THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT KAMPALA

 

 

CORAM: (KATUREEBE, CJ, TUMWESIGYE, KISAKYE, NSHIMYE, MWANGUSYA, OPIO AWERI, MWONDHA, JJSC)

 

 

CONSTITUTIONAL APPEAL NO. 4 OF 2016

 

BETWEEN

 

DAVID WELSEY TUSINGWIRE …………….…………… APPELLANT

AND

THE ATTORNEY GENERAL ………………………..… RESPONDENT

 

 

(Appeal from the decision of the Constitutional  Court  at Kampala before Kavuma DCJ, (Dissecting) Remmy Kasule, Solome Balungi Bossa, Geoffrey Kiryabwire, L.E. Tibatemwa, JJA dated the 20th day of January, 2014)

 

JUDGMENT OF MWONDHA JSC

The appellant appealed to this Court against the whole decision and orders of the Constitutional Court as follows:-

1. The Learned Justices erred in law and fact when they  held that the High Court (Anti Corruption Division) Practice Directions 2009 did not add the designated Magistrates to the structure and composition of the High Court Anti corruption Division but that they are just “Assistants” to the Judges.
2. The Learned Justices erred in law and fact when they held that the Chief Justice can under Article 133 of the Constitution and sections, 6 and 7 of the Magistrates Courts Act alter the composition structure and function of the High Court in spite of Articles 79, 126, 129, 138, 139, 150, of the Constitution which exclusively confer the exercise of legislative power to Parliament.
3. The Learned Justices erred in law and fact when they held that the Chief Justice can under Article 133 interfere with inclusive unlimited jurisdiction of the High Court enjoyed under Article 139 of the Constitution and simultaneously confer the said unlimited jurisdiction without any authority.
4. The Learned Justices erred in law and fact when they failed to adequately  evaluate the evidence and held that the proceedings before and arising from designated magistrate at High Court Anti Corruption Division did not violate the right to a fair hearing under Article 28 and 44 (c )  of the Constitution.
5. The Learned Justices erred in Law and fact when they did not properly evaluate the evidence before them and failed  to make consequential orders nullifying proceedings taken before and those arising from designate Magistrates of the High Court Anti Corruption Division.

The appellant asked this Court:

1. To allow the appeal
2. To set aside orders of the Constitutional Court
3. Award costs of this Court and of the Court below to him

 

Background:-

The brief facts of the appeal are that the Chief Justice issued the High Court (Anti Corruption Division) Practice Directions 2009 (hereinafter referred to as the impugned Directions) on the 18th August 2009.  The Chief Justice acted under Articles 133 (1) (a) of the Constitution.  The Anti corruption Division of the High Court, with the objective to operate as an orderly, expeditious, efficient and cost effective forum for adjudication of corruption and corruption related cases under the Anti Corruption Act, the Penal Code Act and the Leadership Code Act or any other Law related to corruption.  The High Court Anti Corruption Division was initially composed of two judges of the High Court, a Registrar and designated Magistrates, (Chief Magistrates  and Magistrate Grade I) attached to it.  It is located at Kololo but can operate from such other places in Uganda as the Principal Judge may determine.   Designated Magistrates attached to the Anti Corruption Division of High Court have territorial jurisdiction to try offences under the laws mentioned above committed any where within the Geographical boundaries of Uganda.  The Chief Justice may assign designated Magistrates to work in the High Court Anti-corruption Division without any limitation for working in any or part of a Magisterial Area.

The appellant who was the petitioner in the Constitutional Court challenged the constitutionality of the High Court (Anti Corruption Division) Practice Directions issued on the 18th August 2009 (the impugned Directions) which established the Anti Corruption Division of the High Court alleging that they were in consistent with and in contravention of the provisions of the Constitution and for that reason he was aggrieved.  He was interested in and sought various declarations and orders as follows.

1. Directions 2, 8, and 10 of the impugned directions which provide for the appointment to and exercise of judicial duties by the Chief Magistrate and Grade I Magistrate as Designated magistrates in the Anti Corruption Division of the High Court  distorts the Constitutional composition of Articles 2, 79, 126, 138, and 257 of the Constitution.
2. Direction 2, 8 and 10 of the impugned  Directions which provide for the appointment to and exercise of Judicial duties by the said Designated Magistrates under the  Anti Corruption Division of the High Court which is not a designated Magisterial area or Magistrates Court is contrary to and in contravention of Articles 2, 79, 126 (2) 133 (I) (b) and 138 of the Constitution of the Republic of Uganda.
3. Direction 10 of the impugned Directions which allows the said Designated Magistrates who are judicial officers of subordinate  Courts to double as judicial officers of the High Court and exercises unlimited territorial jurisdiction currently with the High Court is contrary to and inconsistent with Articles 2, 79, 126, 128 (2) and 139 of the Constitution of the Republic of Uganda.
4. That the Criminal trials conducted by the said designated Magistrates under Anti Corruption Division of the High Court pursuant to the impugned Directions are not lawful and they derogate an accused’s right to a fair hearing before an independent and competent Court established by law contrary to Articles 2, 28 (I) , 44 (c ) and 126 of the Constitution of the Republic of Uganda.

He asked for costs of the petition and any other further declaration or Order as Court may deem fit.  The Constitutional Court   dismissed the petition by the majority of four Justices against one who dissented.

Representation:-

At the hearing Mr. Mulema Mukasa and Mr. Andrew Oluka represented  the appellant

Mr. George  Kalemera Principal State Attorney and

Ms Imelda Sarah Adong State Attorney Represented the Respondent

Ms Sarah Langa Representative of the Respondent was present.

Appellant’s submissions:-

Counsel for the appellant submitted on ground I that the Constitutional Court failed to discharge its mandate under Article 137 of the Constitution to render a true and proper interpretation of the Constitution.  He gave reasons as follows:-

 (a) That the Constitution  places very high importance on the establishment and composition  of all constitutional offices  and does not leave it to fertile imagination or guesswork but clearly defined under specific provisions.

(b)  Examples of such offices include all constitutional offices of the Executive, Legislative, and Judiciary, statutory bodies or organs. For the case of the High Court its composition is clearly defined under Article 138 of Constitution to include the Principal Judge and other Judges only.

(c) There have been many cases where the Courts have insisted that a Constitutional office must retain its original structure and composition at all times.  These include Constitutional Petition No 30 of 2011 Gilbert Bukenya Balibaseka Vs Attorney General Constitution Petition No 46 of 211 and Constitutional reference No. 54 of 2011.  Hon Sam Kuteesa and 2 others Vs. Attorney General which dealt with the composition of the office of the inspectorate of Government.

(d) Article 138 does not include assignees or assistants to the membership of the High Court.  According to their research they claim to have found that Assistants to judges are specifically created by the Law in Other Jurisdictions.  For example in Ireland, temporary Assistant Circuit Judges are appointed under the Courts of Justice Act 1924 whereas in Bangladesh Assistant Judges are also a creature of statute.  They urged that in Uganda, there are no assistant Judges in the High Court who sit in Judgment cases. 

(e)  The only judicial officers who can do work in the High Court, Court of Appeal and Supreme Court are Registrars which office is created under Article 145 of the Constitution and whose duties in those Superior Courts are specified under numerous operatives legislations like the Civil Procedure Act Cap 71.

(f) The Constitutional Court erred by supporting the view that the designated Magistrates were on some kind of temporary appointment to the High Court when they were deployed to execute judicial duties in the HCACD.  Temporary appointment to the High Court are in respect of Judges and not Magistrates and such appointments are done by the President not the Chief Justice and this is on the advise of the Judicial Service Commission under Article 142 (2) of the Constitution.

(g) Counsel lastly submitted that the Constitutional Court held that by attaching the Magistrate to the High Court Anti Corruption Division, the Chief Justice did not add them to the composition of the High Court because he was merely exercising his administrative functions under Article 133 of the Constitution to ensure the proper and efficient administration of the Court.  Appellant’s Counsel was in agreement with the judgment of Hon. Justice Steven B. K. Kavuma DCJ where he held:-

“To attach therefore in simple English and in the context of the Petition, connotes in my view adding to, making someone available to join a group or to cause to belong to a group or organization.” 

Counsel for the appellant argued that designated Magistrates were therefore made to belong by the impugned directions to the HCACD and were appointed to the High Court Anti Corruption Division.   The Webster Universal English Dictionary defines the word appoint as to select for a job, to prescribe.

They were fused into what was supposed to be a Division of the High Court thereby becoming part and parcel of it, and it derogated the High Court status, the designated Magistrates being judicial officers of lower rank than judges of the High Court.  Appellants Counsel contended that the designated Magistrates have nothing in common with the judges in terms of appointment, entry qualifications, disciplinary proceedings and the method of removal in case of need, yet they were to join High Court Anti Corruption Division as members thereof thereby interfering with the Constitutional set up of the Court.

(h)  Counsel further argued that Magistrates are well defined judicial officers under the Constitution and Magistrates Courts Act Cap. 16, have a complete parallel jurisdiction.  Cases are handled independently without being fused into another Court.  Such fusion is not supported by law. 

(i) Magistrates never come to the aid of the High Court in the discharge of their duties as the impugned directions would want us to believe (see S. 9 of MCA on general jurisdiction of Magistrates).  On the contrary it is the High Court which can come to the aid of Magistrates Court when it exercises its supervisory powers over them among other things. 

He prayed that this honourable Court allows the appeal on the 1st ground one.

Grounds 2 and 3 were submitted on together as they were inter- related because they challenge the powers of Chief Justice under Article 133.  The grounds are as below:-

 

Counsel submitted among others that the Constitutional Court spent considerable time talking about the jurisdiction of the designated Magistrates which was not in dispute (see page 197 lines 5 – 30 of the Record of Appeal).  The main thrust of appellant’s Petition was not about jurisdiction of the Magistrates to try offences but rather about their appointment and membership to the High Court under the impugned Directions.

They affirmed that the Constitutional Court found albeit erroneously that under Article 133 of the Constitution, the Chief Justice has power to deploy Magistrates to a High Court.  The Article 133 provides:- Administrative functions of the Chief Justice

(I) The Chief Justice (a) shall be the head of the Judiciary and shall be responsible for the administration and supervision of all Courts in Uganda. Counsel further submitted that at page 191 line 21 of the Record of Appeal the lead judgment stated “In conclusion on this particular aspect therefore, I do not consider him to be usurping the powers of Parliament to make Laws.  Article 133 and 79 are Constitutional provisions of equal importance and each should be given due recognition and weight.  It is therefore my judgment that the Chief Justice was empowered to make the impugned Directions under Article 133 of the Constitution.”

Counsel contended that the proper interpretation of Article 133 would lead to the conclusion that the article grants the Chief Justice Administrative  and supervisory functions of Courts whose composition is specifically defined else where in the Constitution.  For the case of the High Court the definition is under Article 138. According to Blacks Law Dictionary 9th Edn. Brian A Gardner at page 1576 defines supervisor as meaning one having authority over  others, a manager or overseer.  Therefore the Chief Justice   manages, oversees them without the power to alter.  The issuance of orders /directions like the impugned Directions is not part of the supervisory functions of the Chief Justice envisaged under Article 133.  The Supervision is supposed to be carried out in respect  of Courts as established by the Constitution.

He argued that if the Constitution had intended to allow the supervisor to make appointments to the office or after  its composition which is an impossibility under the Constitution) it would have specifically stated so.  The Chief Justice, in their view, neither had direct or implied power to either appoint to or alter the composition of the High Court membership.  To hold so would derogate the principle of separation of powers which reigns Supreme in the Constitution.

He relied on the case of Kenilorea Vs Attorney General 1986 LRC (Constitution) P 126 from the Supreme Court of Solomon Islands, a Common wealth Jurisdiction Court which emphasised the importance of the principle of separation of powers when it rejected the Parliaments attempt to restrict the unlimited jurisdiction of the High Court.  It held:-

“it is important that Courts exert great care to avoid giving any impression that they have become some sort of extension to the floor of Parliament where politicians may continue  to press their opposition to legislation.  Any appearance of political involvement is obviously undesirable.  On the other hand, it was not suggested that any motive other than the most worthy lay behind the institution of the present proceedings.”

By issuing the impugned Directions, the Chief Justice was converting his office into an extension sort of, the floor of Parliament which was undesirable and unconstitutional.  The Chief Justice as the head of the Judiciary ought to have known better and avoided giving a wrong impression.   He submitted that if the Court had read Articles 133 and 79 harmoniously with Articles 139 of the Constitution, it would have recognized that under Article 79 only Parliament has powers to make provisions having the force of law and not read such import in Article 133 which does not confer any legislative functions.  In the end Court didn’t promote the intention and spirit of the Constitution.  It instead promoted an administrative act by the Chief Justice which is ultra vires his authority under Article 133.

Counsel referred to H.W.R. Wade on Administrative Law 6th Edn.  P. 41 cited with approval in the case of Bukenya Church Ambrose Vs Attorney General Constitutional Petition No 26 of 2010.  The Chief Justice was found to have acted without authority in creating Directions under Article 50.  It was stated

“Any administrative act or order which is utra vires or outside jurisdiction is void in law i.e. deprived of legal effect.  This is because in order to be valid it needs statutory authorisation and it is not within the powers given by the Act, it has no legal leg to stand on.”

Directive 10 provides:-

“The designated Magistrate attached to the Division shall have territorial jurisdiction to try offences specified in paragraph 8 committed anywhere within the Geographical Boundaries of Uganda. He submitted that the  Magistrates Court Act in S. 31 provides for the jurisdiction of Magistrates which it states shall be territorial and limited in nature.  Under S.2 of MCA the Chief Justice in consultation with the minister in gazzeting the Magisterial areas in 2007 as per the instrument at page 64 of the Record of Appeal.

He argued that, the Court didn’t show that Article 133 was clothed in language that authorizes the Chief Justice to expand the territorial jurisdiction of Magistrates or language which granted the Chief Justice powers to usurp the Authority of Parliament to provide for the functions of Court under Article 150 of the Constitution.

The Court placed heavy reliance on the provisions of S.6 and 7 of the Magistrates Court Act (MCA) where the Chief Justice can authorize a Magistrate Court to sit outside the local limits of its designated jurisdiction which meant that the Chief Justice had powers to grant unlimited territorial jurisdiction to Magistrates in HCACD.  They quoted S.6 and 7 as hereunder

S.6 of MCA “Assignment of Magistrates

Every Magistrate appointed under this Act shall be deemed to have been appointed to and have jurisdiction in each and every Magisterial area but may be assigned to any particular Magisterial area or to a part of any Magisterial areas by the Chief Justice.

S. 7 of MCA Place of sitting

A Magistrate Court

1. May be held at any place within the locality  limits of its jurisdiction.
2. It is appears to the Chief Justice that the interest of Justice  so require may be held with the  authorization of the Chief Justice at any place outside the local limits  of its jurisdiction designated in the authorisation, and shall be held in such building  as the Chief Justice  may from time to time assign as the Court house.

Counsel further submitted that when the appellant filed his petition in the Court he was not principally raising a question as to the interpretation of the impugned directions in relation to the Magistrate Courts Act but he was asking the Court to interpret the impugned Directions in relation to the Constitution. 

He agreed with the dissenting judgment of the Court  at page 244 from line 16 of the record.  It stated

“By providing in Directions 10 (Supra) conferring unlimited territorial jurisdiction to the designated Magistrate, the Chief Justice bestowed on them territorial jurisdiction that he had no legal authority to confer to them.  Such unlimited territorial jurisdiction is conferred only to judges of the High Court by Article 139 of the Constitution and S. 14 of the Judicature Act Cap 13”

Under Sec. 6 of the MCA, magistrates have compartmentalized territorial jurisdiction within or in part of each magisterial areas where they get assigned.  He went further to say that he was aware that Magistrates appointed as such under the Act are deemed to and have jurisdiction in each and every Magisterial Area in Uganda among other things.  By conferring unlimited territorial jurisdiction to designated Magistrates in the High Court Anticorruption Division, direction made by the Chief Justice invoking Article 133 (a) of the Constitution in effect, created a territorial jurisdiction in which all the Magisterial Areas in which Uganda is divided were consolidated into one, which makes the Directions inconsistent and in contravention with the Constitution.  He invited this Court to agree with the dissenting judgment, so that these grounds succeed.

Grounds 4 and 5

These were also submitted on together Counsel for the appellant argued that  they  wee inter-related and concerned proceedings before the  designated Magistrates

1. the violation of a right to a fair hearing  under Articles 28 and 44 of the constitution.
2. The nullification of the proceedings concluded  by the designated Magistrates

Ground 4

The Learned Justices erred in law and fact when they failed to adequately evaluate the evidence and held that the proceedings before and arising from designated Magistrate at High Court Anti Corruption Division did not violate the right to a fair hearing under Article 28 and 44 (c) of the Constitution.

Ground 5

The Learned Justices erred in law and fact when they  did not properly evaluate the evidence before them and failed to make consequential orders nullifying the proceedings taken before and those arising from the designated  Magistrates of the High Court anti Corruption Division.

Counsel submitted that at page 181 lines 10 – 13 of the record of Appeal the Court spelt out some of the principles of Constitutional interpretation to include:-

(a) There can be no trial at all where the Court is not competent.  A trial by an incompetent Court is by that fact alone a nullity ab-intio

(b) A non derogable Article confers absolute protection and should be enforced by all government and non government organs and individuals.

But the decision handed down by the Court did not follow the above principles of Constitutional interpretation because it decimated a non derogable right to a fair hearing and allowed nullity proceedings to continue … etc

Court under Article 25 7 (I) (d) of the Constitution means a Court of Judicature established by or under authority of the Constitution.  For a High Court to be established under the authority of the Constitution it must be composed and structured in accordance with Article 138.  Without such composition a Court cannot administer judicial power under Article 126 because competence is a pre condition for any Court to administer judicial powers.  He argued that the question to be asked is not whether there was a judicial officer present to hear the case when it was called at the HCACD, but whether the judicial officer who was present to hear the case when it was called at the HCACD was the right officer in the right case when it was called.  He contended that the judicial officer (Magistrate who was present when the case was called for hearing at the HCACD had no locus or mandate to sit in the HCACD and administer justice.  That was the gist of the appellant’s case.

He further submitted that the learned Justices erred when they found that the issuance of judgments by the designated Magistrates in the HCACD is a matter of mislabeling.

He submitted that this Court follows its earlier decision by allowing the appeal on the ground that the right to a fair hearing is not accorded to accused persons under HCACD as presently constituted and that all proceedings by and before Magistrates in the HCACD are a nullity.

The appellant filed a rejoinder in which he submitted that he produced two judgments of the HCACD at pages 50 and 58 of the record of Appeal.  One of them was by H.W. Emmanuel Baguma, Principal Magistrate Grade I and the other by Justice P. K. Mugamba.  Both judgments show they were handed down by the High Court and this presupposes the High Court as created under Article 138.  In addition the Counsel for the appellant argued that , the judicial officers signing the judgments as above stated, the bail bond forms (page 49) and the order page 59, depict what the Court by description claims to be, whereas not in law.  He Counsel submitted that this cannot be waved away but it goes to the foundation of the HCACD created by the impugned Directions.

He contended that the exercise of Magisterial judicial powers is done under geographical Magisterial areas as per section 161 of MCA not in High Court Division.

It was further submitted that since no evidence has been adduced to the effect that the  designated Magistrate are part and parcel of the High Court, it goes without saying that an appeal from a designated Magistrate in the same Division is made to the same Court (to judge) and is null and void. 

He added that because of the infusion of designate Magistrates to the structure of Classic High Court rendered the Anti Corruption Division of the High Court incompetent and that incompetence is at the core of justice and the right to a fair hearing as argued earlier.    

He prayed that the appeal is allowed, the order of the Constitutional Court be set aside and costs of this Court and the Court below be awarded to the appellant.

Respondent’s submissions

The respondent opposed the appeal and prayed that:-

This Court confirms the majority decision of the Constitutional Court in its entirety that the Chief Justice in making the HCACD Practice Directions 2009 did so strictly in accordance with the Constitution and the appellant has not illustrated any evidence to the contrary.

He submitted on the first three grounds of appeal together as hereunder:-

Counsel for the respondent  contented that the appellant has in no way illustrated to Court any single instance where the designated Magistrates purport to sit and determine matters as High Court  Judges, nor has any evidence been adduced to show an instance where the designated Magistrate sits in appellate capacity in the Anti Corruption Division of the High Court.

Counsel further submitted that the inclusion of designated Magistrates in the HCACD was in no way an amendment of Article 138 of the Constitution that provides:-

The High Court of Uganda shall consist of -

1. The principal Judge and
2. Such number of Judges of the High Court as may be prescribed by Parliament.

The Chief Justice in passing the Directions was alive to the above provisions of the Constitution and as a result differentiated between the designated Magistrates and the Judges of the High Court   together with their roles.  They are available to assist the High Court Judges in execution of their duties.  Direction 5 (2) provides that “ a head of the division shall supervise such number of Magistrates as may be designated by the Chief Justice to assist in the work  of the division.”  On the issue of jurisdiction, counsel submitted that Direction 8 (i) provides that the division shall have jurisdiction to try an offence under Anti Corruption Act, the Penal Code Act, the leadership Code Act or any other Law related to corruption. He further submitted that the powers being exercised  by the designated Chief Magistrate and Magistrate Grade I in the HCACD is strictly in accordance with the powers granted to them under the  principal legislation  i.e. Magistrate Courts  Act Cap 16 and do not in any way distort the Constitutional composition of the High Court and of the Anti Corruption and function.  It was submitted that S.51 of the Anti Corruption Act No 6 of 2009 provides among other things that jurisdiction to try an offence under this Act shall be exercised only by the High Court, a Magistrate’s Court presided over by a Chief Magistrate or a Magistrates Court provided over by Magistrate Grade I.  Section 161 of the MCA provides for a Criminal jurisdiction of the Magistrates.  It provides inter alia that a Chief Magistrate may try any offence other than an offence in respect of which the maximum penalty is death.  While a Magistrate Grade I may try any offence other than an offence of which the maximum penalty is death or imprisonment for life.

Counsel submitted that the  appellant’s evidence  by way of his affidavit at pages 10  to 13 and 31 to 34 of the Record of Appeal and his affidavit in rejoinder have in no way illustrated to Court what he alleged as above stated.  He prayed that Court finds that evidence in support of the 1st ground is insufficient to come to the conclusion that the designated Magistrates and the Chief Magistrate in the HCACD are exercising their powers as judicial officers of the High Court of Uganda.

On the ground that directions 2, 8, and10 providing for appointment and exercise of Judicial duties by the designated Magistrates being contrary to Articles 2, 79, 126, 133, 138, 139, and 150 of the Constitution, it was submitted that section 7 (I) (b) of the MCA Cap. 16 provides “ if it appears to the Chief Justice that the interest of justice so require may be held, with a written  authorization of the Chief Justice, at a place outside the local limits of its jurisdiction designated in the authorisation and shall be held in such building as the Chief Justice may from time to time assign as the Court House.  It was under that authorisation that matters are being handled by the designated Chief Magistrate and designated Magistrate I at the HCACD.  It was further argued that the Chief Magistrate and Magistrate Grade I in the HCACD are lawfully carrying out their duties as provided for in S.6 of the Magistrates Courts Act.  Again the appellant did not adduce evidence to show that the Chief Justice did not authorize them through the impugned Directions.  Section 6 of the MCA reproduced supra provides among others that under the Act every Magistrate appointed under it “shall be deemed to have been appointed to and have jurisdiction in each and very Magisterial area or to a part of any magisterial area by the Chief Justice.

He submitted that the Chief Justice did not appoint designated Magistrates to the HCACD as Counsel for the appellant submitted.  The directions were very clear.  Paragraph 14 and 16 of the affidavit in support of the answer to the petition at page 28 of the record of Appeal show how a designated Magistrate presides over the pre-indictment proceedings in the Division and then referred to the High Court in accordance with S. 169 of MCA.  He prayed that Court finds that there’s no evidence led by the appellant to prove allegation on directions 2, 8, and 10 to the effect that they were inconsistent and in contravention of Articles 2, 79, 126, 133, 138, 139, and 150. The Chief Justice acted within his powers to assign and designate Magistrates to assist in the workings of the Court within their criminal jurisdiction.  He urged Court to resolve it in the negative. 

On the ground that the designated Magistrates are exercising unlimited territorial jurisdiction contrary to Articles 133 and 139 of the 1995 Constitution, it was submitted that there was no evidence to show that this was so.  The annextures to the affidavit in support of the petition and rejoinder at pages 10,13, 31, and 34 of the record of appeal were cause lists and proceedings of the Anti Corruption Division of the High Court in Kololo.  Those do not illustrate how designated Magistrates were exercising the unlimited territorial jurisdiction as alleged.  They only show that the designate Magistrates are actually located in the premises HCACD is premised and handle matters in accordance within their Local limits of  jurisdiction.

It was further argued that the submission by Counsel for the appellant cannot stand to the effect that the designated Magistrates are exercising unlimited territorial jurisdiction.  In light of the provisions of S. 6 of the MCA.  they have jurisdiction in each and every Magisterial area provided the Chief Justice authorize them in writing as he did. 

On the ground that the Learned Justices erred in law and fact when they failed to adequately evaluate the evidence and held that the proceedings before and arising from designated Magistrates at High Court Anti Corruption Division did not violate the right  to a fair hearing under Article 28 and 44 (c) of the constitution, Counsel for the respondent after reproduced Article 28 of the Constitution which constitute a right to a fair hearing, he argued  that there was no evidence to show that these provisions were infringed upon by the Practice Directions 2009.

Counsel for the appellant submitted that the documents attached to the supplementary affidavit in support of the allegation were witness summons and judgments of respective Courts which cannot be seen to illustrate that designated Magistrate are purporting to be judges of the HCACD.  He implored this Court to accept to take judicial notice of S. 106 of the Evidence Act that puts the burden of proof in Civil Proceedings when a fact is especially within the knowledge of that person, on that person who alleges to know those facts.  Rule 12 (I) of the Constitutional Court Petitions and References provides that (all evidence at the trial in favour or against shall be by way of affidavits filed in Court.) 

He cited the case of Phillip Karugaba Vs. Attorney General Constitutional Petition No. 11 of 2002 at page 20, where it was held that the petitioner has the burden to show that the rule is clearly inconsistent and incompatible with the principles laid down in the constitution….’

The Constitutional Petition No 14 of 2011 Advocate Coalition and for Development and Environment Vs. Attorney General was cited too, in which was held:

“it is trite law that Courts of law act on credible evidence adduced before them and do not indulge in conjecture attractive reasoning or fanciful theories “

Misc. Criminal Application No 495 of 2003 Meme Vs Republic and Another at page 6 and 20 was cited also for the remark that “Corruption is a global issue with far reaching economic and social effects.  It is only through the concerted and coordinated efforts of every one, that the fight against corruption can be won.   Every institution and individual has a role to play in this fight.  The whole of our society and the whole country have a role to play.  It was concluded in our view that an attack so broadly aimed should not lend itself to the Court concurrence.  Firstly because Counsel has a duty to prosecute the case only the basis of the specific grievances of his client.  Secondly, because of the legislative mandate of Parliament which is clearly spelt out in S. 30 of the Constitution ought in principle to be given fulfillment of Parliament legislative mandate necessarily entails the establishment of new institutions of implementation.” He prayed that this Court adopts the same conclusion and dismiss the appeal.

Consideration of the appeal

The Appellant raised five grounds of appeal as already reproduced in this judgment. 

The 1st ground was that, “the learned Justices erred in law and fact when they held that Practice Directions 2, 8 and 10 of the High Court (Anti Corruption Division) Practice Directions did not add the designated Magistrates to the structure and composition of the High Court but they are just assistants to the judges.

The impugned Directions 2, 8 and 10 are reproduced here below:-

Direction 2.  – Interpretation – Court means the High Court or a Court presided over by designated

         Magistrate

•  Corruption – has  the same meaning as defined in the Anti Corruption Act
• Designated Magistrate – means a Chief Magistrate or Magistrate Grade I  attached to the Anti Corruption Division
• Division – means the Anti Corruption Division of the High Court as established in paragraph 3  of the  legal Notice.
• Judge – means a Judge of the Division
• Magisterial Area- has the same meaning as it has in the Magistrates Courts Act
• Registrar means  –  a Registrar of the Division

 

Direction 8 Jurisdiction

1. The Division shall have jurisdiction to try any offences under the Anti Corruption Act, Penal Code Act, Leadership Code Act or any other law related to Corruption.
2. Where an accused person is charged with an offence  (principal offence) under sub paragraph (I) and is also charged with any other offence related to that offence, the Judge or designated Magistrate shall be competent to try the related offence
3. The Division may subject to any Law relating to the transfer of Criminal cases, take on any falling under its jurisdiction from a Magistrate Court to the Division.

 

Direction 10 Territorial jurisdiction of Magistrates

1. Designated Magistrates attached to the Division shall have territorial jurisdiction to try offences specified in paragraph 8 committed anywhere within the geographical boundaries of Uganda.
2. In accordance with Section 6 of the Magistrates Court’s Act the Chief Justice may assign Magistrates to work in the Division without any limitation to working in any or part of the Magisterial Area.

 

Pertinent to the above is Direction 4 which provides for the objectives  of the Practice Directions “ The Division shall operate as an orderly, expeditious, efficient and cost effective forum for adjudication of Corruption and Corruption related cases.

Direction 7 Location: - The Division shall initially be located in Kampala but may operate in such places in Uganda as the Principal Judge may determine.

 

Principles of Constitutional Interpretation

These have been laid down in several decided cases by this Court and other Courts in some other Common wealth Jurisdictions and legal literature of persuasive authority.

1. The constitution is the Supreme law of the land and forms the standard upon which all other laws ere judged.  Any law that is inconsistent with  or in contravention  of the Constitution is null and void to the extent of its inconsistency (see Article 2 (2) of the Constitution.  Also see Presidential Election Petition No. 2 of the 2006 (SC) Rtd Dr. Col. Kiiza Besigye v. Y. K. Museveni
2. In determining the constitutionality of a legislation, its purpose and effect must be taken into consideration.  Both purpose and effect are relevant  in determining the constitutionality of either effect animated by the object of the legislation intends to achieve  see Attorney General v. Silvation Abuki Constitutional Appeal No. 1988 (SC)
3. The entire Constitution has to be read together as an integral whole with no particular provision destroying the other but each sustaining the other.  This is the rule of harmony, the rule of completeness and exhaustiveness  (see P. K. Ssemwogere and Another v. Attorney General Constitution Appeal No I of 2002 (SC) and the Attorney General  of  Tanzania v. Rev Christopher Mtikila (2010) EA 13
4. A Constitutional  provision containing a fundamental human right is a permanent provision intended to cater for all times to  come and therefore should be given dynamic, progressive  liberal  and flexible  interpretation keeping in view the ideals of the people , their social  economic and political cultural values so as to extend the  benefit of the same to the maximum possible.  See Okello Okello John Livingstone and 6 others v. The Attorney General and Another Constitutional Petition No I of 2005, South Dokata v. South Carolina 192, USA 268. 1940.
5. Where words or phrases are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning.  The language used must be construed in its natural and ordinary sense.
6. Where the language of the Constitution or a statute sought to be interpreted is imprecise or ambiguous a liberal, general or purposeful interpretation should be given to it. (See Attorney General v Major David Tinyefunza  Constitutional Appeal No. I of 1997 (SC)
7. The history of the country and the legislative history of the Constitution is also relevant and useful guide to Constitutional Interpretation see (Okello John Livingstone and 6 others v. Attorney General and Another Supra.
8. The National objectives and Directive principles of state policy are also a guide in the interpretation of the Constitution.  Article 8A of the Constitution is instructive  for applicability of the objectives.

 

Bearing in mind the above principles, I note that there were basically three points of grievance in the petition:-

1. That the designated Magistrates as per Direction 10 Supra were granted territorial jurisdiction and were appointed as judges by the Chief Justice to have concurrent, unlimited jurisdiction in any part of a Magisterial area. This was inconsistent and in contravention of Articles 138 and 139 of the Constitution. 
2. That the designated Magistrates having been located at the HCACD and infused with the HCACD distorted the structural composition of the High Court as provided in Article 138 of the Constitution.
3. That because of the two foregoing the HCACD was incompetent as a Court and so the proceedings arising there from were a nullity.

 

I have carefully read and considered both Counsel for the appellant and respondent submissions, I have equally perused the majority judgment of the Constitutional Court, the dissenting judgment and the record of proceedings.     

 

Taking into account the principle of Constitutional Interpretation No.5 herein

“Where words or phrases are clear and unambiguous, they must be given their primary, plain or natural meaning.  The language used must be construed in its natural and ordinary sense.

 

I considered the appellant’s submissions and evidence on record.  It was clear that the Practice Directions have an objective in Direction 4 and it is in respect of handling specific laws relating to corruption.   The laws namely Anti Corruption Act 2009, the Penal Code Act and Leadership Code Act arise from the relentless effort being taken in our country towards the fight against Corruption to make it a high risk offence.  The contents of Section 6 and 7 of the Magistrates Courts Act speak for themselves and should be understood in their natural and ordinarily meaning.  If not, the  6th  principle herein should be adopted  to the  effect that where the  language  of the Constitution  or a statute  sought to be interpreted  is imprecise  or ambiguous a liberal, general of purposeful   interpretation should be given to it. 

 

S.6 of the Magistrates Courts Act provides

“Every Magistrate appointed under this Act shall be deemed to have been appointed to and have jurisdiction in each and every Magisterial area but may be assigned to any particular Magisterial area or a part of any Magisterial area by the Chief Justice.

 

S.7 provides – Place of sitting

(I)  A Magistrates Court

(a)   may be held at any place within the local limits of its jurisdiction 

(b)  if it appears to the Chief Justice that the interest of Justice so

require may be held with the written authorisation of the Chief Justice at any place outside the local limits of its jurisdiction designated in the authorisation and shall be held in such building as the Chief Justice may from time to time assign as the Court house.

1. Not withstanding subsection I if a Magistrate Court sits in any building or place within the local limits of jurisdiction for the transaction of legal business the proceedings shall be as valid in every respect as if they had been held in Court house assigned for that purpose.  

 

Article 129 provides:-

1. The judicial power of Uganda shall be exercised by the Courts of Judicature which shall consist of the following-:

1.  Supreme Court
2. The Court of Appeal
3. The High Court of Uganda
4. Such subordinate Courts as Parliament may by law establish ....

1. ........................
2. Subject to the provisions of this Constitution, Parliament may make provision for the jurisdiction and procedure of the Courts.

Article 133 provides for the Administrative functions of the Chief Justice as here under:-

 

 

1. The Chief Justice

1. Shall be the head of the judiciary and shall be responsible  for the administration and supervision of all Courts in Uganda and
2. May issue orders and directions to the Courts necessary for the proper and efficient administration of Justice.

 

The Magistrate Courts Act is an Act of Parliament which facilitates the Chief Justice in his/her responsibility of administering and supervising of the Courts in Uganda.  It is my view that the Practice Directions were made under the Chief Justice’s exercise of his administrative and supervisory function as per Article 133 (I) (b) of the Constitution.

 

The word designated does not mean a fresh appointment in the context of the impugned Practice Directions or Magistrates Court Act.  The word Designated according to the Blacks Law Dictionary 9th Edn. Means designee, a person who have been designated to perform some duty or carry out some specific role.  It cannot infer a fresh appointment as Counsel for the appellant alluded to it.  Sections 6 and 7 don’t in any way take away the exclusive unlimited jurisdiction of the High Court as provided under Article 138 of the Constitution Article 133 of the Constitution  provides.  The Chief Justice

1. (a) ..............

(b) “may issue orders and directions to the Courts necessary for the proper  and efficient administration of justice”

The Practice Directions of the Anti Corruption  Division 2009 is not an Act of Parliament but it is common knowledge that it is subject to the same principles of interpretation as other laws.   Principle (2) here in is instructive

“In determining the constitutionality of a legislation its purpose and effect must be taken into consideration.  Both purpose and effect are relevant in determining the Constitutionality of either an unconstitutional purpose or an unconstitutional effect animated by the object the legislation intends to achieve.”

 

The National objectives and Directive Principles of State Policy in our Constitution provides:-

1. The following objectives and principles shall guide all organs and agencies of state, all citizens, organisations and other bodies and persons in applying or interpreting the Constitution or any other law and in taking and implementing any policy decisions for the establishment and promotion of a just, free and democratic society.

 

Principle 26 of the National Objectives above provides:-

1. All public offices shall be held in trust for the people.

1. All persons placed in positions of leaders and responsibility shall in their work be answerable to the people.
2. All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices.

 

Article 8A  - National interest.

1. Uganda shall be governed based on the principles of National interest and common good enshrined  in the national objectives and directive principles of state policy
2. Parliament shall make relevant Laws for purposes of giving  full effect to clause (I) of this Article.

The impugned Practice Directions of the High Court Anti Corruption Division (HCACD) has the objective in direction 4 of operating as an orderly, expeditious, efficient and cost effective forum for adjudication of corruption and Corruption related cases.  Bearing in mind these provisions above and  the principles of Constitutional interpretation as above stated, it cannot be inconsistent with Article 138 and 139 of the Constitution.

 

What is provided in Direction 8 is to ensure that the above purpose is achieved in respect of those offences stipulated by the Anti Corruption Act, Penal Code Act, leadership Code Act and other laws related to corruption.  Needless to say that the  Anti Corruption Act 2009 is an encompassing legislation which provides in the long title for “the effectual prevention of Corruption in both the Public and the Private Sector, it repealed the Prevention of Corruption Act in and consequently amended the Penal Code Act, the Leadership Act and provides for other related matters.  Expeditiousness and cost effectiveness are at the core of the Directions therefore.  This is obviously is in line with Article 8A supra.

 

I am unable to fault the learned Justices of the Constitutional Court as I did not find anywhere in the judgment that they found that designated magistrates are Assistant judges in the HCACD.  At page 18 of the judgment the Court recorded the following:-

“I recall that a number of Magistrates of various grades have been assigned as personal assistants to the  Chief Justice, Deputy Chief Justice and Principal Judge.”

 

I hasten to point out that that kind of assignment does not have the same meaning as designated Magistrates attached to the Division for obvious reasons.  I however, take it that it was given as an example for comparing and contrasting, the two positions though they are not similar at all.  Be that as it may, there is no designation like Assistant Judges in Uganda.  I found the submissions therefore of Counsel for the appellant on this point misplaced and not material in this case.

 

When sections 6, 7 and 161 of the Magistrates Courts Act, Articles 133 (I) (b), 138 and 129 of the Constitution are read together with the Practice Directions 2, 8 and 10 are not inconsistent with or in contravention of the Constitution. So in my first ground fails.

 

For clarity S. 5, 6 and 6 of the Magistrates Courts Act reproduced supra:-

 

Section 161 of the Magistrate’s Courts Act:-

Criminal jurisdiction of magistrates

1. Subject to this section, a Magistrates Court presided over by

1. a Chief Magistrate may try any offence other than  an offence in respect of which  the maximum penalty is death.
2. A Magistrate grade I may try any offence other than the offence in respect of which the maximum penalty is death or life imprisonment.
3. ...................
4. ...................

 

Article 79: Functions of Parliament

1. Subject to the provisions of this Constitution Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda.
2. Except as provided in this Constitution, no person or body  other than Parliament shall have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Parliament
3. Parliament shall protect this Constitution and protect to the democratic governance of Uganda.

 

Article 126 - Exercise of Judicial Power

1. Judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.
2. In adjudicating cases of both a civil and criminal nature the Court shall subject to the law apply the following principles  -

1. Justice shall be done to all irrespective of their social or economic status.
2. Justice shall not be  delayed
3. Adequate compensation shall be awarded to victims of wrongs
4. Reconciliation between parties shall be promoted and
5. Substantive justice shall be administered without undue regard to technicalities.

 

 

 

Article 138 High Court of Uganda

(I)The High Court of Uganda shall consist of

(a) Principal Judge and

(b) such number of judges of the High Court as may be prescribed by Parliament.

(2) The High Court shall sit in such places as the Chief Justice may in consultation with the Principal Judge, appoint and in so doing, the Chief Justice shall as far as practicable ensure that the High Court is accessible to all the people.

 

Article 150 Power to make laws relating to Judiciary:

1. Subject to the provisions of this Constitution Parliament may make laws providing for structures, procedures and functions of the judiciary.
2. Without prejudice to clause (I) of this Article Parliament may make laws for regulating and facilitating the discharge by the President and the Judicial Service Commission of their functions under the chapter.

 

In their submissions Counsel for the appellant argued that the Constitutional Court erred when it ignored the clear meaning of Article 138 of the Constitution and gave more importance to Article 133. 

 

It is a cardinal principle of Constitutional Interpretation that:

“the entire Constitution has to be read together as an integral whole and no particular provision destroying the other but each sustaining each other.  This is the rule of harmony, rule of completeness and exhaustiveness” See PK Semwogerere and another Vs Attorney General constituency Appeal No. I of 2002 (SC) and the Attorney General of Tanzania Vs Rev Christopher Mt. Kila [2010] EA 13.

 

Article  133 (I) (b)  of the Constitution when it provided for the administrative functions of the Chief Justice for the proper  and efficient administration of justice, didn’t have to provide that by legal Notice and or Practice Directions the Chief Justice may issue orders or directions.  It is my well considered view that neither was it necessary to provide that the parliament by law shall prescribe how the Chief Justice was to exercise his or her administrative functions.  It would not be tenable or sustainable for apparent reasons one of which is that the Constitution is a document which is supposed to be for the current and the future generations. 

If the Constitution provided so, it would be rigid and difficult to interpret and would be subjected to frequent amendments whenever an occasion arose.

Most importantly in my view also it would be contrary to the Sui Generis Rule which essentially means “in a class of its own.  The constitution stands on a very different footing from other legislation for the most part (but not always) though the principles of interpretation are the same to a large extent.  It is the only reason why all other laws are subjected to it and why they are declared null and void if inconsistent with it.  Ref. Article 2 of our Constitution.  It is also the reason why the language used is much broader and encompassing than that used in other statutes.  It is intended to cover rights and freedoms for all people without discrimination because it is made for present generations and those unborn.

The case of Unity Dow v Attorney General of Botswana [1992]  LRC (Const) 623 at page 668 it was remarked

“ the Constitution is the Supreme Law of the  land and is meant to serve not only this generation but yet unborn.  It cannot allow to be a lifeless museum piece.  On the other hand Courts must breath life into it as occasion may arise to assure the healthy growth of the state through it.  We must not shy away from the basic fact that while particular construction of a Constitutional provision may be able to meet the designs of the society of a certain age ... it is the primary duty of Judges to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever developing society which is part of the wider society governed by acceptable concepts of human dignity.”

The Constitution should be able to serve for a long time while accommodating the new changes the world has to offer without derogating from the original framers intent.  This was further witnessed in Hunter v. Southern Inc [27] “A Constitution must be capable of growth and development over time to met social, political and historical realities often unimagined by its framers .........”

 

Through the above case  is only persuasive it ….lau convinced by the remarks that it is the position and good case law. Counsel for the appellant submitted  in respect of Directions 10 of the impugned  Practice  Directions  that it extended the territorial jurisdiction of the designated Magistrates when S.31 of the Magistrates Courts Act provides that the jurisdiction of the Magistrates shall be territorial and limited in nature.

 

S. 31 of the Magistrates Courts Act provides for

General authority of Magistrates Courts as follows:-

“Every Magistrate’s Court has authority to cause to be brought  before it  any person who is within the local limits of its jurisdiction and is charged with an offence committed within Uganda or which according to law may be dealt with  as if it has been committed within Uganda and to deal with the accused person according to its jurisdiction.”

 

This provision is not in favour of this appeal.  On the contrary when this provision is read together with the earlier referred to provisions, it just  confirms that the Directions are legally supported by the Constitution and other legislations and therefore not inconsistent with the Constitution.

 

Counsel for the appellant further submitted that under Section 2 of the Magistrates Courts Act the Chief Justice consulted the Minister and Magisterial areas were gazetted in 2007 as per the instrument at page 64 of the Record of Appeal.

 

His main complaint was that there was no Magisterial area named Anti Corruption

 

On the point of the designated Magistrates sitting in a place not gazetted as Anti Corruption Magisterial area I find it to be sheer commonsense  that according to Section  31 of the  Magistrates  Courts  Act reproduced supra, it is clear that  read together  with S. 6 and 7 of the said Act, show that the  proceedings were within the law.  Besides Statutory Instruments No. 45 of 2007 has its title as “The Magistrates Courts (Magisterial Areas) Instrument 2007 (under S. 2 and 3 of the Magistrates Court Act Cap. 16)

It designated the Magisterial Area and their extent.  The very first paragraph has Kampala Magisterial Area whose extent is  Buganda Road Court, Law Development Centre, Central and Rubaga Division  of Kampala District, Magistrate Grade I Court at Buganda Road, City Council, Mengo and Mwanga.

The fact that Anti Corruption Magisterial area is non existent, the provisions of Sections 7 and 31 of the Magistrates Courts Act reproduced supra suffice in my view.

What the Constitutional Court had to determine was whether or not the purpose or objectives of the impugned Directions were inconsistent with Articles 79. 138. 139 and 150 of the Constitution to declare the Directions unconstitutional which answer is answered in the negative.  The second question to determine was whether the effect of implementing the impugned Practice Directions was inconsistent with the Constitution in respect of the provisions above stated in this judgment.   I answer that question also in negative.

There was no evidence adduced to show that the designated Magistrates were acting outside their jurisdiction as provided by law.  The word unlimited territorial jurisdiction should be understood within the context of these sections of the Magistrates Courts Act above.  It was therefore immaterial whether there was such a Magisterial area or not. 

 

I am unable to accept learned counsel for the appellant reasoning that the Chief Justice Supervisory function envisaged in Article 133 was supposed to be carried out in respect of the Courts as established by the Courts implying that the HCACD was not a Court.  Learned Counsel didn’t submit on how the Chief Justice can put in effect clause (I) (b) of Article 133.  In my view Article 133 (I) (b) answers the question “how”.

 

I find the case  of Kanilorera v. Attorney General [1995] Constitution 126 from the Supreme Court of Solomon Islands a Commonwealth jurisdiction cited by  Counsel for the appellant, not persuasive and also not material to the facts of this case.  It was emphasizing the issue of the doctrine of separation of powers, when the Court rejected the Parliament’s attempt to restrict the unlimited jurisdiction of the High Court. It is highly distinguishable since the doctrine of separation of powers doesn’t arise in my view in this case.

 

My conclusion is that the impugned Practice Directions were not inconsistent or in contravention of  the Constitution.  Accordingly grounds 2 and 3 fail.

Grounds 4 and 5 were submitted on together, since they both concerned proceedings in the designated Magistrates Court.

 

 

Learned Counsel for the appellant submitted that the learned Justices, found that the HCACD composed of Judges and Magistrates, was not a High Court as envisaged under Article 138 of the Constitution and therefore was not a competent Court.  He argued that Court should have found that no fair hearing could be served at the HCACD.  He further submitted that Article 257 (I) (d) of the Constitution means a Court of Judicature established by or under the authority of the Constitution Article 138 of the Constitution gives the composition and structure of the High Court.  He argued that with such composition a Court cannot administer judicial power under Article 126 of the Constitution.

 

All through this judgment I have been addressing the issue of competence of Court indirectly answering the questions whether the purpose and effect of implementation of the impugned Practice Directions were inconsistent with the provisions already stated above of the Constitution.  The questions were resolved in the negative.  It can’t be acceptable therefore at this point to conclude that the High Court Anti Corruption Division was not a competent Court.  Besides Article 25 7 (I) (d) of the Constitution is clear. For emphasis it provides Court means a Court of Judicature established by or under authority of the Constitution.  I have to quickly add that the impugned Practice Directions did not establish a Court of judicature within the meaning of Article 257 (I) (d) of the Constitution.  The objective of the Directions are clear.

 

My understanding of this provision is that the Constitution can directly establish a Court or by its provisions it can provide for taking certain actions by Parliament or bodies or designated person which is an exception under Article 79 of the Constitution.  That was the case in the instant case as Article 133 (I) (b) of the Constitution.  The act of making orders and directions was given under the authority of the Constitution.  See article 79 Supra of the Constitution The principle of Constitutional Interpretation namely “where several provisions have a bearing on the same subject they should be read and considered together so as to bring out the full meaning and effect of their intent.  None should be ignored or preferred over the other. 

 

In Constitutional Appeal No 3 of 2006 (SC Attorney General v.  Susan Kigula  and others (SC).  It was stated:-

 

“in interpreting the  Constitution the rule of harmony or completeness requires that Constitutional provisions should not be looked at in isolation.  Rather the Constitution should be looked at as a whole with no provision destroying another but supporting each other.   This is the rule of harmony and rule competence and exhaustiveness and the rule of paramountancy of the Constitution.  See Also Paul Semwogerere v. Attorney General Constitutional Appeal No. 1 of the 2002 (SC) unreported.

 

The affidavit evidence adduced by the appellant obviously fell short of revealing that the designated Magistrates were having concurrent jurisdiction with the judges of the Division.  I have reproduced S. 161 of the Magistrate Courts Act (MCA) which provides for the Criminal jurisdiction of Magistrates.  The two judgments and summons provided as evidence were perused I found that there was nothing which could be construed as to be derogation from the right to a fair hearing.  What was true is that the documents heads were High Court Anti corruption Division, but the body and substance showed that each judicial officer was within his or her jurisdiction as seen on the signatures thereon.  The other evidence adduced by way of annextures attached in rejoinder were still witness summons and judgments of the Court.  When signing they were signing as Magistrates which is within their jurisdiction and powers as judicial officers (Magistrates under the Magistrates Court Act).  I accept submissions of Counsel for the respondent that Section 106 of the Evidence Act Cap 6, the burden of proof was not discharged by the appellant.  It follows that Rule 12 (I) of the Constitutional Court Petitions and References was not complied with.

 

The headings or titles of the documents are a question of form which doesn’t go to the root of the substance of the contents.  I find no merit in the submissions by Counsel for the appellant on ground 4 and 5 therefore.  There was no evidence of breach of the provisions of the Constitution as alleged by the appellant.  There was no derogation of the right to a fair hearing and there is no basis for nullification of the proceedings and making consequential orders.  So grounds 4 and 5 also fail. 

 

In the result since all the grounds have no merit the appeal fails and it is dismissed forthwith. The Constitutional Court’s decision and judgment are upheld.  I would order that each party bears its own costs.

 

 

Dated at Kampala this......05th..................... day of  ......May.......... 2016

 

 

 

 

…………………………………………………………………………...

Hon. Lady Faith Mwondha

JUSTICE SUPREME COURT