Attorney General v Sundya and 5 Others (Constitutional Application 26 of 2022) [2023] UGCC 118 (26 May 2023)

# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT **KAMPALA**

#### **CONSTITUTIONAL APPLICATION NO. 26 OF 2022**

(CORAM: Buteera, DCJ, Bamugemereire, Kibeedi, Mulyagonja and $\mathsf{S}$ Kihika, JJCC

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: **VERSUS**

#### 1. SUNDYA MUHAMUDU

- 2. CHESAKIT MATAYO - 3. MUHWEZI PONSIANO :::::::::::::::::::::::::::::::::::: - 4. OMOLLO BEN - 5. OPOLOT BEN - 6. GODFREY MPAGI & 563 ORS

(An application arising from Constitutional Petition No. 24 of 2019 15 before: Egonda, Madrama, Kibeedi, Mugenyi, Gashirabake, JJCC at the Constitutional Court delivered on 2<sup>nd</sup> December 2022)

### **RULING OF THE COURT**

The applicant brought this application by Notice of Motion $20$ under rules $6(2)$ (b), $2(2)$ , $42(1)$ , $43(1)$ & (2) of the Judicature (Court of Appeal Rules) Directions S. I 13-10 seeking orders that;

1. This Honorable Court issues a stay of execution of the orders of the Constitutional Court in Constitutional Petition No. 24 of 2019 until the final disposal of the Appeal.

2. Costs of the application be in the cause.

The grounds of the application are set out in the affidavit of Jonathan Muwaganya, a Chief State Attorney in the office of the 30 Director of Public Prosecutions, but briefly are that: Judgment

in Constitutional Petition No. 24 of 2Ol9 frled by the respondents was delivered on 2"d December 2022. The applicant being dissatisfied with the declarations and orders therein lodged an appeal in the Supreme Court. That the s intended appeal to the Supreme Court raises Constitutional and legal issues, which have a high likelihood of success and the intended appeal will be rendered nugatory if the orders and declarations in the impugned judgment are not stayed, pending the determination of the appeal in the Supreme Court.

I

- 10 The respondents in an affidavit in reply deponed by Godfrey Mpagi, the 6th Respondent, on behalf of all the respondents stated that; the intended appeal has no reasonable chances of success. Further, that the applicant's intended appeal will not be rendered nugatory if the judgment and orders of the 15 Constitutional Court are overturned on appeal. - He further deponed that the state has the capacity through the Police, Judiciary, Prisons and Local Council systems to rearrest the released inmates if the judgment and orders of the Constitutiona-l Court are overturned on appeal and the zo respondents are ordered to return to prison to serve the full term of the disputed sentences. He added that the balance of convenience weighs in favour of the respondents thus it's just and equitable that this application be dismissed. Mr. Godfrey Mpagi further deponed that should this court be inclined to find zs that the intended appeal raises matters of general public importance, this is a matter ripe for grant of a conditional stay of execution in the following terms:

- <sup>I</sup> That the learned Attorney Genera-l executes a written undertaking to compensate each of the affected inmates with a fixed sum of UGX 1OO,O0O,000/= (One hundred million shillings) as compensatory damages for illegal detention without any further recourse and/or need for the High Court application in the event that the Supreme Court upholds the verdict of the Constitutional Court. - That the respondents and their counsel be permitted to fundraise for the appeal by way of crowd funding and other means suitable for potential donors and sponsors. 11. - That the record of proceedings and other Administrative matters be administratively fast-tracked and/ or expedited to have the appeal ready for the next immediate session of the Supreme Court. lll

### Representation

At the hearing of the application, Mr. Jeffrey Atwine, Ag. Commissioner Civil Litigation, and Mr. Mark Muwonge, State Attorney, appeared for the Applicant while Mr. Eron Kiiza and Ms. Joseline Kengozi appeared for the respondents. Both counsel filed their submissions which were adopted by court, and the ruling was fixed for delivery on notice.

## The Applicant's arguments

Counsel for the applicant submitted that there are <sup>5</sup> considerations for the grant of an order of stay of execution; 25

1. The lodgment of a Notice of Appeal and request for certified copies ofthe record ofproceedings to hle the appeal;

2. That the appeal has a high likelihood of success.

- 3. That the applicant's appeal will be rendered nugatory if the stay of execution is not granted. - 4. lf 2 and 3 above have not been established, the Court must establish where the balance of convenience lies and

5. That the application was lodged without undue delay.

Counsel relied on rule 6 (2) (b) of the Rules of this Court and the Supreme Court's decisions in National Housing Construction Corporatlon v Kampala District Land Board SCCA No. 6 of 2OO2, Akankwasa Damian v Uganda SCCA No. 7 e 9 of 2Ol1 and Theodore Seklkuubo & Ors v Attorney General & Ors SCCA No. 6 of 2013, 10

Regarding the first ground counsel submitted that on 12th December 2022, the Applicant filed a Notice of Appeal and a letter requesting for certified copies of the record of proceedings and the judgment. Further, that rule 6 (2) (b) of the Rules of this Court provides that the court may, where a Notice of Appeal has been lodged under rule 76 of the Rules, order a stay of execution on such terms as the court may think just.

Reference was made to Attorney General v Eddie Kwizera SCCA No. 1 of 2O2O where it was noted that rule 6 (2) (bl gives discretion to the Court, where a Notice of Appeal has been lodged in accordance with rule 76 of the Rules of the court, to order stay of execution in circumstances where it deems fit. 25

It was counsel's submission that ground t has been satisfied as the applicant filed a Notice of Appeal on 12s December 2022 and the s€une was served on the respondents.

Regarding the 2"d ground, counsel for the applicant contended 5 that the appeal has a high likelihood of success as it raises serious points of law that warrant consideration by the Supreme Court. Counsel submitted tlat the intended appeal would demonstrate, inter alia, that the Justices of the Constitutional Court erred when they reviewed the decision and

- 10 order of the Supreme Court in its appellate Jurisdiction in Attorney General v Susan Kigula &, 417 Ors CP No. 9 of 2o,o,6. Further that the Justices erred when they held that sentences between 2l and 73 years do not have any enabling legislation prescribing such penalties in breach of Arttcle 28 (8) - 1s and (12) of the Constltutlon.

It was counsel's argument that in determining the likelihood of success of the appeal, the Court need not determine the constitutionality of the violations complained about at this stage, as those are to be determined during the hearing of the

20 appeal. Counsel referred to Davis Wesley Tusingwire v Attorney General SC Constitutional Application No. I of 2014.

On the 3.d ground, counsel submitted that the appeal would be rendered nugatory if the orders and declarations in the 25 impugned judgment were not stayed pending the determination of tJ:e appeal. Counsel argued that the convicts whose sentences are 21 years and above shall be released from

custody if they have been in custody for more than 20 years. Counsel further argued that the main purpose of the application is to preserve the status quo to safeguard the applicant's right ofappeal pending the disposal ofthe appeal. He cited Theodore

- 5 Ssekikuubo & Ors v the Attorney General & Ors (supra). Counsel referred to Attorney General V Hon. Mlchael Kabaziguruka SCCA No. 5 of 2O2L where the Constitutional Court ordered anyone charged before the Court Martia-l to be transferred to civilian courts within 14 days. The Supreme 10 Court ruled in the applicant's favor that if the appeal were successful, the suspects whose files had been forwarded had to be traced, rendering the appeal nugatory. That maintaining the status quo would not prejudice the suspects who were on trial. Regarding Ground 4, counsel submitted that the balance of 15 convenience is in favor of the applicant because tJ:e respondents are still in custody of the Uganda Prisons Service. - Counsel relied on the Kabaziguruka's case (supra) where the applicant's counsel argued that the applicant would face a lot of inconvenience in retrying all the convicts if the orders were 20 executed and Court found that the balance of convenience was in favor of thc applicants. It was counsel's contention that if the - orders of court are executed in this matter, the convicts who are serving between 21 to 73 years ought to be released from custody which will cause a lot of inconvenience to the prison 25 authorities thereby rendering the appeal nugatory because all the convicts who would have been released from custody would have to be traced if the appeal were allowed.

On the 5th ground, counsel for the applicant submitted that this application was lodged without undue delay. The judgment was delivered on 2"d December 2022. The Notice of Appeal dated 6th December 2022 was filed in Court on l2rh December 2022. This 5 was only 10 days after the Judgment, and therefore in compliance with Rule 76 (21 of the Judicature (Court of Appeal Rules) Directions S. I.i3-10. This application is dated 20th December 2022 and was filed in Court on22nd December 2022. It was counsel's conclusion that this application has been 10 brought without inordinate delay and premised on his earlier arguments.

Counsel submitted that the application has merit and meets the threshold and benchmark for issuance of the remedies sought. He cited the Supreme Court decision in Attorney General v

1s tddie Kwizera SCCA No. 1 of 2O2O to support his position. He prayed that the application be allowed.

### The respondents' submissions

20 Regarding the 1"t ground, counsel for the respondent submitted that the applicants filed their application after severa-l days on 22nd Decernber 2022 but did not serve the respondents with their application. Counsel added that the respondents were only served with the submissions on 6th Februar5r 2023 to which they have filed this reply. Counsel prayed that on that premise, the

application for stay should not be granted. Regarding the 2"d ground, counsel submitted that the appeal does not have a likelihood of success because the issues raised 25

by the applicant were unanimously agreed upon after a detailed analysis by the justices of the Constitutional Court. Counsel contended that the Constitutional Court holistically evaluated the Constitution, the Prisons Act, Cap 304, the Penal Code Act 5 Cap 120, the Law Revision (Penalties in Criminal Matters)

Miscellaneous (Amendment) Act, 2Ol9 and other relevant case 1aw.

It was counsel's submission that the grounds of appeal formulated by the learned Attorney General in criticizing tJ.e 10 unanimous decision of the learned Justices of the Constitutional Court are general rehearsals and do not point to any specific error of law, wrong application of legal principles, or venturing into unpleaded issues by the Constitutional Court. Counsel argued that there could be no prima facie case 1s established by poorly framed grounds of appeal which offend the provisions of order 43 rrle 1 and 2 of the Civil Procedure Rules which require a memorandum of appeal to set forth concisely the grounds of objection without any argument or narrative. Counsel prayed that court finds this ground in the 20 negative.

Regarding the 3.a ground, counsel submitted that the applicant will not suffer irreparable injury or damage if the stay is not granted. Counsel argued that the prison authorities have the contact details of all the incarcerated respondents, making it easy to locate them. It was counsel's contention that there were

B

convicts who were granted bail and their trials were not rendered nugatory.

Counsel submitted tl:at the case of Kabaziguruka (supra) relied on by counsel for the applicant is different in material facts from

- 5 the present application as the convicts had not served lawful sentences and the Court Martial was ordered to forward liles to civil courts within 14 days while in tJre present application, all the respondents were lawfully sentenced and majority who have served 20 years and above ought to be set free already. Further, - 10 counsel contended that the court could still proceed to hear any matters of public importance with the respondents out of custody without perpetrating illegal detention and/or fa-lse imprisonment.

It was counsel's argument that it is the respondents who would

15 suffer irreparable damage in the event that the court grants the applicant's prayer for stay of execution because there is no amount of damages and/or compensation that can atone for the injustice of serving illegal prison sentences as was declared by this Honorable Court.

20 Counsel for the respondent submitted that should this court find that the intended appeal raises matters of general public importance which warrants pronouncement by the highest court, it should be inclined to grant a conditional stay of execution in the terms herein; that the learned Attorney General 25 executes a written undertaking to compensate each of the affected inmates with a fixed sum of UGX 1OO,OOO,000/=(One hundred million shillings) as compensatory damages for illegal detention without any further recourse and/or need for tJ.e High Court application in the event that tJre Supreme Court upholds the verdict of the Constitutional Court. Counsel contended that this prayer arises out of the requirement that securit5r must be given for the due performance of the decree.

## Consideration of Court

We have read the pleadings and considered the law and submissions of both counsel.

10 Rule 6 (2) (b) of the Rules of this Court provides that;

"Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these 15 Rules, order a stay of execution, an injunction, or a stay of

proceedings on such terms as the court may think just.' This rule implies that an application of this nature should be made after a notice of appeal has been filed.

In Dr. Ahmed Muhammed Kisuule v Greenland Bank (in 20 Liquidationl SC Misc. Application No. 7 of 2O1O; and Hon. Theodore Ssekikubo & Ors v the Attorney General & Ors Constitutional Application No. O3 of 2o14, court set out the conditions for grant of stay of execution thus:-

"For an application in this Court for a stay of 25 execution to succeed, the appllcant must first show subject to other facts in a given case, that he/she has lodged a notice of appeal in

accordance with rule 72 of the Rules of this Court. The other facts which lodgment of the notice ofappeal is subject vary from caae to case but include the fact that the appllcant will suffer lrreparable loss if a stay is not granted, that the appellaut's appeal has a high likelihood of 8UCCeSS."

It is the paramount duty of court to which an application for stay of execution pending appeal is made to see to it that the appea-l, if successful, is not rendered nugatory. The Court has, in a number of cases laid down the principles governing the exercise of the discretion conferred by rule 6(2) (b). 10

In Dr. Ahmed Muhammed Kisuule v. Greenland Bank (In Liquidation) Civil Application No. O7 of 201O, the Supreme Court held that:

> (f'or an application in this court for a stay of execution to succeed, the applicant must flrst show, subject to order facts in a glven case, that he/sbe has lodged a notice of appeal in accordance with rule 72 of lhe Rules of this court. The other facts to which lodgment of the notlce of appeal is subject, vary from case to case but include the fact that the appllcant wlll suffer irreparable loss if a stay is not granted; that the applicant's appeal has a high llkellhood of success.

The most often cited authority in application of this type is Lawrence Musiitwa Kyazze - vs -Eunice Busingye, Civil Application No. 18 of 1990, in which this court held that "Parties asking for a stay" should meet conditions like: $(1)$

that substantial loss may result to the applicant unless the order is made.

$(2)$

- that the application has been made without unreasonable delay. - $\overline{3}$

that the applicant has given security for due performance of the decree or order as may *ultimately be binding upon him.*" (Sic)

In Hon. Theodore Ssekikubo & Others v The Attorney General & another, Constitutional Application No. 06 of **2013** the principles were clearly restated as follows:-

"In order for the Court to grant an application for a stay of execution;

(1) The applicant must establish that his appeal has a likelihood of success; or a prima facie case of his right to appeal

(2) It must also be established that the applicant will suffer irreparable damage or that

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the appeal wlll be rendered nugatory { a stag ls not granted..

(3) IJ 7 and 2 qborn haue not fuen establlshed, Court must conslder uthere the bo,lance of conuenlence lles.

(4) That the appltcant must qlso estobllsh that the appllcatlon was Tnstltttted wtthout delay."

We shall proceed to consider whether the applicant has complied with each of the requirements mentioned in the cases above. 10

With regard to the hrst requirement, which is to the effect that the applicant must have lodged a Notice of Appeal, we have perused the pleadings of the applicant and respondents on the

- court file. Attached to the applicant's Notice of Motion is the Notice of Appeal. It was hled on 12ti, December 2022. This was 10 days after the Judgment was delivered. Rule 76 l2l of the Court of Appeal Rules requires a Notice of Appeal to be lodged within fourteen days after the date of the decision against which 15 - it is desired to appeal. The applicant, clearly lodged the Notice of Appeal in time, thus satisfying the first requirement. Regarding the second requirement, counsel for the applicant submitted that the appeal has a high likelihood of success as it raises serious points of law that warrant consideration by the 20 - Supreme Court. Counsel for the respondents argued that the appeal does not have a likelihood of success because the issues 25

raised by the applicant were unanimously agreed upon after a detailed analysis by the justices of the Constitutional Court. In determining the likelihood of success of the appeal, Court need not determine the merits of the appeal at this stage, as s they are to be determined during the hearing of the appeal. However, it should consider whether the appeal has a high likelihood of success. It has to examine if the appeal has some prospect of success or if there is a substantial question of law to be adjudicated upon in Attorney General v. Eddie Kwizera; 10 Constitutional Application No. O1 of 2O2O, tJre Supreme

Court had this to say:

"In determining the ltkelihood of success of the appeal, the Court need not determine the constitutionality of the violations complained 15 about at this stage as those are to be determined during the hearing of the appeal. See J. W. R. llazzoora v. M. L. S. Rukuba (supra) and Davis Wesley T\rsingwire vs. Attorney General, (Supreme Court Constitutional Appllcatlou No.1 20 of 2Ol4l. In the case of Davis Wesley Tusingwire vs. Attorney General (supra) this is what the court stated:

ttWe are of the view that at this stage we cannot go into the Constitutionality of the Directions 2s issued by the Chief Justice. Those arguments will be considered at the appeal stage."

We agree and are abound by the authority above quoted.

1.+

In our view, the intended appeal raises serious issues for the consideration of the Supreme Court on appeal. We shall however, not consider the merits of the Appeal as that urill be determined by the appellate court. We, therefore, find that this 5 ground is also satisfied.

Concerning the 3.d requirement, counsel for the applicant argued that the appeal will be rendered nugatory if the stay is not granted since the convicts whose sentences are 21 years and above will have to be released from custody. It was argued for the respondents that the prison authorities have the contact details of all the incarcerated respondents, making it easy to locate them thus no irreparable injury would be suffered by the applicant hence the appeal will not be rendered nugatory.

In Lawrence Musiitwa Kyazze v Eunice Busingye (supraf, it was noted that, an application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his/her undoubted rights of appeal are safeguarded and the appeal if successful, is not rendered nugatory."

Also in Wilson v Church (No. 2) [1879] L2 C}l.. D 45c) Cotton L. J when speaking of an appeal from the Court of Appeal to the House of Lords noted:-

"Where a party is appealing, exercising his undoubted right ofappeal this Court ought to see that the appeal ifsuccessful is not nugatory"

This Court must therefore ensure that an appeal if successful, is not rendered nugatory. The issues raised by the applicant point to matters that do not only affect the rights of the 5 respondents but the entire country in terms of convicts who were sentenced to more than 21 years. As argued by counsel for the applicant, some of the respondents were charged and convicted of offences like Murder, Aggravated Robbery, Rape, Aggravated defilement, among others. The status quo in this 10 case is that the respondents are inmates serving long sentences

between 2l and 73 years. From the supplementary affidavit of Ambrose Ocol, a State Attorney in the applicant's chambers, dated 21"t February 2023, under paragraphs 2-3 thereof, it is evidenced that there is imminent threat to execute and alter the 15 status quo.

If the execution is allowed and orders of this Court implemented, the applicant's appeal before the Supreme Court will be rendered nugatory. The main purpose of this application is to preserve the stattrs qLro so that the applicant's right of

20 appeal is sa-fe- grarded pending the disposal of the appeal. See Hon. Theodore Ssekikuubo & others v. Attorney General (supra).

The above reasoning equally justifies the need to maintain the status quo pending the disposal of the appeal. In National

zS Enterprise Corporation v Mukisa Foods CA Civil Application No. 7 of 1998; Court held as follows;

"The Court has power in its discretion to grant stay of execution where it appears to be equitable so to do with a view to temporarily preserving the status quo."

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It is therefore our considered view that the applicant has satisfied the $3<sup>rd</sup>$ requirement.

Regarding the requirement for the application to be made without undue delay, we have studied the court record. The $10$ judgment in Constitutional Petition No.24 of 2019 was delivered on $2^{nd}$ December 2022. The Notice of Appeal was filed in court on $12^{th}$ December 2022. This Application was filed in court on $22<sup>nd</sup>$ December 2022. The applicant complied with Rule 76 (2) of the Court of Appeal Rules. It is therefore our view that this 15

In the circumstances of this application and for the reasons advanced above, we find that the applicant has satisfied the conditions for the grant of a stay of execution. We accordingly 20 allow this application and order as follows:

Application was filed without undue delay.

- 1. Execution of the orders in Constitutional Petition No. 24 of 2019 is hereby stayed until final disposal of the applicant's appeal by the Supreme Court. - 25

**Bot the appear.** Dated at Kampala this $\mathcal{L}$ day of $\mathcal{M}$ and $\mathcal{M}$ . 2023.

<sup>2.</sup> The costs of this application shall abide the outcome of the appeal.

Deputy Chief Justice

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Catherine K. Bamugemereire Justice of the Constitutional Court

Muzamiru M. Kibeedi

Justice of the Constitutional Court

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Irene Mulyagonj

Justice of the Constitutional Court

Oscar John Kihika Justice of the Constitutional Court

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