Others v Attorney General (Constitutional Petition No. 12 of 2006)
  • Arvind Patel v Uganda (Supreme Court Criminal Appeal No. 36 of 2005)
  • Soon Yeon Kong and Another v Attorney General (Constitutional Reference No. 6 of 2007)

Full judgment

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

R O 133 Major General James Kazini v Attorney General (Constitutional Petition No. 08 of 2008) [2009] UGCA 55 (12 October 2009)
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.