Kamesa v Museveni Kaguta and Another (Constitutional Petition No. 10 of 2019) [2023] UGCC 3 (16 January 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGAIYDA AT I{AMPALA CONSTITUTIONAL PETITION NO. OlO OF 2019

(Coram: Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake, JJCC)

## KAWESA RICHARD : : : : : : : : : : :PETITIONER

#### VERSUS

#### 1. YOWERI KAGUTA MUSEVENI

#### 2. ATTORNEY GENERAL: oaaaaa RESPONDENTS

# JUDGMENT OF CHRISTOPHER GASH IRABAKE. Jcc

The petitioner filed this Petition under Article L37 (1), (21, (3), (4) and (7) of the 1995 Constitution challenging the constitutionality of the 1st respondent's act of asserting that he was immune from legal proceedings by virtue of being the President of Uganda, as a defence to a suit the petitioner filed against him.

## Background

The petitioner, on 6th March, 2019, filed a suit against the I"t respondent in the High Court at Kampala (Commercial Divisionl, viz. Civil Suit No. 160 of 2019. The petitioner claimed that the l"t respondent had infringed upon his copy right in a song titled "Another rap," by the latter singing the song and also claiming at as his own. The petitioner sought, interalia, for the following reliefs: 1) that he is the author, producer and owner of the copyrights in the song in issue;21 that the lst respondent's use and registration of the copyright in the song without his knowledge, consent and without

paying adequate compensation amounted to infringement of the petitioner's copyright in the song; 3) an order that the 1st respondent pays him compensation and royalties for the copyright infringement; and 4) a permanent injunction to restrain the 1"t respondent from further infringement of the petitioner's copy right.

The l"t respondent filed a Written Statement of Defence in which he asserted that he was, by virtue of being the President of Uganda, immune from legal proceedings and sought for the dismissal of the petitioner's suit.

It is not clear from reading the Petition, whether the relevant suit has been disposed of. However, in their respective answers to the Petition the 1"t and 2"d respondent claimed that the suit was dismissed. 10

The Petitioner contends that he sued the 1"t respondent for a private act which was not committed in exercise of his powers as the President, and that therefore, he could not assert presidential immunity as a defence, in those circumstances. In this regard, he

contended at paragraph 7 (h) of his Petition as follows:

- u(h) Your Petitioner states that in ang cclse the presid.ential imtnunitg granted. under Article 98 (4) of the Constitution is not absolute becausel - (i) a presid.ent is enjoined to uphold and safeguard the Constitution and. all the lauts of Uganda and to promote the utelfare of the citizens of Uganda under Articles 98 and 99 of the Constitution. - (ii) a president can be a proper and necesso;ry pqrtg to legal proceedings in the Supremc Court challenging presidential elections under Article 1O4 of the

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Constittttion uthere he is sued for his Personal actions during elections.

- (iii) presidential immunitg can be lifted during proceedings for remooal of the Presid.ent from oflice befor a trlbunal or m.edlcal board. sanctloned under Article 7O7 of the Constlttttion. - (ia) a president can be a Complainant and utitness in a criminal ca.se prosecuted in a Court of laut."

The petitioner therefore contended that it was permissible to sue and hold a sitting President liable, especially where ine/she did the act constituting the cause of action in his private capacity. The petitioner asserted that the acts of the 1"t respondent that were the subject of the relevant suit were done in his private capacity and therefore were not protected by presidential immunity. 10

The petitioner therefore prayed that this Court finds that the respondent acted unconstitutionally by raising the defence of presidential immunity to the relevant suit and to grant the following declarations and orders: 15

- \*(i) The respondent's defence in . EICCS .l\Io. 760 of 2079; Kautesa Richard vs. Yowert Kaguta Museueni and Anor, maintaining that his personal and priaate deed of registering and holding the copg right of the ccYott utant another raP" song onto his nanrte is protected bg and./or enjogs presidentialirnmunitg from suit and legal liabilitg und.er Araicle 98 (4) of the Constittttion, contrauenes and is inconsistent uith Articles 7, 2, 20, 98 and. 99 of the 7995 Constitution. 20 - (ii) The respondent's defence in . IICCS No. 160 of 2079; Kawesa Richo;rd vs. Youteri Kaguta Museaeni & Anor maintaining that

his personal and priuate deed. of registering and holdlng the copgright of 'You utant another rap' song onto his name is protected bg and/or enjogs presid.ential inmunitg from suit and legal liabilitg und.er Article 98 (4) of the Constitution, uiolates gour Petitioner's right to outn propertg, work Jor gain and earn from his profession, contrauenes and ts inconsistent utith Articles 7, 2, 20, 26, 40, 98 and 99 of the 1995 Constitution.

- (iii) The respondent's defence tn IfCCS .l\Io. 75O of 2O19; Kauesa Richard us. Youteri Kaguta Museaenl & Anor tnainto;ining that his personal and priaate deed of registering and holding the copgright ol 'You utant another rdP' song onto his name is protected bg and/or enjogs presidential immunitg from suit and legal ltabilitg under Article 98 (4) of the Constitution, violates gour Petitioner's non-derogable right to be heard and the High Court's authoritg to adjudicate disputes uthich contrauenes and is inconsistent with Articles 7, 2, 20, 27, 28, 44, 98, 99, 726, 728 and 139 of the 7995 Constitution. - fiu) An order of permanent injunction restraining the respondent from asserting claims to presid.ential irnmunitg for his personcrl and priaate d.eed.s or acts. - (v) An order directing the High Court Comnrcrcial Diuision to inaestigate and determine the appropriate ciuil red.ress in respect of alleged copgright infringement in IICCS No. 760 of 2079; Kautesa. Richard. as. Youteri Museaeni & Anor. - (ui) An order for costs of the Petition.

## (ui) Ang other and further order as the Court rndg deem Jit.u

The evidence in support of the Petition is set out in the petitioner's affidavit in support of the Petition.

The 1"t respondent filed an answer to the Petition opposing the Petition. He raised three objections to the Petition as follows:

- ua) The issues raised in the Petition do not require interpretation of ang proaision of the 7995 Constitution. - b) There is no o,ct or omtsston of the respondent as alleged bg the Petitioner that requires interpretation of the 1995 Constitution.

c) The Petition has been cornmenced against the respondent contrary to the clear provisions of the Constitrttion, the law and. practice of the Court."

The l"t respondent averred that he is by virtue of Article 98 (a) of the 1995 Constitution not liable to proceedings in any Court. Further, that whereas the 1995 Constitution creates exceptions to the rule under Article 98 (4), such exceptions are limited and clearly spelt out.

The evidence in support of the 1st respondent's answer to the Petition was set out in the affidavit of Mr. Edwin Karugire.

The Attorney General, although not sued by the petitioner, also filed an answer opposing the Petition. He raised three preliminar5r objections to the Petition as follows: 1) That the Petition is misconceived as it raises matters of enforcement of rights that should be filed in the High Court; 2) That the Petition does not raise any question for interpretation of any provision of the 1995 Constitution; 3) That the Petition is an abuse of Court Process as HCCS 16O of 2Ol9 has been heard and disposed of and a ruling delivered. 20 25

On the merits, the 2"4 respondent denied that the 1"t respondent's act of asserting presidentia-l immunity as a defence to the relevant

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suit was unconstitutional. He prayed that the suit be dismissed with costs.

The evidence in support of the Attorney General's Answer is set out in the affidavit sworn by Mr. Jackson Kafuuzi Karugaba, the Deputy Attorney General.

## Representation

At the hearing, Mr. Arnold Kiwalabye represented the petitioner. Mr. Peter Kawuma represented the 1st respondent. Mr. George Kalemera, Commissioner Civil Litigation and Mr. Moses Mugisha, State Attorney, both from the Attorney General's Chambers represented the Attorney General.

## Analysis

I have carefully considered the pleadings, the submissions of counsel for all the parties, and the law and authorities cited in the submissions. I have also considered other relevant authorities that were not cited.

I note that counsel for the petitioner proposed the following issues, to guide in the determination of the Petition:

- \*(i) Whether the Petition raises ang question for constitutional interpretation. - (ii) Whether the Cour"t's po.uter to interpret the Constitution is barred bg presidential imrnunitg to the suit under Article 98 (4) of the Constitution. - (iii) Whether the respondent's defence of presidential irnrnunitg to suit to deng the petitioner's copg right in the "Another rap

## song" is inconsistent with Articles 2, 20, 26, 28, 40, 44, and 99 of the 1995 Constitution.

#### (iv) Whether the petitioner is entitled to the remedies sought."

Counsel for the $1st$ respondent, in his submissions, replied to the issues raised by counsel for the petitioner. $\mathsf{S}$

On his part, counsel for the $2nd$ respondent proposed the following issues:

- $\lq$ 1. Whether the Petition raises questions for constitutional *interpretation* - 10

Whether the Petition is incompetent and ought to be dismissed 2. and/or struck out.

#### Whether the Petitioner is entitled to the declarations and 3. orders sought."

For purposes of harmonizing all the issues, I will frame the following issues to guide in the determination of this Petition: 15

- $\lq$ 1. Whether the Petition raises any questions for constitutional interpretation. - If the Petition raises a question for constitutional 2. interpretation, whether this Court is barred from entertaining it. - Whether the $1st$ respondent's act of asserting the defence of 3. presidential immunity to legal proceedings as a defence to the petitioner's suit against him was inconsistent with Articles 2, 20, 26, 28, 44, and 98 (4) and 5 of the 1995 Constitution. - Whether the Petitioner is entitled to the declaration and orders 25 $4.$ sought." - $\overline{7}$

**MOON**

I will proceed to consider the issues hereunder. However, before delving into the issues, I wish to set out the principles that guide this Court while carrying out constitutional interpretation. These principles were summartzed by Mwondha, JSC in her decision in

- 5 Tusingwire vs. Attorney General, Constitutional Appeal No. 4 of 2o16, and include the following: - \*(i) The constitution is the Supreme laut of the land and forms the sta;ndard upon uthich all other lauts are judged. Ang laut that is inconsistent uith or ln contraaention of the Constittttion is null and aoid to the extent of its inconsistencg. (see Article 2 (2) of the Constitution. Also see Presidential Election Petition lVo. 2 of the 2OO5 (SC) Rtd Dr. Col. Kiiza Besigge a. Y. K. Museveni. - (ii) - (iii) The entire Constitution has to be read together as ant integral uhole utith no particular prouision destroging the other but each sustaining the other. This is the ntle of harmong, the ntle of cornpleteness and exhaustiveness (see P. K. Ssemwogere and Another v. Attorneg General Constitution Appeal No I of 2OO2 fSC, and the Attorneg General of Tanzania a. Rea Christopher Mtikila (2O7O) EA 73 - A Constitutional provision containing a fundamental human right is a permanent prouision intended to cater for all times to come and therefore should be giaen dgnamic, Progressiue liberal and JTexible interpretation keeping in view the ideals of the people , their social economic and political cultural aalues so crs to extend the beneJit of the so,m,e to the maxintum possible. See Okello Okello John Liuingstone and 6 others u. (ia)

w| The Attorneg General and Another Constitutional Petition . IVo f of 2OO5, South Dokata u. South Carolinq. 792, USA 268. 7940.

- (a) Where utords or phrases are clear and unambiguouq theg must be giaen their primary, plain, ordinary or natural rneaning. The language used ntust be constrtted in its natural and ord.inary sense. - (ui) Where the language of the Constitution or a sto:tute sought to be interpreted. is imprecise or ambiguous a. liberal, general or purposeful interpretation should. be giuen to it. (See Attorneg General a Major Dauid Tingefuza Constitutional Appeal No. I of 1ee7 (sc) - (uii) The history of the country and the legislatiue history of the Constitution is also releuant and useful guide to Constitutional Interpretqtion see (Okello John Liuingstone and. 6 others u. Attorneg General and Another Supra. - (viii) The National objectiues and Directive principles of state policg qre also a guide in the interpretation of the Constitution. Article 8A of the Constitution ts instnrctive for applicabilitg of the objectiues." - I shall now proceed to deal with each issue in turn. 20

Issue 1: Whether the Petition raises any questions for constitutional interpretation.

### Petitioner's submissions

Counsel for the petitioner submitted that the jurisdiction of the Constitutional Court is provided for under Article 137 (11, (2) and (31 of the 1995 Constitution. He further submitted that the jurisdiction can be properly invoked where a Petition, on the face of it, shows that interpretation of the Constitution is required. Counsel 25

![](0__page_8_Picture_10.jpeg)

for the petitioner submitted that the Petition alleges that the respondent's act of raising the defence of presidential immunity to the petitioner's suit against him violates and contravenes Articles 2, 20, 26, 28, 40, 44 and,99 of the 1995 Constitution. In counsel's view, the determination of that allegation requires the interpretation of the Constitution and thus the Petition is properly before this Court.

### l"t Respondent's submissions

Counsel for the l"t respondent submitted that the Petition does not raise any question for constitutional interpretation, as it does not set out any issue that requires, for its determination, the interpretation of a provision of the 1995 Constitution. To counsel, the Petition does not highlight any provision of the 1995 Constitution that requires interpretation. Counsel for the 1"t respondent contended that what the Petition alleges is that Article 98 (4) is inconsistent with other provisions of the 1995 Constitution. In counsel's view, this Court has no power to question the wisdom of a Constitutional Provision. For this submission, counsel relied on the case of Brigadier Tumukunde vs. Attorney General and Another, Constitutional Petition No. 06 of 2OO5, wherein Kavuma, JCC held that the duty of the Constitutional Court is to interpret the Constitution and not to amend it. He urged this Court to find that the Petition neither raises any question for constitutional interpretation nor discloses a cause of action and dismisses it. 10 15 20

25 Counsel further submitted that in any case, the Supreme Court held in the case of Sekikubo and 4 Others vs. Attorney General, Constitutional Appeal No. I of 2015 that Article 98 (41 of the 1995

# uw4

Constitution gives the President total immunity against all legal proceedings. In counsel's view, the interpretation of the provision rendered in that case means that there is no further question for interpretation to be considered in this Petition.

## s 2nd respondent's submissions

Counsel for the 2"d respondent also submitted that this Court has no jurisdiction to determine the Petition. He contended that this Court has jurisdiction over Petitions that set out allegations that require, for their resolution, the interpretation of a provision of the 1995 10 Constitution. Counsel cited several cases in support of his submission, namely: Attorney General vs. Tinyefuza, Constitutional Appeal No. 1 of 1997, Serugo vs. Kampala City Council and Another, Constitutional Appeal No. 2 of 1998 and Mbabaali vs. Ssekandi, Constitutional Petition No. OO28 of 2OL2.

- 1s In counsel's view, the Petition alleges infringement of the petitioner's right to property and fair hearing contrary to Article 20, 26 and, 40 of the 1995 Constitution. Such allegations do not fall within the scope of this Court's jurisdiction but should be presented for enforcement of rights in the High Court. - zo Furthermore, counsel submitted that respondent's defence in the relevant suit does not amount to an "act" or "omission" as understood under Article L37 (3) (b) of the 1995 Constitution.

Counsel further submitted that in any case, there is no controversy as the relevant suit has since been disposed of.

zs Counsel urged this Court to resolve issue one in the negative.

Avu

#### Resolution of Issue 1

The dispute in issue 1 is whether the Petition discloses any question(s) for constitutional interpretation, necessary to invoke the jurisdiction of this Court. The jurisdiction of this Court is set out under Article 137 of the 1995 Constitution, which in relevant part, provides as follows:

"The constihttional court.

137. Questions as to the iruterpretation of the Constitution.

(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.

(2) When sitting as a constitutional court, the Court of Appeal shall consist of abenchof fiue members of that court.

(3) A person utho alleges that-

(a) an Act of Parliament or ang other lanu or angthing in or done under the authority of any lanu; or

(b) ang act or omission by any person or authoitg, is inconsistent utith or in contrauention of a prouision of this Constitution, maA petition the constitutional court for a declaration to that effect, and for redress where appropiate.

(4) Where upon determination of the petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sough| the constihttional court maA- 20

(a) grant an order of redress; or

(b) refer the matter to the High Court to inuestigate and determine the appropiate redress."

The import of the above provision, as expounded in many cases is that this Court has jurisdiction to determine Petitions that raise

questions for constitutional interpretation, that is questions whose determination requires the interpretation of a constitutional provision(s). In the case of Edward Mbabali vs. Edward Kiwanuka Sekandi, Constitutional Petition No. O28 of 2012, I(asule, JA/CC held that:

"It follous therefore that the juisdiction conferred upon the Constitutional court by Article 137 is to ascertain uthether or not the subject of the constitutional litigation, be it an Act of Parliament, or other laut or act or omission done uruder the authoritg of any lana, or by any person or authority, is or is not in uiolation of the constitution. This is in contrast uith the other juisdictions that are not of a constitutional nature, whereby the courts of law, uested utith such juisdictions, deterrnine whether the claims before them are in contrauention of some other lanas, cltstoms, practices and other ualue rlorrns of societg, other than the Constitution.

TLrus the Constitutional Court adjudicates matters requiring interpretation of the Constitution, and not necessaily, enforcement of tlrc Constitution, except where uporL determination of the issue of interpretation of the Constitution, the said court considers, on its own, tlwt there is need to grant additional redress. In such a case, the Constitutional Court maA grant other redress in addition to hauing interpreted the constitution or it may refer the matter to the High Court to inuestigate and determine the appropriate redress: See: Article 137(4) (a) and (b) of the Constitution. 15 20

> A constitutional question that has to be interpreted bU the Constitutional Court arises when there is an issue, legal or otherwise, requiring an interpretation of the Constitution for the resolution of the cause out of uthich that issue arises from.

> This issue may be raised either throughlodgment of a constitutional petition in the Constitutional Court bA a Petitioner; or through a reference to the Constitutional Court by the court that is determining the cause from which such an issue requiing constitutional interpretation arises or where a party

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to the proceedings of that cause requests that the court refers the issue to the Constitutional Court for interpretation.

Interpretation of the constitution is the ascertaining of the meaning of specific constitutional prouisions and hou,t they should be applied in a particular context."

It is therefore necessary to determine whether the Petition sets out any question for interpretation. Counsel for the petitioner stated in his submissions that the Petition requires a decision on whether the 1"t respondent's act of asserting presidential immunity as a defence to the petitioner's suit against him is unconstitutional. The petitioner contends that the resolution of that question requires the interpretation of Article 98 (4) and other provisions of the 1995 Constitution to determine the extent of the immunity from legal proceedings granted to the President. In my view, this question concerns an allegation that an act done by someone, namely the 1"t respondent's act of asserting the defence of presidential immunity, is inconsistent with and/or in contravention of Article 98 (a) of the 1995 Constitution, within the terms of Article 737 (3) (b) of the 1995 Constitution.

- However, as was rightly observed by counsel for the 1"t respondent, the broad question on whether a sitting president can be subjected to legal proceedings, which encompasses the question in this Petition, has been considered in many cases by the Supreme Court and this Court. 20 - In Hon. Theodore Ssekikubo and 4 Others vs. Attorney General, Constitutional Appeal No. 1 of 2o15, the Supreme Court held that: 25

![](0__page_13_Picture_6.jpeg)

"We think that Articlc 98(4) is clcar and unequivocal; thereforc, we shall apply the litcral ruie of constitutional interpretation. From this interpretation and from the authorities citcd by Counsel for the appellant including the Constitutional Law Cases and Essays, 2nd Edition by Sheldon Goldman pp 252-3, and Nixon v Fitzgerald, 457 US 73L \$9A2), it is clear and wc agrce with counsel for the appellant that the President cannot be subjcctcd to any court proceedings during his tcrm in office. As Mukasa-Kikonyogo and Kitumba JJA, (as they then were), aptly held in Brigadier Henry Tumukunde v. Attorney General & Anor, Constitutional Petition No. 6 OF 2OO5 (CC) at page 13 of their joint judgment: -

"The acts of tlrc President in appropriate cases can be challenged in Courts of lau; howeuer, uhile holding office, the President shall not be liable to court proceedings in any court.

According to the aboue authoities and others cited by courusel, the rationale for tLrc grant to the President of the piuilege and immunity from court proceedings while holding office, is to ensure that the exercise of presidential duties and functions are free from hindrance or distraction, considering that the Chief Executiue of the gouerrlment is a job that, aside from requiring all the office holder's time, also demands undiuided attention. 15 20

> "Becantse of the singular importance of the Presidertt's duties, diuersion of his energies by concerrl uith priuate laut suits would raise unique risks to the effectiue functioning of gouernment." (See: Nixon a Fitzgerald., per Poutell J (supra)."

The principles laid out in the above case were reiterated with approval by the Supreme Court in the case of lvan Samuel Ssebbaduka vs. The Chairman Electoral Commission and 3 Others, Supreme Court Presidential Election Petition No. 1 of 2O2O. In that case, the Supreme Court emphasized that a sitting President is immune from legal proceedings, except proceedings in a Petition challenging 25 30

![](0__page_14_Picture_6.jpeg)

the results of a Presidential election. The above cases are binding on this Court.

It is my considered view that since the question on the nature of presidential immunity under Article 98 (4), which is the szune question arising in this Petition, has been considered in the abovecited cases, this Court needs not consider the same question in the present case.

Furthermore, I noted that the Petition also sets out allegations that the petitioner's rights to a fair hearing and property were infringed due to the petitioner's inability to have his case against the respondent tried. In my view, those allegations relate to enforcement of rights and do not have to be considered as this Court does not have jurisdiction to try matters for enforcement of rights. In Ismail Serugo vs. Kampala City Council and Another, Constitutional Appeal No. 2 of 1998, Wambuzi C. J held that: 10 15

> "Irt my uiew, for the Constitutional Court to haue jurisdiction, the Petition must shota, on the face of it that iruterpretation of a prouision of tlrc Constitution is required. It is not enough to allege merelg that a Constitutional prouision is uiolated.

If therefore anA rights ang rights haue been uiolated as claimed, these are enforceable under Article 50 of the Constitution." 20

Therefore, the allegations in the Petition that certain rights of the petitioner were violated by acts of the respondent need not be considered.

All in all, I consider that the Petition raises no question for constitutional interpretation. I would answer issue 1 in the negative. 25

Crtl Having answered issue 1 in the negative, it becomes unnecessary to consider issues 2,3 and 4. Accordingly, I would dismiss this Petition since it raises no question for constitutional interpretation. I would make no order as to costs as it is the practice of this Court not to award costs in constitutional Petitions.

Dated at Kampala this lQL day of 2o2Z

ef\*', Christopher Gashirabake

Justice of the Constitutional Court

1.7

#### THE REPUBLIC OF UGANDA

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

(Coram: Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake, JJCC)

Constitutional Petition No. 010 of 2019

KawesaRichard::::::::::::l:'ll:":l::::::::::-::::::ps1i1isns1

Yoweri Kaguta Museveni::::::::::::::::::::::::Respondent No. 1 Attorney General::::::::::-::::::::::::::::::----Respondent No.2

### Judement of Fredrick Esonda-Ntende. JCC

- tll I have had the opportunity to read in draft the judgment of my brother, Gashirabake, JCC. I agree with it and have nothing useful to add. - l2l As Musoke, Madrama and Mugenyi, JJCC, also agree this petition is dismissed with no order as to costs.

Dated, signed and delivered at Kampala this \f, day of 2023

redrick de r

J of the Constitutional Court

# THE REPUBLIC OF UGANDA IN THE CONSTITSUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 010 OF 2019**

KAWESA RICHARD::::::::::::::::::::::::::::::::::::

## **VERSUS**

# 1. YOWERI KAGUTA MUSEVENI

2. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## HON. MR. JUSTICE FREDRICK EGONDA-NTENDE, JCC CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JCC HON. MR. JUSTICE CHRISTOPHER MADRAMA, JCC HON. LADY JUSTICE MONICA K. MUGENYI, JCC HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JCC

# JUDGMENT OF ELIZABETH MUSOKE, JCC

I have had the advantage of reading in draft, the judgment of my learned brother Gashirabake, JCC, and I agree with the reasoning and conclusions contained therein. I, too, would dismiss the Petition with no order as to costs.

Dated at Kampala this $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ .. 2023.

Elizabeth Musoke Justice of the Constitutional Court

## 5 THE REPUBLIC OF UGANDA,

# IN THE CONSTIruTONAL COURT OF UGANDA AT KAMPAI. A

(CORAM; EGONDA NTENDE, MUSOKE, MADRAMA, MUGENYI, GASHIRABAKE, JJCC)

## CONSTIruTONAL PETITION NO. OlO OF 2019

10 KAWESA RTCHARD) PETITIONER

## VERSUS

- r. YowERr KAGUTA MUSEVENI) - 2. ATToRNEY GENERAL) RESPONDENTS

## JUDGMENT OF JUSTICE CHRISTOPHER MADRAMA IZAMA, JCC

15 I have read in draft the Judgment of my learned brother Hon. Mr. Justice Christopher Gashirabake, JCC.

I agree that the petition ought to faiL for disclosing no controversy as to interpretation of the Constitution. To put it in my own words, the issue raised does not fat[ under articte 137 (1) of the Constitution because the question as to interpretation was previousty raised and its interpretation determined by courts seized with jurisdiction. The jurisdiction of the ConstitutionaL Court is derived from Artic[e 137 (1) of the Constitution which provides that:

> "Any question as to the interpretatlon of thls Constitutlon shall be determined by the Court of ,Appeal sitting as the constitutronal court."

- 25 WhiLe prima facie, the petition appears to raises a question as to the interpretation of the Constitution; that question has atready been determined by the constitutional court and there is no further controversy as to the meaning, scope and appLication of Articte 9B (4) of the Constitution, the subject matter of the interpretation sought in this petition. - Article 98 (4) of the Constitution was conclusively interpreted by the Constitutionat Court and the Supreme Court respectivety and my [earned 30

5 brother has referred to the relevant judgments which I need not repeat here.

10 The materiaI questton of whether the President is not Liabl.e to any proceedings in a court while holding off ice having been determined variousty by the constitutional court and the Supreme Court. The Supreme Court is the highest appettate court and remains is the enforcement of articLe 98 (4) of the Constitution as the High Court has done. Further, the fact that the President is not Liabl.e to any Legal. proceedings in any court does not per se shut out the petitioner from attempting any other [awfuL engagement on his claims with the President or his representative in an attempt to have his cLaim addressed amicabLy. ln the absence of any other constitutionaL means to have his c[aims considered, the petitioner has to wait until. the President leaves office if he desires to commence any action in any court with regard to his ctaims.

20 ln the finaI resuLt, I concur with the reasons advanced in the judgment of my Learned brother Hon. Mr. Justice Christopher Gashirabake, JCC together with the orders proposed that the petition be dismissed with no orderas to costs.

| Dated at Kampata the | t# | day of | Vr^-^^ | 2023 | |---------------------------|----|--------|--------|------| | opher Madrama lzama 25 | | | \ | |

Justice ConstitutionaI Court

![](1__page_21_Picture_0.jpeg)

THE REPUBLIC OF UGANDA

# THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake, JJCC)

## **CONSTITUTIONAL PETITION NO. 10 OF 2019**

<table>

RICHARD KAWEESA PETITIONER

**VERSUS**

1. YOWERI KAGUTA MÜSEVENI 2. THE ATTORNEY GENERAL ....................................

Constitutional Petition No. 10 of 2019

$\mathbf{1}$

#### **JUDGMENT OF MONICA K. MUGENYI, JCC**

- 1. I have had the benefit of reading in draft the judgment of my brother, Justice Christopher Gashirabake, JCC in respect of this Petition - 2. I agree with his conclusions and the orders issued, and have nothing useful to add.

Dated and delivered at Kampala this ....................................

Minngeny!

Monica K. Mugenyi **Justice of the Constitutional Court**