THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

HOLDEN AT KAMPALA

CONSTITUTIONAL APPLICATION NO. 9 OF 2013

[Arising from Constitutional Petition no. 12 of 2013]

1. HASSAN BASAJJABALABA      ::::::::::::::::::::::::::::::::::::::::::::::::::  APPLICANTS

2. BASAJJABALABA MUZAMIRU

VERSUS

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

RULING OF THE COURT

CORAM:

            HON. JUSTICE S.B.K.KAVUMA, AG.DCJ/PCC

            HON. A.S.NSHIMYE ,JA/CC

            HON.REMMY KASULE,JA/CC

Introduction

This application is brought by way of Notice of Motion under Sections 98 and 64 (c) and  (e) of the Civil Procedure Act, Cap 71 of the Laws of Uganda, Section 33 of the Judicature Act, Cap 13 of the Laws of Uganda  and Rules 10 and 23 of the Constitutional Court (Petitions and References) Rules, S.I 91 of 2005, Rules 2(2), 43 (1) (2) and  44 of the Judicature (Court of Appeal Rules) Directions S.I 13- 10 and all other enabling laws.)

The application seeks orders that:-

1. A Temporary Injunction doth issue staying criminal charges and proceedings in the High Court of Uganda (Anti corruption Division) at Kololo in Criminal Case No 003 of 2013 and Buganda Road Chief Magistrate’s Court applicant no.22 of 2013 in respect of the applicants, pending the disposal of Constitutional Petition no. 12 of 2013 or until further orders of this Court.

2. That the Applicant’s bail terms in the Anti-corruption Division of the High Court of Uganda at Kololo in Criminal Case No. 003 of 2013 in respect of the applicants be varied to allow the applicants access their passports numbers: GA003084 and BO 668282 for the 1^st and 2^nd applicants respectively and to waive the requirement of them reporting  every two weeks to the Director Criminal Investigations And Intelligence Department of the Uganda Police Force or someone directed by her or until the determination of the main constitutional petition.

3.  Any other orders this honorable Court may deem fit.

4. Costs of this application to be provided for.

Grounds for the application.

The grounds for the application are contained in the Notice of  Motion and are stated to be:

1. The applicants filed a constitutional petition against the respondent challenging the constitutionality of the criminal proceedings against the applicants and that petition is still pending hearing.
2. That if the application for the order for a Temporary Injunction is not granted, there is an imminent danger of the applicants being subjected to an unconstitutional trial before the constitutional petition challenging the impugned acts of the Director of Public Prosecutions and other enforcement organs of Government, Acts of Parliament, acts of the learned Chief Justice establishing the Anti Corruption Court Division of the High Court and challenging the constitutionality and the jurisdiction of the Anti-Corruption Division of the High Court to try the applicants is heard and disposed of.
3. The 1^st applicant has been a patient of severe recurrent peptic ulcer disease associated with reflux oesophagitis and hypertensive. He has been on constant 3, monthly follow up by Prof G.N Lule, Consultant Physician/ Gastroenterologist/ Infections Diseases a specialist in Nairobi Kenya, for the last five years and he was due for urgent review by prof. G-N. Lule including undergoing upper GTT endoscopy and colonoscopy which can only be done in Nairobi due to lack of adequate facilities in Kampala.
4. The 1^st Applicant’s condition worsened while he was in Luzira Government Prison and as such he has scheduled an appointment with Prof. G.N Lule in Nairobi on Friday 19^th day of April 2013 and urgently requires his passport no. GA003084 from the Anti Corruption Division of the High Court for purposes of   travel for treatment.
5. That unless the 1^st applicant’s passport is released to enable him travel for treatment, his fundamental right to life may be infringed upon and this may lead the petition into the limbo of legal mootness in the event of anything happening to him.
6. That owing to the fact that the Constitutional Court is not fully constituted due to absence of judges, the hearing and determination of his constitutional petition may take very long and that the applicant’s passports shall continue to be held which will greatly impede them from getting urgent medical treatment out of the jurisdiction of this court as well as going about their work to earn a living as the case may be.
7. The petitioners have a prima facie  case with a high probability of success as the proceedings against them are irregular and amount to an abuse of court process and the petition prima facie raises issues of constitutional interpretation in that ;

(a) the acts of the Uganda Police Force and the DPP in arresting the 1^st applicant   for offences on which he was on bail, detaining and arraigning him in a court with parallel jurisdiction with the earlier court are inconsistent with Articles 2, 28(1) 28(3) (a) 28(9), 120(5), 126(1) and128(2) of the Constitution;

  (b) the act of the DPP of illegally withdrawing the charges against the applicants in their absence is inconsistent with Arts 2, 28(1), 28(5) 44 and120(3) (c) of the Constitution,

(c) the act of the DPP in charging the applicants with the same offences for which they were on bail was in contravention of Arts 28(1), 28(3)(a) 29, 44, 120(5) 126(1) and 128 of the Constitution;

(d) the act of imposing very stringent bail terms on the applicants is inconsistent with Articles 2, 28(1), 28(3) (a), 29, 44(c) 120(5) and126(1) of the Constitution;

(e) the acts of the DPP and the proceedings at the Chief Magistrate‘s Court, at the Anti Corruption Division of the High Court culminating   in the cancellation of bail upon the applicants’ committal is in contravention of Articles 2, 23, 28(c), 28(3) (9), 29, 44, 120(5) and126(1) of the Constitution;

(f) the act of the DPP in charging the applicants with offences which do not fall within the ambit of the Anti-Corruption Act is inconsistent with Articles 2, 20, 28(1) 28(3) (9), 42, 44(c), 120(5) and133(b) of the Constitution;

(g) the act of the DPP of charging the applicants in the Anti-Corruption Court whose establishment is unconstitutional is in contravention of Articles, 28(1), 28(3) (a), 120(5) and 16 of the Constitution;

(h) (i) (j) (k) and (l), the act of the learned Chief Justice in issuing Directions 2, 8 ,and 10 of the High Court Anti Corruption Division which provide for the appointment of the Chief Magistrate and Magistrate Grade 1 to exercise judicial powers in the Anti Corruption Division of the High Court distorts the constitutional composition and functions of the High Court and is unconstitutional being in contravention  of Arts. 2, 79, 126, 138 and 257(1) of the Constitution as the Chief Justice’s acts in effect amends Section 52 of the Anti-Corruption Act and contravenes Art 79 of the Constitution;

(m) Section 392(2) of the Penal Code Act, Cap 130 of the laws of Uganda under which the applicants are charged is inconsistent with and in contravention of Articles 2(1) and2, 28(1) 3(b) 28(12), 42, 44(c) of the Constitution;

(n) the charges and indictment in issue are incurably defective     and are in contravention of Arts. 2(1) and 2, 28(1) (3) (b) 28(12) 42, 44(1) of the Constitution;

(o) the act of the Judicial Service Commission and His  Excellency the President of the Republic of Uganda in  not fully constituting the Constitutional  Court ,the Court of Appeal and the Supreme Court thereby allowing the DPP and the Chief Magistrate’s Courts to abuse fundamental rights and freedoms  of the petitioners who do not have access to a fully constituted Constitutional Court and a fully constituted  Supreme Court for final remedies and redress is inconsistent with and in contravention of Articles 2, 28(1) 44(c), 126(1), 128, 147(1) (c) and(e), 130, 134(b) and137(2) of the Constitution:

1. That in the Petition the applicants prayedinteralia, for orders;
2. permanently staying all criminal charges and proceedings against the Petitioners in the Chief Magistrate’s Court of Buganda Road vide Misc.