THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL APPLICATION NO.51 OF 2013
- SSERUNKUMA EDIRISA
- MATOVU HENRY EDGAR :::::::::::::::::::::::APPLICANTS
THE ATTORNEY GENERAL :::::::::::::::::::RESPONDENT
CORAM: HON. JUSTICE REMMY KASULE, JA
The two applicants, currently on remand in Luzira Government prison have applied to the Constitutional Court to be released on bail on such terms and conditions as the said court may consider reasonable pending the disposal of Constitutional Petition No.02 of 2013: Davis Wesley Tusingwire Vs The Attorney General of Uganda.
The application is stated to be brought under Rule 23 (1) of the Constitutional Court (Petitions and References) Rules, Sections 64 (e) and 98 of the Civil Procedure Act, Rules 2 (2), 43 (1) (2) 44 of the Judicature (Court of Appeal) Directions and Articles 23 (6) (a) (b), 28 (1), (3) (a) and 44 (c) of the Constitution.
At the hearing Counsel Ochieng Evans and Tibyasa Ambrose appeared for the applicants. Learned State Attorney Oburu Odoi appeared for the state. Each of the applicants deponed to an affidavit in support of the application. Each applicant states in his affidavit of having been arrested early this year on accusations of conspiracy to commit a felony, theft, unauthorized access and electronic fraud being kept at CID headquarters and later taken to court. On 08.02.2012 each of the applicants pleaded not guilty to the offences charged and was remanded to Luzira prison where he has been to date.
In the main body of the Notice of Motion , it is stated as a ground for the application that:
“(1) The applicants together with others were charged before the Chief Magistrates Court at the Anti-Corruption Division and indicted to the High Court Anti-Corruption Division vide Criminal Case No.15 of 2013 for trial.”
No copy of the charge sheet was attached to the application. Each of the applicants did not state in full and clearly in his affidavit the exact criminal charges with which each one is charged. This court is surprised that the applicants, through their respective legal counsel, expect the whole constitutional court to consider and resolve upon their bail application while they deliberately hide away from the court the exact criminal charges each one is charged with. This, to say the least, is to pay least respect to this court and a failure to appreciate that the applicants have the burden to make out a case that they deserve to be granted bail. Such a burden cannot be said to be discharged when, the real charges with which the applicants are charged are not disclosed in full to court.
There is also the issue of jurisdiction. The applicants lodged this application in the Constitutional Court because, according to them, on 12.07.2013 the Constitutional Court in Constitutional petition No.2 of 2013 Davis Wesley Tusingwire Vs Attorney General (the head petition) had issued a temporary injunction staying criminal proceedings going on at that time in the High Court Anti-Corruption Division, Kololo and those in the Magistrates courts attached to that Division, pending disposal of the head petition. The petitioner in the head petition moved the Constitutional Court to interpret the Constitution by issuing (or refusing to issue) a declaration, amongst other prayers, whether or not it was in accordance with the Constitution for the Magistrates Courts attached to the High Court Anti-Corruption Division at Kololo to adjudicate anti-corruption criminal cases as if they are part and parcel of the High Court.
It is the case for each of the applicants that following the issuance of the above order by the Constitutional Court, the High Court refused to entertain their bail applications. Hence the resort to the Constitutional Court. The applicants also rely on the written guidance given by His Lordship, S.B.K. Kavuma, the Ag. Chief Justice referenced AG. CJ/S.7 dated 11.08.2013 whereby His Lordship guided that:
“Any person affected by the ruling and any of the orders of court in the said Constitutional Application No.06/2013 dated 12th day of July 2013 is free to present his/her grievance to the Court of Appeal/Constitutional Court for consideration.”
None of the applicants in this application is a party to the head Constitutional petition and as His Lordship Kiryabwire. G. JA, has held in Constitutional Application No.61 of 2013: Magombe Joseph Vs Uganda, the jurisdiction of the Constitutional Court vested in it by Article 137 is to interpret the Constitution not to entertain bail applications. The head Constitutional Petition No.2 of 2013 is calling upon the Constitutional Court to interpret the Constitution. An application to be granted bail, and no more, which the applicants are seeking in their application has no relevance and does not fall within the jurisdiction of the Constitutional Court to interpret the Constitution.
It is to be noted in this regard that the guidance given by his Lordship the Ag. Deputy Chief Justice is not to the effect that anyone applying for bail in the Anti-Corruption Division, pending disposal of the head petition, should do so to the Constitutional Court. Indeed depending on the nature of the grievance caused by the order to stay proceedings in the Anti-Corruption Division, His Lordship, the Ag. Chief Justice, guides that such grievance may be presented to the Court of Appeal or the Constitutional Court. His Lordship’s guidance is not that every grievance must be taken to only the Constitutional Court.
In the case of the two applicants there is every reason why this bail application is wrongly in the Constitutional Court. First, the jurisdiction of the Constitutional Court is to interpret the Constitution and not to entertain bail applications unless the issue of grant of bail is part and parcel of the interpretation of the Constitution. This is not the case in respect of this application. Second, in the case of both applicants; it is noted that on 03.05.2013 in High Court Criminal Application No.21 of 2013, the High Court, Mugamba, J. dismissed both applicants’ application for bail on the ground that given the fact that the amount of money involved in the criminal charges against them being over Ug. Shs.3 billion and the fact that the applicants had not furnished security, such as valuable real property, the learned judge declined to grant bail to the applicants.
The above being an application in the High Court, it follows that the applicants can only come to the Court of Appeal, in the nature of an appeal against the refusal by His Lordship Mugamba, J., to grant them bail unless each one of them furnished security. In their appeal to the Court of Appeal both applicants must address the issue of furnishing security in respect of their bail application: whether or not the learned trial judge was wrong to impose such a condition.
It is also, of course, the right of both applicants to renew their application for bail to the High Court in the exercise of its overall criminal jurisdiction in terms of Article 23 (6) of the Constitution and the appropriate provisions of the Trial on Indictments Act, regardless of whether or not proceedings in the Anti-Corruption Division of the High Court, stand temporarily stayed or not.
It is therefore the holding of this court that, on the basis of the particular facts relating to the bail application of the applicants, they ought, if they so wished, to have accessed the Court of Appeal by way of an appeal from the decision of Mugamba, J., dated 03.05.2013 on their bail application. The applicants lodging their bail application in the Constitutional Court was therefore misconceived in the circumstances.
On the basis of the above reasons, this bail application in the Constitutional Court is hereby dismissed.
Since the dismissed application relates to criminal charges and the applicants are on remand in Luzira prison waiting to be prosecuted to establish their being guilty or innocent of such charges, court makes no order as to the costs of the dismissed application.
JUSTICE OF CONSTITUTIONAL COURT