Uganda v David Ntege (CRIMINAL REVISION NO. 10 OF 2005)
Case No:
(CRIMINAL REVISION NO. 10 OF 2005)
Media Neutral Citation:
[2006] UGHC 59
Judgment Date:
9 November 2006
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IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
CRIMINAL REVISION NO. 10 OF 2005
(Originating from Luwero Criminal Case No. HCT-00-CR-CO-24-2005)
Versus
DAVID NTEGE………..…………………………………………..ACCUSED
This revisional order is in respect of a criminal case that a magistrate at Nakaseke handled. The case arose as follows:
On 15th October 2005 at Nakaseke town as His Excellency the President of Uganda addressed a gathering of people, David Ntege (whom Court will hereinafter refer to as “the accused”) interrupted the President’s speech. He commented that the district of Nakaseke had been given to herdsmen. The authorities, present, immediately arrested the accused and handed him to the police.
On 21st October 2005 the police took the accused to a magistrate’s court in Nakaseke and charged him with the offence of promoting sectarianism contrary to section 41(1) (d) of the Penal Code Act (Cap 120). The particulars of the offence that the magistrate read to the accused were as follows:
“Ntege David on the 15th day of October, 2005 at Nakaseke
Town in Nakaseke District uttered a statement which was
likely to promote … feelings of ill will or hostility among or
against the herdsmen community (Balalo) in Nakaseke to wit,
“Watwala District Yaffe mu Balalo” meaning that “You gave
away our district to the herdsmen.”
The accused admitted the above offence. In turn, the magistrate recorded a plea of guilty in respect thereof. The prosecutor narrated the facts of the case; and the accused admitted them. The magistrate convicted the accused of the offence of promoting sectarianism contrary to section 41(1) (d) of the Penal Code Act (Cap 120) and sentenced him to 9 months imprisonment. Subsequently, one of the newspapers in Kampala reported the proceedings of the lower court in respect of the case in question. On reading the report in the newspaper this Honourable Court called for the proceedings of the lower court with a view to ascertaining whether the lower court had handled the case properly. It is worth mentioning here that before the Chief Magistrate of Luwero sent the proceedings of the lower court to this Honourable Court he released the accused on bail pending revision.
Any way, as soon as this Court received the proceedings of the lower court it sent a copy thereof to the Director of Public Prosecutions and sought his opinion on “the legality of the trial and propriety of the sentence”. Unfortunately, the Director of Public Prosecutions did not respond. After some time, Court took liberty to assume that the Director of Public Prosecutions was not interested in the matter. Therefore, Court decided to dispose of the matter without any further recourse to him.
Be that as it may, the crux of this matter is whether the magistrate who convicted the accused of the offence of promoting sectarianism contrary to section 41(1) (d) of the Penal Code Act (Cap 120) and sentenced him to 9 months imprisonment had jurisdiction to try the case?
A perusal of the proceedings of the lower court reveals that it is not possible to answer the above question one way or the other by merely looking at the said record, for the magistrate who handled the case in question did not indicate his grade any where on the record. Fortunately, when the Chief Magistrate of Luwero was forwarding the above record to this Honourable Court he clearly indicated in his letter dated 4th November 2005 that the judicial officer who handled the case under consideration was a magistrate Grade 11.
Part XV of the Magistrates Courts Act (Cap. 16) lays out the jurisdiction of magistrates in criminal matters in section 161. With regard to a magistrate Grade 11 the above law has this to say:
“161. …
(1)
On 15th October 2005 at Nakaseke town as His Excellency the President of Uganda addressed a gathering of people, David Ntege (whom Court will hereinafter refer to as “the accused”) interrupted the President’s speech. He commented that the district of Nakaseke had been given to herdsmen. The authorities, present, immediately arrested the accused and handed him to the police.
On 21st October 2005 the police took the accused to a magistrate’s court in Nakaseke and charged him with the offence of promoting sectarianism contrary to section 41(1) (d) of the Penal Code Act (Cap 120). The particulars of the offence that the magistrate read to the accused were as follows:
“Ntege David on the 15th day of October, 2005 at Nakaseke
Town in Nakaseke District uttered a statement which was
likely to promote … feelings of ill will or hostility among or
against the herdsmen community (Balalo) in Nakaseke to wit,
“Watwala District Yaffe mu Balalo” meaning that “You gave
away our district to the herdsmen.”
The accused admitted the above offence. In turn, the magistrate recorded a plea of guilty in respect thereof. The prosecutor narrated the facts of the case; and the accused admitted them. The magistrate convicted the accused of the offence of promoting sectarianism contrary to section 41(1) (d) of the Penal Code Act (Cap 120) and sentenced him to 9 months imprisonment. Subsequently, one of the newspapers in Kampala reported the proceedings of the lower court in respect of the case in question. On reading the report in the newspaper this Honourable Court called for the proceedings of the lower court with a view to ascertaining whether the lower court had handled the case properly. It is worth mentioning here that before the Chief Magistrate of Luwero sent the proceedings of the lower court to this Honourable Court he released the accused on bail pending revision.
Any way, as soon as this Court received the proceedings of the lower court it sent a copy thereof to the Director of Public Prosecutions and sought his opinion on “the legality of the trial and propriety of the sentence”. Unfortunately, the Director of Public Prosecutions did not respond. After some time, Court took liberty to assume that the Director of Public Prosecutions was not interested in the matter. Therefore, Court decided to dispose of the matter without any further recourse to him.
Be that as it may, the crux of this matter is whether the magistrate who convicted the accused of the offence of promoting sectarianism contrary to section 41(1) (d) of the Penal Code Act (Cap 120) and sentenced him to 9 months imprisonment had jurisdiction to try the case?
A perusal of the proceedings of the lower court reveals that it is not possible to answer the above question one way or the other by merely looking at the said record, for the magistrate who handled the case in question did not indicate his grade any where on the record. Fortunately, when the Chief Magistrate of Luwero was forwarding the above record to this Honourable Court he clearly indicated in his letter dated 4th November 2005 that the judicial officer who handled the case under consideration was a magistrate Grade 11.
Part XV of the Magistrates Courts Act (Cap. 16) lays out the jurisdiction of magistrates in criminal matters in section 161. With regard to a magistrate Grade 11 the above law has this to say:
“161. …
(1)
Subject to this section, a magistrate’s court presided
over by-
(a) …
(b) …
(c) a magistrate grade 11 may try any offence under, and
shall have jurisdiction to administer and enforce any
of the provisions of any written law other than the
offences and provisions specified in the First Schedule
to this Act;”
(a) …
(b) …
(c) a magistrate grade 11 may try any offence under, and
shall have jurisdiction to administer and enforce any
of the provisions of any written law other than the
offences and provisions specified in the First Schedule
to this Act;”
The First Schedule to the above Act reveals that some of the offences a magistrate Grade 11 cannot try include offences falling under the head of “TREASON AND OFFENCES AGAINST THE STATE” in Chapter V1 of the Penal Code Act (Cap.120). Indeed, the offence of promoting sectarianism c/s 41(1) (d) of the Penal Code Act (Cap 120) is one of the offences that fall under the above head. For that reason it follows that the magistrate, who convicted the accused of the above offence and sentenced him to 9 months imprisonment, had no jurisdiction to hear the case
since he was only a magistrate Grade 11. Consequently, whatever he did in that case was a nullity. In any case, the sentence of 9
months imprisonment that the said magistrate imposed upon the accused was out of proportion with all the surrounding circumstances.
The accused was a first offender. He readily pleaded guilty to the charge, thus saving court’s time and State funds that might
have been spent on a long trial. Lastly, the accused was remorseful. Therefore, everything being equal, this should have been a proper
case for a caution or a mild fine.
All in all, this Court has no choice but to quash the conviction and set aside the sentence; and it is so ordered.
However, before Court takes leave of this matter it wishes to make a few observations. Firstly, in view of the contents of this Order the accused has no further obligation to report anywhere in a bid to fulfill any condition for his release on bail; and in case he deposited any money before his release on bail the lower court should immediately refund him such money.
Secondly, Court commends the Chief Magistrate of Luwero (Mr. Silver Cohen Okullo) for releasing the accused on bail before he sent the proceedings of the lower court to the High Court in Kampala for revision. Indeed, that was a wise decision. The accused did not have to stay in prison when it was glaring that the whole process leading to his conviction and imprisonment was a nullity.
Thirdly, the provisions of section 41 of the Penal Code Act (Cap. 120) are a serious affront to the inherent human right of freedom of speech found in Article 29(1) of the Constitution. For that reason, Court greatly doubts their constitutionality and consistency with National objective No. 1 i.e. “…the establishment and promotion of a just, free and democratic society” in Uganda.
Finally, the Deputy Registrar Crime is hereby directed to send a copy of this Order to the Chief Magistrate of Luwero so that he might urgently advise the accused of its contents.
All in all, this Court has no choice but to quash the conviction and set aside the sentence; and it is so ordered.
However, before Court takes leave of this matter it wishes to make a few observations. Firstly, in view of the contents of this Order the accused has no further obligation to report anywhere in a bid to fulfill any condition for his release on bail; and in case he deposited any money before his release on bail the lower court should immediately refund him such money.
Secondly, Court commends the Chief Magistrate of Luwero (Mr. Silver Cohen Okullo) for releasing the accused on bail before he sent the proceedings of the lower court to the High Court in Kampala for revision. Indeed, that was a wise decision. The accused did not have to stay in prison when it was glaring that the whole process leading to his conviction and imprisonment was a nullity.
Thirdly, the provisions of section 41 of the Penal Code Act (Cap. 120) are a serious affront to the inherent human right of freedom of speech found in Article 29(1) of the Constitution. For that reason, Court greatly doubts their constitutionality and consistency with National objective No. 1 i.e. “…the establishment and promotion of a just, free and democratic society” in Uganda.
Finally, the Deputy Registrar Crime is hereby directed to send a copy of this Order to the Chief Magistrate of Luwero so that he might urgently advise the accused of its contents.
E. S. Lugayizi
Judge
10/11/2006