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Uganda v Sserwadda & 6 Others (Miscellaneous Cause 14 of 2022)

High Court · [2022] UGHCICD 10 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Oral application by defence counsel for disclosure of ex parte witness protection application and annexures during pre-trial proceedings
Decision
Ex parte witness protection application to proceed without defence participation at pre-trial stage; defence to be notified of outcome

Observed later treatment

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Holding

The court held that the Judicature (High Court) (International Crimes Division) Rules 2016 provisions mandating ex parte witness protection applications are constitutional and consistent with Article 28 of the Constitution. The right to disclosure is not absolute and may be restricted to protect witness safety. Granting the defence request for copies of the ex parte application and witness statements at the pre-trial stage would defeat the purpose of the witness protection application. The application was disallowed and the ex parte hearing was ordered to proceed.

Outcome

Ex parte witness protection application to proceed without defence participation at pre-trial stage; defence to be notified of outcome

Facts

Seven accused persons were jointly indicted for terrorism, murder, attempted murder and aiding and abetting terrorism and committed to the High Court International Crimes Division for trial. During pre-trial proceedings, the prosecution made an ex parte application for witness protection orders concerning seventeen witnesses, seeking non-disclosure of identities, delayed disclosure, redacted disclosure, limited access to information, and logging of persons handling witness information. The prosecution cited witness fears of threats and intimidation, the influential status of some accused, and insufficient state resources for long-term witness protection. Defence counsel made an oral application for copies of the ex parte application and annexures to enable them to respond, arguing that ex parte proceedings violated the constitutional right to a fair hearing under Article 28.

Issues

  1. Whether the ex parte application (Miscellaneous Cause No. 14 of 2022) and its annexures should be availed to counsel for the accused persons.

Orders

  • Miscellaneous Cause No. 14 of 2022 shall be heard ex parte.
  • Miscellaneous Cause No. 14 of 2022 is fixed for hearing on 29th September 2022 at 10:00 am.
  • Counsel for the accused persons shall be notified of the decision of this court in Miscellaneous Cause No. 14 of 2022.
  • The oral application by counsel for the accused persons to avail to them the ex parte Application (Miscellaneous Cause No. 14 of 2022) is disallowed.

Rules and key headnotes

Pre-Trial Disclosure — Witness Protection — Ex Parte Applications
Rule 22(2) of the Judicature (High Court) (International Crimes Division) Rules 2016 mandates that applications for restrictions on disclosure of witness identities on grounds of witness safety shall be heard ex parte by the pre-trial judge, and such applications cannot be converted to inter partes proceedings without defeating their protective purpose.
Fair Hearing — Pre-Trial Disclosure — Limitations
The right to pre-trial disclosure under Article 28 of the Constitution is not absolute and is subject to limitations established by evidence on grounds of state secrets, protection of witnesses from intimidation, protection of informers' identities, or where disclosure is not justified for purposes of a fair trial.
Witness Protection — Disclosure Restrictions — Judicial Discretion
The trial court has discretion to determine whether disclosure should be made, when, and how, depending on the unique circumstances of each case and the evidence justifying limitation, including the need to protect witness safety and wellbeing.
International Crimes Division — Specialized Court Procedure
The International Crimes Division of the High Court is a specialized court established to operationalize international standards applicable in the International Criminal Court, and its procedural rules are guided by the nature of crimes triable (genocide, crimes against humanity, war crimes, aggression, and terrorism) and the need to ensure witness safety.
Constitutionality of Procedural Rules — Judicature Rules
The Judicature (High Court) (International Crimes Division) Rules 2016 providing for mandatory ex parte witness protection applications are neither illegal nor unconstitutional, being issued under Section 41(1) of the Judicature Act and consistent with the Constitutional Court's interpretation of Article 28 regarding limitations on disclosure.

Legislation cited (23)

Cases cited (3)

  • Soon Yeon Kong Kim and Kwanga Mao v Attorney General (Constitutional Reference No. 6 of 2007)
  • Juma and others v Attorney General of Kenya (2003) 2 EA 461
  • Shabalala & 5 others v The Attorney General of Transvaal (1995) 2 SACR 761 (cc)

Full judgment

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

Uganda v Sserwadda & 6 Others (Miscellaneous Cause 14 of 2022) [2022] UGHCICD 10 (26 September 2022)
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.