Wakilii

Uganda v Hassan Abdi Hussein (Criminal Appeal No. 9 of 1990)

Supreme Court · [1991] UGSC 36 · 1991 Appeal Allowed in Part AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a High Court revisional order (treated as a first appeal under s.337(6) Criminal Procedure Code Act) concerning a Magistrate's Court charge under s.51 of the Penal Code Act.
Decision
Appeal allowed in part; the High Court's "no case to answer" order set aside and varied to a striking out of the section 51 charge, with the prosecution at liberty to amend or substitute the charge.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court considered whether "publishes" in section 51 of the Penal Code Act (defamation of a foreign dignitary) covers spoken words. Agreeing with the High Court, it held that "publishes" refers only to written or printed matter capable of being read, not slander, so particulars alleging defamation "by asking him questions" disclosed no offence under section 51. The Court held that the High Court should have struck out the charge rather than ruling "no case to answer", and varied the order accordingly; the order was not an acquittal. The ground that the Director of Public Prosecutions was not heard failed, as he was served but failed to appear. Appeal allowed in part, with the prosecution at liberty to amend the charge.

Outcome

Appeal allowed in part; the High Court's "no case to answer" order set aside and varied to a striking out of the section 51 charge, with the prosecution at liberty to amend or substitute the charge.

Facts

The respondent was charged before a Magistrate Grade 1 under section 51 of the Penal Code Act (defamation of a foreign dignitary). The particulars alleged that, at State House Entebbe in January 1990, he published defamatory matter against the President of Zambia, Dr. Kenneth Kaunda, "by asking him questions" intended to disturb peace and friendship between Uganda and Zambia. The respondent contended that the conduct alleged was spoken, whereas section 51 required written or printed publication (libel). The Magistrate held the charge sufficiently particularised and refused to strike it out. On revision, the High Court held the particulars insufficient because section 51 referred to libel, not slander, and ruled that the respondent had "no case to answer". The State appealed to the Supreme Court.

Issues

  1. Whether the word "publishes" in section 51 of the Penal Code Act extends to spoken words (slander) or is confined to written or printed matter capable of being read (libel).
  2. Whether particulars alleging defamation of a foreign dignitary "by asking him questions" disclosed an offence under section 51 of the Penal Code Act.
  3. Whether the High Court erred in making a revisional order without first hearing the Director of Public Prosecutions as required by section 342(2) of the Criminal Procedure Code Act.
  4. Whether the High Court's order that the respondent had "no case to answer" amounted to an acquittal so as to oust the Supreme Court's jurisdiction on a second appeal.

Orders

  • Appeal allowed in part.
  • The order of the High Court set aside insofar as it related to "no case to answer".
  • The High Court order varied so that the charge under section 51 of the Penal Code Act is struck out for failing to disclose an offence.
  • The prosecution is at liberty, if it wishes to proceed against the respondent, to amend the charge or to substitute or add a new charge.

Rules and key headnotes

Criminal Law — Defamation of a Foreign Dignitary — Meaning of "Publishes" in Penal Code Act s.51 — Libel versus Slander
The word "publishes" in section 51 of the Penal Code Act is confined to expression in a written or printed manner, or some other form capable of being read by another person; it does not extend to spoken words, so a charge alleging defamation by speech discloses no offence under that section.
Charge — Defective Particulars — Distinction Between "No Case to Answer" and Striking Out a Charge Disclosing No Offence
An order of "no case to answer" is properly made at the close of the prosecution case and does not apply where a charge is defective and its particulars disclose no offence; in the latter situation the correct order is to strike out the charge, and such an order is not an acquittal.
Revision — Opportunity for the Director of Public Prosecutions to be Heard under Criminal Procedure Code Act s.342(2)
Where the Director of Public Prosecutions has been served and the court has waited for his appearance but no State Attorney attends, the Director has had an opportunity of being heard within section 342(2) of the Criminal Procedure Code Act, and the court may proceed ex parte on revision.
Appeals — Second Appeal — No Appeal Against an Acquittal Entered on a First Appeal under Criminal Procedure Code Act s.337
Section 337 of the Criminal Procedure Code Act confers no special power to entertain a second appeal against an acquittal entered by the High Court on a first appeal; such jurisdiction would arise only where, as under section 132A of the Trial on Indictments Decree, a declaratory judgment is provided for.

Legislation cited (11)

Full judgment

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Uganda v Hassan Abdi Hussein (Criminal Appeal No. 9 of 1990) [1991] UGSC 36 (1 March 1991)
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.