Charles Mubiru v Attorney General (Constitutional Petition No. 1 of 2001) [2001] UGSC 31 (23 March 2001)

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CO RAM: HON. LADY JUSTICE L.E.M, MUKASA-KIKONYOGO, DCJ.

HON. MR. JUSTICE C.M. KATO, JA.

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

HON. MR: JUSTICE J.P. BERKO, JA. ;

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

CONSTITUTIONAL PETITION NO. 1.0F 2001

CHARLES MUBIRU..................................................PETITIONER

VERSUS

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

RULING OF THE COURT:

This Constitutional Petition is brought by one Charles Mubiru said to be a remand prisoner at Luzira Government Prison. It is brought under article 137 of the Constitution and the provisions of the Fundamental Rights-and Freedoms (Enforcement Procedure)'Rules, 1992 as modified by the Directions, 1996, Legal Notice No. 4 of 1996.-'

The petition seeks the following declarations:-’ -

(a) that S. 14(A)(1) of the Trial on Indictments Decree as amended by Act 9 of- 1996 and as interpreted by the Principal Judge, are inconsistent with 30 article 23(6)(a) of the Constitution;

(b) in the alternative but without prejudice to prayer (a), grant a declaration that S.14(a) (1)of the Trial on indictments Decree as amended by act 9 of 1998, is permissive,

(c) that the decision of 'the Principal judge rejecting the applicant’s' application, without being heard, is inconsistent with article.28(1) of the Constitution;

(d) that the decision of the Principal Judge rejecting the applicant’s application on the basis of S. 14 (A)

(1) of the Trial on Indictments Decree as amended by Act 9 of 1998, whereas he and/or other Judges of the Court have granted bail to applicants charged with the same category of offences as the applicant is charged without proof to the satisfaction of the court-of special circumstances, is inconsistent with article 21 of- the Constitution.

The petitioner, in the circumstances, prays that the court exercises its discretion under article 13.7(3 ) (b) of the Constitution and grant bail to the petitioner or refers the application to the High Court to consider and grant bail to the petitioner on conditions the court considers reasonable. The petitioner also prays for costs of the petition. The petition is supported by the affidavit of the petitioner in answer to the petition the Attorney general has contended:-

1. that the petition does not disclosed a cause of action, is misconceived and incompetent as it raises no questions, as to interpretation of the Constitution. It is therefore incompetent and improperly before the court and should be dismissed,

2. that S.14 (A)(1) of the Trial on Indictments Decree as amended by Act 9 of 1998 is not inconsistent with and does not contravene or infringe article 23(6)(a) of the Constitution,

3. that S. 14(A)(1) of the Trial on Indictments Decree as amended by Act 9 of 1998 does not contravene article 28 (1) Of the Constitution,

4. that the Attorney -General is not liable for acts of judicial officers in the exercise of their judicial powers and functions;

5. that the petition seeks to challenge the ruling of the Principal Judge for which this court has no jurisdiction;

6. that the petition does not call for the interpretation of article 21 of the Constitution and

7. that there is no evidence supporting the petition.

The answer ended with a prayer that the petition be struck out summarily and dismissed with costs. The answer is supported by an affidavit deponed by one Alfred Okello - Oryem, a State Attorney in the Attorney General's chambers.

At the hearing of the petition, Mr. Cheborion Barishaki, Director of Civil Litigation, who appeared for the Attorney General with M/s. Angela Kiryabwire raised three preliminary objections. The first challenged the affidavit in support of the petition on the ground that it is defective the second is that the petition does not disclose a cause of action against the Attorney General and the third is this court lacks jurisdiction to entertain the petition as the petition does not raise any matter for the interpretation of the Constitution.

After hearing the arguments from learned counsel for the Attorney General and the petitioner, we adjourned to consider our ruling which was to be given on Notice. Before the ruling could be delivered the petitioner was released on bail. The petitioner, having realised that he had got what he had-hoped to achieve by the petition, instructed his advocate to withdraw the petition. Learned counsel duly filed a Notice of withdrawal on 15^th March 2001. This ruling has as result, become an academic exercise to set the record straight.

On the first point of objection, Mr. Cheborion contended that the affidavit in support of the petition offends Order 17 rule 3(1) of the Civil Procedure Rules which provides:

“17(3)(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except, on interlocutory application, on which statements of his belief may be admitted, provided the grounds

According to him, the affidavit contains matters on information and .advice. Such affidavit can only be used in interlocutory applications. A constitutional petition is not an interlocutory application. Therefore it is wrong and improper to support it with an affidavit on information and belief. He relied on constitutional Petition., No. 3 of 1999 Paul K. Ssemwogerere and Another v Attorney General, (unreported).

The offending parts of the petitioner’s affidavit read':-

“8. That I was produced at the High Court but I was surprised when my Advocate found me in cells and informed me that the Principal Judge had rejected my Application without giving me a hearing because it did not disclose special circumstance to warrant my release on bail,

9. That I have been advised by my Advocate, Mr. Blaze Babigumira and I verily believe the same to be true that the decision of the Principal Judge to reject my bail Application without giving me a hearing, infringed my right of not to be condemned to indefinite remand without a hearing,

10. That when I instructed my lawyer to appeal to Court of Appeal he advised me that such a decision is not appealable hence this petition for declarations and/or redress sought.

11. . That I am advised by lawyer Mr.-Blaze Babigumira that in fact the Principal Judge and/or other Judges of the Court have released Applicants charged with offences under S. 14(A)(2) of the Trial on Indictments Decree as amended by act 9 of 1998, without proof of any special circumstances. This violates my right to be treated equally before the law.

9. That I have been advised by my advocate Mr. Babigumira Blaze, that S. 14(a)(1) Trial on Indictments Decree as amended by the Act 4 of 1998 and as interpreted by the Principal Judge, infringes on my rights to have my bail heard and granted on terms and conditions as the court may consider reasonable.

13. …………………………………….

14. that what is stated herein is true and correct to the best of my knowledge and information/advise the source of which are herein above disclosed”

It is clear that the matters deponed in the affidavit are not within the personal Knowledge of the deponent. He was merely echoing the information given to him by his legal-advisor. Such an affidavit cannot be relied upon in a constitutional petition. See Constitutional Petition No. 3 of 1999; Paul K. Ssemwogerere and Another v Attorney General (supra).

Rule 12(1) of the Constitutional Court (Petitions for Declarations under article 137 of the Constitution) Directions, 1996 Legal Notice No.4 of 1996 requires all evidence at the trial in favour of or against a constitutional petition to be by affidavit read in open court. The only affidavit in support of the instant petition is the affidavit of the petitioner. If that affidavit cannot be relied upon, then there is no evidence in support of the petition. The petition is therefore incompetent.

This ground alone should have been enough to dispose- of the petition. We wish, however, to deal briefly with the two remaining objections. The second objection relates to cause of action against the Attorney-General. The petitioner complains against the action of the Principal Judge in refusing his bail application without hearing him. In his view the action of the Principal Judge infringed his constitutional rights under article 28 of the Constitution.

The Attorney General can be held vicariously liable for anything done or omitted to be done by a servant of the government, if that servant can be held liable for his acts Article 128 (4) of the Constitution -provides:

A person exercising judicial power.,shall not be liable to any action, or suit for any act or omission by that person in the exercise of judicial power.”

Under the above provision a judicial officer cannot be sued for “any act or omission” by him in the exercise of his judicial powers. Also under S.4(5) of the Government Proceedings Act, Cap’. 69, no proceedings can be instituted against the Government in respect of anything done or omitted to be done “by a judicial officer whilst discharging any responsibilities of a judicial nature or any responsibilities or connection with the execution of Judicial process”. The Hon. Principal-Judge refused the petitioner’s application for bail when he was discharging a judicial function. Therefore the petitioner cannot sue the Attorney General for the alleged act or omission of Principal Judge. As a result, the second preliminary objection also should have succeeded.

As regards the third point of objection, it is now beyond dispute that for this court to have jurisdiction, the petition must show on the face of it, that interpretation of the Constitution is required. It is not enough to allege merely that a constitutional provision has been violated. See Ismail Serugo v Kampala City Council and Another, Constitutional Appeal No. 2 of 1998.

The petitioner’s complaint is that the Principal Judge rejected his bail application without giving him a hearing. This, according to him, contravenes article 28(1) of the Constitution. In our view there is nothing put in issue which requires the interpretation of article 28(c) of the Constitution. The complaint is about a right which is' alleged to have been violated. That right, is enforceable under article 50 of the Constitution by any competent court.

L.E.M. Mukasa-Kikonyogo Deputy Chief Justice.

C.M Kato

Justice of Appeal

A.E.N Mpagi Bahigeine

Justice of Appeal

J.P Berko

Justice of Appeal

C.N.B. Kitumba

Justice of Appeal