THE REPUBLIC OF UGAND1

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CONSTITUTIONAL PETITION APPLICATION NO.50 OF 2012

(Arising from Constitutional Petition No.54 of 2012)

BETWEEN

GEOFREY KAZINDA ::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

AND

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

CORAM:    HON. JUSTICE S.B.K. KAVUMA, JA

                   HON. JUSTICE A.S. NSHIMYE, JA

                   HON. JUSTICE REMMY KASULE, JA

RULING

Geoffrey Kazinda, the applicant, has moved this court for Orders that:

1. A temporary injunction order issues against respondent, Uganda Police and other enforcement agents of Government restraining them from investigating, searching, charging and prosecuting any matters relating to Anti-corruption court cases Numbers 105, 134, 138 of 2012 and criminal investigation files 222, 267, 388, 390 and 398 of 2012 until the final and full disposal by the courts of Constitutional Petition Number 54 of 2012.
2. The applicant be in the meantime unconditionally released from Remand prison.
3. The criminal trial of the applicant in criminal cases Nos. 105, 134, 138, 222, 267, 388, 390 and 398 of 2012 be stayed pending disposal of the Constitutional petition, and
4. The costs of the Application be provided for.

The application is brought under Rule 23 (1) of the Constitutional court (Petitions and References) Rules, sections 64 (c) and 98 of the Civil Procedure Act, and Rules 2(2), 43 (1) (2) and 44 of the Judicature (Court of Appeal Rules) Directions.

The application is supported by an affidavit in support deponed to by the applicant.  The respondent, in turn, also filed an affidavit in reply in opposition to the application.  It is deponed to by Senior State Attorney, Bafirawala Elisha.

At the hearing, learned counsel Ambrose Tebyasa appeared for the applicant, while Ms Margaret Nabakooza assisted by Ms Jane Abodo both Principal State Attorney appeared for the respondent.

The background to the application is that the applicant, aged 43 years and employed as a Principal Accountant in the office of the Prime Minister, Government of Uganda, is charged, with others, before the Magistrate’s court, Kampala, with corruption related criminal offences of forgery, abuse of office, unlawful possession of Government stores, embezzlement, fraudulent false accounting and conspiracy to commit a felony.  The alleged offences are contrary to the provisions of the Penal Code Act and the Anti-Corruption Act, 2009.  The charges are alleged to have been committed in 2011 and 2012 .  The criminal cases against the applicant and his co- accused are Number 105, 134, 138, 222, 267, 388, 390 and 398 of 2012.

For the applicant it was submitted by his counsel that he be granted by this court the orders he seeks because he had lodged in the Constitutional Court a Constitutional Petition No.54 of 2012 under Article 137 of the Constitution questioning the constitutionality of his being so criminally charged and prosecuted in courts of law.  

So as to stop being further subjected to the infringement of his fundamental rights and freedoms guaranteed under the Constitution, by officials, authorities and agents of the state, the applicant sought relief of the Constitutional Court by lodging the stated petition.

In order not to render the petition nugatory by the time it is finally determined, the court should issue the Orders prayed for.  Further, the applicant, as petitioner, had established a prima facie case that the petition is likely to succeed since the respondent had not denied the assertions upon which the petition was based.

The applicant’s case in the constitutional petition, as can be summarized, is that:-

1. Though the state through the Police and Director of Public Prosecutions had investigated, preferred criminal charges related to corruption and had had the applicant charged in court in criminal case No.105 of 2012, the same and other agents of the state had continued to carry out further investigations, preferring other charges and producing the applicant to different courts to answer similar or related charges based on the same state of affairs against the applicant.
2. Because of (1) above the applicant had been denied the right to fair trial enshrined in Article 28(1) of the Constitution in that he is being denied the opportunity to know and understand the exact criminal charges that are constantly being investigated and preferred against him.  He is also denied the opportunity to adequately and sufficiently prepare his defence to the same.
3. Contrary to the Constitution,  the applicant had been subjected by the state agents in the purported course of investigations to detention incommunicado at Uganda police Special Investigation Unit, Kireka, for four (4) nights, and thereafter at Central Police Station, Kampala, for six (6) nights before producing him to the Anti-Corruption court.  Thereafter on 05.10.2012, while on bail granted to him by court, the applicant had been re-arrested while sick and in hospital in Kampala by the same state agents who had produced him in court and preferred other charges for the sole purpose of having him not enjoy his bail granted to him by the court.
4. Though the Chief Magistrate’s Court, Buganda Road, had issued an order that the applicant be released from custody on 08.10.2012, the state agents and organs had refused to obey that order by preferring further criminal charges in courts of law against the applicant.
5. The applicant is also challenging the constitutionality of section 11(1) of the Anti-Corruption Act No.6 of 2009 under which some charges against him are brought, as the same contains ambiguous and undefined phrases and thus inconsistent with the Constitution.

Counsel for the applicant urged the court to allow the application as the applicant had satisfied court that the court had jurisdiction to entertain the application and grant appropriate reliefs, that the constitutional petition from which the application arises discloses triable issues for the constitutional court’s interpretation and that the petition is not frivolous and/or vexatious.  The applicant had also shown that if the orders prayed for are not granted, he would suffer violation of his rights which suffering cannot be redressed through an award of damages.

For the respondent it was submitted that the application lacked merit and ought to be dismissed.  The matters complained of are matters that can be addressed and remedies thereof given by the courts in which the applicant is being criminally prosecuted.  The court bail that had been granted to the applicant had never been cancelled.  All that had happened was that the applicant had been charged with other criminal offences over which he had been remanded.  It was up to the applicant to apply to the relevant courts of law to be granted bail in respect of the fresh charges that had been subsequently brought against him.  The applicant had chosen not to do so and he has himself to blame for this.

The Uganda Police had properly carried out other investigations and came up with credible evidence of other criminal charges against the applicant.  The Director of Public Prosecutions had found it appropriate to prefer other criminal charges against the applicant.  The charges were separate from each other and involved different and separate transactions.  There was thus no infringement of the constitutional rights of the applicant.  At any rate, the applicant was at liberty to raise any of the matters he is raising in the constitutional petition to the courts where he is being tried for appropriate redress.  Accordingly the petition had no likelihood of success.

The petition was intended to delay criminal prosecution of the applicant who, through the petition, is seeking a cover of immunity from criminal prosecution for the crimes allegedly committed by him.  Counsel prayed that the application be dismissed with costs.

Court will now proceed to consider the merits and/or demerits of the application.

This being an application for an injunction, the applicant must satisfy court that he has a prima facie case in the constitutional petition, that the matters raised therein have a high probability of success, that failure to grant the injunction order sought will cause irreparable damage to him that cannot be compensated for by award of damages.  In the event that the applicant fails to establish any or both of the above, then the court has to determine the application on the basis of the balance of convenience and the applicant has to show, if he is to succeed, that he is likely to unjustifiably suffer more inconvenience if the application is not allowed.  See: Court of Appeal Constitutional Application No.15 of 2010: Gilbert Asiimwe V Attorney General, unreported.

It is a fact that this application arises from Constitutional Petition No.54 of 2012 lodged in court pursuant to Article 137 of the Constitution.  The Article empowers any person to access the Constitutional Court either by directly petitioning the said court for a declaration that any law, act or omission is inconsistent with or in contravention of a provision of the Constitution, or a party to any proceedings in a court of law, in which a question arises as to the interpretation of the Constitution, prays that court to refer the question to the Constitutional Court for a decision.  In either case the Constitutional court proceeds to hear and determine the petition as soon as possible and may for that purpose suspend any other matter pending before it.

Where a court refers a question that arises in the proceedings before that court, then the referring court must await for the determination of the question by the Constitutional Court and dispose of the case in accordance with the determination of the question by the Constitutional Court; See: Judgement of Mulenga, JSC, in Supreme court Constitutional Appeal No.2 of 2002: Charles Onyango Obbo & Another V Attorney General.

However, where a party to the proceedings before a court of law, petitions on his/her own to have the Constitutional Court determine some question to do with the proceedings before that court of law, it does not automatically follow that the court has to stay the proceedings before it pending the determination of the question a party to the proceedings petitions the Constitutional Court to determine.  In such a case the issue whether or not to stop the proceedings pending the determination of the petition appears to be left to the discretion of either the trial court or the Constitutional Court.  Giving due consideration to the Onyango Obbo decision, Twinomujuni, JA, sitting as a single Justice, stated in Constitutional Court of Uganda Miscellaneous Application No.18 of 2007: Jim Muhwezi Vs Attorney General & Another, unreported; that:

“The Hon. Justice B.J. Odoki, C.J. concurred with the Hon. Justice Mulenga, JSC and stated that this court

‘was in error to suspend the hearing of the constitutional petition pending the conclusion of the criminal prosecution.  The court should have heard the petition because constitutional cases take precedence over other cases.’

These pronouncements seem to suggest that if an accused is facing criminal prosecution and he/she files a constitutional petition to challenge the prosecution, then the prosecution should be halted till the constitutional petition is finalized.   However, I do not think that their Lordships of the Supreme Court intended that result in all cases.  In the Onyango Obbocase Justice Mulenga, JSC seems to have had in mind situations where there has been a constitutional reference to this court during the trial in the lower courts.  Secondly, the pronouncements apply to situations where the constitutionality of the law under which the prosecution is being conducted is in issue.  For example in Onyango Obbo case, the constitutionality of section 50 of the Penal Code Act, under which they were being prosecuted was in issue in the Constitutional Court.  It would have been unjust for such a prosecution to continue when the law under which they were being prosecuted was being challenged.  This is not the case in the instant case.  The sections of the Penal Code Act under which the applicant is being prosecuted at Buganda Road Court are not being challenged.  In such a situation, the prosecution can continue despite the challenge in the Constitutional Court of the truth and manner of investigations leading to the charges in the criminal court.  The trial court is capable of fairly and accurately pronouncing itself on the matter without prejudice to the accused.  Where any prejudice occurs, the appeal system of this country is capable of providing a remedy.  Was it to be otherwise, a situation would arise whereby anyone charged with an offence could rush to the Constitutional Court with a request to stop the prosecution pending hearing his challenge against the prosecution.  In due course, this court would find itself engaged in petitions to stop criminal prosecutions and nothing else.  This could result into a breakdown of the administration of the criminal justice system and affect the smooth operations of the Constitutional Court.  It is for this reason that I decline to grant this remedy”.

We find the above quotation a proper reinstatement of the law on the point.  Thus in this application given its nature, the applicant bears the burden to satisfy this court that he deserves the orders he prays for in the application.

The applicant, in the main petition, complains about the way the Police has carried out investigations against him, detaining him beyond the 48 hours allowed by the Constitution, selectively directing the investigations and the charges to him while exempting others of the same, carrying out investigations over the same matters already investigated, arresting him while sick and from a hospital bed, denying him access to medical treatment and confining him to unlawful places.

As against the Director of Public Prosecutions, the applicant complains of being charged and prosecuted of offences that, in effect, according to him, are the same and from the same transaction and therefore should be constituting a single or similar charge(s).  He also complains that the Director of Public Prosecutions is selectively directing the prosecution against the applicant, leaving out other people who too, should be prosecuted.

We note that Article 212 (c) of the Constitution mandates the Uganda Police Force to prevent and detect crime, while Article 120 vests in the Director of Public Prosecutions powers to direct the Police to investigate any information of a criminal nature, institute criminal proceedings against any person in any court with competent jurisdiction, other than a court martial, and to take over or discontinue any criminal proceedings.  In carrying out those functions the Director of Public Prosecutions shall not be subject to the direction or control of any person or authority.

The applicant has not explained to this court in which way  he had been denied adequate time to understand the charges being brought against him or how he had not had adequate time and/or facilities to prepare his defence.

This court also received no explanation from the applicant as to why he had not applied for bail in respect of the offences he had been charged with after court had granted him bail in the first case he was charged with.

As to the allegation that the police and the Director of Public Prosecutions refused to comply with the Buganda Road Chief Magistrate’s Court order that he be released, it is to be noted that this order was issued by court on 08.10.2012.  On 09 and 10.10.2012 the applicant was remanded in prison on the fresh charges that had been preferred against him.  The applicant has thus not shown that the court order requiring his release was deliberately disobeyed by the Police and the Director of Public Prosecutions.  There was no evidence adduced before court that the Special Investigation Unit of Police at Kireka or any other police stations refused to release the applicant from the unit at Kireka on receipt of the said court order.  It appears it just happened that fresh charges, necessitating the applicant’s being kept in further custody, were brought against the applicant about the time the court issued the order directing for his release from the Uganda Police Kireka investigation Unit.

This court has carefully scrutinized the charge sheets, annexed to the applicant’s affidavit in support of the application.  It is obvious from these charge sheets that the applicant is charged either alone or with others of forgery, abuse of office, unlawful possession of Government stores, embezzlement, causing financial loss, fraudulent false accounting and conspiracy to commit a felony.  The offences are stated to have been committed on different days and are based on various documents of different particulars and dates.  On the face of it therefore, the charge sheets do not support the assertion of the applicant that he is being charged of a multiplicity of charges which should be one charge in one file of investigations and that all the charges are of the same transaction.

We also note from the same charges that the applicant is charged in the main with offences of forgery contrary to section 342, and unlawful possession of Government stores, contrary to section 316 (2) of the Penal Code Act.  He is also charged with abuse of office contrary to section 11 (1) and (2) of the Anti-Corruption Act, 2009.

The applicant has no complaint about sections 342 and 316 (2) of the Penal Code Act.  So, even to him, the charges brought pursuant to the two sections of the Penal Code Act are proper in this regard.

 The applicant’s complaint in the petition is that section 11 (1) of the Anti-Corruption Act No.6 of 2009 is unconstitutional for it contains ambiguous or undefined phrases and is thus inconsistent with Articles 28(1)(7), (12) and 44(c) of the Constitution.

Apart from making the above statement both in the petition and in the application, the applicant has not in any way attempted to show how the alleged vagueness in the section, which has also  not  been identified by him to this court, is inconsistent with the stated purposes of this application, of the Constitution.  On our part, we find the charge sheets well detailed, clearly specifying the acts the applicant is alleged to have committed contrary to section 11 (I) of the Anti-Corruption Act.  On the face of it therefore, the applicant has not made out a prima facie case to us at this stage as to how the section in question is alleged to be unconstitutional.

Having considered the pleadings, the submissions of counsel as well as the law applicable, we have come to the conclusion that all that the applicant complains of are what he alleges happened in the course of his being investigated, arrested and being criminally charged in the courts of law.  We are not persuaded that his right to a fair trial in respect of the charges brought against him is being denied.  In those circumstances we find that no prima facie case is made out that the petition has any chance of success.

Since no prima facie case is made out by the applicant, we are unable to hold that the criminal proceedings in the courts below, if allowed to go on, will cause irreparable damage to the applicant that cannot be compensated by way of damages.  For the same reason we find no need to resort to considering whether the balance of convenience is or is not in favour of the applicant.

All in all, we find that the applicant has not made out a case to be granted the reliefs he seeks in the application.  We dismiss the same with costs to the respondent.

Dated at Kampala this …19^th…day of ……February………2013.

S.B.K. Kavuma

JUSTICE OF APPEAL

A.S. Nshimye

JUSTICE OF APPEAL

Remmy Kasule

JUSTICE OF APPEAL