Mugoya Kyawa Gaster v Attorney General

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA

CORAM:       HON. JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ

                        HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, JA

                        HON. JUSTICE A. TWINOMUJUNI, JA

                        HON. JUSTICE C.N.B. KITUMBA, JA

                        HON. JUSTICE C.K. BYAMUGISHA, JA

CONSTITUTIONAL PETITION NO. 09 OF 2008

MUGOYA KYAWA GASTER………………………………………………..PETITIONER

VERSUS

ATTORNEY GENERAL………………………………………………………RESPONDENT

JUDGMENT OF HON. JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ

This petition is filed by Mugoya Kyawa Gaster, the petitioner and an advocate of the Courts of Judicature of Uganda.  It is brought against the Attorney General.  The petitioner was arrested by the Police and detained at Kira Road Police Station on 21/10/2008.

It is alleged in the petition that at the time of his arrest, he was not informed of the charges.  The Police declined to inform his next of kin, in this case his wife.  He was also denied a right to his lawyer and doctor.  Contrary to the rules of evidence whilst in custody of the Police, Army Officers recorded charge and caution statement from him.  He learnt of the charges in court.  Further, his home and school were searched without a warrant by about 40 armed soldiers in contravention of Article 27 of the Constitution.  Contrary to Article 23 of the Constitution, the petitioner was detained beyond 48 hours. 

Subsequently on 27/7/2008 the charges were amended and the prosecution was taken over from the IGG by the DPP, which according to the petitioner was a violation of his constitutional rights.  The petitioner, therefore, filed this petition to challenge in terms of Article 137(3) (b) the act of the DPP to prosecute the petitioner for a number of offences based on the above mentioned violations of the Constitution. 

Issues before the Court:

1.      Whether the act of the Director of Public Prosecutions of prosecuting the Petitioner on the basis of:

a)      Detention where the Petitioner was not immediately after his arrest informed of the reason for arrest and his right to a lawyer of his choice;

b)      Detention of the Petitioner beyond Forty Eight (48) hours;

c)      Denial of the Petitioner access to a lawyer, next of kin and personal doctor;

d)      An unlawful search of the Petitioner’s home and school;

e)      An unlawful recording of charge and caution statement, is inconsistent with and in contravention of Articles 23(3), (5) (a), (b); 27; 28(1); (3)(b), (c ), (4) of the Constitution of the Republic of Uganda.

2.      Whether an Order directing the Criminal Court to forthwith terminate the illegal prosecution of the Petitioner should be issued.

3.      Whether the Petitioner is entitled to the costs of this Petition.

Issue No. 1

Submissions and Legal arguments by the counsel for the petitioner

Counsel for the petitioner vehemently argued that the act of the Director of the Public Prosecutions of prosecuting the petitioner on the basis of:

“detention where the petitioner was not immediately after the arrest informed of the reason for his arrest and his right to a lawyer of his choice, detention beyond forty eight (48) hours, denial of access to a lawyer, next of kin and personal doctor  and unlawful search of the petitioner’s home and school was a violation of the petitioner’s constitutional rights and therefore,  inconsistent and in contravention of Articles 23(3), (5) (a), (b); 27; 28(1), (3)(b), (c ), (4) of the Constitution of the Republic of Uganda.”

Counsel submitted that once the prosecution is founded on an unconstitutional violation, as it is in the instant petition, it is no longer legitimate and the constitutional process can be challenged.  The Court was referred to the case of Charles Twagira  vs  Attorney General & 2 Others, Civil Appeal No. 4 of 2007 (SC) page 46 where Mulenga, JSC faulted the prosecution founded on “the violation of the petitioner’s constitutional rights.” On the part of counsel for the petitioner, the main question to answer is whether the DPP has powers to continue with the prosecution which is tainted with the violation of the aforesaid various articles of the Constitution providing for the petitioner’s rights.  To counsel, the said constitutional violations rendered the process a nullity.  It should be declared so and terminated by this Court.  The DPP like any other authorities in Uganda is bound by the Constitution under Article 2(1) which reads as follows: -

“This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.” 

Counsel submitted that the DPP, therefore, cannot continue with the process that does not uphold and which violates the process of the Constitution.  He must respect and uphold the Constitution.  

In his affidavit, the petitioner also avers that he was deprived of his freedom when he was detained beyond 48 hours.  This was contrary to Article 23(1) & (4) (b), which reads inter alia that: -

Sub-(1) No person shall be deprived of personal liberty except in any of the following cases –

(a)               ….

(b)               ….

(c)                for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda;

(d)               ….

(e)                ….

(f)                 ….

(g)               ….

(h)               ….

(4)        A person arrested or detained –

(a)        for the purpose of bringing him or her before a court in execution of an order of a court; or

(b)        upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda,

The petitioner further claimed that, his Constitutional rights were violated, in contraventions of Article 27 (1) of the Constitution, which reads: -

“No person shall be subjected to –

a)      unlawful search of the person, home or other property of that person; or

b)      unlawful entry by others of the premises of that person;

(2)        No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication of other property.”

The petitioner is, therefore, requesting this Court for an order directing the Court to terminate the illegal prosecution.  Secondly, the Court is prayed for a declaration to the effect that the purported prosecution of the petitioner by the Director of Public Prosecutions in the light of the aforesaid violations is inconsistent with and in contravention of the aforesaid Articles of the Constitution. 

Submissions and legal arguments in reply by counsel for the respondent

Counsel submitted that the petition was incompetent and without merit.  It required no constitutional interpretation.  The acts complained of in the petition regarding rights and freedoms of the individual are protected by the Constitution and the petitioner was at liberty to seek redress in other courts of competent jurisdiction.  Counsel pointed out that the respondent’s case is supported by an affidavit in reply rebutting the allegations leveled against the DPP.  The arrest was lawful; the petitioner had been informed of his constitutional rights.  The search was lawful.  He was lawfully prosecuted within his constitutional rights.  

Further, it was argued by Ms Nabakooza, counsel for the respondent, that even if the procedure adopted was irregular by the law, the charging and prosecution of the petitioner did not violate the constitution.  The Magistrate’s court and the DPP were carrying out their duty under the Constitution.  The DPP is covered under Article 120 of the Constitution.  There was fair trial according to the amended charge sheet.  The offences preferred against the petitioner were in the Penal Code.  The petitioner was at liberty to file a civil action for relief for the alleged violations.  The petition is seen as a delaying tactic employed to delay the criminal prosecution.  Counsel therefore, prayed Court to dismiss the petition. 

Consideration by the Court

The Court heard the submissions made by both learned counsel for both sides and considered the legal arguments advanced for the parties.  We also had a careful perusal of the affidavits in support of the petition and one in reply sworn on behalf of the respondent, as well as the relevant provisions of the law and authorities relied on by the parties.  I now have the following to say:

The main issue to be determined by this Court is whether the taking over of the prosecution of the petitioner from the IGG by the DPP was proper and lawful.  In my view, the complaint against the act of the DPP is difficult to establish in view of his mandate under Article 120 of the Constitution which reads as follows: -

Article 120 (1) “There shall be a Director of Public Prosecutions appointed by the President on the recommendation of the Public Service Commission and with the approval of Parliament.

(2)        A person is not qualified to be appointed Director of Public Prosecutions unless he or she is qualified to be appointed a Judge of the High Court.

(3)        The functions of the Director of Public Prosecutions are the following –

(a)        to direct the police to investigate any information of a criminal nature and to report to him or her expeditiously;

(b)        to institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial;

(c)        to take over and continue any criminal proceedings instituted by any other person or authority;

(d)        to discontinue at any stage before judgment is delivered, any criminal proceedings to which this article relates, instituted by himself or herself or any other person or authority; except that the Director of Public Prosecutions shall not discontinue any proceedings commence by another person or authority except with the consent of the court.”

The functions of the DPP clearly include “instituting criminal proceedings, taking over and continuing with any criminal proceedings as well as discontinuing any criminal proceedings from a few violations.”  The DPP was, hence, covered by Article 120 (3)(e) (supra).  I do not accept the submission of the counsel for the petitioner that the prosecution taken over from the IGG was founded on the Constitutional violations of the petitioner’s rights.  It did not form part and parcel as suggested by counsel of the petitioner.  It is not true that the constitutional process was no longer legitimate and, therefore, could be challenged as it was done by the petitioner.  Addressing my mind to the case of Charles Twagira versus Attorney General and 2 Others C.A. No. 4 of SCpage 46 cited by counsel for the petitioner and the circumstances of the prosecution complained of, I cannot fault the act of the DPP to take over the prosecution from the IGG.  It did not render the prosecution a nullity as submitted.    

As already pointed out, the DPP was carrying out his constitutional mandate and was hence, protected by Article 120 3(e)(supra).  The issue of legitimacy does not, therefore, arise.  In my view, this petition would fail on this ground alone.

However, even if the Court believed the petitioner’s claim, that the DPP was responsible for the violations of his constitutional rights, it was incumbent on the DPP to exercise his constitutional mandate by amending the charge sheet.  It was his duty to rectify what had gone wrong which he did through the amendment and then subsequently taking over the prosecution from the IGG.  The prosecution was not tainted in any way by the alleged violations.  On the contrary the petitioner was lawfully prosecuted within his constitutional rights.    

In any case as it was rightly submitted by Ms Nabakooza, the petitioner is not left without remedy because the violations of his rights and freedoms of individuals complained of are guaranteed and protected by the Constitution.    He was at liberty to seek redress, in any court of competent jurisdiction, other than the Constitutional Court, as provided under Article 50 of the Constitution which reads as follows: -

“Enforcement of rights and freedoms by courts

(1)    Any person who claims that a fundamental or other right of freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.”        

Clearly, as it was rightly argued by counsel forthe respondent, this petition did not require constitutional interpretation.  All that was required was to prove the alleged violations and then seek redress as stated above.      Additionally, as apparently, violation of the right to a fair hearing is also implicated, the best way to get a fair trial is by filing a separate suit in a court of competent jurisdiction so that it could be considered in its entirety.  The petitioner is, therefore not left without protection.  

For the aforesaid reasons, the act of DPP to take over the prosecution as he did in the instant petition could not be challenged.  It was within his constitutional mandate to do so.  See Article 120 (supra).  In the result I find no merit in the petition.  It must fail.  I would dismiss it with the following declaration: -

That the act of the DPP to amend the criminal charges preferred against the petitioner and take over his prosecution from the IGG is not inconsistent with and does not contravene Articles 23 (3), (5) (a), (b); 27; 28(1), (3)(b), (c ), (4) of the Constitution of the Republic of Uganda. 

Order:

The petitioner’s prayer to issue an order directing the Criminal Court forthwith to terminate the illegal prosecution of the petitioner and pay costs is frivolous and is accordingly dismissed. 

Dated at Kampala this…23^rd …day of ……March….., 2010.

L.E.M. Mukasa-Kikonyogo

HON. DEPUTY CHIEF JUSTICE/

PRESIDENT OF THE CONSTITUTIONAL COURT

JUDGMENT OF HON JUSTICE A.E.N.MPAGI-BAHIGEINE, JA

I have read in draft the judgment of Mukasa Kikonyogo DCJ.  I entirely agree that the petition is devoid of any merit as there is nothing to call for Constitutional interpretation.  I have nothing useful to add.

Dated at Kampala this ….23^rd …..day of ……..March……2010

Hon Justice A.E.N.Mpagi-Bahigeine

JUSTICE OF COURT OF APPEAL

JUDGMENT OF HON A.TWINOMUJUNI, JA

I have had the benefit of reading the judgment, in draft, of my Lord Hon. Justice L.E.M.Mukasa-Kikonyogo, DCJ.

I concur and I have nothing useful to add.

Dated at Kampala this …23^rd…day of …March….2010

HON JUSTICE A.TWINOMUJUNI,

JUSTICE OF APPEAL

JUDGMENT OF BYAMUGISHA JA;

I had the benefit of reading in draft form the judgment which was prepared by the learned Deputy Justice.  I agree with the reasons she has given in dismissing the petition.  I have nothing useful to add.

Dated at Kampala this …..23^rd …day of …March….2010

C.K.BYAMUGISHA

JUSTICE OF THE CONSTITUTIONAL COURT