THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

CONSTITUTIONAL REFERENCE NO.1 OF 2000

1. JOSEPH EKEMU

2. DAVID KADIDI KAMWADA :::::::::::::::::::: APPELLANTS

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

CORAM: HON MR JUSTICE S.T. MANYINDO, DCJ; HON MR JUSTICE CM, KATO, JA HON MR JUSTICE G.M. OKELLO, JA HON LADY JUSTICE A.E.N. MPAGI-BAHIGEINE, JA HON JUSTICE J.P. BERKO, JA

RULING OF THE COURT:

This is a reference under Article 137(5) of the Constitution from the High Court.

The Inspector General of Government successfully prosecuted the appellants Mr. Joseph Ekemu and Mr. David Kididi Kamuwanda, in exercise of his powers under Article 230(1) of the Constitution, for the offences of forgery contrary to Section 326 and theft contrary to Section 252 of the Penal Code Act, before the Magistrate's court. They were sentenced to 2 years imprisonment on "each count. The sentences were ordered to run concurrently. They appealed to the High Court against the convictions and sentences.

When the appeal came up for hearing, a constitutional question arose namely whether the Inspector General of Government had the legal authority to institute criminal proceedings against the appellants for offences under sections 326 and 252 of the Penal Code. Mr. Kabega assisted by Mr. Nsubuga Mubiru for the appellants contended that the Inspector General of Government did not have such powers and that therefore the trial of the appellants was a nullity. Mr. Peter Nyombi assisted by Mr. Karekezi for the respondent maintained that there were such powers and requested a reference to this court for interpretation of Article 230(1) of the Constitution, which stipulates the special powers of the Inspector General of Government.

The learned judge without hearing further evidence or arguments on the issue, and without framing the question for determination by this court, made an order referring the matter to this court under Article 137(5) of the Constitution.

Article 137(5) provides:

(5) Where any question as to the interpretation of the Constitution arises in any proceedings in a court of law other than a field court martial, the court -

1. ......

2. Shall, if any party to the proceedings requests it to do so, refer the question to the Constitutional court for

decision in accordance with clause (1) of the article.

The procedure which the learned judge ought to have followed is laid down in the Schedule to The Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions, 1996. - Legal Notice No.3 of 1996.

Rule 3(1) thereof states:

"3(1) Where a reference to the court regarding any question as to the interpretation of the Constitution is to be made, the original court shall submit the reference in terms of the form specified in the schedule to these rules, stating the specific questions or issues to be answered or resolved by the court."

Also see Constitutional Reference No.7 of 1998, in The matter of Sheikh Abdul Karim Sentamu and Another.

The court making the reference must therefore comply with the above provision. Secondly, it is trite that the court must record all the evidence

or submissions in the case before making the reference. The court would pronounce its decision on the case after this court has resolved the Constitutional question. Article 137(6) provides:

(6) Where any question is referred to the Constitutional court under clause (5) of this article, the Constitutional court shall give its decision on the question and the court in which the question arises shall dispose of the case in accordance with that decision.

It is therefore clear that this matter is not properly before this court, as the procedure for making a reference was not followed.

It is ordered that the matter be remitted to the trial judge to comply with the requirements of a reference.

Dated this 10th Day of November 2000.

HON MR. JUSTICE S.T. MANYINDO, DCJ;

HON MR. JUSTICE CM. KATO, JA

Justice of Appeal

HON MR JUSTICE G.M. OKELLO, JA

Justice of Appeal