Col. (Rtd) Dr. Kiiza Besigye and 22 Others v Attorney General (Constitutional Petition 12 of 2006) [2007] UGCC 9 (12 January 2007)

Full Case Text

## IN THE CONSTITUTTONAL CO LTRT OF UG/LNDA THE REPLI'BLIC OF UGANDA AT I{{\,{PATA

# CORAII: HON MR. JUSTICE G'NI' OKELLO' JA HON rv-tR. JUSTICE A' TWINOMUJUM' JA HON LADY JUSTICE C. N. B KITfD{BA, JA HON LADY JUSTICE C. K' BYAMUGISHA, JA HON IVIR. JUSTICE S. B. K KAVT]-iVIA, JA

#### CONSTITUTIONAL PETITION NO 12 OF 2006

#### BETWEEN

### COL(RTD)DRKIIZABESIG\. EAND22OTHERS:::::::PETITIONIIRS

#### AND

## TTIE ATTORNEY GENERA. L : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT

#### JUDGNIEN T OF THE COURT:

This petition was brought under Articles 137(3) and 50(1X2) of the Constitutron of The Republic of Uganda,1995, challenging the manner in which the trial of the petitioners was being conducted in the High court as being iaconsistent with anumber of provisions of the Constitution. The petitioners, therefore, sought the following deciarations: -

(a) That the continuation of the trial of all the petitioners(for treason and misprision of treason in the tligh Court in High CourtCriminalCaseNog55of2005,whenl'lofthepetitioners who had been granted bail by the lligh Court, (hereinafter referred to as the bailed petitioners) continue to be detained under the order of the General Court rv-lartial (GCNQ, whose proceedings had been declared unconstitutional by the Constitutional Court in Constittttional Petition No 18 of 2005 - Llganda Law Society vs Attorney General, is inconsistent with or contravenes Articles 28(1), 28(3), 14(c), 128(1)+ (2) and 137(3) of the Constitution:

- (b) That the continued detention of the bailed petitioners, inspite of the fact that they had been granted bail by the High Court and the fact that the proceedings of The GCM in Case No UPDF/GEN/075 of 2005, under which the Prisons Authorities continue to detain the bailed petitioners, were declared unconstitutional by the Constitutional Court in constitutional Petition No 18 of 2005, contraYenes Articles 21(1), 23(1)' 23(6), 128(1) & (2) and 137(3) of the Constitution: - (c) That the continued prosecution of the petitioners for treason and misprison of treason in the High Court Criminal Case No 955 of 2005, when the bailed petitioners are continued to be detained by order of the GCNI, whose proceedings under ryhich the bailed petitioners are continued to be detained, were declared unconstitutional by the Constitutional Court in Constitutionat Petition No 18 of 2005, contravenes Articles 120(5) of the Constitution:

That the failure of or refusal by the Director of Public Prosecutions to give to the petitioners or their counsel any adequate advance information of the precise nature and substance of the evidence against them, including the names of the witnesses that the prosecution intends to call and copies of their witness statements or a precis of what each witness would say, contravenes Articles $28(1)$ , $28(3)(a) + (c)$ and $44(c)$ of the **Constitution and**

$(d)$

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That section 168(1) & (2) of the Magistrates' Court Act (Cap $(e)$ 16 of Laws of Uganda) is inconsistent with Articles 28(1), $28(3)(a) + (c)$ and $44(c)$ of the Constitution.

The petitioners also sought for redress. They prayed that the trial of the petitioners for treason and misprison of treason in High Court Criminal Case No 955 of 2005 be stayed until the State and the Director of Public Prosecutions fully comply with the said provisions of the Constitution of the Republic of Uganda.

The petition was supported by the affidavit of Titus Kiyemba Mutale sworn on the 15th day of May 2006.

The respondent filed an answer to the petition in which he denied each and every allegation made in the petition. He also averred in the answer that the petition and the supporting affidavit offend the Rules of Pleadings and Evidence. Further that the petition does not raise any issue of constitutional interpretation. Therefore, that it is incompetent and misconceived.

$\overline{3}$

The answer was supported by the affldavit of Robina Rwakoojo, a Principal State Attomey in the respondent's chambers and that of major fuchard Tukacungurwa, Director of Prosecutions in the UPDF.

At the scheduling conference that was held by the parties before the Registrar of this court, the facts which gave rise to this petition were stated thus:-

The petitioners are the accused in High Court Criminal Case No 955 of 2005. In Count I of the indictment, the 1" petitioner is charged with treason. In count II, ail the petitioners are charged with treason. Count III is an aiternative count. It charged al1 the petitioners with concealment of treason. The Director of Public Prosecutions served the petitioners with a copy of the indictment and summary of the case.

The l" petitioner was granted bail by the High Court on the 18th day of November 2005. The other 14 petitioners were gtanted bail by the same Court later on the 16e day of November 2005. The 1" petitioner only gained his freedom pursuant to a writ of habeas corpus issued by the High Court on the 2nd day of January 2006. The other 14 bailed petitioners however, have not been released from custody.

On or about the 24'h of November 2005, all the petitioners were charged before the Generai Court Martial with terrorism and unlawful possession of Firearms in Criminal Case No UPDF/GEN/075 of 2005.

None of the petitioners applied for bail before the GCM in the above case.

On or about the 31" day of January 2006, this court delivered its judgment in Constitutional Petition No 18 of 2005, Uganda Law Society versus the Attorney General. This is a case that challenged amongst other things the jwisdiction of the GCM over offences under the Terrorism Act and Firearms Act.

Wien tt e trial of the petitioners for Treason rn Criminal Case No 955 of 2005 opened in the High Court, the State called some witnesses' Amongst the witnesses called were Jenifer Aryem ((PWl), George Abedo (PW2) and Alfred Onen Kamdulu was to testify as PW5. The 14 bailed petitioners were being produced from custody. In May 2006, the trial of the petitioners in the High Court was stayed, pending the determination of th-is petition.

At the scheduling conference, the parties framed the following issues to be determined by this court:

- Whether the petition and the affidavit in support thereof offend the Rules of Pleadings and Evidence: I - Whether the petition raises issues for constitutional interpretation: ., - lVhether in so far as the petition is brought against the Director of Public Prosecutions, it is incompetent: ., - Whether the trial of the petitioners is in contravention of Articles 28(l),28(3), a(c), 128(1)+(2) and 137(3) of the Constitution: { - \Yhether the continued detention of the 14 bailed petitioners is in contravention ofArticles 2l(l), 23(l), 23(6), 128(1)&(2) and 137(3) of the Constitution: - Whether in conducting the prosecution of the petitioners, whilst the 14 bailed petitioners are still in custody, the Director 6

of Public Prosecutions has contravened Articles 120(5) of the Constitution:

- Whether section 168(1)&(2) of the Nlagistrates' Court Act (Cap 16 of Laws of Uganda) is inconsistent with Articles 28(1), 28(3)(a) & (c) and 44 (c) ofthe Constitution: 7 - Whether the reliance on the evidence of PWI Jenifer Aryem, PW2 George Abedo and P\Y5 Alfred Onen Kamdulu by the State contravenes Articles 2l(1), 28(1),44(c) and 120(5) ofthe Constitution: 8

### 9. \Yhether the petitioners are entitled to the reliefs sought.

Issues Nos 1 to 3 and 8 above were disposed off as preliminary objections. This judgment is, therefore, in respect of issues Nos 4 to 7 and 9 only.

The task that we are to deal with in the above issues involves interpretation of various provisions of the Constitution to determine the constitutionality of certain acts complained of or the constitutionality of an Act of Parliament. ln that regard, it is important to remind ourselves of some cardinal principles of constitutional interpretation that will guide us in the task ahead.

I The entire Constitution should be read as an integrated whole and no one particular provision destroying the other, but each sustaining the other, - per Manyindo DCJ as he then was, in Tinyefuza vs AG, Constituttonal Petition No 1 of 1996.

All provisions concerning an issue should be considered together to give effect to the purpose of the instrumenL Smith Dakola vs North Carolina 192 LrS, 268 (1940)LED 448.

)

- Purpose and effect principle, where the court considers the purpose and effect of an Act of Parliament to determine its constitutionality. ., - The Queen vs Big Drug Mark Ltd (others intemening) (1996) LRC (Const) 332. - Attorney General vs Salvatori Abuki, Const Appeal No 1 of 1998. - A Constitution and in particular that part which protects and entrenches fundamental rights and freedoms must be given a generous and purposive interpretation 1. - Attorney General of Gambia vs Moden Jobe (1984) LRC 689. - Unity Dow vs AG of Botswana (1992)L RC 662 - It is important to bear in mind that judicial power is derived from the people and shall be exercised b"v the courts in the name of the people and in conformity with law and with the values, norms and aspirations of the people. (Article 126(1) of the Constitution). 5

With those principles firmly in mind, we sha1l now proceed to consider the above issues. First of all, we note from the title of the petition that it was brought for declarations and orders ofredress under Articles 137(3) and 50(1) & (2) of the Constitution. We wish to obsewe that in our view, the citation of Article 50(1) & (2) in such a petition is superfluous. The reason is that clause 4

of ,Article 137 gives this court power, where it considers that there is need for redress in addition to declaration under clause 3 of this Article, to:-

- (a) grant an order for redress or - (b) refer the matter of redress to the High Court to investigate and determine appropriate redress.

Article 50 has, on a number of occasions, been stated by superior couts to be desigrred for a parry who considers that his/her rights have been contravened and seeks redress only therefor in an appropriate competent court.

Be that as it may, we now tum to consider issue No 4. This issue is couched thus:-

" \Yhether the continuation of the trial of all the petitioners for treason and misprison of treason in the High Court, in High Court Criminal Case No 955 of 2005, whilst the 14 bailed petitioners are still held in detention is in contravention of Articles 28(1), 28(3), 44 (c), 128(1) & (2) and 137(3) of the Constitution of the Republic of Uganda 1995.

The gist of the petitioners' complaint in this issue is this:-

That the 14 bailed petitioners were granted bail by the High Court in respect of the offences of treason and misprison of treason for which they have been indicted in the High Court. However, they are stil1 being held in custody under the order of the GCM in respect of offences of terrorism and unlawful possession of firearms in Case No TIPDF/GEN/O7512005. Yet the Constitutional Court has declared unconstitutional the proceedilgs of the GCM

in that case. The continuafion of the trial of the petitioners for treason and misprison of treason in the High court while the 14 bailed petitioners are in custody infringes on the petitioners' right to a fair trial, guaranteed by Arricle 28(1). Mr. Mpanga submitted for the petitioners that what constitutes a fair trial entail more than what is set out in Article 28(3) (a) to (g). He cited as authoriry for that proposition the South African cases of S v Zluma and others CCT5/94 (1995) 2SA 642; S v Orlando Phiri, Waterval-Boven tI/C ref 2033'

Leamed corursel pointed out that bringing the petitioners to the High Court for trial under very tight security portrays them as dangerous people and denies them the right to the presumption of innocence and substantive fair trial guaranteed under Article 28(1). He further argued that being in custody during the continuation of their trial hinders the petitioners' access to their counsel and their ability to prepare their defences in contravention of Article 28(3)(c) of the constitution. He pointed out that paragraph 8 of Mr. Kiyemba Mutale's affidavit in support of the petition provides evidence of the difficulty the 14 bailed petitioners face in accessing their counsei.

He asserted that these derogations from the petitioners' right to a fair trial were inconsistent with Article 44(c), which guarantees non-derogation of the right to a fair trial.

Leamed counsel further submitted that the continuation of the trial of the petitioners while the 14 bailed petitioners are in unlawful custody confavenes Article 128(1) & (2) which guarantees the independence of the Judiciary. He reasoned that the refusal of the State to respect the judgment of the Constitutional Court in Constitutional Pefirton No 18 of 2005, ULS vs AG, signals that the Constitutional Cout can act in vain. ln his view, the same also applies to the High Court order granting bail to the 14 bailed petitioners that

was ignored by the authorities that continue to detain them. He prayed that this issue be answered in the affirmative.

Mr. Matsiko, Ag Director of Civil Lltigation, contended for the respondent that this issue be answered in the negative. He pointed out that the term 'fair hearing" under Article 28(1) of the Constitution has been considered by the Supreme Court in Twagira vs Uganda (2003) EA 689 where Tsekooko JSC defined the terms "a fair trial or a fair hearing" under Artrcle 28 to mean "that a party should be afforded opportunity to inter-alia, hear the witnesses of the other side testify openly; that he should be given opportunit"v to give his own evidence in his defence; that he should, if he so wishes, call witnesses to support his case."

According to counsel, that is what amounts to a fair hearing or a fair trial. He submitted that it has not been shown that any of those tenets of a fair hearing has been negated. He conceded, however, that there was evidence that the petitioners faced difficuhy to access their lawyers, but that that problem was addressed and has never arisen again.

On the proceedings of the GCM in UPDF/GEN1}75 of 2005, Mr. Matsiko denied that this court has held in ULS vs AG, Constitutional Petition No 18 of 2005, that those proceedings before the GCM were nu1l and void. ln his view, this court dealt in that case with the question of jurisdictton of the GCM with regard to a particular charge sheet before it. He stated that the defect in the charge sheet has been corrected as shom in the affidavit of Major Richard Tukachungurwa bringing the offence within the jurisdiction of the GCM. Leamed Ag Director of Civil Litigation pointed out that in fu11 compliance with the decision of this court in IJ'LS vs Attorney General (supra), the charge has been amendedby dropping out the charge ofterrorism which this court held that GCM had no jurisdiction over' In his view' the amended charge now has only the offence of unlawflrl possession of firearms' showing the types of arms a:rd thefactthatthoseareordinarilyamonopolyoftheDefenceForces. Inhisview, thatamendmentofthechargesheetwasinstrictcompliancewiththedecision of this court in LILS vs AG (supra)' He pointed out that the disclosure in the charge sheet that those arrns are ordinarily the monopoly of the Defence Forces brought the amended charge sheet not only in line with section 3(t)(2X9)O) of the Firearms Act, but also within the jurisdiction of the GCM'

Aswecandiscemfiomtheargumentsofcounseionthisissue,thecrucial questiontoanswelfirstiswhetherthecontinueddetentionofthebailed petitioners by order of the GCM is unlawful or not? The answer to this question hingesonthedecisionwhichthiscourtmadeonConstitutionalPetitionNo18 of 2005, ULS vs AG (supra)' We looked at the various judgments of the Justicesonthepanelonthatcase. Thegeneralholdingofthecourtisthatthe GCMhadnojurisdictiontotrythepetitionersforthisoffenceastheparticulars oftheoffencedonotbnngthemwithintheambitofthemilitarylawintermsof section 119 of the UPDF Act No 7 of 2005'

The DCJ said:-

" The charge sheet must disclose the acts which contravened the provisions of the UPDF Act or an.v other law under which the charge are prePared.

In the instant case, the aforesaid requirement of the law was not complied with. The acts of the accused which contravened the law r,yere not mentioned. Neither is it shown that the arms or equipment

ordinarily found in the possession of the accused were the monopoly of the LTDF or classified stores as prescribed.,,

Okello, JA said: -

" The essential ingredients of the offence linking them to the UpDF Act in order to bring them within the (sic) GCNI are not averred in the charge sheet. Therefore, GCII has no jurisdiction over the accused persons for those olTences."

Engwau, JA said: -

" It is not shorvn also that the Firearms Act lall under the UpDF Act. ln the premises, the General Court Nlartial has no power to try the accrued(sic) or anybody else for the offences alleged to have been committed under the Terrorism Act or for the alternative offence of being in unlawful possession of Firearms under the Firearms Act.,,

Byamugisha, JA was even more specific in her judgment.

She said: -

" As for unlawful possession of arms, ammunitions or equipment ordinary (sic) being a monopoly of the Defence Forces or classified stores, these do not fall under the provisions of the firearms Act. There is no law on our statute books and counsel cited none to us providing arms, ammunitions or equipment being a monopoly of the Defence Forces."

Mr. Matsiko submifted that the charge sheet before the GCM has now been arnended to bring the case squarely within the jurisdiction of that military court' In our view, that amendment does not address the real issue. The real issue is not merely an amendment of the charge sheet before the GCM. It is deeper than that. It is whether or not there was or there is a law that deflnes the oJfence of unlawful possession of Firearms ordinarily the monopoly of the Defence Forces. That offence is not the one whose particulars appear in the charge sheet. The offence in the charge sheet is under section 3(1) + (2)(a) and (b) of the Firearms Act (Cap 299 of Laws of Uganda). That offence does not fal1 under section 119(1) (h) of the UPDF Act. The offence of unlawful possession of Firearms ordinarily the monopoly of the Defence Forces is neither defined by any law in our statute books, nor has the sentence for it prescribed. The said amendment of the charge sheet is clearly not helpfu1. Criminal proceedings for an undeflned offence are undoubtedly a nullity as it offends against Article 28(12) of the Constitution.

our attention was drawn to statutory Instrument No 13 of 2006, "Uganda peoples! Defence Forces (Arms, Ammunitions, and Equipment Ordinarily The Monopoly of the Defence Forces) Regulations, 2006." The Statutory lnstrument was issued on 9lo3l2oQ6. It spelt out, for purposes of section 119(1)(h) of the UPDF Act No 7 of 2005, arns, arlmunitions or equipment that are ordinarily the monopoly of the Defence Forces. Whatever the intention, the issuance of this Statutory lnstrument added no value to the respondent's case. It did not amend the Firearms Act that defined the offence shown on the charge sheet. It is from the dehnition of the offence that its essential ingredients are determined.

It is our considered view therefore, that the 14 bailed petitioners are being unlawfully detained by the order of the GCM.

)

Having said so, we now tum to consider the main queshon in issue No 4 whether the continuation of the trial of the petitioners in the High Courtfor treason and misprision of treason whilst the 11 bailed petitioners are in unlawful detention conffavenes: -

## Articles 28( I ) &(3) t

Mr. Matsiko referred us to the decision of the Supreme Court in Twagira vs Uganda (2003) EA689, where according to him, the Supreme Court has defined what.amounts to a fair trial. He submined that in the instant case, there is no evidence to show that any of the tenets of a fair trial set out in that case has been negated. We did read the case and noted that the Supreme Court (Tsekooko, JSC) said of the right to a fair hearing under Artrcle 28(1) as follows: -

" To me, a fair trial or a fair hearing, under Article 28 means that a party should be afforded opportunity to inter alia, hear the witnesses of the other side testify openly,, that he should, if he chooses, challenge those tvitnesses by- way of cross-examination; that he should be given opportunit-v to give his own evidence in his defence, that he should, if he wishes, call witnesses in his case."

We have no doubt that the leamed Justice of the Supreme Court did not, by that statement, intend to give a comprehensive definition of what constitutes a fair trial or a fair hearing under Article 28(1) of ow Constitution. What he stated above is clearly a good summary of what a fair trial or fair hearing means. The words "inter alia" in his definition shows that he did not intend that definition to be a comprehensive of what amounts to a fair trial or a fair hearing under Article 28(1).

f.i

Couru in other jurisdictions have considered provisions of their respective Consfitutions that are in pari materia with our Article 28. It is instructive to draw lessons from their views.

In the Kenyan case of Juma and others vs Attorney General (2003) 2 EA. 452, tlte High Court considered Article 77(l) of the Kenya Constitution which guarantees the right to a fair hearing or trial. There, the court listed what it described as the "minimum elements" of a fair hearing as follows: -

- I lYhere the accused's legal rights are safeguarded and respected by law; - rvhere a lalvver of the accused's choice looks after his defence unhindered; ) - 3. where there is compulsorv attendance of witnesses if need be; - Where allowance is made of a reasonable time in the light of all prevailing circumstances to investigate, properly prepare and present one's defence. .1. - wherein an accused person's witnesses, himself or his lawyer are not intimidated or obstructed in anv improper manner; 5 - wherein no undue adyantage is taken by the prosecutor or anyone else, bv reason of technicality or emplovment of a statute as an engine of injustice; 6

wherein witnesses are permitted to testil.v under the Rules of the court within proper bounds ofjudicial discretion and under the law governing testimonv of witnessesl

Where litigation is open, justice is done and justice is seen to be done by those who have e;-es to see, free from secrecy, m.vsterJ\* and mystique." 8

The Lawyers Committee for Human Rights in their "Basic Guide to Legal Standard and Practice,, Nlarch 2000, considered inter alia /rrticle 14 of the International Covenant on Civil and Political fughts (ICCPR) which guarantees the right to a fair trial or a fair hearing and commented that: -

" Article l4(3) refers to the concrete rights enumerated therein as "minimum guardntees." Therefore, it is important to note that despite having fulfilled all the main procedural guarantees laid down in paragraphs 2 - 7 of Article 14 and the provisions of Article 15, a trial may still not meet the fairness standard envisaged in Article l4(1)."

In the South African case of S v Zuma and others (supra), the Constitutional Court of South Africa considered section 25 of their Constitution which is in piari materia with our own Article 28. There, the court said:-

" The right to a fair trial conferred by that provision is broader than the list of specific rights set out in paragraphs (a) to (i) of the subsection. It embraces a concept of substantive fairness." (emphasis added).

That was the principle of a generous or liberal interpretation applied. Applytng the same principle to our Arlicle 28(1), the right conferred by this Article is broader than those specific rights set out in paragraphs (a) to (g) of clause 3 of Article 28 of our Constitution because that hst is not exhaustive. One can fuihl all the guarantees laid down in paragraph (a) to (g) ofclause 3 ofArticle 28, but the tria1 may stil1 not meet the standard of fairness envisaged in Article 28(1), depending on the circumstances ofeach case.

It is, therefore, not correct, as Mr. Matsiko would like us to believe, that what was stated in Twagira vs Uganda (supra) is all that must be fuifilled to meet the standard ofa fair trial envisaged in Article 28(1).

ln the instant case, Mr. Mpanga complained firstly, that the production of the petitioners in the High Court for trial under very tight securify gives the appeararrce that they are very dangerous peopie, a threat to the public, to the court officials and to the trial judge himself. The disregard by the state of the order made by the High Court granting the petitioners bail suggests that the State has hidden ground, either that the petitioner will abscond if released, or that they are guilty. In counsel's view, these are incompatible with the right to presumption of innocence.

We accept that at the heart of the right to a fair trial lies the recognition of the presumption of innocence until proven guilry or until the accused person pleads guilry. This makes the manner an accused person appears in court very important. His appearance must reflect that presumption. Appearance of an accused in court in 1eg irons, or chains or shackles, or handcuffs or even in prison uniforms has, as shown above, been roundly condemned as not being compatible with the presumption of innocence. We hold the view that this principle can not properly be confined to appearance in the dock or in the

1',7

wibress box only. To produce an accused person in court under very tight spcuriry, more so when he/she is beiag uniawfully detained, also gives the same impression. It violates that right to presumption of innocence.

The second complaint raised by Mr. Mpanga is that the continuafion of the trial of the petitioners whilst the 14 bailed petitioners are in unlawfu1 custody hinders their access to their lawyers and their ability to prepare their defence. Mr. Matsiko conceded that there was evidence of difficulry faced by the 14 bailed petitioners in accessing their lawyers, but that the problem has now been addressed.

We need not emphasise that the right to access a lawyer of his/tier choice and the right to have adequate time and facilities to prepare his/her defence are some of the specific minimum guarantees which an accused expects as a right for a fair trial. Non-compliance with any of them renders a triai below the standard envisaged by Article 28(1). While we commend Mr. Matsiko for conceding that there was that failure, we are not persuaded that there wili not be a repeat since the situation has not changed yet. The l4 bailed petitioners are still being unlawfully detained.

The third complaint raised by Mr. Mpanga is that the refusal by the State to respect the judgment of this Court in Constitutional Petition No 18 of 2005, ULS vs AG (supra), conffavenes the independence of the Judiciary guaranteed under Article 128(1).

On this point, we wish to remind ourselves that Article 128(1) provides for the independence of the Judiciary in the exercise of its judicial powers. Clause 2 of that Article prohibits any person or authoriry from interferiag with the courts or with judicial officers in the exercise of their judicial functions. Clause 3 of the

same A-rficle enjoins all organs and agencies of the State to accord to the courts such assistance as may be required to ensure the effectiveness of the court.

This court did rule in Constitutional Petition No 18 of 2005, t[S vs AG (supra). that the proceedings of, the GCM in LPDF/GENIO'75 of 2005 were annullity. Despite that ruling, the GCM continues to remand the 14 bailed petitioners in respect of the same case to date. we have rejected, for reasons we havestatedtherein,theargumentthatthechargesheethasbeenamendedto bring the case within the jurisdiction of GCM We do accept however' the argument that until it is set-aside on appeal, that decision of this court remains a decision in rem and binds the whole world. To ignore it and continues to remand the 14 bailed petitioners, as it is being done, contravenes Article 128(1) and (3) of the Constitution.

We, therefore, answer issue No 4 in the affirmative. We find that inclusion of Article 137(3) of the Constitution was superfluous'

## ISSLE NO 5

This now takes us to issue No 5 which is whether the continued detention of the 14bailed petitioners conEavenes Articies 21(1), 23(6), 128(1) + (2) and 137(3) of the Constitution

The gist of the complaint here is that the order of the GCM under which the 14 bailed petitioners are beilg detained is unconstihrtional because it is derived from the proceedings that were declared by the Constitutional Court to be a nuility. Leamed Counsel reasoned that in the premises, the continued detention of the bailed petitioners contravenes: -

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1 The right to equalily before and under the 1aw guaranteed under Article 2I ( 1) of the Constirurion.

His reason for this submission is that the pefitioners' continued detention suggests that they are second class citizens who can be granted bai1, but denied their freedom. He pointed out that the inequality was exacerbated by the fact that the 1" petitioner was eventual1y released on bai1, but the 14 bailed petitioners were not. In counsel's view, that was a clear message by the State that the l't petitioner was not the same with the 14 bailed petitioners before and under the 1aw;

2. The right to personal liberry guaranteed by Articie 23(1) of the Constitution.

His reason was that the proceedings before the GCM under which the petitioners are being detained were declared a nullity by the Constitutional Court. Therefore, he argued, the petitioners' continued detention is not under any of the exceptions set out in Article 23(1). He rejected the respondent's argument that the charge sheet under which the petitioners are being detained was amended in compliance with the decision of the Constitutional Court, bringing the offence withirr the jurisdiction of the GCM. In his view an annullity can not be amended; ## 3. Arricle 23(6).

His reason is that though the i4 bailed petitioners applied for bail which the court considered and granted, they were denied their freedom for more than the period stipulated in the Constitution;

4. Article 128(1) & (2)

His reason is that because though the High Court has granted bail to the 14 bailed petitioners, the act of the GCM in conrinuing to remand them under the proceedings that were declared a nulliry by the Constitutional Court, contravenes the independence of the Judiciary guaranteed by the above Article.

Mr. Matsiko conceded for the respondent that the 14 bailed petitioners were being detained on the orders of the GCM. He stated, however, that that order is iawful as the amended charge sheet has brought the offence within the jurisdiction of the Military Court. Therefore, he argued, the continued detention of the 14 baiied petitioners does not contravene any of the provisions of the Constitution stated above. He denied that the 14 bailed petitioners are treated as second class citizen. They simply did not apply for bail before the GCM.

On complaint No 4 above, learned counsel submitted that that complaint was misconceived. He pointed out that the UN General Assembly Resolution adopted on29ll1l1985 in Resolution NO40/32 sets out tenets of an independent judiciary in IIN '?asic Principles on Independence of tb.e Judiciary". He submitted that it has not been shown that the continued detention of the 14 bailed petitioners has contravened any of these tenets.

We tina it appropriate to reproduce here, as are relevant, the tenets of an independence of the Judiciary set out in the UN "Basic Principles on the Independence of the Judiciary" referred to above for a better appreciation.

They are:-

## INDEPENDENCE OF THE JLTDICIARY

- 1. The independence of the Judiciar.v shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the Judiciary. - The Judiciary shall decide matters before them impartially, on the basis of lhcts and in accordance with the larv, without any restrictions, improper influences, inducements., pressures, threats or interferences, direct or indirect from any quarter or for any reason. ) - The Judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authorit-v to decide whether an issue submitted for its decision is within its competence as defined bY larv' J - There shall not be any inappropriate or unwarranted interference with the judicial process., nor shall judicial decisions b.v the courts be subjected to revision. This principle is without prejudice to judicial revierv or to mitigation or commutation by competent authorities of sentences imposed by the Judiciarv. in accordance with the law. I

- Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 5 - The principle of the independence of the Judiciary entitles and requires the Judiciary to ensure that judicial proceedings are conducted fairl-v and that rights of the parties are respected. 6. - It is the du[v of each Nlember State to provide adequate resources to enable the Judiciary to properly perform its functions," 7.

We sha11 revert to these principles later in this judgment. For now, we wish to consider whether the continued detention of the 14 bailed petitioners contravenes their rights to equality before and under the law as enshrined in Article 2l(1.1 of the Constitution.

This Article provides that "All persons are equal before and under the law tn all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law."

The complaint here, as we r-rnderstand it, is that compared to the l't petitioner, the 14 bailed petitioners were not given equal protection of the law. The reason advanced is that while the 1" petitioner was eventually released on bail, the 14 bailed petitioners did not gain their freedom.

We must state with reget that the information available to us on this mafter does not disclose the circumstances in which the 1e petitioner obtained his release, nor does it show that in the same circumstances, the 14 baiied petitioners were not given the same treatment. For those reasons, we are unable to determine whether there had been unequal application of the law in respect of the 14 bailed petitioners and the 1't petitioner.

In the result, we do not pronounce ourselves on this complaint.

The next complaint is that the continued detention of the 14 bailed petitioners contravenes their rights to their personal liberty enshrined in Article 23(1). The argument advanced in support of this complaint is that because the proceedings before the GCM under which the petitioners are being detained were declared annullify by the Constitutional Court, their continued detention is not under the exceptions set out in Article 23(1).

We accept that this court indeed ruled in Constitutional Petition No 18 of 2005 - ULS vs AG (supra), that the proceedings before the GCM in UPDF/GEN/O75 of2005 under which the 14 bailed petitioners are being detained by order ofthe GCM were arrrullity. That meant that the contiriued detention of these petitioners from the date when that pronouncement was made is illegal. We do not agree with Mr. Matsiko that the purported amendment of the charge sheet could correct the flaw. The flaw ca11s for the amendment of the law that created the offence itself. Even the Statutory Insfrument No 13 of 2006 that was issued on 910312006 could not amend the Firearms Act that created the offence. Therefore, the continued detention ofthe 14 bailed petitioners being a detention outside the exceptions set out in Article 23(1) is a violation of the right to their personal liberry.

) There is no dispute that they did apply to the High Court for bail. The High Court considered their application and ia its discretion, granted them bail on conditions it considered reasonable. The petitioners executed documents satisffing those conditions. Despite that they are sti11 kept in custody in contravention of Article 23(6).

The argument that the petitioner were to blame for their continued detention for not applying to the GCM for bail is not tenable in view of the decision of this court in Constitutional Petition No 18 of 2005, ULS vs AG (supra)

On whether the continued detention of the 14 bailed petttioners contoavenes the principle of independence of the Judiciary enshrined in Article 128 of the Constitution, Mr. Mpanga believes it is so. He argued that the continued detention of the bailed petitioners by the GCM despite this court's declaration in Constitutional Petition No 18 of 2005 (supra) is unconstitutional. It amounts to an interference with the independence of the Judiciary. It also undermines the functions of this court set out in Article 137(3)'

It is in our view, appropriate now to revert to the UN "Basic Principles on the Independence of the Judiciary" (supra). Mr. Matsiko submitted that there is no evidence to show that any of the tenets of independence of the Judiciary stated in that booklet has been violated by the continued detention of the 14 bailed petitioners. We find that in compliance with principle (1) above, Uganda as a country, has guaranteed the independence of the Judiciary and enshrined it in Article 128 of our Constitution. Clause 3 of Article 128 enj oins all organs and agencies of the State to accord to the courts such assistance as may be required to ensure the effectiveness of the courts. We find that the GCM in ignoring the decision of this court in Constitutional Petition No 18 and to continue to remand the 14 bailed petitioners in respect of the same case

UPDF/GEN/o75 of 2005 regardless was an act iaconsistent with Article 128(3) of the Constitution.

We, therefore, answer issue No 5 in the affirmative

## ISSUE NO 6:

This issue is whether the continued prosecution of the petitioners for treason and misprison of treason in the High Court whilst the 14 bailed petitioners are still held in detentioil contravenes Article 120(5) of the Constitution.

Mr. Mpanga started his submission on this issue by pointing out the constitutional origin of the office of the Director of Public Prosecutions. its functions and the independence of the DPP in the execution of its functions. Then he pointed out that the DPP was aware of the decision of this court in Constitutionai Petition No 18 of 2005 (supra) and also of the fact that the i4 bailed petitioners are sti11 in custody. He submitted that to continue to prosecute the petitioners in these circumstances, the DPP has failed to have regard to the public interest and interest of the administration of justice in contravention of Article 120 (5) of the Constitution

In support of that submission, he referred us to Brooks vs DPP (PC) (1994) IAC 568, a case which originated fiom Jamaica; Regina vs Horseferry Road Magistrates' Court (1993) 3 WLR90. Both of these cases unfortunately, have no relevance to the issue before us.

We accept Mr. Matsiko's submission that the DPP did not violate Article 120(5) of the Constitution by continuing to prosecute the petitioners in the High Court for the offences of which they are indicted. There is no dispute that the 14 bailed petitioners are being detained by the order of the GCM in respect of case no UPDF/GEN/075 of 2005. We have no doubt that Mr. Mpanga fu11y knows that the DPP does not control criminai proceedings in a Military Court' Paragraph (6) ofclause 3 ofArticle i20 is clear on this'

It provides: -

The functions of the Director of Public Prosecutions are the following: -

- (a) - (b) to institute criminal proceedings against any person or authority in any court rvith competent j urisdictio 1 other thdn a Co urt-M artial (emPhasis added)'

TheDPPclearlyhasnomeanstoensrrrethattheGCMreleasesthepetitioners. We find no merit irr this issue and it is answered in the negative'

## ISSUE NO 7:

It/hether section 168(1) and (2) ofthe fuIagistrates' Court Act (Cap 16 0f Laws of (Jganda) is inconsistent with Article 28(1),28(3 )(a ) and (c) and 44(c) of the Constitution of the Republic of Uganda'

Mr. Mparrgacontendedthatsectionl68(l)arrd(2)oftheMagistrates,CourtAct whichrequirestheDPPtodisclosetotheaccusedpersononlyacopyofthe indictrnent and a summary of the case agahst him is inconsistent with Article 28(1), 28 (3)(a) and (c) and 44(c) which provide for the right to a fair hearing or afair trial. He submitted that the partial disclosure permitted by that section enables the prosecution to withhold from the defence advance disclosure of copies of the wiftress statements, exhibits and any other documents in the

possession of the State, which undermines its case. He pointed out that the concept of faimess dictates the quality of faimess, which must be substantive. In his view, that calls for ful1 disclosure by the DPP to avoid tnal by ambush. He referred us to the Kenyan case of Juma and others vs Attorney General (2003)EA 461; Basic Guide to Legal Standard and Practice Lawyers Committee for Human Rights: Amnesty International Fair Trial Manual.

Mr. Matsiko contended that the law of this country requires that the defence be given "reasonable" information as to the nature of the offence against him. He submitted that what is reasonable information varies from case to case. In his view, the copy of the indictment and a surnmary of the case that were given to the petitioners constituted more than reasonable information. The summary of the case shows that there was compliance with the 1aw.

Mr. Kambona who supplemented Mr. Matsiko's submission on this issue, stated that, to hold that section 168(1) and (2) of the MCA is inconsistent with the mentioned Articles of the Constitution would mean that no information at all should be disclosed. That would not comply with the Articles referred to. The section is couched in the positive. In his view, section 168(1) and (2) is furthering what the Article provides.

We accept that the right to a fair hearing under Article 28(1) requires tnter alia giving to the accused person such informatron as to the nafure of the charge against him/her to enable him,/trer prepare his/her defence. The impugned section 168(1) and 2) of the Magistrates' Courts Act reads thus: -

" When a person is charged in a Nlagistrates' Court with an offence to be tried by the High Court, the Director of Public prosecutions shall file in the Magistrates' Court an indictment and a summary of

instructions. thecasesignedbyhimorherorbyanofficerauthorisedbyhimor herinthatbehalfactinginadvancewithhisorhergeneralorspecial

(2) The summary of the case referred to in subsection (1) shall contain such particulars as are necessary to give the accused personreasonableinformationastothenatureofthecasewith which he or she is charged."

The above section envisaged the prosecution giving to the accused person reasonable information as to the nature of the case with which he or she is charged.

we looked at the Kenyan case of Juma and others (supra) on which Mr. Mpanga relied to call for a ful] disclosure. In that case, the accused pelsons were charged with a criminal offence. They applied to the t-ial court for an order that the prosecution supplied them with copies of the statements made by the would be prosecution witnesses and copies of exhibits which the prosecution would rely on at the trial. In other words, they were asking for full disclosure.

The trial court refused and dismissed their application. The mattel was referred to the High Court constituted as a Constitutional Court'

considering section 77(1), (2)(c)(e) of the constitution of Kenya that provides for the right of " a fatr hearing" the court held:-

" That the provision of the Constitution under consideration can have life and practical meaning only if accused persons are provided rvith copies of the statements made to the police b-v persons who will or mav be called to testify as witnesses for the prosecution as well as the copies of exhibits which are to be offered in eyidence for the prosecution."

tn effect the court allowed a fuli disclosure

We hnd that case distinguishable from the instant case on their facts. ln that case, unlike in the present case, there was no consideration of an Act of Parliament against a provision of the Constifution. Where there is a question of determination of the constitutionality of an Act of Parliament, like in the instant case, the purpose and elfect of the impugned provision of an Act of Parliament is relevant. See the Attorney General vs Salvatori Abuki, Constitutional Appeal No I of 1998.

The purpose of the impugned section 168(1) & (2) of the MCA is to provide for the supply by the prosecution to the accused, of reasonable information as to the nature of the case against him. The effect of implementing that provision is the giving to the accused reasonable information as to the nature of the case against him

We do not find this inconsistent with either Article 28(1) or 28(3Xb) and (c) or 44(c) of the Constitution. The information supplied under this section may not be adequate, but that perse does not make the section inconsistent with the stated provisions of the Constitution. Applyng for flrrther information, like in Juma and others case (supra), can cure that shortcoming'

we are, therefore, not persuaded that the impugned section, as it is, conuavenes any of the stated provisions of the Constitution. Accordingly, we answer the issue ur the negative.

ln view of our findings above, which ailow the petition in pad, our answer to issue No 9 is that the petilioners are entitled to the following declarations and redress: -

- The continuation of the trial of the petitioners in the High Court for treason and misprision of treason whilst the 14 bailed petitioners are in unlawful custody contravenes Articles 28(l), 28(3), 44(c) and 128 of the Constitution. I - The continued detention of the l4 bailed petitioners in disregard of the declaration of this Court in Constitutional Petition No 18 of 2005 - ULS vs AG is unlawful. It therefore, contravenes their right to personal liberty enshrined in Article 23(l),23(6) and a violation of the principle of independence of the Judiciary guaranteed in Article 128 of the Constitution. ) - Section 168(1) &(2) of the MCA is not inconsistent with Articles 28 (1), 28(3) (b) &(c) and 44(c) of the Constition. -)

#### (b) REDRES

- 1. The 14 bailed petitioners are to be released forthwith, under the terms of their bail granted by the High Court, unless they are being held on some other lawful ground. This is to enable their trial in the High Court to proceed in accordance with the Constitution. - Each part"v shall bear its own costs of this petition. ')

'w Dated at Kampala thisii-.day offi',. ZOOZ.

**G. M OKELLO JUSTICE OF APPEAL** Ummun A. TWANOMUTENI JUSTICE OF APPEAL CNS titurs C. N. B KITUMBA **JUSTICE OF APPEAL**

C. K. BEANGUGISHA JUSTICE OF APPEAL

S. B. K KAVUMA **JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA, AT KAMPALA

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CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA. HON. LADY JUSTICE C. K. BYAMUGISHA, JA HON. MR. JUSTICE S. B. K. KAVUMA, JA. $\sqrt{ }$

## **CONSTITUTIONAL PETITION NO. 12 OF 2006**

### **BETWEEN**

# 15 COL.(RTD)KIIZA BESIGYE & 22 OTHERS... APPLICANTS

### AND

#### THE ATTORNEY GENERAL.................................... $20$

# JUDGMENT OF HON. JUSTICE S. B. K. KAVUMA, JA. (Dissenting)

I have read in draft the majority judgment. I would like to make the following observations.

The introduction to the petition, the declarations and redress sought by the petitioners, the documents filed by the parties and the preliminary proceedings by way of conferencing inter-

parties before the Registrar of this Court the submissions of 30 counsel and the disposal of the preliminary objection by the

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court and the task for the court in the petition are as laid out in the majority judgment.

TotheprinciplesofConstitutionalinterpretationstatedinthat s judgment, I only wish to add two others I consider relevant in the instant petition and these are: -

l. That the words of the written Constitution prevail over att the unwritten conventions precedents and Practices-

The principles which govern the construction of Statutes also apply to the construction of constittttional provisions (The Rep Vs E-L' Manu (1969) EA 3s7.) 2

I will next consider on the status of the bail granted to the 14 bailed petitioners by the High Court on the 16n day of November 2006. When bail was granted by the Court to the bailed petitioners, they were already undergoing trial at that zo court to which they had already been committed' This then brings into picture the ruling of this Court in Uganda (DPP) Vs CoL (RTD) Kiua Besigye Constitutional Reference No' 20 of 2005. In that reference, the Court dealt with the question of whether courts have jurisdiction to grant bail under Article 23 of 25 the constitution and the circumstances under which bail could

be granted or refused. The relevant portion of that ruling, as far as this petition is concerned, relates to an applicant being granted bail after his/her case has been committed to the High Court for trial in a case triable oniy by the High Court. Counsel for the DPP had argued that under Article 236 (c) a person who applies for bail cannot be released once he/she has been committed to the High Court regardless of the custody time Iimit. In response, counsel for the respondent contented that after committal, bail is not automatic but if it takes long for the trial to take off, the applicant would be entitled to bail.

The Court said... ....

"As regards Article 23 6 (c ) where the accused has been in custody for 180days on an offence triable by the High Court only and has not been committed to the High Court for trial, that person shall be released on bail on reasonable conditions. Like in 23 (6) (b), the Court has no discretion to refuse to grant bail to such a person. In both Atticles 236(b) and (c) the Court has discretion to determine condition of bail

Howeter, under 23(6) (c) it is vital, to highlight the other comn on situation which might be confused with one dealt

with already. Strangely enough, we were not availed the benefit of any submissions from either counsel. This is the situation where the accused is charged with an offence only triable by the High Court but has not spent the statutory period of 180 days in custody before committal. In this case, the court may refuse to grunt bail where the accused fails to show to the satisfaction of the court exceptional circumstances under s. I5 (3) of the Trial on indictments (Amendment) Act IYo. 9 of 1998 (Cap. 23) these circumstances are regulatory. They are: -

> (u) grave illness certified by a medical officer of the prison or other instittttion or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;

> (b) a certificate of no objection signed by the Director of Public Prosec ution or

> > l

)

# @ the infancy or advanced age of the accused."

The Court noted that the Trial on Indictment Act (T. I. A) was a 1998 Act which was enacted and came into force well after the 1995 Constitution whose sole purpose was to operationalize Article 23 (6)(c ) of the Constitution.

From the above portion of the Court's ruling, it is clear that l0 where a bail application is made by a person who has been charged with an offence triable only by the High Court, and where such a person has been remanded in custody for 180 days and above before the case is committed to the High Court, that person shall be released on bail on such conditions as the court l5 considers reasonable. What is the position where the applicant has been committed to the High Court for trial? In that case, in my opinion, special circumstances as provided for under the T. I. A must be established to the satisfaction of the court before it grants bail. The first option in such a case is, of course, to zo ensure that the trial proceeds to conclusion expeditiously. This, however, should not remove the court's discretion to grant bail even after committal of the case to the High Court in an appropriate case. The provisions of S. 15 of the T I A would then apply.

)

In the case under which the 14 bailed petitioners were granted bail, there is no doubt their case had been committed to the High Courtfortheywerealreadyundergoirrgtrial. Theprovisionsof S. 15 of the T I A as to special circumstances should, in my s opinion, have been aPPlied.

This norwithstanding however, that decision still stands as it has neither been revised nor specifically overturned or superseded by a contrary order ofa higher Court.

As for the l't Petitioner, this Court pronounced itself on the question of the interim bail granted to him by His Lordship the Hon. Mr. Justice James Ogoola, the Principal Judge, in the following terms:

> "We would saY that His LordshiP had power to do so and gave his reasons for doing so- There is nothing inherently wrong with the order."

That, therefore, remains the position.

With regard to issue No. 4, which is, whether the continuation of the trial of all the petitioners for treason and misprision of treason in the High Court in High Court Criminal Case No' 955 of 2005, whilst the 14 baiied petitioners are still held in detention is in contravention of,4rticles 28 (1), 28 (3),44 (c )'

128(1) afi (2) and 137 (3) of the Constitution of the Republic of Uganda 1995, my observations relate first to the question whether the continuation of the trial of the petitioners while the bailed 14 petitioners are in custody infringes on the petitioners' s right to a fair hearing/trial. I am particularly referring to the submission by learned counsel for the petitioners where he says that what constitutes a fair trial entails more than what is set out in Article 28 (3)(a) to (g). Counsel relied on the South African cases of S. V Zuma and Others CCT 5/94 (1995) 2 SA 642; and

r0 S. V Orlando Phiri, ll/aterval - Boven II/C reJ 2033, as authority for that proposition. I, further refer to learned counsel's submission that bringing the petitioners to the High Court for trial under very tight securiqv portrays them as dangerous people and denies them the right to the presumption 15 of innocence guaranteed wder Article 28 (1). Counsel further contended that the fact that the petitioners continue to be tried while in custody hinders their access to their counsel and their ability to prepare for their defence both of which instances, according to him, contravene Article 28 (3) (a) of the zo Constitution. I refer to this too.

IvIr. Matsiko, counsel for the respondent, contended in his submissions that term "fair hearing" in Article 28 (1) hasbeer^ exhaustively interpreted by the Supreme Court in Twagira Vs

Llganda (2003) EA 689 where his Lordship Tsekooko, JSC said:

"...... A fair trial, or fair hearing, under ArL 28, means that u PartY should be affordetl opportunity to, inter alia, hear the witnesses of the other side testifu openly; that he shoultl, if he chooses, challenge those witnesses bY waY of crossexumination; that he should be given opportunity to give his own evidence, if he chooses, in his defence; that he should, if he so wishes, call witnesses to sltpport his cltse.

l5 20 25 Admiuedly Charles Twagira Vs Uganda (supra) cannot be said to be comprehensive in interpreting Article 28 (3). The use by Tsekoko, JSC of the words "inter alia" lelds support to this view. At the same time however, the boundaries of fair hearing/trial cannot, in my opinion, be stretched over and above what is provided for in Article 28 (3) (a) to (9. Where a written Constitution details any of its provisions for a particular aspect, it should be understood to have exhaustively provided for that aspect unless otherwise stated. This is the case in respect of what the Constitution has done with regard to fair hearing or fair trial. The list tn Article 28 (3) (a) to (g) is, in my

I view, exhaustive. The framers of the Constitution intended it to be so otherwise they would have clearly stated it in that article using words that show that the article is not exhaustive' I find fortification in this view in the examples which learned counsel for the petitioners sought to rely on including the two cases of S' Vs Zuma and Others and S-V- Orlando Phiri Waterval-Boven (supra). Both cases are from the South African jurisdiction

dealing with the question of fair trial as embodied in Section 25 of the South African Constitution' The Section provides: -

- l0 "Every accused person has a right to a fair trial, which includes the right - - (a) to be informed of the charge with stfficient details to answer it; - (b) to have adequate time and facilities to prepare a defence; - (c) to a public trial before an ordinary Court; - (d) to have their trial begin and conclude without unreosonable delaY; - (e) to be present when being tried - 20 (f) to choose and be represented by a legal practitioner, and to be informed of this right promptly- - @ to have a legal practitioner assigned to the accused person by the state and at state expense if substantial injustice would otherwise result, and to be informed of this right promPtlY.

- (h) to be presumed innocent, to remain silent and not to testify during the proceedings; - to adduce and challenge evidence; (i) - not to be compelled to give self-incrim'natino evidence; (i) - to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language: (k) - not to be convicted for an act or omission that was not an offence under either national or international law at the time it wtts committed or omitted; (u - not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; (m) - to the benefit oJ the least severe of the prescri:bed punishments tf the prescribed punishment of the offence has been changed between the time that the offence was committed and the time of sentencing; and l5 (n) - to appeal to or review by a higher Courl (emphasis mine)." (o) 20

The other example is Article 14(1) of the Intemational Convention of Civil and Political fughts (ICCPR) which enlists zs procedural and other guarantees laid down in paragraphs 2- 7

and Article 15. Article 14(3) however refers to the concrete rights enumerated as "Minimum guarantees" (emphasis mine). This necessarily provides a wider scope of the tenets of a fair trial than those enlisted.

On the other hand, Article 28 (3) (a) to (g), of the Constitution of Uganda exhaustively lists the tenets of a fair hearing/trial. It provides: -

(3) Every person who is charged with a criminal offence shall -

Article 28 (3):

- (a) be presumed to be innocent unlil proved guilty or until that person has pleaded guilty; - (b) be informed immediately, in a language that the person understands, ofthe nature ofthe offence; - (c) be given adequate time and facilities for the preparation of his or her defence; - (d) be permitted to appear before the court in person or, at that person's own expense, by a lawyer of his or her choice; - (e) in the case of any offence which carries u sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State;

)

- (/) be afforded, without payment by that person, the dssistance of an interpreter if that person cannot understand the language used at the trial; - @ be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.

These provisions are to be read together with the rest of the provisions of Article 28.

)

On a careful reading of the South African provisions, those of the ICCPR and the Uganda Constitutional provisions on fair hearing/trial, it becomes abundantly clear that there is a difference between the Uganda Constitution on the other hand 15 and the South African one and the ICCPR provisions on the other. Whereas the South African Constitution and the (iCCPR) provisions are wider in scope than what is enumerated therein as clearly indicated by the deliberate use of the words "Shall include" and "Minimum guarantees" respectively, the Uganda z0 Constitution specifically and comprehensively enumerates all the tenets of fair hearing/trial and leaves no room for either. addition or subtraction thereto or therefrom. It must be read and understood in that context. To do otherwise would amount to an unconstitutional constitutional amendment of the constitution. 25 This would violate the clear provisions of articles 258 - 262 of

the Constitution which must be adhared to in all cases of amendment of the Constitution. Further, the words of the written Constitution prevail over all the unwritten conventions, precedents and practices. I am also, further, fortified in this view by Article 2 of the Constitution which provides for it to be the Supreme iaw of the land.

I am, therefore, not persuaded by leamed counsel for the petitioner's submission that what constitutes a fair trial/fair hearing in Uganda entails more than what is set out in Article 28 (3) (a) ro (d.

Article 28 (3), read together with the rest of that article is specific, definite and comprehensive.

The two cases of S. Vs Zuma and Others and S. V, Orlando

Phiri (stryra) relied on by counsel for the petitioners in support of his submissions are, therefore, clearly, inapplicable to the Uganda situation. l\_i

I now turn to the complaint of the petitioners that their being zo brought to the High Court for trial under very tight security contravenes their right to the presumption of innocence and substantive fair trial guaranteed under Article 28 (1).

The Constitution vests the executive authority of Uganda in the President, See Article 99 of the Constitution. That authority 25 includes the responsibility and duty to safeguard the

Constitution, the laws of Uganda and the promotion of the welfare of the citizens and the protection of the territorial integrity of Uganda.

Undoubtedly, ensuring security in all circumstances is part of the exercise of the executive authority of Uganda.

Taking appropriate security steps and measures to ensure that a large number of persons accused of the serious crimes of treason and misprision attended their trial in a comprehensively secure l0 environment is, to my mind, necessary and understandable. I do not accept the argument that tight securify measures being taken when suspects of this kind are being conveyed from prison to court, per se infringes on their right of presumption of innocence. Rather, it is a way to ensure that the suspects are ls safely delivered to court to attend their trial as required by the law whereafter the court may either convict or acquit al1 or any of them.

20 25 This brings me to the concept of what 'court', in the context of a fair triaVfair hearing is. I accept that the way in which an accused person appears in court is very relevant to whether or not the presumption of his/her innocence is violated. Certainly if an accused person appeared in court in leg irons or in chains or shackles, in handcuffs or even in prison uniform, that would have a negative impact as to that accused persons' right to the

presumption of innocence. It would clearly be unconstitutional' I am of the fr-rm view, however, that when our law talks of appearance in court by an accused person in the context of fair tria.l, it is pre-occupied with the actual appearance of the accused 5 person in the court room, in the dock or the witness box. I do not subscribe to the view that the law is talking about the joumey of the accused person from his place of detention to the court premises generally. The position is, to my mind, that until the accused person enters the court room, he/she is under the r0 custody of the detaining authority. That is why at court premises there are prison facilities in the form of holding cells. When an accused person is to be conveyed to court from prison through the use of a motor vehicle or any other form of transport, that form of transport is, in a way, an extension of the 15 prison facility. I derive strength in this view from the fact that all the cases cited to us by counsel for the petitioners in support of their submission are actuaily cases dealing with the actual appearance ofthe accused either inside the court room or in the dock or witness box.

20 In the instant petition, there is no evidence that any of the suspects undergoing trial at the High Court has been lead to the court room, the dock or the witness box in leg irons, chains, shackles or handcuffs or even in prison uniform. I, further, note with approval that even in the cases cited to us, their lordships zs accept that in appropriate cases, security may actually be

stepped up within the court room without doing violence to the accused person's right to the presumption of innocence or any other tenet of far hearing/trial.

- A very important protection to the accused person's right to the presumption of innocence, is the ability of the judicial offtcer, presiding over the trial, to divorce from his/her mind any unfair prejudices to the accused the judicial officer may be confronted with during the trial. The judicial officers' training, the judicial oath he/she takes added to the wealth of knowledge, skill and l0 - experience he/she is possessed of, are constant and effective safeguards to the accused persons' right to a fair trial/hearing, the presumption of hnocence inclusive. - From what is stated above therefore, I am unable to find that the production of the petitioners in the High Court for trial under tight security is a violation of their constitutional right to the presumption of their innocence. 15

On the complaint that the continuation of the trial of the petitioners while 14 of them are in custody hinders their access to their lawyers and their ability to prepare their defence, it is worthy noting that alfhough at some time in the initial stages of the applicants' trial they faced some hindrances, these were nevertheless removed. I would resist the temptation to speculate l0

whether such hindrance may re-occur in future. A court of law should base its decision on credible evidence.

Dated at Kampala this .1.2...day of ... 2007. S. B. K. KAYUMA JUSTICE OF APPEAL. $, r$

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