THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CONSITUTIONAL APPLICATION NO. 821 OF 2013
RICHARD MWAMI ================================= APPLICANT
ATTORNEY GENERAL ============================= RESPONDENT
CORAM: HON. MR. JUSTICE KENNETH KAKURU, JA
This Application is stated in the notice of motion to have been brought under Article 28 of the Constitution, Rule 2(2) 43 (1) (2) and 44 of the Rules of this Court and Section 98 and 64 (e) of the Civil Procedure Act.
It seeks to vary the bail terms upon which the applicant was released pending trial at the High court Anti Corruption Division. The variation sought relates to the release of the applicant’s Passport which he deposited at the High Court as one of the bail terms.
The brief background to this application as far as I could ascertain from the record before me is as follows:-
The applicant stands charged with the offence of Embezzlement contrary to Section 19 (b) (i) of the Anti Corruption Act 2009 and neglect of duty contrary to Section 2(i) and 26(2) of the same Act vide High Court Anti Corruption Division Criminal Session case No. 123 of 2012; Uganda Versus Patrick Ssentongo and others.
He stands accused of stealing 67.029/= Million shillings belonging to his employer MTN (U) Ltd in one Count and in another of stealing 3.759/= Billion shillings from the same employer.
While this case was pending hearing at the High Court, one David Wesley Tusingwire filed a petition in this court vide Constitutional Petition No. 2 of 2013. Apparently he also filed in the same court an application for stay of proceedings at the Anti Corruption Court pending the hearing and determination of the Constitutional Petition and Constitutional Application No. 6 of 2013. This Court then granted the orders staying proceedings at the Anti Corruption Court pending the hearing and the determination of the said petition.
The petition is still pending determination. The applicant then brought this application.
At the hearing of this application Mr. Fred Muwema learned counsel for the applicant appeared for the applicant who was present in Court.
Mr. Oburu Odio appeared for the respondent.
Mr. Muwema submitted that this court has jurisdiction to hear and determine this application. That the applicant’s case at the High Court awaits the determination of Constitutional Petition No. 2 of 2013 (supra). That he is an interested party in that petition as the outcome directly affects him. To that extent he argued he qualifies to be a party in that petition. He referred me to the case of Onyango Obbo and another versus Attorney General (Supreme Court) Constitutional Appeal No.2 of 2002 which is to the effect that where a matter is pending constitutional interpretation before this court proceeding relating to it in other courts out to be stayed pending the determination of the Constitutional Petition.
He contends that since the applicant’s trial was stayed by this court all matters now arising there from and related thereto could be determined by this Court.
He contends that the applicant requires access to his Passport in order to visit his children who study outside the jurisdiction of this court and also to be able to carry out his work which requires frequent travel abroad. He referred me to a host of authorities which I will revert to later. Mr. Oburu objected to this application and relied on the affidavit filed in reply by the respondent. He contended that the applicant is not a party to Constitutional Petition No. 2 of 2013 and as such he cannot bring this application as arising from that petition.
That this court has no jurisdiction to entertain a matter except where the interpretation of the Constitution is sought under Article 137 of the Constitution.
He contended that even if this application was properly before court, it could only be determined by a panel of three justices and not a single justice of this Court. This he argued was because the order staying the proceedings at the Anti Corruption Court was issued by a panel of three Justices of Appeal.
He submitted that this application ought to have been filed at the High court which has unlimited jurisdiction.
I have heard the submissions of both counsel, I have also read the pleadings and the authorities filed in this application, even those that are not directly referred to in this ruling.
The law cited by the applicant herein does not directly concern the issues raised in this application. Article 28 of the Constitution relates to the right to a fair hearing. It does not relate to bail. It relates to the presumption of innocence. However in this case the applicant is already released on bail a confirmation that he right of innocence has been upheld and protected by Court.
The rest of the provision of law cited relate to general powers of court. I do not think an application for bail or variation of terms thereof can be entertained under the general powers of court.
Be that as it may I am inclined to entertain this application in the form it has been presented, because it raises important issues of law that require to be settled.
The first issues raised in this application concerns jurisdiction of this court and locus standi of the applicant to bring this action. It was submitted by Mr. Muwema that this court has jurisdiction to entertain this application and grant the orders sought and the applicant has locus standi to bring this action.
He cited the case of Bassajabalaba and another versus The Attorney General Constitutional Application No. 9 of 2013.
In that case the applicants were parties to Constitutional Petition No. 12 of 2013 from which the application arose. This settled the issue of locus standi on their part. In this application the applicant is not a party to the Constitutional Petition No. 02 of 2013 from which this application is said to arise from.
In an application similar to this Magombe Joseph versus Uganda, Constitutional Application No. 61 of 2013 Hon. Justice Kiryabwire, JA had this to say on this particular point of locus standi.
“Applying the rules of procedure to this situation I am inclined to agree with counsel for the respondent as a stranger to the lead petition or application No. 6 of 2013 cannot file an independent application (originating from the other two) because he has no locus standi to do so”.
I agree entirely with the above proposition of the law. The applicant has no locus standi to bring this action. If he wished to be joined as a party to the lead petition he would have to do so, he has not. The case of Onyango Obbo (supra) does not apply. The facts were different. I do not agree that every person effected by or who claims to have an interest in constitutional matters can be regarded as party. The lead petition herein seems to have been brought in public interest. In my understanding every member of the public has an interest in that petition. It cannot be stated that every member of the public is a party to that petition. Public interest suit differs from a representative suit.
See The Environmental Action Network versus The Attorney General and The National Environment Management Authority High Court Miscellaneous Application No. 39 of 2001 cited with approval of this Court is Davis Wesley Tusingwire case (supra).
On this ground alone this application would fail. However I will proceed to determine the other issues raised in this application in the interest of justice and for clarity.
Mr. Muwema first argued that the Wesley Tusingwire Ruling stayed the proceedings at the anti Corruption Court including the High Court.
The orders made in that ruling are as follows:-
- The criminal proceedings currently going on in the High Court Anti Corruption Division at Kololo before, and those arising from, the Chief Magistrate and Magistrate Grade 1 or any other Magistrate attached to the HCACD at Kololo be and are hereby stayed pending the disposal of Constitutional Petition No. 2 of 2013 or until such other or further orders of this Court.
- The orders made herein shall not have retrospective application to proceedings taken and concluded by the HCACD prior to the delivery of this ruling.
- The costs of this application shall abide the outcome of Constitutional Petition No. 2 of 2013.
Clearly the proceedings that were stayed by the above order were those before and arising from the Chief Magistrate, Magistrate Grade 1 and any other Magistrate attached to that court.
The order did not effect the High Court in any way. It was conceded by Mr. Muwema that the applicant’s bail is still being renewed by the High Court, a clear admission that the court is operational and was never shut down by the said order.
If the order had the effect of shutting down the High Court then the applicants’ bail would have lapsed long ago and I would have nothing to vary. There is no such a thing as indefinite bail. Bail is renewable periodically and lapses if it is not.
If it is the argument of counsel for the applicant that the High court was shut down, then he would be inviting me accordingly make an order remanding the applicant in prison as his bail would have lapsed.
This is a very self defeating argument that does not make sense to me at all in this application.
I agree with my brother Justice Kiryabwire, JA in Magombe case (supra) that the High Court of Uganda was not in any way affected by the Ruling in Tusingwire case (supra. The applicant is therefore free to make this application in the High Court. The Constitutional Court has original jurisdiction under Article 137 to interpret the Constitution and to deal with other matters arising there from provided they arise out of a matter that requires constitutional interpretation.
See Attorney General versus Major General David Tinyefuza Supreme Court Constitutional Appeal No. 1 of 1997.
This is not one of those cases. The constitutional court has no original jurisdiction to entertain bail applications or vary bail terms.
Even if this application had been properly brought under the lead petition that is The Wesley Tusingwire case (supra) I would still have dismissed it on account that that petition has no likelihood of success on the face of it. It discloses no questions for constitutional interpretation at all in my view.
There is only one High Court in Uganda established under Article 139 of the Constitution. In the exercise of its unlimited original jurisdiction by law it requires the support of subordinate courts. It does not and cannot exercise its criminal jurisdiction in isolation of other Courts of Judicature above or subordinate to it.
Section 1 of the Trial on Indictments Act (Cap 23) stipulates as follows:-
- Jurisdiction of the High Court.
The High Court shall have jurisdiction to try any offence under any written law and may pass any sentence authorized by law: except that no criminal case shall be brought under the cognizance of the High Court for trial unless the accused person has been committed for trial to the High Court in accordance with the Magistrates Court Act”
Accordingly it is envisaged that at all times the High Court exercises its jurisdiction in Criminal matters with support of Magistrates Courts. Suffice it to say in my view prima facie that petition discloses nothing for constitutional interpretation in any event is frivolous.
Even if that was not the case I would still have declined to grant this application because I am not satisfied that the grounds set out in the notice of motion and the accompanying affidavit disclose a sufficient reason to vary bail conditions. Bail by necessity entails restrictions. This is basically to ensure that the accused turns up for trial. Many factors are taken into consideration before bail is granted and conditions are imposed.
In this particular case the applicant is charged with stealing colossal sum of money in Billions of Shillings. It is extremely important that he remains within jurisdiction of this Court. I was not availed the Ruling of the High Court granting bail to the applicant and as such I am unable to ascertain all the conditions that were set and the reasons that were given for imposing those conditions.
As an accused person he must accept to forfeit some of his freedoms and luxuries. His employers or partners must know that they employed a person who is charged with serious criminal offences. They must accept that restrictions have been lawfully imposed on him, by courts of law.
His children too must accept that their father is charged with stealing colossal sums of money and as such his movements have been restricted by court. He is at liberty to find for them schools within the jurisdiction of this court. This does not in any way limit his constitutional right of presumption of innocence. I find the reasons for variation of bail conditions frivolous and untenable.
I find no merit whatsoever in this application and I dismiss it accordingly, with costs to the respondent.
Dated at Kampala this....13th.... day of ....December..., 2013
HON. KENNETH KAKURU
JUSTICE OF APPEAL.