THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
Coram Hon Mr. Justice G. M Okello, JA
Hon Lady Justice A.E.N Mpagi Bahigeine, JA
Hon Mr. Justice S.G Engwau, JA
Hon Lady Justice C.K Byamugisha, JA
Hon Mr. Justice S.B K Kavuma , JA
CONSTITUTIONAL REFERENCE N0 6 OF 2007
(1) SOON YEON KONG KIM
(2) KWANGA MAO ------------------------------APPELLANTS
ATTORNEY GENERAL ---------------------------------------- RESPONDENT
A reference from the Chief Magistrates Court of Buganda Road, arising from Cr. case N0 4288 of 2005.
RULING OF THE COURT
This is a Constitutional reference from a Magistrate Grade one sitting at the Chief Magistrates Court of Buganda Road in Criminal case N0 4288 of 2005.
The genesis of this reference is the charging of the applicants, Korean nationals, before the Magistrate grade one with several counts of various offences under the Penal Code Act. Before the applicants pleaded to the charges, Mr. David F.K Mpanga, learned counsel for the applicants, applied to the trial Court for an order that the Director of Public Prosecutions (DPP) supply the applicants with copies of all the statements made to Police by the potential witnesses for the prosecution as well as copies of all the exhibits that the prosecution would rely on at the trial, to enable the applicants prepare their answers and defenses to the charges. The application was stated to have been made under Article 28(1) 3(a)(c)(d) and (g) of the Constitution of this Country. Article 28 guarantees the right to a fair hearing. The determination of the application necessitated interpretation of those provisions of the Constitution. Mr. Mpanga, therefore, requested the trial Magistrate to refer the question to this Court for interpretation under Article 137(5)(b) of the Constitution. The trial Magistrate rightly, in our view, made this reference framing the following question for determination of this Court.
“ Whether within the plain, natural and practical meaning of Article 28(1)(3)(a)(c)(d) and (g) of the Constitution of the Republic of Uganda 1995, an accused person in a Magistrate’s court is entitled to disclosure of:-
(a) Copies of Statements made to Police by persons who will or may be called to testify as witnesses for the prosecution and
(b) Copies of documentary exhibits which are to be offered in evidence by the prosecution before being called upon to plead the charges.”
Our duty in this reference is, therefore, to interpret Articles 28(3)(a)(c)(d) and (g) of the Constitution to answer the above question one way or the other.
The case for the applicants, as stated for them by Mr. Mpanga, is that on a proper interpretation, the provisions of the above articles entitle the applicants, as a general rule, to disclosure of the stated information subject only to the application by the State for limitation on grounds of State secrets, protection of witnesses against intimidation or interference and the protection of the identity of informers. He pointed out that the right to a fair hearing is one of the only four fundamental rights that the framers of our Constitution made non-derogable under Article 44 of the Constitution. He stated that this was a deliberate move by the framers of our Constitution to break away from our oppressive past and to build a better future by establishing a socio –economic and political order based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. He argued that the choice of words used in the provisions of this Constitution in chapter four, is evidence of this deliberate move. The wording is deliberately similar to the wording of most International Instruments and Constitutions of other Foreign Countries relating to Human Rights and Fundamental Freedoms. He cited Article 14 of the International Covenant on Civil and Political Rights 1966; Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedom, both of which articles he said are in pari-materia with our Article 28.
He submitted that the judicial considerations of the articles of these International Instruments or Constitutions of foreign countries that are in pari-materia with the provision of our Constitution under consideration are persuasive authorities to this court. He referred us to the commentaries made by the Lawyers Committee on Human Rights on those articles. He also referred us to the Kenyan case of Juma and others VS Attorney General of Kenya (2003)2 EA 461 and the South African case of Shabalala & 5 others VS The Attorney General of Transvaal (1995)2 SACR 761 (cc).
He stated that the right to advance disclosure is not absolute as shown by the above two cases. The trial judge has discretion not only to permit or not to permit advance disclosure but also to determine when the disclosure should be made depending on the justice of each case.
Learned counsel submitted that disclosure enables an accused person make an informed opinion based on informed and balanced professional advice. In his view, disclosure makes sense before arraignment.
He prayed that we find that Article 28 entitles the applicants to disclosure.
Ms. Nabakooza, Senior State Attorney, who represented the respondent, contended that Article 28(3)(a)(c)(d) and (g) entitle the applicants not to a full disclosure but to a disclosure of “reasonable” information as to the nature of the charge against them to enable them prepare their defence. The disclosure comes only after the plea has been taken not before. She pointed out that the above provisions of the Constitution were considered by this court earlier in the Constitutional Petition N0 12 of 2006 vis-a-vis section 168(1) and (2) of the Magistrate Courts Act where this court held that if there was need for further information after the reasonable information had been given, then accused can apply for.
She stated that the right to full disclosure is not absolute. It is within the discretion of the court, subject to limitation based on public interest.
In her view, the provisions of the Constitution under consideration are clear, she drew our attention to the rule of Constitutional interpretation to the effect that where the words are clear and unambiguous, the court must give effect to their primary, plain, ordinary and natural meaning unless that would lead to absurdity or to conflict with some other provisions of the Constitution. She cited Constitutional Appeal N0. 1 of 1997 Attorney General Vs Major General Tinyenfunza and Onuoha Kalu VS The State (1998) 13 NWLR 531 at 536-537 as authorities for that principle.
Ms. Okuo-Kajuga who appeared for the Director of Public Prosecutions associated herself with the submissions of Ms. Nabakooza but emphasized that disclosure comes after the accused has taken plea. Her reason for that proposition is that Article 28(3)(c) talks of “adequate time and facilities for the preparation of his or her defence”. She submitted that defence comes after plea not before.
The above is the summary of the case of both parties. For a better appreciation of the issue at hand, it is important to reproduce here the provisions of Article 28(1)(3)(a)(c)(d) and (g), which are under consideration. They read as follows:
(1) “In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.
(3) Every person who is charged with a criminal offence shall:-
(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty;
(c) be given adequate time and facilities for the preparation of his or her defence;
(d) be permitted to appear before the Court in person or at that person’s own expense by a lawyer of his or her choice.”
By use of the word “shall” in sub Article (1) above makes it mandatory that in determination of one’s civil rights or obligations or where one is on any criminal charge, that person must be given a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. What is in issue here is what constitutes “a fair hearing”. sub article 3 of Article 28 sets out the minimum requirements to constitute a fair hearing.
These requirements include:-
(a) That a person who is charged with any criminal offence must be presumed innocent until he or she is proved guilty or until he or she has pleaded guilty.
(c) That such a person must be given adequate time and “ facilities” for preparation of his or her defence.”
In the Kenyan case of Juma (supra), which is on all fours with the instant case, the High Court of Kenya, constituted as Constitutional Court, considered among others section 77(1)(2) of their Constitution which is in pari-materia with Article 28(1)(3) of our Constitution. There, the court considered the definition of the term “facilities” which appears in their section 77(1) as it also appears in our Article 28(1). The court found that “in its ordinary, everyday meaning, free from any technicality and artificial bending, the word “ facilities” means the resources, conveniences or means which makes it easier to achieve or purchase; unimpeded opportunity of doing something, favourable conditions for the easier performance of something, means or opportunities that renders any thing readily possible.
Its verb is to “facilitate” and means to render easy or easier the performance or doing of something or to attain a result, to promote, help forward, assist, aid or lessen the labour of one”
In the opinion of the Kenyan court, what those provisions of the Kenyan Constitution, in mandatory terms, require the courts in Kenya to do in every case is that,
“The accused must be given and afforded those opportunities and means so that the prosecution does not gain an undeserved or unfair advantage over the accused; and so that the accused is not impeded in any manner and does not suffer unfair advantage and prejudice in preparing his defence, confronting his accusers and arming himself in his defence and so that no miscarriage of justice is occasioned.”
In that case, like in the instant case, the applicants were charged with various criminal offences before a Magistrate Court. Consequent upon that, they applied to the trial court for an order that the prosecution supply them with copies of statements made to Police by the would-be prosecution witnesses and copies of exhibits which the prosecution would rely on at the trial. The trial court refused the application.
On reference to the High Court complaining that their rights under sections 70 and 77(1) and (2) of the Constitution of Kenya were in danger of being violated by the refusal, the court held:-
“ That these provisions of the Constitution under consideration can have life and practical meaning only if accused persons are provided with copies of statements made to the Police by persons who will or may be called to testify as witnesses for the prosecution as well as the copies of exhibits which are to be offered in evidence for the prosecution.” (underlining added for emphasis).
In coming to that conclusion, the Court said,
“In an open and democratic society based on freedom and equality with the rule of law as its ultimate defender such as ours, the package constituting the right to a fair trial contains in it the right to pre-trial disclosure of material statements and exhibits. In an open and democratic society of our type courts cannot give approval to trial by ambush and in criminal litigation the courts cannot adopt a procedure under which an accused person will be ambushed subject to the rights of every person entrenched in the Constitution of Kenya and including the presumption of innocence until proved guilty beyond reasonable doubt, the fundamental right to a fair hearing by its nature requires that there be an equality between contestants in litigation. There can be no true equality if legal process allows one party to withhold material information from his adversary without just cause or peculiar circumstances of the case.”
We agree with the interpretation of section 77(1) and (2) of the Kenyan Constitution that the right to a fair hearing contains in it the right to a pre-trial disclosure of material statements and exhibits. We also agree that in an open and democratic society, courts cannot approve of trial by ambush. The right to a fair hearing envisages equality between the contestants in litigation .
Similarly, our Article 28(1) and (3) that guarantees the right to a fair hearing must contain in it the right to a pre-trial disclosure of material statements and exhibits. This is the only way to ensure equality between the contestants in litigation.
We would like to point out that pre-trial disclosure in the trial before the High Court in Uganda was the norm rather than the exception until 1990 when the Magistrates Court (amendment) Statute N0. 6 of 1990 was enacted. Before that enactment, there were preliminary hearings conducted by Chief Magistrates or Magistrates Grade one for cases triable by the High Court. The purpose of the preliminary hearings was to screen out those cases where the prosecution evidence was too weak to justify a trial.
In the preliminary hearings, the prosecution would produce its full evidence before the Magistrate who would record it in the presence of the accused person. That was in fact a pre-trial disclosure. Where the evidence was found insufficient the conducting Magistrate had powers to discharge the accused.
In 1967, the Criminal Procedure (summary of Evidence) Act was enacted. This changed the purpose of Preliminary hearing from screening to disclosure. The purpose became to give to the accused advance knowledge of the prosecution’s case. The Director of Public Prosecutions was required under this Act to file with the Magistrates Court a proper indictment and a Summary of Evidence containing the substance of the evidence of each would-be witnesses for the prosecution. In the summary of evidence, reference was made of exhibits intended to be produced by the prosecution at the trial. These exhibits would be produced in court at the committal proceedings, marked and taken into custody of the court. Copies of the summary of evidence would be given to the accused. This too was full pre-trial disclosure.
It was only upon the enactment of the Magistrates Courts (Amendment) Statue N0. 6 of 1990 that trial by “ambush” was introduced in criminal trial by the High Court in this Country. As we have seen above, trial by ambush is repugnant to Article 28(1)(3) above as there can be no equality between the contestants in a trial by ambush and therefore no fairness.
It was submitted for the State that the question of pre-trial disclosure was already considered by this Court in Constitutional Petition N0. 12 of 2006, Col (RTD) Dr. Kiiza Besigye and 22 others Vs the Attorney General.
We agree that this court considered Article 28(1), (3)(a)(c) and 44 (c) of the Constitution of Uganda vis-a- vis section 168(1) and (2) of the Magistrates Courts Act (MCA). However, our view is that that case is distinguishable from the instant reference on their facts. While that case was about the determination of the constitutionality of section 168(1) and (2) of the Magistrates Courts Act, the instant case is about whether the plain, ordinary, and practical meaning of Article 28(1)(3)(a)(c)(d) and (g) entitle an accused person before a Magistrate’s Court to a pre-trial disclosure of copies of statements made to Police by the would-be witnesses for the prosecution and copies of exhibits the prosecution would rely on at the trial.
We have stated here above that Article 28(1) and (3) require an accused person charged with any criminal offence to be presumed innocent and to be afforded all material statements and exhibits to enable him or her prepare his or her defence without any impediment. This is pre-trial disclosure. This disclosure is not limited to reasonable information only. Counsel for both parties have agreed that the right to disclosure is not absolute. We respectfully accept that view. Both the Kenyan case of Juma (Supra) and the South African case of Shabalala (supra) support this view. Such a disclosure is subject to some 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 from disclosure or that due to the simplicity of the case, disclosure is not justified for purposes of a fair trial. This means that an accused person is prima facie entitled to disclosure but the prosecution may by evidence justify denial on any of the above grounds. It’s the trial court that has discretion whether the denial has been established or not.
Mr. David F.K Mpanga submitted that disclosure makes sense when it is made before arraignment. For the respondent it was contended that the article indicates that disclosure be made after the accused had taken plea.
We are unable to give any hard and fast rule as to the time of disclosure because the circumstances of each case differ. Essentially, disclosure should be made before the trial commences depending on the justice of each case and on which documents to be disclosed. This is within the discretion of the trial court.
In summary, Article 28(1)(3)(a)(c)(d) and (g) of the Constitution of Uganda in their plain, natural and practical meaning, prima facie entitle an accused person in a Magistrate’s Court to disclosure of:-
(a) Copies of statements made to Police by the would be witnesses for the prosecution.
(b) Copies of documentary exhibits, which the prosecution is to produce at the trial.
(c) The disclosure is subject to limitations to be established through evidence by the prosecution.
Dated at Kampala this 7th day of March 2008.
G. M. OKELLO
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
S. B.K KAVUMA
JUSTICE OF APPEAL