THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL PETITION NO. 22 OF 2010

BETWEEN

ASIIMWE GILBERT.............…………………………..PETITIONER

AND

1. BARCLAYS BANK UGANDA LTD…....................RESPONDENTS
2. MANIRAHUHA CHARLES
3. KOTOTYO W. WILLIAM

CONSOLIDATED WITH CONSTITUTIONAL PETITION NO. 01 OF 2010

BETWEEN

ASIIMWE GILBERT .............................................................. PETITIONER

VERSUS

ATTORNEY GENERAL ...................................................... RESPONDENT

CORAM:      HON. MR. JUSTICE A.S. NSHIMYE, JA

HON. MR. JUSTICE ELDAD MWANGUSYA, JA

HON. LADY JUSTICE FAITH E. MWONDHA, JA

                HON. MR. JUSTICE KENNETH KAKURU, JA

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

JUDGMENT OF THE COURT

This Judgment is in respect of Constitutional Petition No.01 of 2010 and Constitutional Petition No. 22 of 2010.

Initially only Constitutional Petition No. 22 of 2010 had been fixed for hearing before us. On 17^th of February 2014, before the hearing of the petition, it was brought to our attention, that another petition was pending in this Court that had been brought by the petitioner to determine the same issues.

Upon perusal of the second petition, Constitutional Petition No. 1 of 2010, we were satisfied that the two petitions filed by the same petitioner were in respect of the same subject matter and sought the same remedies.

We accordingly made an order consolidating the two petitions under Rule 101 of the Rules of this Court.

This Judgment therefore, is in respect of the two petitions.

For clarity and simplicity the respondent in Constitutional Petition No. 1 of 2010, the Attorney General will be referred to as the 1^st respondent, Barclays Bank (Uganda) LTD as the second respondent, Charles Maniraguha as the 3^rd respondent and William Kototyo as the 4^th respondent.

At the hearing of both petitions Dr. James Akampumuza appeared for the petitioners. Mr. Joseph Matsiko appeared for the 2^nd and 3^rd respondents while Mr. Rashid Kibuuka appeared for the 4^th respondent.

Mr. Matsiko raised a preliminary objection that the petition No. 22 of 2010 does not raise any questions for Constitutional interpretation by this Court. That it is therefore incompetent and ought to be dismissed on that account. 

He submitted that this Court’s jurisdiction is limited to interpretation of the Constitution under Article 137 (1) and since the petition does not raise any issues for Constitutional interpretation, this Court has no jurisdiction to entertain such an application.

He cited the Supreme Court Authority of Ismail Serugo versus Kampala City Council and The Attorney General, Supreme Court Constitutional Appeal No. 2 of 1998 (unreported) in  support of his proposition.

He submitted that all the  acts complained  of by the petitioner  in the  petitions such  as arrest, charge and detention of the Petitioner were  in respect  of  existing  criminal offences committed by the  petitioner for which criminal prosecution is  ongoing. He contended that there was no question raised for Constitutional interpretation. That if the acts  complained of violated the  petitioner’s rights, he  has a right to seek redress  in a competent  Court  under Article  50 of  the  Constitution. He submitted further that the issues raised in the petitions require to be proved by adducing evidence in Court and not by Constitutional Interpretation.

Mr. Kibuuka associated himself with submissions of Mr. Matsiko. He submitted that the question as to whether the criminal charges on which the petitioner was indicated were Constitutional or not was resolved by this Court in the Uganda versus Atugonza Francis Constitutional Reference No. 31 of 2010 (unreported), and that therefore it is no longer an issue for  Constitutional  interpretation, as  it is  now res-judicata.

Both counsel prayed for dismissal of the petitions.

Dr. Akampumuza learned counsel for the petitioner submitted that in view of the acts complained of in the petition, the petitioner is entitled to come to this Court and seek a remedy under Article 137 of the Constitution.

That the acts complained of include breach of a right to a fair hearing and breach of right to property among others which rights  are enshrined  in Articles 28, 44 (c) and  the duties of the High Court vis-à-vis other Courts. He cited the cases of Brig. Tumukunde vs. Attorney General, Constitutional Petition No. 4 of 2009 and that of Dr. Kizza Besigye & others versus Attorney General, Constitutional Petition No. 12 of 2006 (unreported) to support his contention that the petitioner’s right to a fair trial had been violated. 

In reply Mr. Matsiko submitted that there was a difference between a petition seeking Constitutional interpretation under Article 137 and an action seeking redress under Article 50. He insisted that in these particular petitions there were nothing for Constitutional interpretation.

Mr. Kibuuka in reply sought to clarify that the Kizza Besigye vs.  Attorney General (supra) petition, the issue was whether the acts complained of in that petition violated a right to a fair hearing. In that petition, he submitted questions for Constitutional interpretation were raised, but in this one he argued no such questions were disclosed.

Petition No. 22 of 2010 herein sets out the grounds in the petition as follows;-

1. That   your petitioner is a male adult Ugandan of sound mind formerly employed by Barclays Bank as Area Branch Operations Manager and is affected by certain decisions and actions relating to his employment and an ardent believer in the Rule of Law and Constitution.
2. That  from April 2008, your petitioner was employed by Barclays Bank Uganda Ltd as Retail Operations Manager and later promoted to the rank of Area Branch Operation Manager in July.
3. That in the course of your petitioner’s duties, your petitioner was arrested by Barclays Bank Security Officials on 6^th October 2009 who detained him in the Bank, confiscated his home and personal keys, two (2) mobile phones and denied his request that he switches them off, repeatedly told him that they would not release him unless he admitted that he had embezzled Barclays Bank money amounting to Shs. 3.4 billion and threatened to hand him over to police if he did not confess.
4. That your petitioner was restricted and kept in illegal detention in ungazetted Barclays Bank building without charge or any justified reason.
5. That your petitioner was not allowed access to or consultation with Lawyers by Bank Security throughout his arrest and interrogation.
6. That  in the evening of 6/10/2009 after your petitioner refused  to incriminate himself,  the Finance  Director and Bank Security called in the 3^rd Respondent to whom they handed him  to continue with  the detention and without giving  him  his  mobile phones.
7. That the said W.W. Kototyo illegally went to the Petitioner’s home, confiscated the petitioner’s properties including motor records, travel and academic records which he listed on unauthentic pieces of paper and to date your petitioner does not know their whereabouts.
8. That  your petitioner continued to be held  in  illegal detention without  charge beyond 144 hours reason whereof he instructed his Lawyers to Apply to Court for  his release order.
9. That  after, your petitioner’s  application for unconditional release  under  the Police Act was herd and ranted by Nakawa Chief Magistrates’ Court on account  of the illegal detention of your petitioner and exceeding the 48 hours mandatory  maximum hours, your petitioner was instead of being  released  as per Court Order rushed to  a hurriedly  constituted kangaroo Buganda Road Chief Magistrates’ Court and charged with 3 counts of Embezzlement  and 3 counts of causing  financial  loss contrary to the Penal  Code  Act  to which  he was  required to take plea without  consulting or having legal counsel/representative  in Court.
10. That  your  petitioner’s  accounts of Current  Account  No. 5800111872 was frozen / blocked by Barclays  Bank without any cause or notice of intention to do so to the petitioner and  Barclays  Bank also caused  the freezing / blocking  of your  petitioner’s  Saving  Account  No. 0150008918 with Shs. 6.9 million only in United  Bank for  Africa irregularly.
11. That after 1^st Respondent having illegally blocked/freezed your petitioner’s  account  from which he is supposed to make his loan repayments, 1^st respondent  is now threatening  to  forcefully recover the money from your petitioner.
12. That your petitioner is interested in and / or aggrieved by the following matters being inconsistent with the Constitution whereby your petitioner is aggrieved.

He contends that the acts of the respondent complained of above, were inconsistent with or in violation of various provisions of the Constitution set out therein and prayed for declarations to that effect.

We have read both petitions and heard submissions of all learned counsel.

We have also read the authorities cited to us.

The jurisdiction of this Court has been firmly resolved in a number of decisions of this court and of the Supreme Court in its appellant capacity as the Constitutional Appeal Court. First in the case of Attorney General versus Major General David Tinyefuza Constitutional Appeal No. 1 of 1987 and again in Ismail Serugo vs KCC and Attorney General (supra).  Those authorities have been followed ever since.

It was held in the above authorities that this Court has jurisdiction only under Article 137 of the Constitution to interpret the Constitution. It is not concerned with and has no jurisdiction to entertain matters relating to violation of rights under the Constitution for which parties seek redress. Such matter ought to be brought before a competent Court under Article 50 for redress.

However,  this Court is only competent  to give  redress  under  Article 50  when the  matter  has  first  come  properly  before  it for interpretation under  Article 137 and not  otherwise.

Hon. Mulega JSC in the Ismail Serugo (supra) case concluded his observations on this issue as follows;-

“it follows that a  person who seeks  to enforce a right or  freedom guaranteed under the Constitution by  claiming  redress for  its  infringement or threatened  infringement  but whose claim  does not call for interpretation  of  the  Constitution has  to apply to another competent Court. The Constitutional Court is competent for the purpose only upon determination of a petition under 137(3)”

In the same petition W.W Wambuzi C.J put in this way;-

“In  my view for the  Constitutional Court to have jurisdiction,  the  petition must show  on the face of it that the interpretation  of the Constitution  is  required  it is not enough  to allege merely  that  a Constitutional provision has been violated. If therefore rights have been violated as claimed these are enforceable under Article 50 of the Constitution by another competent   Court.

This Court in Constitutional Petition No. 2 of 1999 Charles Kabagambe versus Uganda Electricity Board summarized the position of the law on this issue as follows;-

“It is therefore now settled once and for all that if  the matter does not require an interpretation of a  provision of the Constitution, then there is no juristic  scope for the invocation of the jurisdiction of this  court.”

We have carefully perused the grounds raised in the petitions which we have set out in this judgment and we have found nothing at all in both petitions, one of which is a replica of the other that raises any questions for Constitutional interpretation.

This Court therefore has no jurisdiction to entertain any of the issues raised in both petitions. The remedies sought in both petitions may be available in a competent Court under Article 50 of the Constitution.

That is where these issues and complaints ought to have been raised.

Both petitions therefore fail and are hereby dismissed with costs to the respondents.

Dated at Kampala this 12^th day of March 2014.

                                 …………….....…………………..

HON. MR. JUSTICE A.S. NSHIMYE

JUSTICE OF APPEAL

     ………………………………………..

HON. MR. JUSTICE ELDAD MWANGUSYA

JUSTICE OF APPEAL

       ………………………………………...

HON. LADY JUSTICE FAITH E. MWONDHA

JUSTICE OF APPEAL

       ….……………………………………….

        HON. MR. JUSTICE KENNETH KAKURU

JUSTICE OF APPEAL

………………………………………….

                HON. MR. JUSTICE GEOFFREY KIRYABWIRE

JUSTICE OF APPEAL