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Ssewanyana & Another v Uganda (Miscellaneous Application 3 of 2023)

High Court · [2023] UGHCICD 10 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of criminal proceedings pending determination of constitutional petition
Decision
Application dismissed; criminal pre-trial proceedings to continue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of criminal proceedings dismissed. Court held that constitutional questions raised in the pending Constitutional Petition No. 04 of 2023 had already been addressed by prior Constitutional Court authority in Soon Yeon Kong Kim v Attorney General and lacked likelihood of success. Court found Rules 19, 22 and 36(9)(c) of the Judicature (High Court) (International Crimes Division) Rules 2016 constitutional and in line with Constitutional Court precedent permitting restricted disclosure where justified. Balance of convenience favoured continuing pre-trial proceedings as co-accused remained on remand. Applicants advised to seek stay order from Constitutional Court directly.

Outcome

Application dismissed; criminal pre-trial proceedings to continue

Facts

The two applicants, together with four others, were jointly charged before the International Crimes Division with terrorism, murder, attempted murder, and aiding and abetting terrorism arising from Criminal Case No. 004 of 2022. The applicants were also separately indicted for murder in the High Court at Masaka. During pre-trial proceedings, the State made an ex parte application for restricted disclosure to protect witness identities, which the Court granted in Miscellaneous Cause No. 14 of 2022. The applicants subsequently applied for consolidation of the two matters, which was refused in Miscellaneous Application No. 19 of 2022. They then sought a constitutional reference on questions relating to witness protection procedures and concurrent charges, which the trial court declined. Following the court's refusal, the applicants filed Constitutional Petition No. 04 of 2023 raising the same questions and brought this application seeking a stay of the criminal proceedings pending determination of that petition. The applicants were on bail but their co-accused remained on remand.

Issues

  1. Whether the application satisfies the conditions for the grant of a stay of proceedings in Criminal Case No. 0004 of 2022 pending determination of Constitutional Petition No. 004 of 2023.
  2. Whether the Constitutional Petition has a prima facie likelihood of success.
  3. Whether the applicants will suffer irreparable damage if a stay is not granted.
  4. Where the balance of convenience lies.

Orders

  • Application for stay of Criminal Session Case No. 004 of 2022 disallowed and dismissed.
  • Pretrial of Criminal Session Case No. 004 of 2022 shall proceed on a date to be agreed upon by the parties.
  • Applicants should seek an order for stay of proceedings from the Constitutional Court if they so wish.
  • No order as to costs.

Rules and key headnotes

Constitutional Petitions — Stay of Proceedings — Test for Grant
An applicant seeking a stay of proceedings pending determination of a constitutional petition must establish: (i) that the constitutional petition prima facie has a likelihood of success; (ii) that the applicant will suffer irreparable damage or that the petition will be rendered nugatory if a stay is not granted; and if neither is established, (iii) where the balance of convenience lies.
Pre-Trial Disclosure — Right to Fair Hearing — Restricted Disclosure for Witness Protection
The right to pre-trial disclosure under Article 28(1) and (3) of the Constitution is not absolute but is subject to limitations to be established by evidence by the State on grounds of State secrets, protection of witnesses from intimidation, protection of the identity of informers, or that due to the simplicity of the case disclosure is not justified for purposes of a fair trial. It is within the discretion of the trial court to determine whether denial of disclosure has been justified.
International Crimes Division — Restricted Disclosure Rules — Constitutionality
Rules 19, 22 and 36(9)(c) of the Judicature (High Court) (International Crimes Division) Rules 2016, which provide for applications for restricted disclosure to be made ex parte to protect witness identities and ensure their safety, are not unconstitutional but are in line with the Constitutional Court decision in Soon Yeon Kong Kim v Attorney General that permits limitations on pre-trial disclosure where justified by the State.
Stay of Proceedings — Balance of Convenience — Co-Accused on Remand
Where applicants seeking a stay of criminal proceedings are on bail but co-accused persons remain on remand, the balance of convenience favours refusing the stay as granting it would cause immense inconvenience to the co-accused who are in custody.

Legislation cited (15)

Cases cited (7)

  • Tusingwire v Attorney General (Constitutional Application No. 6 of 2013)
  • Attorney General v Uganda Law Society (SCCA No. 1 of 2006)
  • Soon Yeon Kong Kim and Kwanga Mao v Attorney General (Constitutional Reference No. 6 of 2007)
  • Juma and others Versus Attorney General of Kenya (2003)2 EA 461
  • Shabalala & 5 others Vs The Attorney General of Transvaal (1995)2 SACR 761 (CC)
  • Uganda v Serwadda Mike and 6 Others (Miscellaneous Cause No. 14 of 2022)
  • Hon. Allan Ssewanyana Aloysius and Hon. Ssegirinya Muhammed v Uganda (Miscellaneous Application No. 19 of 2022)

Full judgment

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

Ssewanyana & Another v Uganda (Miscellaneous Application 3 of 2023) [2023] UGHCICD 10 (25 September 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.