THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
CORAM: HON. JUSTICE AMOS TWINOMUJUNI, JA
MISCELLANEOUS APPLICATION NO.18 OF 2007
HON. JIM MUHWEZI …………………………….…..APPLICANT
V E R S U S
2. INSPECTOR GENERAL
OF GOVERNMENT …………………..……RESPONDENT
[Arising out of Miscellaneous Application
No.17 of 2007 and Constitutional Petition No.10 of 2007]
R U L I N G:
This is an application brought under article 137 of the Constitution of 1995, rule 23 of the Constitutional Court [Petitions and References] Rules S.1 91 of 2005, Rules 2(3), 43 and 44 of the Judicature [Court of Appeal Rules] Directions 2002. The applicant is seeking for an interim order that:
“1. An interim order be issued restraining the respondents, their servants, officials or agents and/or those claiming under them from enforcing, implementing or otherwise executing the decisions, orders and recommendations contained in the Report of the IGG into the Investigations of the alleged Mismanagement and abuse of the Global Alliance for Vaccines and Immunisation (GAVI) Funds, and all subsequent decisions, actions and directives arising there from pending the disposal of the main application for a restraining order in Miscellaneous Application No.17 of 2007.
2. The costs of the application be provided for.”
The grounds of the application which are said to be contained in the affidavit of HON. JIM MUHWEZI are stated be that:
“1. The applicant lodged Constitutional Petition No. 10 in this Honourable Court for the determination of matters infringing and touching upon his constitutional rights which he verily believes were infringed upon by the 2nd respondent in the course of investigations into the alleged mismanagement of GAVI Funds under the Ministry of Health.
2. That the 2nd respondent is taking steps to implement the recommendations of the report into the alleged mismanagement of the GAVI Funds.
3. That the applicant will suffer irreparable injury if the report of investigations into the alleged mismanagement and abuse of the Global Alliance for Vaccines and Immunization (GAVI) Funds is implemented as he is in danger of being dismissed from his Parliamentary seat before the determination of the petition, as well as prejudice the criminal charges pending in the magistrates court.
4. This application will safeguard the applicant’s petition, for if it is not granted, the applicant’s petition will be rendered nugatory.
5. It is in the interest of justice that this application be granted.”
The application is supported by the affidavit of the applicant; Hon. Jim Muhwezi deponed to and filed in this Court on 16th October 2007. Since the affidavit contains the background and the grounds of this application in detail, I find it pertinent to reproduce the affidavit in full as follows:-
“1. THAT I am a male adult of sound mind, a Member of Parliament, Rujumbura County, Rukungiri District and the applicant in the above application and I swear this affidavit in that capacity.
THAT I lodged Constitutional Petition No. 10 on 8th May 2007. (A copy of the Petition is attached herewith and marked annexture “A”).
THAT on the 14th of May 2007, the 1st and 2nd respondents filed answers to the respondents. (Copies of the 1st and the 2nd respondents answer to petition are attached and collectively marked Annexture “B”).
THAT on the 14th August 2007, the Permanent Secretary, Ministry of Health wrote to the Speaker requiring him to forward to me a letter demanding among others payment of two sums of money alleged to have been misused or misappropriated from the GAVI funds.
THAT on the 20th August 2007, the Speaker replied advising the Permanent Secretary, Ministry of Health that the matter was subjudice. (A copy of the letter is attached herewith and marked annexture “C”).
THAT on the 28th August, the Permanent Secretary, acknowledged the guidance from the Speaker and requested him to withhold the letter dated 14th August 2007. (A copy of the letter is attached herewith and marked annexture “D”).
THAT on 29th August 2007, the Solicitor General also advised the Permanent Secretary, Ministry of Health that it was not proper to serve the letter to me as the matter was subjudice. (A copy of the letter is attached herewith and marked annexture “E”).
THAT on the 5th September, the Inspector General of Government wrote to the Permanent Secretary directing her to reinstate the letter demanding among others payment of the two sums of money alleged to have been misused or misappropriated from the GAVI funds. (A copy of the letter is attached herewith and marked Annexture “F”).
THAT on 12th September 2007, the Permanent Secretary, Ministry of Health wrote to the Inspector General of Government apologizing for withdrawing the demand. (A copy of the letter is attached herewith and marked annexture “G”).
THAT on 19th September 2007 the Inspector General of Government wrote to the Permanent Secretary, Ministry of Health directing her once against to demand among others the said payments from me. (A copy of the letter is attached herewith and marked Annexture “H”).
THAT on 10th October 2007, the Permanent Secretary Ministry of Health on directive of the IGG wrote to me through the Speaker of Parliament purporting to implement the IGG’S Report in respect of the alleged mismanagement of funds from the Global Alliance on Vaccines and Immunisation (GAVI). (A copy of the letter is attached herewith and marked annexture “I”).
THAT the demands in the letter of 10th October 2007, which require me among others to refund monies are unfounded and baseless as the said sums have already been paid and there is a pending criminal case in respect of the same monies which charges I denied. (Attached is a copy of a letter dated 27th June 2007, with accompanying evidence of payment of the sums in issue and the charge sheet marked annexture “J” and “K” respectively.)
THAT I am informed by my lawyers, Kampala Associated Advocates which information I verily believe to be true that the above demands and directives by the IGG, if implemented would prejudice my constitutional petition, as well as the pending criminal case in the Magistrate’s Court.
THAT I know there is a high likelihood of success of the aforesaid petition as the Report was made in contravention of the law and offended the rules of natural justice.
15. THAT I will suffer irreparable injury if the above demands and directives which are derived from the Report of Investigations into the alleged Mismanagement and Abuse of the Global Alliance for Vaccines and Immunisation (GAVI) Funds are implemented, before the final determination of the pending matters in the Courts of Judicature.
THAT I am further informed by my lawyers Kampala Associated Advocates which information I verily believe to be true that my petition will be rendered nugatory if this application is not granted, as the respondents have indicated their intention to invoke article 83(1) (e) of the Constitution and sections 35(c) and 20(3) of the Leadership Code and demand my dismissal from Parliament.
It is in the interests of justice that this application be granted and also as a safeguard against the abuse of court process by the respondents.
I swear this affidavit in support of an application for interim orders pending the disposal of the main application.
The petition is opposed by the Inspector General of Government, the 2nd respondent. The opposition is contained in the affidavit of Hon. Justice Faith Mwondha, the IGG, deponed to and filed on 24.10.2007. Since it is a detailed response to Hon. Muhwezi’s affidavit in support of the Notice of Motion, it is only fair that I also set it out un-edited in order to balance the picture as follows:-
“1. That I am a female Ugandan adult of sound mind.
2. That I am the Inspector General of Government and depone to this affidavit in that capacity.
3. That I have carefully and critically read and analysed the averments of Miscellaneous Application No.18 of 2007 [Arising from Misc. Application No.17 of 2007 and Constitutional Petition No.10 of 2007] plus the annextures thereto from which I have respectfully established no merits.
4. That it is not in dispute that the applicant/petitioner filed Constitutional Petition No.10 of 2007 on 4th May 2007 and the same petition was fixed for hearing on 17th July 2007. A copy of the hearing notice and scheduling timetable is attached hereto and marked annexture “A” and “B” respectively.
5. That I am reliably informed by counsel handling the petition and I believe the same to be true that another scheduling timetable was designed interparties before the Registrar and the applicant/petitioner was to file written arguments by 27th July 2007 and for the respondents by 10th of August 2007.
6. That for reason best known to the applicant/petitioner on 26th July 2007 wrote to the Registrar and he instructed counsel to amend the petition to include matters that require constitutional interpretation arising from recent events. A copy of the said letter is attached herewith and marked annexture “C”.
7. That it is undisputed that the Inspectorate of Government Report of the Global Alliance for Vaccines and Immunisation (GAVI) funds of April 2007 implicated a number of people including the applicant/petitioner some of whom have complied with the recommendations of the report without challenging it in court. Attached are annexture marked “D1, D2, D3, D4, D5, 6, D7”.
8. That the applicant/petitioner has misunderstood and misconstrued the content of the letter of the Speaker of Parliament dated 20th August 2007, which was seeking for an opinion from the Permanent Secretary Ministry of Health before the letter could be forwarded to the applicant.
9. The applicant/petitioner deliberately misrepresented the contents of the Inspector General of Government letter dated 5th September 2007 which specifically stated that the applicant/petitioner failed to declare GAVI reward funds of US$4,361,000 to the inspector General of Government as required by S.10 (1) of the Leadership Code Act and breached S.10 (6) thereof and was liable under S.35(c) of the same Act to be warned in writing or be dismissed from Office.
10. That the aforesaid letter further warned that the petitioner was also in further breach and liable for unaccounted GAVI funds in line with article 164(2) of the Constitution and S.15 (7) of the Leadership Code Act and alternatively the 2nd respondent would be justified to invoke the provisions of article 83(1) (e) of the 1995 Constitution and section 20(3) of the Leadership Code Act as it was contained in the recommendations of the Report of April 2007.
11. That the 2nd respondent is mandated to enforce the provisions of the Leadership Code pursuant to articles 225(1)(d), 227, 230, 234, 235, 164(2) of the Constitution and sections 8(1)(d) S.14(7) of IGG Act No.5/2002 and section 10(6), 15(7) of the Leadership Code Act No.17 of 2002.
12. That the allegations of the applicant intended to restrain the 2nd respondent or the agents from enforcing the recommendations of the Report is irregular, baseless, ill-founded and should not be entertained by Court as it will occasion injustice to those who have complied with the recommendations.
13. That the endorsement of the Leadership Code Act No.17 of 2002 against the applicant petitioner by the 2nd respondent to recover the money is lawful and neither is it part of the charge sheet vide the criminal case nor does it constitute the petitioner’s pleadings in the petition to warrant a stay of enforcement.
14. That the hearing of Constitutional Petition No.10 of 2007 is being delayed or frustrated by the applicant/petitioner as revealed by the above foregoing paragraphs 4,5 and 6 hereof and this can not be used to circumvent or frustrate the constitutional powers and functions of the 2nd respondent as envisaged by the Miscellaneous Application No.18 of 2007.
15. That the denial of the charges in the charge sheet by the applicant/petitioner is not evidence that the applicant/petitioner was acquitted of the said offences and does not stop the enforcement of the recommendations falling under the Leadership Code Act No.17 of 2002.
16. That both Miscellaneous Application No.17 of 2007 and Constitutional Petition No.10 of 2007 from which this application is arising are both defective and misconceived and have no chances of success.
17 That the application is incurably defective, misconceived, incompetent and abuse of Court process.
18. That this affidavit is deponed to oppose Miscellaneous Application No.18 of 2007 [Arising out of Miscellaneous Application No.17 of 2007 and Constitutional Petition No.10 of 2007] and the applicant is not entitled to the reliefs sought.
19. That whatever I have stated herein above is true to the best of my knowledge and belief save for paragraphs 4,5,6,7 and 14 which are based on information whose source I have so disclosed.”
There is pending in this Court Miscellaneous Application No.17 of 2007 which is similar in all respects to this one except that it seeks for an order of injunction pending the disposal of Constitutional Petition No.10 of 2007 whereas this application seeks for an interim injunction pending the disposal of Misc. Application No. 17 of 2007. Due to the shortage of judges [It requires 5 Justices of Appeal] and the courts heavy schedule, the petition and Application No.17 are not likely to be heard till early 2008. Since this application was considered urgent, it was fixed for consideration for granting the interim orders if found to be appropriate. The application came up before me for hearing on 25th
October 2007. The applicant was represented by Mr. Oscar Kambona whereas the 1st
respondent was represented by Ms Margaret Nabakoza a State Attorney in the respondent’s chambers and Mr. Vincent Kassujja and Mr. Hosea Lwanga represented the 2nd
This being an application for interim orders of injunction, I did not encourage counsel to go into too many details as they will probably wish to do during the hearing of the main application. However the main considerations for granting this application are the same as those for granting or rejecting the main application, namely:-
That the court has jurisdiction to grant or not to grant the order sought for.
(b) That the suit from which the application arises discloses triable issues and is not frivolous and/or vexatious.
(c) That failure to grant the application would render the disputed matter nugatory in a manner that cannot be redressed through an award of damages.
I propose shortly to go through the evidence on record and counsels arguments to determine whether a case has been made out to grant the order of injunction. However, before I do that let me briefly dispose of a point of law which was raised by Mr. Kasujja on behalf of the 2nd
Mr. Kasujja submitted that this application is defective in as far as it cites the Court of Appeal Rules Directives of 2000 which do not exist. He contended that the application quotes the Court of Appeal Rules which are not applicable to this constitutional application. He submitted that the petition failed to cite Order 41(2) (1) and 52 of the Civil Procedure Rules which are relevant rules under which this application should have been brought. In his view, this application was defective for failing to follow the rules of procedure and should be rejected.
Mr. Kasujja’s second objection to the application was that it was supported by an affidavit full of falsehood which made it entirely defective. He cited paragraphs 2, 5, &12 of the affidavit in support of the motion which state that the Constitutional Petition No.10 of 2007 was filed on 8th May 2007 whereas a copy of the petition annexed to the affidavit shows that it was filed on 4th May 2007. In his view, that was a material falsehood.
The second falsehood was that the deponent asserted that all the money which was allegedly stolen was refunded, which is not true. The third falsehood was that the deponent asserted that he had pleaded not guilty to the charges against him at Buganda Road Court and yet he did not attach a copy pf the proceedings of that court to prove that he had pleaded not guilty. The fourth criticism was that the affidavit did not disclose the source of his information, knowledge and belief. He relied on Kabwimukya vs. Kesigwa  HCB 25 and Abdu Serunjoji vs. Sekitto  HCB 242. For all these reasons, Mr. Kasujja submitted that the application was defective and it should be rejected as incompetent.
Ms Margaret Nabakoza, learned counsel for the respondent associated herself with Mr. Kasujja’s submissions.
In reply, Mr. Kambona submitted that the application was in order. He stated that being an application in the Constitutional Court, it had cited the relevant provisions, namely article 137 of the Constitution, the Constitutional Court (Petitions and References) Rules, 2005 and rule 23 thereof which allows the court to apply the Civil Procedure Act and Rules made there under and the Judicature (Court of Appeal Rules). Regarding the alleged defects on the affidavit in support of the petition, Mr. Kambona submitted there were no defects at all but that if there were any, then they were minor and inconsequential. Mr. Kambona submitted that a fatal falsehood to the validity of an affidavit is that one which is intended to deceive. Referring to conflicting dates as to when Constitutional Petition No.10 of 2007 was filed, he contended that if the applicant had intended to mislead the court, it would not have annexed the petition itself which indicates the exact date on which it was filed. He dismissed the other alleged falsehoods and invited me to hold that the application was properly filed and is in order.
I will now briefly dispose of the two objections to this petition. The application states that it was filed under article 137 of the Constitution and the Constitutional Court (Petitions and References) Rules 2005. It also cites the other rules of the Civil Procedure Rules and the Rules of this court all of which are relevant to this petition by virtue of rule 23 of the Constitutional Court (Petitions & References) Rules 2005. Mr. Kasujja is quite right when he says that the “Judicature (Court of Appeal Rules) 2002” do not exist. The correct citation is “JUDICATURE [COURT OF APPEAL RULES] DIRECTIONS.”
However, the addition rightly or wrongly of “2000”
is not fatal to the application. This submission has no merit and it is rejected.
Regarding the falsehoods in the affidavit, I find no significant falsehood in the affidavit to justify invalidation of the affidavit. The affidavit contains matters within the knowledge of the deponent. It contains information he received from his lawyers and he states which that information is. The rest of the information he obtained from documents all of which he has mentioned and annexed to the affidavit. In my view, if it can be seen from the face of an affidavit how certain information in it was obtained, that is enough. The magic paragraph that the information was obtained from knowledge, information and belief is not necessary in those circumstances. Those are the technicalities to be avoided under article 126(2) (e) of the Constitution. In the result, I find that this application is properly before this Court and has no significant defects to justify rejection. The objection is overruled with costs to the applicant.
I now return to the merits of this application. The first matter to consider is whether this court has jurisdiction to entertain this application. The jurisdiction of this court to entertain this application was not disputed. I will therefore, move on to consider the more substantial issues which are contested by the parties, namely whether the suit from which the application arises discloses triable issues and is not frivolous and vexations, and whether failure to grant the application would cause irreparable damage to the applicant.
Whether Constiutional Petition No.10 of 2007 discloses triable issues:
From the affidavits of Hon. Jim Muhwezi and Hon. Justice Faith Mwondha, and from the petition whose copy is attached to this application, I gather that H.E. President directed Hon. Faith Mwondha, the Inspector General of Government [IGG] to carry out investigation into alleged mismanagement and abuse of the Global Alliance for Vaccines and Immunization (GAVI) Funds which was received and utilised in the Ministry of Health when the applicant was the Minister of Health. The report which was submitted by the IGG to the President appears to have implicated the applicant and other officials of the Ministry of Health. The applicant challenged the validity of the report in the High Court of Uganda, but the challenge was dismissed. He appealed to this court and the appeal is still pending. In the meantime the applicant filed Constitutional Petition No.10 of 2007 from which this application arises. The petition seeks the following declarations/orders:
“1. A declaration that investigations by the Inspector General of Government conducted into alleged mismanagement and abuse of the Global alliance for Vaccines & Immunisation (GAVI) funds on the directives and control of the President of the Republic of Uganda was in contravention of articles 225 and 227 of the Constitution of the Republic of Uganda 1995.
A declaration that the report by the IGG dated 5th April 2007 and addressed to the President and the recommendations therein is in contravention of article 231 of the Constitution of the Republic of Uganda 1995.
A declaration that the directive of the President to the IGG to arrest and prosecute your petitioners on the basis of the report date 5th April 2007 is in contravention of articles 28, 42 and 227 of the Constitution of the Republic of Uganda 1995.
An order that the report of the IGG dated 5th April 2007 is null and void and should be expunged for being inconsistent and in contravention of the Constitution of the Republic of Uganda.
A declaration that section 21 of the Inspectorate of Government Act No.5 of 2002 is unconstitutional to the extent to which it whittles away the underogable right to a fair hearing enshrined in articles 20(2), 28(1) and 44(c) of the 1995 Constitution.
A declaration that that section 21 of the Inspectorate of Government Act No.5 of 2002 is inconsistent with articles 20(2) and 42 of the 1995 Constitution to the extent to which it prohibits the proceedings, findings, recommendations, investigations or inquiries by the office of the Inspector General of Government (IGG) from being challenged, reviewed, quashed or called in question in any court of law.
A declaration that that section 34(2)(b) of the Leadership Code Act No.17 of 2002is inconsistent with articles 20(2) and 42 of the 1995 Constitution of the Republic of Uganda to the extent to which it restricts the procedure for challenging the inquiry, proceedings, process or report of the Inspectorate of Government to appeals only.
A declaration that the current IGG is holding office contrary to the principles of “separation of powers” and “the independence of the judiciary” enshrined in articles 128(1), (2) & (3), 129 of the Constitution.
A declaration that the IGG breached articles 20(2), 28(1), 42 & 44(c) and 225 (1) (a) of the Constitution when, in the course of her investigations and making the report she used various documents, to the prejudice of the petitioner without availing the petitioner copies thereof.
An order nullifying the IGG report and expunging it from the achieves of public records of Uganda for having been made in breach of the principles of natural justice and/or articles 20(2), 28(1), 42 & 44(c) & 225(1)(a) of the Constitution.
A declaration that that the IGG report and recommendations were made in breach of articles 12891), (2) & (3) and 223(3) (4) & (5) of the Constitution.
A declaration that the appointment of the IGG who issued the report and made recommendations against the petitioner was inconsistent with articles 139, 128, 144(2), (3), & 94), 224, 225 and 227 and was therefore void.
A permanent injunction against the respondents or their agents or employees from going ahead to implement the actions proposed in the IGG’s recommendations or at all.
Costs the petition.”
On or around the 22nd May 2007, the applicant together with other two former Ministers of State for Health were charged on the orders of the IGG, at Buganda Road Chief Magistrates Court, with the following offences:-
Abuse of office C/s 87(1) and (2) of the Penal Code Act.
(b) Causing Financial Loss C/s 269(1) of the Penal Code Act.
(c) Embezzlement C/s 268 of the Penal Code Act.
(d) Theft C/s 254 and 261 of the Penal Code Act.
The particulars of these charges allege that the offences were committed between February and October 2005 and that these officials committed these offences in the process of handling the GAVI funds.
With this background I must decide whether Constitutional Petition No.10 raises triable issues or issues for constitutional interpretation under article 137 of the Constitution. At this stage, I will not go too deep into this question. However, by virtue of having been a justice of appeal on this court for now over ten years and being quite aware of the application of article 137 of the Constitution, I am satisfied that Constitutional Petition No.10 of 2007 raises issues for constitutional interpretation. This is another way of stating that the petition raises triable issues and it is not, in my opinion, frivolous or vexatious. For guidance on the meaning of cause of action within the context of article 137 of the Constitution, see Ismail Serugo vs. KCC and Attorney General, Constitutional Petitition No.2 of 1998. Therefore this application fulfils the second criterion for the grant of an order of injunction sought.
Whether refusal to grant this application will cause irreparable damage to the applicant
In brief, the applicant wants an order of injunction to restrain the IGG, the Government of Uganda and any other relevant government agencies from enforcing the IGG report into GAVI funds until this court disposes of his Miscellaneous Application No.17 of 2007. If the order sought was to be granted, documentary evidence on record shows that this would entail.
Freezing all prosecutions and any other pending court actions against the applicant until Misc. Appl. No.17 of 2005 is completed.
b. Putting all demands by the IGG and any other government agency on the applicant to refund any GAVI funds allegedly lost, stolen or embezzled by him to a halt till the application is disposed of.
c. Suspending any attempt by the IGG or anyone else to remove the applicant from his seat in Parliament as a punishment for breach of the Leadership Code Act because of his alleged involvement in the loss of the GAVI funds till the application is disposed of.
I will now discuss, one by one, the viability of these remedies and whether refusal to grant them would cause irreparable damages that cannot be compensated by the grant of damages. In doing so, I take into account the pleadings of both parties on record and the submissions made by counsel during the hearing of this application before me in chambers.
Freezing pending court actions, including on going prosecutions:
Prosecution of the applicant for the offences I have mentioned above has began at Buganda Road Chief Magistrate’s Court. The charges have been preferred by the IGG and it is the IGG’s office which is conducting the prosecution. The question is: does the prosecution prejudice any constitutional rights of the applicant? It is a fact that the prosecution follows the report of the IGG into the GAVI funds but it could as well have followed a report of the Auditor General or from a police investigation. Even if the GAVI report was for any reason quashed or frozen by court order, the prosecution could legally continue because the success or failure of the prosecution does not depend on the strength or weakness of the GAVI report but on the credibility of the prosecution witnesses who would give their evidence independently of the GAVI report. Even if, in the unlikely event, the applicant was convicted before that application pending in this court is completed, mechanisms do exist in our justice system to extend his bail, to appeal against conviction or to obtain bail pending appeal. I do not think that refusal to grant this remedy would cause irreparable damage to the applicant.
However, a remark made obita dicta by Hon. Justice Joseph Mulenga in the Supreme Court Constitutional Appeal No.2 of 2002, Charles Onyango Obbo and Another vs. The Attorney General appears to suggest otherwise. In that case the appellants were charged in the Chief Magistrates Court with the offence of publishing false news contrary to section 50 of the Penal Code Act. They pleaded not guilty. Before the trial could begin, they filed a constitutional petition challenging the constitutionality of section 50 of the Penal Code Act. When the hearing of the petition came up, and despite the fact that counsel in the case agreed that the petition should be heard before the trial in the Magistrate’s Court, this court on its own volition refused stating the reason as follows:-
“It seems clear to us therefore that the purpose of this petition is to circumvent or even pre-empt the criminal prosecution. But as this court held in Const. Petition No.4/97 Arutu John vs. Attorney General where criminal proceedings are pending in another court and a petition is brought to this court in respect to the same matter, then the petition should be stayed pending the determination of the criminal matter in the trial court. Accordingly we order the petition be stayed pending determination of Buganda Road Court Criminal Case No.U.2636/97 against the petitioners.
The petitioners were eventually acquitted of the offences and they returned to this Court for their petition. The petition was decided 4-1 against the petitioners whereupon they appealed to the Supreme Court which ruled in their favour.
Commenting on the earlier decision of this court to decline to hearing their petition before the trial in the Magistrates Court, Hon. Mulenga, JSC observed:
“With greatest respect to the Constitutional Court, that order was misconceived. It is inconsistent with the letter and spirit of the Constitution. Under article 137, any person may access the Constitutional Court in one of two ways. First, a person may petition the Constitutional Court directly for a declaration that any law, act or omission is inconsistent with, or in contravention of a provision of the Constitution. Secondly, a party to any proceedings in a court of law, in which a question arises as to the interpretation of the Constitution, may request that court to refer the question to the Constitutional Court for decision. Clause (7) of article 137 provide that in either case, the court:
‘Shall proceed to hear and determine the petition as soon as possible and may, for that purpose, suspend any other matter pending before it.’
Where a court refers a question that arises in proceedings before it, it must await the decision of the question by the Constitutional Court, and ‘dispose of the case in accordance with that decision’. The rationale for these provisions is obvious. The Constitution is the basic law from which all laws and actions derive validity. Where the constitutional validity of any law or action awaits determination by the Constitutional Court, it is important to expedite the determination in order to avoid applying a law or taking action whose validity is questionable.” [Emphasis supplied]
The Hon. Justice B.J. Odoki, C.J. concurred with the Hon. Justice Mulenga, JSC and stated that this court
“was in error to suspend the hearing of the constitutional petition pending the conclusion of the criminal prosecution. The court should have heard the petition because constitutional cases take precedence over other cases.”
These pronouncements seem to suggest that if an accused is facing criminal prosecution and he/she files a constitutional petition to challenge the prosecution, then the prosecution should be halted till the constitutional petition is finalised. However, I do not think that their Lordships of the Supreme Court intended that result in all cases. In the Onyago Obbo case Justice Mulenga, JSC seems to have had in mind situations where there has been a constitutional reference to this court during the trial in the lower courts. Secondly, the pronouncements apply to situations where the constitutionality of the law under which the prosecution is being conducted is in issue. For example in Onyango Obbo case, the constitutionality of section 50 of the Penal Code Act, under which they were being prosecuted was in issue in the Constitutional Court. It would have been unjust for such a prosecution to continue when the law under which they were being prosecuted was being challenged. This is not the case in the instant case. The sections of the Penal Code Act under which the applicant is being prosecuted at Buganda Road Court are not being challenged. In such a situation, the prosecution can continue despite the challenge in the Constitutional Court of the truth and the manner of investigations leading to the charges in the criminal court. The trial court is capable of fairly and accurately pronouncing itself on the matter without prejudice to the accused. Where any prejudice occurs, the appeal system of this country is capable of providing a remedy. Was it to be otherwise, a situation would arise whereby anyone charged with an offence could rush to the Constitutional Court with a request to stop the prosecution pending hearing his challenge against the prosecution. In due course, this court would find itself engaged in petitions to stop criminal prosecutions and nothing else. This could result into a breakdown of the administration of the criminal justice system and affect the smooth operations of the Constitutional Court. It is for this reason that I decline to grant this remedy.
Putting a halt to demands for refund of GAVI funds.
I reproduced herebelow in full the letter from the Permanent Secretary Ministry of Health demanding the refund of GAVI funds from the applicant:
“10th October 2007
Hon. Brigadier Jim K. Muhwezi
Member of Parliament, Rujumbura
Thru: Rt. Hon Speaker of Parliament
IMPLEMENTATION OF THE IGG’S RECOMMENDATIONS IN RESPECT OF THE ALLEGED MISMANAGEMENT OF FUNDS FROM THE GLOBAL ALLIANCE ON VACCINES AND IMMUNISATION (GAVI)
I have been directed by the Inspector General of Government to communicate to you as follows:-
a) That while you were the Minister of Health you failed to declare the GAVI reward of US$4,361,000 to the Inspector General of Government as required by the Leadership Code Act, 2002.
b) That you failed to formally/officially notify H.E. the President about the award from GAVI, in contravention of article 117 of the Constitution.
c) That you failed to disclose receipt of the above money to the Minister responsible for Finance in breach of the Public Finance and Accountability Act, 2003 and attendant Regulations.
d) That you arrogated yourself the duties and powers of the accounting officer of the Ministry of Health by endorsing/approving the processing of requisitions for GAVI funds.
The Inspector General of Government wishes you to further note that you are liable to refund Ug.shs.445,643,000 and 33,000,000/= failing which you will be in beach of section 15(7) of the Leadership Code Act, 2002 or else the provisions of article 83(1) (e) of the Constitution as well as sections 35(c0 and 2093) of the Leadership Code Act shall be invoked against you.
For purposes of clarity, copies of the IGG’s directives to me are attached herewith. I have been guided that the IGG’s directives must be implemented without question or further consultation outside of that office.
Mary L. Nannono
This letter is copied to various Ministers and very senior Government Officials including the IGG herself.
This letter raises some serous constitutional problems as I shall show now. I have shown above that the applicant is facing charges of causing loss, embezzling, stealing and abusing his office in relation to the funds demanded in this letter. The applicant does not accept the charges and he pleaded not guilty to the charges. Doesn’t this demand prejudice the right of the accused applicant to a fair trial contrary to article 28(1) and (3) of the Constitution of Uganda?
The provision states:-
“28. Right to a fair hearing.
(1)In determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.
Every person who is charged with a criminal offence shall:
be presumed to be innocent until proved guilty or until that person has pleaded guilty:
It seems to me that a demand to refund the money which the applicant has denied stealing and for which he is currently standing trial would be a denial of the fair trial and the right to be presumed innocent guaranteed by article 28. The demand clearly presupposes or assumes that the applicant is guilty of the offences charged and he must now refund the money. In my view, once the Government or the IGG decided to charge in court the applicant with the offences arising from the GAVI funds, they lost the right to demand for refund of the money until the courts have pronounced themselves on the matter. The applicant cannot be forced to incriminate himself – that is what it amounts to – as this is unconstitutional. The right to a fair hearing of every citizen is sacrosanct. Under article 44(c) of the Constitution, it is inviolable and cannot be derogated from in any way. It provides:
“Art.44 Prohibition of derogation from particular human rights and freedoms.
Notwistanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-
freedom from torture, cruel, inhuman or degrading treatment or punishment;
freedom from slavery or servitude;
the right to fair hearing;
The right to an order of habeas corpus.” [Emphasis supplied]
The right to a fair hearing is one of the four rights and freedoms in our Constitution which are absolute. The demand for refund also prejudices the petition pending in this court and the appeal from the High Court review now also pending in the Court of Appeal. The denial of the right to a fair hearing cannot be adequately compensated with any among of money or any earthly possessions. I will grant this remedy.
Suspending the attempt to punish the applicant for alleged beach of the Leadership Code Act following the GAVI report.
Following my holding in the immediate preceding section of my ruling, it follows that it would be unconstitutional to punish the applicant for the alleged breach of the Leadership Code Act. The IGG wishes to invoke her powers under the Constitution and the Leadership Code Act to have the applicant removed from Parliament as Member of Parliament for Rukungiri Constituency. Article 83(1)(e) of the Constitution provides:-
“A member of Parliament shall vacate his or her seat in Parliament;
if that person is found guilty by the appropriate tribunal of violation of the Leadership Code of Conduct and the punishment imposed is or includes the vacation of the office of a Member of Parliament;” [Emphasis supplied].
In Constitutional Petition No.19 of 2006, John Lukyamuzi vs. The Attorney General and Anor this court held:-
“The IGG is the appropriate tribunal mentioned in article 83(1)(e) of the Constitution. He/she has the power to discipline/remove a Member of Parliament under that article.”
It should be noted that in the letter of the Permanent Secretary, Ministry of Health which I quoted above, paragraph (a) of the letter states:-
“That while you were the Minister of Health you failed to disclose GAVI reward of US$4,361,000 to the Inspector General of Government as required by the Leadership Code Act, 2002”
The punishment prescribed by section 35(c) of the Leadership Code Act for failing to declare gifts, among others, is dismissal. Under this provision, the applicant could be dismissed from Parliament if he is found guilty of the offence by the appropriate tribunal.
Now, I wish to briefly comment on the extract cited above from the judgment of this court in Lukyamuzi’s case. We said that the IGG is the appropriate tribunal referred to in article 83(1)(e) of the Constitution. This does not mean that the IGG is the only “appropriate tribunal” in that context. It means, in any opinion, that the IGG, until a tribunal is set up under the authority of Parliament, is the appropriate tribunal of the 1st instance. However, where her decision is being challenged in an appropriate court of law, every such a court vested with the jurisdiction, appellate or original, becomes the “appropriate tribunal”. In this context, the Chief Magistrate Court at Buganda Road where the IGG preferred charges, the High Court and the Court of Appeal which are handling the applicant’s and appeals for review and the Constitutional Court which could quash the findings of the IGG are also appropriate tribunals within the meaning of article 83(1)(e) of the Constitution. Therefore, when a matter arising from the orders or findings of the IGG is still pending in those courts, the person found “guilty” by the IGG is really not yet guilty until those proceedings have been closed. The presumption of innocence still applies to him/her. He/she cannot be punished under the Leadership Code Act until the matter is finalised in the other appropriate courts.
This case is distinguishable from the situation in Lukyamuzi’s case. At the time he was dismissed from Parliament, there was no case or appeal pending in any court and no any aspects of the IGG’s findings or orders was pending in any tribunal. At the time of the judgment of this court, the decisions of the IGG had become final and that is why she was pronounced to be the appropriate tribunal. That is not the case here. I also grant this remedy.
The meaning of this ruling is that I grant the order for injunction to the extent that:
It only applies to the applicant and nobody else.
(b) The prosecutions and other court actions arising from the GAVI report should continue as no prejudice is likely to occur after my orders in this application come into force. No irreparable damage is likely to occur between now and the disposal of Miscellaneous Application No. 17 of 2007.
(c) All demands on the applicant to refund GAVI funds should stop forthwith until the disposal of that application.
(d) All attempts to punish the applicant for alleged breach of the Leadership Code Act are hereby suspended until that application is finalised.
(e) The costs of this application should abide the results of Miscellaneous Application No.17 of 2002.
Dated at Kampala this……16th …….day of .. November ..2007.
Hon. Justice Amos Twinomujuni
JUSTICE OF APPEAL.