THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COUTY OF UGANDA

AT KAMPALA

CONSTITUTIONAL APPLICATION No 61 OF 2013

(ARISING OUT OF CONSTITUTIONAL APPLICATION No 6 OF 2013)

(ARISNG OUT OF CONSTITUTIONAL PETITION No 2 OF 2013)

 

MAGOMBE JOSEPH……………………………………………APPLICANT

AND

UGANDA………………………………………………………RESPONDENT

 

CORAM:  THE HON JUSTICE GEOFFREY KIRYABWIRE JA

 

RULING

Introduction

This ruling is in respect of three preliminary objections raised by the respondent State in the present application. The said application is brought under Article 23 (6) (a) and (b) of the Constitution of the Republic of Uganda 1995 (hereinafter referred to as the Constitution”) for orders that the applicant be admitted on bail on such conditions as this Court may deem fit.

The application is support by the affidavit of the applicant dated 6^th August 2013 and a further supplementary affidavit filed on the morning of hearing the application dated 2^nd August 2013.

The application is opposed by the affidavit of Ms Caroline Marion Acio a State Attorney at the Anti Corruption Division of the High Court (hereinafter referred to as them “ACD”).

Background to the application

The applicant was charged with theft C/S 254 (1) and 261 of the Penal Code Act, conspiracy to commit a felony C/S  390 of the Penal Code Act, unauthorised access C/S 12 (3) and 20 (1) of the Computer Misuse Act and Electronic Fraud C/S 19 of the Computer Misuse Act. The applicant was charged at the ACD and the applicant avers in Para 12 of his affidavit that his trial was due to commence on the 15^th July 2013 however this Court by that date had delivered a Ruling in Constitutional Application No 6 of 2013 in the matter of Davis Wesley Tusingwire V AG under Constitutional Petition No 2 of 2013 of the same parties (hereinafter referred to as the “head petition”) staying all proceedings in and arising from the Magistrates Court at the ACD. He further avers that he tried to apply for bail at the High Court but his application was not granted a hearing date. As a result of the said stay of proceedings at the ACD the applicant is uncertain as to when his trial will resume hence this present application.

Appearances

Mr. S. Mungoma appeared for the applicant while Mr P Mwaka (Principal State Attorney) and Mr G Kalemera (Principal Sate Attorney) appeared for the Attorney General (AG). Ms C Acio (State Attorney) appeared for the DPP.

Preliminary Objections

When the application came up for hearing Mr Mwaka for the AG raised three preliminary objections namely

1. The applicant is not a properly before the court inter alia because the applicant is not a party to the head Petition.
2. This Court sitting as a single judge does not have jurisdiction to entertain this application.
3. That this application is in reality a bail pending appeal application but disguised as an application for bail pending disposal of a Constitutional Petition which remedy does not exist.

I shall address and resolve these objections one by one.

 

 

Arguments

Counsel for the State first pointed out that the Notice of Motion was wrongly numbered in that it showed that it originates from Constitutional Petition No 6 of 2013 when the correct number was Constitution No 2 of 2013 out which there was Constitution application No 6 of 2013 that stayed the proceedings in the ACD.

Counsel for the respondent conceded this discrepancy and stated that the number had been allocated by the Court Registry and he had not noticed the discrepancy. Court decided that the an amendment in this respect be allowed so that the Notice of Motion reflects the correct numbers as this was a technicality in the form of a slip. Counsel for the State agreed. The amendment was so ordered.

Now I shall address the substance of the preliminary objections.

Objection No. 1. The applicant is not a properly before the court inter alia because the applicant is not a party to the head Petition.

Objection by the Respondent

Counsel for the State submitted that the parties in the head Petition under which this application arises were David Wesley Tusingwire and the Attorney General. However the present applicant was not a party to the head Petition and therefore did not have any locus standi in the Petition hence this application.

He further submitted that the head Petition was brought under Art 137 of the Constitution by the Petitioner Mr. Tusingwire as an individual. Article 137 of the Constitution is in respect of questions as to the interpretation of the Constitution to be determined by the Court of Appeal sitting as the Constitutional Court. Counsel for the State submitted that if the applicant had been interested in the Petition then he had two options. First the applicant could apply to be joined to the main Petition under Order 1 Rule 13 of the Civil Procedure Rules (CPR) which he did not do. Secondly the applicant could file his own Petition under which he would be free to proceed but also had not done so. He submitted that as it is the applicant had no feet to stand on in respect of the head Petition and hence this application.

Reply by the applicant

Counsel for the applicant submitted that in Constitutional Application No 6 of 2013 Mr. Tusingwire applied for a stay of proceedings in the ACD yet he is not a party to any prosecution at the ACD. He referred me to page 26 of the Ruling in Constitutional Application No 6 of 2013 where the Court observed

“… The applicant too, though not one of the persons undergoing such prosecution at the HCACD, could equally suffer by the proceedings going on at the court as he will continue to agonize over his apparent inability to exercise his right and fulfil his duty to defend the Constitution against the possible breach of the Supreme Law of this country…”

Counsel for the applicant submitted that his client is more directly affected by the said ruling as he is a party to a prosecution at the ACD the proceedings of which have been stayed unlike Mr. Tusingwire. He submitted that the applicant has constitutional rights that cannot be derogated that include the right to liberty and a fair and speedy trial which by virtue of the said ruling had been violated and the applicant had nowhere else to go. On the foregoing premise counsel for the applicant submitted since the applicant was more affected than Mr Tusingwire then he had locus standi to bring this application under the Ruling that stayed his trial at the ACD. Counsel for the applicant submitted that any party aggrieved by the said ruling resulting from proceedings of which he was not a party may be heard by Court in the same way that Mr. Tusingwire was heard. 

Findings and decision of this Court.

I read the motion before Court and the affidavits for and against it and the submissions of all counsels regarding this objection for which I am grateful.

The issue as I understand it is whether the present applicant can originate this application under another application and petition to the Constitutional Court for which he is not a party? This to my mind is an issue of procedure.

Rule 23 of the   Constitutional Court (Petitions and References) Rules, 2005 (SI 91 of 2005) provides that the procedure at this Court sitting as a Constitutional Court shall be regulated by the Civil Procedure Act (CPA) and Rules (CPR); in addition to the Court of Appeal Rules with necessary modifications.

It is a fact that the present applicant is not a party to the Head Petition nor the application made there under to stay the proceedings at the ACD. The parties to those matters are Davis Wesley Tusingwire and the Attorney General.

It is also a fact that this application though made under Constitutional Application No 6 of 2013 Davis Wesley Tusingwire and the Attorney General to which the present applicant is not a party.

Who then may be joined as parties to an action before a Court? Order 1 rule 1 of the CPR read with the necessary modifications (to reflect Petitioner or applicant) provides

“…All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if those persons brought separate suits, any common question of law or fact would arise…”

 

Applying the necessary modification to that rule to apply to a petition and application in this situation the test for here for a person to be a party   is “…any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist…”

 

This test is important to avoid a scenario of misjoinder.

 

In this situation can it be said that the present applicant and Mr. Tusingwire seek a relief arising out of a similar act or transaction or series of transactions?  On the one hand the present applicant originally sought to be admitted to bail at the ACD which is his constitutional right while on the other hand Mr. Tusingwire argues that the ACD as far as its Magisterial jurisdiction is concerned is unconstitutional and he seeks this Court’s interpretation to that effect.

If the relief in both situations are similar and arise out of a similar act or transaction then can the present applicant simply add himself to the application of Mr. Tusingwire without leave of Court? These are basic and important procedural and not technical questions that need to be addressed.

To my mind a Petition made to the Constitutional Court for interpretation of the Constitution and an application to be admitted to bail are two distinctly different matters.

 

Counsel for the respondent has submitted that if the applicant wants to be joined to Constitutional application No 6 of 2013 then he should apply under Order 1 rule 13; in other words seek the approval of Court or alternatively file his own petition then seek his own relief there from.

 

Counsel for the applicant on the other hand has submitted his client has a higher stake in the ACD as he, unlike Mr. Tusingwire in the head petition, is being prosecuted there and so the applicant should have locus to file this application.

 

Order 1 rule 13 of the CPR (applied with the necessary modifications to suit this application) provides

 

“…13. Application to add, strike or substitute a plaintiff or defendant.

Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by motion or summons or at the trial of the suit in a summary manner…”

 

Applying the rules of procedure to this situation I am inclined to agree with counsel for the respondent that for the applicant as a stranger to head petition or application No 6 of 2013 cannot file an independent application like this one (originating from the other two) because he has no locus to do so.

 

The argument by counsel for the applicant that since the Petitioner Mr. Tusingwire was able to file a Constitutional Petition without being prosecuted at the ACD it therefore follows that the present applicant may also join under the present application under the petition since he is being prosecuted to my mind is more of an emotive than procedural argument and therefore cannot stand. Mr Tusingwire under Article 137 of the Constitution does not need locus standi in a matter in a criminal matter at the ACD to seek an interpretation of the Constitution. Indeed it is now settled law that a spirited citizen in public interest litigation does not have locus standi. In this regard I need no more than recall the celebrated decision of Lord Diplock in Reg –vs- IRC Exp. Federation of Self Employed H.L.E. [1982] AC 643 where he held

 “…It would, in my view, be a great lacuna in our system of Public Law if pressure groups, like the Federation or even a single Public Spirited tax payer, were prevented by our-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get unlawful conduct stopped...”

I agree with that position of common law even for Uganda. What I do not agree with is that, this position of common law is wide enough for one spirited individual to jump on to the case of another spirited individual (i.e. have locus standi therein) as seems to be the case here without leave of Court.  In any event if the present applicant wanted to join the head petition it can only be for the purposes as to the interpretation of the Constitution under Article 137 of the Constitution which is the jurisdiction of this Court and not admission to bail.

This in my view is sufficient to dispose of this application however I will also address the other objections as well to provide further clarity on the law.

 

Objection No. 2. This Court sitting as a single judge does not have jurisdiction to entertain this application.

Objection by the respondent

It is the case for the respondent that this Court sitting as a single Judge does not have the jurisdiction to entertain this application. Counsel for the respondent referred me to the ruling in Constitutional Application 6 of 2013 at pages 28 and 29 where the Court as a panel of three Justices ruled

“…The criminal proceedings currently going on in the High Court Anti Corruption Division at Kololo before, and those arising from, the Chief Magistrate and Magistrate Grade 1 or any other Magistrate attached to the HCACD at Kololo be and are hereby stayed pending the disposal of Constitutional Petition No 2 of 2013 or until such other orders of this court…”

Counsel for the respondent submitted that if any other orders are required then they should be obtained from a similar panel of three Justices and not from a Single Justice as is the case in the instant application.

Reply by the applicant

In reply counsel for applicant referred me to Rule 23 of the   Constitutional Court (Petitions and References) Rules, 2005 (SI 91 of 2005 hereinafter referred to as the “Constitutional Court Rules”) which provides

“… 23.      Civil Procedure Act, and rules to apply

1. Subject to the provisions of these Rules, the practice and procedure in respect of a petition or a reference shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the rules made under that Act and the Court of Appeal Rules, with such modifications as the Court may consider necessary in the interest of justice and expedition of the proceedings…”

He further submitted that this Rule should be read together with Rule 2 (2) of the Judicature (Court of Appeal Rules) Directions (SI 13-10 herein after referred to as the “Court of Appeal Rules”) which provides

“… (2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay…”

 

Counsel for the applicant submitted that the two set of rules read together gives this Court sitting as a single Justice the inherent power to hear this application so as to attain the ends of justice and avoid the applicant “rotting in prison”. He submitted that this application is further brought under Art 23 (6) (a) and (b) of the Constitution which allows that person to be admitted to bail if held for more than 60 days before trial. This means that the applicant is entitled to a speedy and fair trial which is a fundamental right.  However in the case of the present applicant he is not able to enjoy this inherent right. That is why this Court should exercise its own inherent powers to entertain this application.

 

 Findings and decision of this Court.

I read the motion before Court and the affidavits for and against it and the submissions of all counsels regarding this objection for which I am grateful.

Counsel for the respondent has made the argument that since the stay of proceedings before magistrates at the ACD was made by this Court, sitting as three Justices, until disposal of the head petition or further orders of Court then the stay persists until the head petition is disposed of or a panel of three Justices makes further orders.

On the other hand counsel for the applicant argues that a single Justice has the inherent powers to hear this application.

A reading of rule 2 (2) of the Court of Appeal Rules shows that inherent powers of the Court are used to achieve

1. Orders necessary for attaining the ends of justice
2. Prevent abuse of Court process and
3. Prevent abuse of the process of the Court caused by delay

The Rule then gives an example, which to my mind is simply indicative but not exhaustive, which includes setting aside judgments that are null and void.

Whether or not a single Judge has Jurisdiction is a question of law. Jurisdiction is given by statue and rules made there under. The Constitutional Court Rules (supra) do not expressly provide for the powers of a Single Justice of the Constitutional Court. However section 23 of the Constitution Court Rules inter alia provides that the Court of Appeal Rules with the necessary modifications shall apply to actions in the Constitutional Court. So from a procedural point of view the powers of a single Justice of the Constitutional Court are the same as that of a Justice of the Court of Appeal with the necessary modifications. The Powers of a single Justice of the Court of Appeal are provided for in Section 12 of the Judicature Act which provides

“… (1) A single justice of the Court of Appeal may exercise any power vested in the Court of Appeal in any interlocutory cause or matter before the

Court of Appeal...”

Since this is a Constitutional Court it means with the necessary modifications a single Justice can exercise any power vested in the Constitutional Court in any interlocutory cause or matter before the Constitutional Court.

To my mind as seen in the head petition what is before the Constitutional Court is a question interpretation of the Constitution. Interlocutory matters in relation to the interpretation of the Constitution clearly can be heard by a single Justice. However what is before me in this application is a bail application which is a different type of proceeding altogether.

It has been argued that this court can use its inherent powers to hear this application. The use and application of the inherent powers court has been discussed by the Supreme Court in the case of Orient Bank V Zaabwe & anor CA 17 of 2007. The Supreme Court in that case referred to another case by the same Court of Livingstone Sewanyana V Martin Aliker CA No 4 of 1991 and held

“…the court considered the nature of the Court’s inherent power that was preserved in r.1 (3) then and is now in r.2 (2). After noting and comparing the inherent power of the Court of Appeal in England and observing that the inherent power as articulated in 1966 case of Lakhamshi Brothers Ltd. vs. R. Raja and Sons (supra), was reflected in r. 35 of the Court of Appeal Rules of 1972, which the Supreme Court inherited, the court went on to clarify –

          “But rule 35 will not exhaust the inherent jurisdiction of the Supreme Court, otherwise Rule 1(3) would not have been necessary. The latter rule is there to provide for the many types of cases when the inherent jurisdiction will be necessary for the ends of justice…”  

This confirms the position of law that inherent powers of Court can be used to cover many types of cases. However the Supreme Court in the Zaabwe Case (Supra) was also quick to caution that

“…Both in Livingstone Sewanyana vs. Martin Aliker and in NPART vs. General Parts cases the court declined to invoke its inherent power because circumstances for its exercise did not exist. It is clear that, both under the inherent powers and under the slip rule, the Court’s jurisdiction is circumscribed and must not be invoked to circumvent the principle of finality of the Court’s decisions…”

Such caution is not to be taken lightly. The important point to be observed from this caution is that the inherent powers of Court are circumscribed and shall only be used in appropriate circumstances.

In relation to this application it is my finding that the Court cannot use its inherent powers to circumvent the fact that the applicant has no locus to add himself to the head petition or any application made there under.

Furthermore save for questions and matters in relation to the interpretation of the Constitution there is no inherent power vested in this Court to grant bail.

The Constitution in Article 23 (6) is very clear as to right to bail, and indeed this Motion is made under the said Article, which provides

“… (6) Where a person is arrested in respect of a criminal offence—

(a) The person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;

(b) In the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days;

(c) In the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for three hundred and sixty days before the case is committed to the High Court…”

 

The above Article in 23 (6) (a) make reference to applying to be released on bail to “the Court”. The reference to “the court” in Article 23 (b) is to the “High Court” or “a subordinate court”. Of Course there can be appeals on questions as to admission to bail from both a subordinate Court and High Court to the Court of Appeal.

This Court has in the matter of Lt Col John Kaye and Attorney General Const. Application No. 25 of 2012 granted an “interim order of temporary release” to the applicant/petitioner from custody at Military Police Headquarters, Makindye, until the hearing and final determination of Constitutional Application No. 29 of 2012. It was argued in that case that the applicant/petitioner in that case had three times unjustifiably been denied bail at the General Court Marshal (GCM) sitting at Makindye. This forced the applicant/petitioner to file a Constitutional Petition No 24 of 2012 challenging the constitutionality of the proceedings at the GCM and while that Petition was pending inter alia applied to this Court for an order of release from custody until the determination of that Petition. In that application it was argued that this Court could exercise its discretion to grant the applicant an “interim temporary release” pending the hearing of the constitutional Petition. To my mind this application is distinguishable from the Lt Col Kaye matter (supra). First unlike the Lt. Col Kaye matter (supra) the applicant in this application is not the petitioner in the head petition. Secondly the issues of inherent power to grant bail were not addressed like in this application. Lastly the issue of the jurisdiction of a single Justice of the Constitutional court in these circumstances was not canvassed in that matter.

Furthermore I also agree with counsel for the respondent that Orders of this Court sitting as a panel of three were clear that is the stay shall remain in place until the disposal of the petition or until further orders of the Court. It is my finding that having been ceased with the matter in Const. Application No 6 of 2013 and made Orders, it is therefore a panel of three to progress that application not a single Justice

To that extent the second objection is also upheld.

However before I take leave of this objection I need to observe that panel of three Justices in Constitutional Application No 6 of 2013 can exercise inherent power. A look at order No 2 at page 29 of Constitutional Application No 6 of 2013 shows how they rightly did so before

“…the orders made herein shall not have retrospective applications to proceedings taken and concluded by the HCACD prior to the delivery of this ruling…”

This to my mind was clearly an application of the inherent powers of Court to ensure that the ends of justice are met and ameliorate any harsh impact of the stay of proceedings before magistrates at the ACD. This was not one of the prayers in the Notice of Motion in Constitutional Application No 6 of 2013 but Court in a proactive manner moved itself to make the said consequential order. Any exercise of inherent powers can therefore be exercised at that level.

 

Objection No 3. That this application is in reality a bail pending appeal but disguised as an application for bail pending disposal of a Constitutional Petition which remedy does not exist.

Objection by the respondent

Counsel for the respondent submitted that this application was a disguised application for bail which is a criminal proceedings which this Court is not mandated to handle as it does not fit within the meaning an interpretation of the Constitution. In this regard he referred me to the decision of this Court in the matter of  Uganda and Atugonza Francis Const Ref No 31 of 2010 which cited with approval the decision of Ismail Serugo and Kampala City Counsel and Attorney General (Const Appeal No 2 of 1998) where Hon Justice Wako Wambuzi (CJ as the then was) held

“… The petition (read reference) must show on the face of it that interpretation of a provision of the constitution is required. It is not enough to allege merely that a constitutional provision has been violated…”

He further submitted that if the applicant wanted to be admitted to bail then he should apply to the Court where he is being prosecuted however these proceedings are stayed.

Where the applicant is denied bail at that level still the applicant can not apply for bail pending appeal as there is no appeal from the High Court to this Court. Secondly there is no such thing as bail pending the determination of a petition to this Court. Counsel for the respondent submitted that this Court should not assume the jurisdiction of the original court.

Counsel for the respondent further submitted that for Court to hear and determine this application would be to violate and render its own Order nugatory.

Counsel for the respondent submitted that in these circumstances the best remedy was for the head Petition to be heard expeditiously and determined by this Court.

 

 

Reply by the applicant

In reply Counsel for the applicant conceded that this application was in essence a bail application. He further conceded that the application was not an appeal but was made because the applicant had nowhere to go since the proceedings at the ACD had been stayed and this created a “catch twenty two situation”.

Counsel for applicant submitted that this Court exercise its inherent powers as a higher Court to protect the constitutional rights of the applicant and allow him to be admitted to bail.

 Findings and decision of this Court.

I read the motion before Court and the affidavits for and against it and the submissions of all counsels regarding this objection for which I am grateful.

It is clear from the submissions of both counsels that this application is an application for bail. Counsel for the applicant submitted that the applicant following a “catch twenty two” situation as to proceedings at the ACD Magistrates jurisdiction where he could apply for bail had been stayed; and the applicant could only come to the Constitutional Court as a higher Court for relief as his constitutional rights were being denied him.

The orders in Constitutional Application No 6 of 2013 have created a unique situation where proceedings before Magistrates at the ACD have been stayed.  I still none the less have difficulty in understanding the applicant’s argument that this Constitutional Court is a higher Court in terms of the type of criminal proceedings at the Magistrates Courts that the applicant is talking about. Such a higher Court in my view would be the High Court under Article 138 (2) which has unlimited original jurisdiction in all matters and such appellate jurisdiction that is given to it and then the Court of Appeal and Supreme Court thereafter. The Constitutional Court is a higher Court under Article 137 of the Constitution when it comes to questions of interpretation of the constitution. It is not therefore stricto sensu a trial Court like the ACD. The hierarchy of such trial courts should be distinguished from the Constitutional Court even though it also wears the other hat of Court of Appeal because such a mix up shall lead to unlawful and unconstitutional consequences.

In any event it is not accurate to say that the applicant has nowhere to go to apply for bail and that the judicial doors have been closed because proceedings before Magistrates at the ACD were stayed.

The applicant in his affidavit in support of this Motion avers

“…9. That I applied for bail in the magistrate’s court and was denied bail on flimsy grounds.

10. That I reapplied for bail in the High Court and my application was dismissed.

11. That I reapplied for bail in the High Court, my application was not allocated a hearing date…” (Emphasis mine)

These Averments mean that it is still possible for the applicant to apply for bail at the High Court which he has done and that his application is still pending.

This in my finding is the correct thing to do that is apply to the High Court which has unlimited original jurisdiction in all matters. No stay was placed by this Court on proceedings before the High Court and the doors to that Court are open for adjudication throughout Uganda. The present applicant’s application at the High Court is still pending; so I do not understand why this application to the Constitution Court had to be made. Fixing of a hearing date is a registry matter which is administrative and any problem in that regard can be sorted out with the Chief Registrar without burdening this Court with bail applications.

I agree again with counsel for the respondent that an expeditious hearing of the head petition will be the ultimate resolution of this issue.

The third objection is accordingly upheld as well

Final Result

All the preliminary objections are upheld and the application is as a result dismissed.

I take judicial notice that there has been some uncertainty following the Orders of this Court staying proceedings at the ACD and for that matter I order that each party bears its own costs

 

 

 

Geoffrey Kiryabwire

Justice of Appeal/ Constitutional court.