Kiiza Besigye v Attorney General (Constitutional Petition No. 52 of 2011) [2021] UGCC 41 (10 December 2021)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Egonda-Ntende, Musoke, Barishaki Cheborion, Kibeedi & Mulyagonja, JCC]

# **CONSTITUTIONAL PETITION NO. 52 OF 2011**

#### **BETWEEN**

KIZZA BESIGYE

$\frac{1}{2}$

$=$ PETITIONER

### AND

ATTORNEY GENERAL $=$ RESPONDENT

## JUDGMENT OF FREDRICK EGONDA-NTENDE, JCC

### **Introduction**

- $[1]$ I have had the opportunity to read in draft the judgment of my brother, Mutangula Kibeedi, JCC, with whom Barishaki Cheborion and Mulyagonja, JJCC, wholly agree. The majority conclude that this court is without jurisdiction in this matter and would dismiss the petition accordingly. My sister, Musoke, JCC, agrees in part and disagrees in part, and would consider that this court is seized with jurisdiction to answer the question whether or not section 26 of the Criminal Procedure Code Act is constitutional or not. - $[2]$ I find myself unable to join the majority of this court in its decision that this court has no jurisdiction in this matter and will briefly below provide reasons for my divergence from the majority. - $[3]$ The facts, background, issues and submissions of counsel arising in this petition have been ably set out in the judgment of Kibeedi, JCC. I shall not repeat them. I shall point out though that in answer to the factual basis of the petition the respondent had no answer. The affidavit that was filed for the respondent was sworn by a state attorney, who had no personal knowledge of the facts of the case and merely contended that the petition was frivolous and had no question for constitutional

Page 1 of 10

interpretation. It must be taken at the outset that the facts presented by the petitioner in this matter have not been challenged. The only challenge by the respondent was that this petition did not raise a question for constitutional interpretation.

- I agree that for this court to be seized with jurisdiction there must be a $[4]$ question for constitutional interpretation in the petition in accordance with article 137 (1) & (3) of the Constitution. What is alleged to be unconstitutional may be an Act of Parliament or other law, or any act or omission done under any law, by any person or authority. This court is seized with jurisdiction to issue declarations that such Act, or law, or act or omission by any person or authority is unconstitutional and may grant further redress or refer the matter to the High Court to investigate and determine the appropriate redress. - I am unable to go further than what the Constitution has provided and $[5]$ join the majority to declare that where the facts in the petition show a violation of fundamental rights the petitioner ought to proceed under article 50 of the Constitution for enforcement of fundamental rights. Or that where it is possible by way of modification, adaptations, qualifications and exception, such law can be brought into conformity with the constitution, pursuant to article 274 of the Constitution, such matter cannot give rise to adjudication by this court. - Invariably a person will come to this court when in fact he/she is alleging $[6]$ that there has been a violation or infraction of his/her fundamental rights and freedoms protected by Chapter 4 of our Constitution. And he/she seeks a declaration to that effect. If this is in relation to a provision of the law this court would declare such law to be void if it is inconsistent with the Constitution pursuant to article 2 (2) of the Constitution. This is the only court with that jurisdiction. - If it is relation to acts or omissions done by any authority or person $[7]$ under any law or outside the law, as the case may be, the petitioner may be entitled to a declaration that such acts or omissions are unconstitutional. It is not for this court to say go to another court and seek damages or other orders for violation of your rights and let that court apply article 274 of the Constitution to be able to render you a remedy.

In my view it must be up to a petitioner to determine which court and [8] which remedy he seeks. All provisions of the Constitution must be read in harmony in which one part does not negate the other. It is possible that a particular set of facts may give rise to multiple causes of action, including one for constitutional interpretation, another for enforcement of, or seeking redress for violation of fundamental rights. The existence of multiple causes of action should not turn a matter into a 'ping pong' game with different courts, determining for a litigant where he/she should seek redress and toss him/her from one court to another.

#### **Analysis**

- The petitioner sought 4 declarations. Firstly, that section 26 of the $[9]$ Criminal Procedure Code Act is in contravention of articles, 23, 28, 29(1) (d), 29 (2) (a) and 44 (c) of the Constitution. Secondly section 24 of the Police Act contravenes articles 23, 28, 29 (1) (d), 29 (2) (a), 43 (2) and 44 (c) the Constitution. Thirdly that the acts of arrest and detention and or continued detention of the Petitioner at his residence is in contravention of articles 23, 28, 29(1), 43 (2), and 44 (c) of the Constitution. Lastly that the entry and continued presence of the large numbers security operatives on the Petitioner's residence and land is inconsistent with articles 27 (1) (b) and 27 (2) of the Constitution. - The petitioner seeks declarations that seek to impugn 2 sections of $\lceil 10 \rceil$ different Acts, as unconstitutional and a series of acts of the police and army officers, as particularised, to be unconstitutional. This falls squarely with the provisions of article 137 $(1)$ and $(3)$ of the Constitution. The facts set in the petition on their face point to the infraction of the provisions of the Constitution cited. In my mind I am in no doubt on the petition 4 questions are set out for constitutional interpretation. This approach is consistent with the decision of the Supreme Court in Serugo v Kampala City Council & Anor [1999] UGSC 23, where Mulenga, JSC stated:

'In my view the proper perspective is that the right to petition the Constitutional Court, so far as is relevant to this appeal, is derived from Article 137 of the Constitution where it provides, in clause $(3)$ as follows:

$(3)$ A person who alleges that-

- (a) $\ldots$ - (b) any act or omission by any person or authority,

is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect and for redress where appropriate."

...................................... not only to a person aggrieved by, but also to any other person who alleges, the inconsistency with, or contravention of the Constitution.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

In the instant case, the petition describes the acts complained of in paragraph $1(a)-(g)$ . It indicates the provisions of the Constitution allegedly contravened by those acts. And asks for a declaration to the effect that those provisions of the Constitution were contravened and secondly for redress. In my view these averments constitute several causes of action under Art. $137(3)$ (b) with a chance of success, at least in respect of the prayer for the declaration. If the Appellant had been allowed to proceed and had proved those averments or any of them to be true and correct, he would, on the fact of it, be entitled to the remedy of a declaration. I find considerable support for this view in the judgment of this Court in Wycliffe Kiggundu Kato vs. Attorney-General (supra) which was an appeal against an order of the High Court rejecting a plaint under O.7 r.11 (a) on the ground that it did not disclose a cause of action. In the plaint, after making diverse averments regarding interdiction, and subsequent retirement from his government employment, the Plaintiff had prayed for (a) a declaration that the interdiction and the retirement were unlawful (b) general damages (c) costs and interest. In allowing the appeal, this Court said at $P.10$ of the judgment:

"A good deal of argument in the trial Court concerned the effect of the decision in Opolot vs Attorney General [1969] E. A 631. It does not appear to us that (that) decision is relevant to the precise issues on this appeal. Whether or not the Appellant can be retired in the public interest at the will of the President, he is asking for declarations of another kind. He alleges that prior to the decision to retire him he was unlawful interdicted and then unlawful advice was given to the President......... the defence merely says that whatever was done was lawful. What is the position then, if the Appellant accepts his retirement as a fact, but alleges that the steps taken to

cause his retirement were unlawful? Prima facie a subject has the right to expect procedures to be lawfully carried out, and the remedy of a declaration, at least, is apt to vindicate the subject's rights. Whether or not that is a pyrrhic victory in the end is not in point in this appeal." (Emphasis added).

Turning back to the instant case I would observe that the petition having disclosed reasonable causes of action in respect of which the Petitioner, if successful upon trial, would be entitled to the remedy of a declaration, it does not matter if such success turned out to be a "a pyrrhic victory", as for instance if he were to fail to recover redress in form of the damages he prayed for. But I hasten to say, without expressing any firm conclusion on the matter, that even those other remedies cannot be ruled out of question.'

$[11]$ Order, JSC (as he then was) stated:

> 'I shall comment briefly on grounds $3(b)$ and (c) of the appeal. With regard to jurisdiction, I think that the Constitutional Court had jurisdiction since the petition sought declarations under Article 137 of the Constitution. Declaration in my view cannot be made without interpretation of the Constitutional provisions which the act or statute complained of allegedly contravene'

- $[12]$ I agree with Kibeedi, JCC, that this court, after the petition was filed, has already answered the second question whether section 24 of the Police Act is constitutional or not. Reference is made to Foundation for Human Rights Initiative v Attorney General [2020] UGCC 7. We need not deal with the second issue, whether section 24 of the Police Act is constitutional or not, as there is an answer from this court. It is constitutional. No controversy exists about the same at the hearing of this petition. - For the reasons provided by Musoke, JCC, I agree that section 26 of the $\lceil 13 \rceil$ Criminal Procedure Code Act is constitutional. That answers the third issue. Nevertheless, I must point out that not every act done or purported to be done in accordance with that provision of the law is necessarily done always within that provision of the law and therefore constitutional. The act so done may be outside provisions of section 26 of the Criminal

Procedure Code Act, and may be assailed under the Constitution, as in this particular case. It is the duty of the respondent to justify that such act or omission complained of was done within the law.

The petitioner in part 2 of his petition set out facts upon which this $[14]$ petition is grounded. The affidavit in support by the petitioner provided proof of those facts and more. The response to the petition is a bare denial. The affidavit of the petitioner was not controverted. The factual basis for the case for the petitioner has no challenge. I will set out the relevant portion of the affidavit by the petitioner.

> '4. That, on 18th October 2011, I left my residence with the intention of walking to my place of work at the FDC Headquarters in Najjanankumbi at about 8.00am and after walking for about 500 meters, I was surrounded and blocked by several police cars.

5. That, the police operatives who stopped me were under the command of the Regional Police Commander of Kampala North, Mr. Stephen Tanui, who informed me that I was under arrest.

6. That, I was driven off, on the back of a police pickup, and taken to Kasangati Police Station.

7. That, at the police station, Mr. Tanui asked the police officers to prefer charges against me.

8. That, inquired to know what offence I had committed and I was informed that I was arrested as a preventive action, but I was not told they wanted to prevent.

9. That about 40 minutes later, the police officers said that they were taking me away. I informed Mr. Tanui that I had called my lawyers and that I would not go away.

10. That I was forcefully, removed from the police station before my lawyers arrived and I was driven to my residence in a police van numbe UP 1928 which dropped me off at the gate. Upon arrival, I found my residence had been heavily surrounded by police and military operatives.

11. That, having satisfied myself that I couldn't be detained by police in my residence, I left through another entrance to my

residence and walked through my farm in order to acess the main road and make my way to work.

12. That, when I reached Masooli Parish, I was confronted by police officers again under the command of Mr. Tanui and Mr. Joel Aguma of the Rapid Response Unit (RRU) who informed me once again that I was under arrest.

13. That, large numbers of police officers and other security operatives, commanded by the Deputy Regional Police Commander (Operations), Kampala Metropolitan Police, ASP Sam Omala, have occupied my land and confined me to my house which is a small part therof.

14. That, I am prohibited from leaving my residence, whether by car, or on foot and I cannot access my farm buildings or paddocks to inspect to inspect my livestock because of the said deployment by Police and security operatives.

15. That, access (ingress and egress) to my residence and farm to my guests, employees and other invitees is heavily restricted as ASP Omala and other security operatives insist on vetting who comes in and out as well as restrict all motor vehicular access to my house meaning that disabled or infirm relatives cannot come to my house.

16. That, the Police and security presence on my land amounts to a gross violation of my rights to liberty, freedom of conscience, expression, movement and assembly as well as of my right to privacy.

17. That I have not been shown any warrant authourizing the Police officers and other security operatives to access and remain on my land.

18. That, Police and Security operatives are not equipped with mobile sanitation facilities yet they are deployed on my land and around my residence for 24 hours of each day. They ease themselves in the paddocks and farm land and have contaminated the public well which is on my land thereby exposing me and neighbouring residents to the threat of disease.

19. That, I heard ASP Omala and other Police Force spokespersons such as Ibn Senkumbi and Judith Nabakooba state that I am under preventive arrest and will not be released until such time as I disavow my intention to participate in the

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Walk-to-Work protests, which means that I am under indefinite detention for trying to exercise my constitutionally guaranteed rights as a citizen of this country.'

- $[15]$ We were informed from the bar that the petitioner at some point presented an application at the Chief Magistrates of Kasangati which ordered the police officers to vacate the petitioner's land at Kasangati which they eventually did after a period of none compliance. We did not have sight of the record of that court or order. - As noted above there has been no attempt to offer a different narrative $[16]$ with regard to the facts in this case by the respondent. Nor has there been an attempt to justify the said acts as having been done under any law in these proceedings. The facts as presented by the petitioner on his affidavit are the only account we have of what occurred in this saga. It is clear that from the 18th October 2011 up to the time of filing of this petition, 10 days later, the acts complained of were continuing. We have no further evidence as to when they stopped though we were told from the bar that they ceased at some point. - $\lceil 17 \rceil$ Every resident of this country and all subject to the jurisdiction of our laws are assured that they are born with certain fundamental rights and freedoms some of which have been set out in our Chapter 4 of the Constitution. The Constitution does not grant them. It gives recognition to them as inherent to human beings pursuant article 20 $(1)$ of the Constitution. See Charles Onyango Obbo and Anor v Attorney General ( [2004] UGSC 81. - $\lceil 18 \rceil$ It has been established on the evidence before us that the petitioner's fundamental right to liberty was infringed contrary to article 23 $(1)$ of the Constitution. Likewise, his right to privacy of his person, home and property contrary to article 27 (1) (b) & 27 (2) was infringed. So was his fundamental right to and freedom of expression, assembly and movement contrary to article 29 of the Constitution. - $\lceil 19 \rceil$ The respondent has not advanced either on its pleadings or by way of any evidence any justification for these breaches. Once a petitioner satisfies the court that the fundamental rights and freedoms have been infringed the burden shifts to the respondent to justify such infringement. See Major General David Tinyefuza vs Attorney General, Constitutional

Appeal No. 1 of 1997 (unreported) and Charles Onyango Obbo and Anor v Attorney General ([2004] UGSC 81. There is no justification in this case. I would accordingly grant the declarations sought in clause 3 (a) (iii) and (iv) of the Petition.

- The petitioner sought an order for his unconditional release. It is not $[20]$ necessary to grant this order as the petitioner is at liberty at the hearing and determination of this petition. - The petitioner also claimed compensation for his unlawful arrest and $[21]$ detention pursuant to article 23 (7) of the Constitution. Violation of a person's fundamental rights and freedoms by itself alone is sufficient proof of damage and entitlement to compensation. However, in this particular case, it is not clear how long the detention lasted. And whether or not the petitioner was put to any monetary loss and the extent of such loss by reason of the acts of security agencies of this nation. In spite of an incomplete picture in this regard I am satisfied that the petitioner would be entitled to an award by way of general damages to compensate him for violation of his fundamental rights to liberty and privacy of his person, home and property as well as freedom of expression, movement and assembly. The petitioner did not suggest any figure. I would award him Shs. 70,000,000.00 in general damages for breach of his fundamental rights and freedoms as found above. - The petitioner prayed for a permanent injunction barring the detention of $[22]$ the petitioner at his residence under the pretext of preventive arrest and detention. I would not grant the injunction given the lapse of time between the acts complained of and now without any suggestion that the unconstitutional conduct has been repeated. - I would also award the petitioner costs of this petition. $\lceil 23 \rceil$

### Decision

As Barishaki Cheborion and Mulyagonja JJCC agree with the judgment $[24]$ of Kibeedi, JCC, (with Musoke agreeing in part, and dissenting in part, and Egonda-Ntende, dissenting) this petition is dismissed with no order as to costs ## **Other Remarks**

It is a travesty of justice that a constitutional matter in this case was $[25]$ heard by this court only 10 years after its filing in clear breach of article 137 (7) of the Constitution which directs this court to hear such matters expeditiously, and if need be, suspend any other business pending before the court, and attend to such matters. Those words could not be clearer both in intent and meaning. Where this delay is the direct result of the actions or omissions of this court we must purge ourselves of such acts and or omissions if the court is to retain public trust and confidence.

Signed, dated and delivered this to day of

redrick Egonda-Ntende Justice of the Constitutional Court

## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO, 052 OF 2011**

KIIZA BESIGYE::::::::::::::::::::::::::::::::::::

### **VERSUS**

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: **CORAM:** HON. MR. JUSTICE FREDRICK EGONDA-NTENDE, JCC HON. LADY JUSTICE ELIZABETH MUSOKE, JCC HON. MR. JUSTICE CHEBORION BARISHAKI, JCC HON. MR. JUSTICE MUZAMIRU KIBEEDI, JCC HON. LADY JUSTICE IRENE MULYAGONJA, JCC

## JUDGMENT OF ELIZABETH MUSOKE, JCC

I have had the benefit of reading in draft the judgment of my learned brother Kibeedi, JCC wherein he sets out the relevant material to be considered in determining this Petition, and I will not repeat the same here, except in so far as is necessary to explain my conclusions in the matter.

The petitioner lodged this Petition under Article 137 (3) of the 1995 Constitution seeking this Court to consider, among other issues, the broad question as to whether the practice of "preventive arrest" is consistent with the Constitutional rights scheme set out under Chapter 4 of the 1995 Constitution. Preventive arrest is provided for under the Police Act, Cap. 303 and the Criminal Procedure Code Act, Cap. 116. Section 24 of the Police Act provides:

"24. Arrest as preventive action.

$\cdots \rightarrow \infty$

(1) A police officer who has reasonable cause to believe that the arrest and detention of a person is necessary to prevent that person—

(a) from causing physical injury to himself or herself or to any other person;

- (b) from suffering physical injury; - (c) from causing loss or damage to property; - (d) from committing an offence against public decency in a public place;

(e) from causing unlawful obstruction on a highway;

$\mathcal{L}_{\mathcal{A}}$

(f) from inflicting harm or undue suffering to a child or other vulnerable person, may arrest and detain that person.

(2) A person detained under subsection (1) shall be released—

(a) once the peril, risk of loss, damage or injury or obstruction has been sufficiently removed;

(b) on the execution of a bond with or without surety where provision is made for him or her to appear at regular intervals before a senior police officer, if so required; or

(3) If the person detained under this section is not resident in Uganda, the bond referred to in subsection (2) may be secured by a surety resident in Uganda.

(4) Any person so arrested or any other person on his or her behalf who has reason to believe that any person is being unlawfully detained under this section may apply to a magistrate to have such person released with or without security."

Section 26 of the Criminal Procedure Code Act provides:

"26. Arrest to prevent offences.

A police officer knowing of a design to commit any cognisable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to the officer that the commission of the offence cannot otherwise be prevented."

The two highlighted provisions allow for a police officer to arrest a person to prevent him/her from, interalia, committing crime, causing injury to others or to him/herself, among others. The petitioner contends that the power of preventive arrest constitutes an impermissible derogation from several rights provided under the 1995 Constitution, such as the right to liberty, right to a fair hearing, freedom of assembly and freedom of movement.

The jurisdiction of this Court is provided for under Article 137 of the 1995 Constitution as follows:

## "The constitutional court.

137. Questions as to the interpretation 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 shallconsist of a bench of five members of that court.

(3) A person who alleges that—

$\mathcal{L}(\mathcal{H})$

(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or

(b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate."

In view of the above provision, and relevant to this Petition, this Court has jurisdiction to determine allegations that a provision in an Act of Parliament is inconsistent with a provision of the Constitution, as in the present case where it is alleged that Section 24 of the Police Act, Cap. 303 and Section 26 of the Criminal Procedure Code Act, Cap. 116, are alleged to be inconsistent with several highlighted Constitutional provisions. In such circumstances, a question for Constitutional interpretation arises, and this Court must determine it. The question for Constitutional interpretation as envisaged under Article 137 (1) need not be a novel question that has never been answered by this Court or indeed by the Supreme Court in a Constitutional appeal. If the framers of the Constitution had intended for the Constitutional Court to only handle novel questions for Constitutional interpretation, they would have expressly stated so under Article 137 (1).

Therefore, in departure from the conclusions of Kibeedi, JCC, I would find that issue 2 - whether Section 26 of the Criminal Procedure Act, Cap. 116 and Section 24 of the Police Act, Cap. 303 are inconsistent with and contravene Articles 23, 28, 29 (1) (d), 29 (2) (a), 43 (2) and 44 (c) of the 1995 Constitution presents a question for Constitutional interpretation in the terms of Article 137 clause (1) read together with clause (3).

I am cognizant of the fact, as Kibeedi, JCC notes in his judgment, that the constitutionality of the practice of preventive arrest was considered in the case of Foundation for Human Rights Initiative vs. Attorney General, Constitutional Petition No. 53 of 2011 (unreported), (FHRI

**authority).** The FHRI authority, therefore serves as a precedent to be applied in determining the present Petition. However, in my view, and in line with the common law application of precedents and stare decisis, the holding in the FHRI authority may only be applied after this Court has accepted jurisdiction to determine issue 2. The FHRI case cannot be relied on to refuse jurisdiction to entertain issue 2.

$\mathcal{F} = \mathcal{E}$

Therefore, after accepting jurisdiction over issue 2, I would apply the persuasive views of Egonda-Ntende, JCC in the FHRI authority, with whom the rest of the Court agreed, to answer that issue. Although Egonda-Ntende, JCC's views related to only Section 24 of the Police Act, Cap. 303, I find that they also apply to Section 26 of the Criminal Procedure Act, Cap. 116, given that both the highlighted provisions empower police officers to carry out "preventive arrests". I quote extensively from the judgment of Egonda-Ntende, JCC, where he stated:

**"51. In essence section 24 provides for preventive arrest and detention.** The object of preventive arrest is to intercept and prevent a person from doing an act that is prejudicial to himself or herself, or other persons, or property of the general public.

It is aimed at preventing the person from breaking the law. This is distinguishable from instances where a person is arrested on a charge or allegation of having committed a crime. The police, usually must form their grounds for arrest upon an investigation. However, preventive arrest allows an officer to act on his or her belief, if based on reasonable and probable grounds, to arrest and detain a person.

52. Section 24 specifies the instances under which the police must exercise its power of arrest as a preventive action. From the circumstances stipulated, it can be deduced that preventive arrest is aimed at protecting the individual, property and the public at large from harm and maintain law and order in society.

53. The purpose of section 24 (1) (a) and (b) is to prevent an individual from causing himself or herself physical injury or to other persons and section 24 (1) (c) to preserve the right to property. Section 24 (1) (d) fosters our cultural values and morals which is the spirit of the Constitution. The purpose of section 24 (1) (e), I presume, is to maintain order, prevent unnecessary inconveniences that forestall day to day activities essential for economic progress. Section 24 (1) (f) is aimed at protecting the rights of the marginalised and vulnerable persons of our society. This is in line with the spirit of our Constitution.

$\mathcal{L}_{\mathcal{L}}$ $\mathcal{L}^{\mathcal{L}}$

> 54. The state is charged with the obligation of upholding and promoting the fundamental rights and freedoms guaranteed by the Constitution. The police is one of the instruments of the state for discharging this obligation. Article 212 of the Constitution sets forth the basic functions of the Uganda Police which include; to protect life and property, to preserve law and order and to prevent and detect crime. I would think that the impugned provision is crucial in enabling the police to carry out these duties which are aimed at protecting the fundamental rights that the Constitution quarantees."

Egonda-Ntende, JCC took the further view that preventive arrest as provided for under Section 24 of the Police Act constitutes an exceptional circumstance justifying deprivation of the right to liberty as envisaged under Article 23 of the 1995 Constitution. He stated:

Article 23 of the Constitution provides for the right to personal liberty which can only be deprived in exceptional circumstances as provided therein. Article 23 (1) (c) allows the deprivation of a person's liberty for the purpose of bringing that person before a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda. Arrest as a preventive action falls under this category of exception."

Egonda-Ntende, JCC discussed several safeguards under Article 23 and the Police Act put in place to avoid abuse of the police powers of preventive arrest - a police officer conducting arrest must act on reasonable grounds lest he faces proceedings for unlawful arrest and detention - a person arrested under preventive action is supposed to be charged before a Court of law in 48 hours or released, among others. I agree with the views of Egonda-Ntende, JCC. I wish to add that far from being unconstitutional, preventive arrest is a useful tool available for the police to avert the commission of crime and maintain law and order in society.

As for the allegations that the practice of preventive arrest constitutes an impermissible derogation from the right to liberty and the rights to freedom of assembly and freedom of movement, those rights are not absolute and can be derogated from in the manner provided for under Article 43 of the 1995

Constitution. In the present case, it is my view that the practice of preventive arrest is justified under Article 43 to protect the rights of others.

In regard to violation of the right to a fair hearing, I am of the view that that right does not arise in the context of preventive arrest, which as a preventive action is intended to prevent the commission of crime, and in a successful scenario, it averts the commission of a crime. On the other hand, the right to a fair hearing is applicable after a crime has been committed and charges levelled against an accused person suspected of committing that crime.

I am mindful that the police power of preventive arrest, like any other power may be abused, as for example in the present case, where the petitioner alleges – that the police had no reasonable ground to apply preventive arrest on him (issue 3) or - that the preventive arrest measures against him have gone on for an unreasonably long period of time (issue 4).

However, I am of the view that the matters raised in issues 3 and 4, raise no question for constitutional interpretation and were improperly raised in this Court. Instead those matters should have been raised in an appropriate suit before the High Court for adjudication. I therefore, agree with the conclusions of Kibeedi, JCC on issues 3 and 4.

In conclusion, therefore, I would hold that this Court has jurisdiction to determine issue 2 but on the authority of Foundation for Human Rights Initiative vs. Attorney General, Constitutional Petition No. 52 of 2011 (per Egonda-Ntende, JCC), I would answer issue 2 in the negative. For the reasons given by Kibeedi, JCC, I would find that this Court has no jurisdiction to determine issues 3 and 4. I would, therefore, dismiss this Petition but make no order as to costs

| Dated at Kampala this $\mathbb{Q}$ between the day of $\mathbb{Q}$ between 2021. | | | |----------------------------------------------------------------------------------|--|--| | | | | | | | | | | | |

Elizabeth Musoke Justice of the Constitutional Court

## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA (Coram: Egonda-Ntende, Elizabeth Musoke, Barishaki Cheborion,

Muzamiru M. Kibeedi & Irene Mulyagonja, JJCC)

## **CONSTITUTIONAL PETITION NO. 52 OF 2011**

### **BETWEEN**

#### KIZZA BESIGYE ::::::::::::: **::::::::::::::::PETITIONER** 10 AND ATTORNEY GENERAL :::::::::::: **::::::::::::::RESPONDENT**

$\mathsf{S}$

# **JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI, JCC Background**

The Petitioner, at the time of petitioning this Court in 2011, was the 15 President of the Forum for Democratic Change (FDC), the then biggest opposition political party in the Parliament of Uganda. He commenced this Constitutional Petition at the height of what was dubbed the "Walk -to-Work" demonstrations in Uganda in 2011 in which the Petitioner and some other opposition leaders participated 20 after the Petitioner contested in the 2011 Presidential Elections for the office of President of Uganda and lost.

Some of the leaders of the demonstrations were arrested by government in exercise of the Police powers of "preventive arrest" provided by Section 24 of the Police Act. Some of them were charged $25$ and terrorism before the High Court. with treason The Constitutionality of the police powers of "preventive arrest" and the act of charging the Walk-to-Work demonstrators with the offences of

treason and terrorism was the subject of **Constitutional Petition No.** 53 of 2011 between Foundation for Human Rights Initiative (FHRI) 30 Versus Attorney General which, although filed in 2011, was decided by this court only recently on 03rd July 2020.

In his Affidavit in Support of this Petition, the Petitioner stated that while he was "walking-to-work" on 18th of October 2011 he was arrested by the Police in the alleged exercise of its powers of "Preventive arrest" under S.24 of the Police Act and S.26 of the Criminal Procedure Code Act, Cap.116. He was then taken to Kasangati Police Station. Thereafter he was returned and confined at his home located in Buyinja Zone, Nangabo Sub County, Kasangati in Wakiso District. That there was heavy police and security deployment around his residence which he complains prohibited him from leaving his residence, restricted his visitors from accessing his home and generally denied him the enjoyment of his rights to liberty, freedom of conscience, expression, movement, assembly and the right to privacy.

It was for those reasons that he commenced this Constitutional Petition under Article 137 (3) of the Constitution and the Constitutional Court (Petitions and References) Rules, 2005 stating that:

"he has suffered and continues to suffer the infringement of his fundamental rights and freedoms guaranteed under the Constitution of the Republic of Uganda as he was unlawfully arrested and detained under the pretext of preventive arrest and continues to be unlawfully detained in a manner that is inconsistent with the Constitution of the Republic of Uganda ..."

He sought declarations that:

- a) Section 26 of the Criminal Procedure Code Act Cap 116 is in contravention of Articles 23, 28, 29(1)(d), 29(2)(a) and 44(c) of the Constitution: - b) Section 24 of the Police Act Cap 303 contravenes Articles 23, 28, $29(1)(d)$ , $29(2)(a)$ , $43(2)$ and $44(c)$ of the Constitution; - c) The acts of arrest and detention and/or continued detention of the Petitioner at his residence are in contravention of Articles 23, 28, $29(1)$ , $43(2)$ and $44(c)$ of the Constitution; and - d) The entry and continued presence of the large numbers of security operatives on the Petitioner's residence and land is inconsistent with Articles $27(1)(b)$ and $27(2)$ of the Constitution.

The Petitioner further sought the following orders:

- 70 a) The unconditional release, of the Petitioner, from unlawful detention: - b) Compensation for the unlawful arrest and detention pursuant to Article $23(7)$ of the Constitution; and - c) A permanent injunction restraining the government and/or security organisations from detaining the Petitioner at his residence under the pretext of preventive arrest and detention.

The respondent opposed the Petition and filed an Answer to the Petition supported by the Affidavit of Esther Nyangoma, a State Attorney in the Attorney General's Chambers. The Respondent not only denied any act or omission which violated or infringed any provisions of the Constitution as alleged, but also contended that the Petition was misconceived, frivolous and vexatious and raised no issues for interpretation of the Constitution.

### **Representation**

- When this matter came up for hearing, the Petitioner was represented 85 by Mr. Ernest Kalibbala assisted by Mr. Fredrick Mpanga; while the respondent was represented by Mr. Jimmy Oburu Odoi, a Principal State Attorney in the Attorney General's Chambers. The Petitioner was present in Court. - Counsel for the Petitioner adopted the Petitioner's Written 90 Submissions which they had filed in court on 20th October 2020. The Respondent's Counsel was granted leave to file his Written Submissions which he eventually filed on 07th December 2020.

During the hearing, the court put some questions to Counsel, their oral responses have also been taken into account. 95

### **Issues**

In the Written Submissions of both the Petitioner and the Respondent, the issues which appear to have been agreed upon for determination by this court are the following:

- 1. Whether the Petition discloses any question for interpretation as 100 provided for in Article 137(3)(a) and (b) of the Constitution. - 2. Whether Section 26 of the Criminal Procedure Code Act, Cap 116 and Section 24 of the Police Act, Cap 303 are inconsistent with and contravene Articles 23, 28, 29(1)(d), 29(2)(a), 43(2) and 44(c) of the Constitution of Uganda. - 105

- 3. Whether the acts of arresting the Petitioner, and detaining him at his residence are inconsistent with Articles 23, 28, 29(1), 43(2) and $44(c)$ of the Constitution. - 4. Whether the continued presence of large numbers of security personnel on the Petitioner's land was inconsistent with Articles $27(1)(b)$ and $27(2)$ of the Constitution of Uganda. - 5. Remedies.

I will consider the said issues in the order that they were presented by the parties.

Issue 1: Whether the Petition discloses any question for 115 interpretation as provided in the provisions of Article $137(3)(a)$ and (b) of the Constitution.

# **Counsel's Submissions**

In their Written Submissions on this issue, Counsel for the Petitioner submitted that the issues raised in the Petition are justiciable before this Court as they are brought under Article 137(3)(a) and (b) of the 120 Constitution which permits any person alleging that any law or

Page 5 of 24

anything done under any law or any act or omission by any person or authority is inconsistent with or in contravention of the Constitution to petition this Court for purposes of declarations and redress where appropriate.

Counsel further submitted that the matters complained about – arrest of the Petitioner without cause, interference with the Petitioner's various freedoms under the guise of preventive arrest, detention of the Petitioner in an unlawful place, occupation of the Petitioner's land 130 by security forces variously, are all matters done under provisions of named Acts of Parliament or are acts or omissions by persons in authority done under the authority of law. That the law enabling those acts to be done and those acts themselves are being submitted to this Court for scrutiny with regard to their consistency or otherwise 135 with identified and named Articles of the Constitution.

Lastly, Counsel submitted that this Court has consistently found that petitions brought under Article 137(3) are justiciable before it and has entertained the same consistently where they state the acts of the police which are impugned, cite the provisions of the Constitution allegedly contravened by the impugned actions and seek declarations to that effect. For this submission, Counsel relied on the Judgment of this Court in Behangana Demaro & Another v Attorney General Constitutional Petition No. 53 of 2010.

Counsel ended their submissions on this issue by praying that it be 145 answered in the affirmative

Counsel for the respondent disagreed. Counsel submitted that the matters raised in the Petition are outside the original jurisdiction of this court as they do not require interpretation of any article of the Constitution in order to be resolved. For this submission Counsel relied on the authorities of Attorney General V Major General David Tinyefuza, Supreme Court Constitutional Appeal No, I of 1997 and Ismail Serugo V Kampala City Council & Attorney General, Supreme Court Constitutional Appeal No. 2 of 1998.

Counsel prayed that this Court follows its decision in the case of 155 Foundation for Human Rights Initiative Vs Attorney General, Constitutional Petition No. 52 of 2011 and dismisses the Petition for lack of jurisdiction.

### Resolution of issue 1

This issue arose from paragraph 2(a) of the Respondent's Answer to 160 the Petition in which it was stated thus: "That this Petition is misconceived, frivolous and vexatious and raises no issues for interpretation by this Honorable Court."

The relevancy of this issue lies in the fact that its resolution determines whether this court has jurisdiction to entertain the Petition 165 in this matter or not.

The Petition in the instant matter was brought under Article 137(3) of the Constitution which provides as follows:

"A person who alleges that -

## a) an Act of Parliament or any other law or anything in or done under the authority of any law; or

b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate."

The issue of Constitutional Petitions that are justiciable under Article 137(3) of the Constitution has been the subject of numerous judicial decisions of this court and the Supreme Court. What stands out in all of them is that for this court to have jurisdiction over any issue or 180 issues raised before it, interpretation of a provision or provisions of the Constitution must be necessary in the resolution the of the said issue(s) See Attorney General Vs Major General David Tinyenfuza, Supreme Court Constitutional Appeal No. 1 of 1997, Ismail Serugo

Vs Kampala City Council & Another Constitutional Appeal No. 2 of 185 1998, Charles Kabagambe vs Uganda Electricity Board Constitutional Petition No. 2 of 1999

In *Ismail Serugo Vs Kampala City Council & Another Constitutional* Appeal No. 2 of 1998, Wambuzi C. J. (as he then was) with the concurrence of the rest of the court stated thus: -190

> "... for the Constitutional Court to have jurisdiction the petition must show, on the face of it, that interpretation of a provision of the Constitution is required. It is not enough to allege merely that a Constitutional provision has been violated. If therefore rights have been violated as claimed, these are enforceable under Article 50 of the Constitution by another competent court ..." [Emphasis added]

On the other hand, Kanyeihamba, JSC, in Constitutional Appeal No.

1 of 2003 Baku Raphael Obudra & Obiga Kania Vs Attorney General with the concurrence of the other Justices of Supreme Court stated 200 thus:

> "In a number of cases such as Attorney General Vs Major General Tinyenfuza, Constitutional Appeal No. 1 of 1997 (S. C.) and Serugo Vs Kampala City Council, Constitutional Appeal No. 2 of 1998 (S. C.) this court has expressed the view that in constitutional petitions brought under Article 137(3) of the Constitution, a cause of action is disclosed if the petitioner alleges that the act or omission complained of and cites the provision of the Constitution which has been contravened and prays for a declaration."

Odoki, CJ, had this to say in the same case:

"In Serugo Vs Kampala City Council, Constitutional **Appeal No. 2 of 1998, this court pronounced itself on** the meaning of cause of action as regards constitutional petitions... In my opinion, where a petition challenges the constitutionality of an Act of Parliament it sufficiently discloses a cause of action if it specifies the Act or its provision complained of and identifies the provision of the Constitution with which the Act or its provision is inconsistent or in contravention, and seeks a declaration to that effect. A liberal and broader interpretation should in my view be given to a Constitutional petition than a plaint when determining whether a cause of action has *been established."* [Emphasis added]

On the other hand, Tsekooko, JSC, had this to say: "I agree that in a number of cases decided by this Court. the Court has held the view that normally in constitutional petitions brought under Art. 137(3) of the Constitution, a cause of action is disclosed if the Petitioner alleges the act or omission complained of and then prays for a declaration: See Attorney General Vs Major General D. Tinvenfuza, Constitutional Appeal No. 1 of 1997 (S. C.)

and Serugo Vs Kampala City Council, Constitutional Appeal No. 2 of 1998 (S. C.) (Unreported). But I do not think that in these cases we have laid down a binding principle that will apply to all constitutional petitions. Every petition will have to be decided on its own facts." [*Emphasis added*]

Applying the criteria outlined above to the instant case, does the 240 Petition prima facie disclose any questions for interpretation as provided for in the provisions of Article $137(3)(a)$ and (b) of the **Constitution?**

Resolution of the above issue hinges greatly on the meaning of the phrase "question for interpretation ... of the Constitution". The 245 said phrase is derived directly from Article 137 (1) of the Constitution of Uganda, 1995 which is coached as follows:

> "Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the Constitutional court." [Emphasis added]

The Constitution neither defines nor sets out a criterion for determining what amounts to a *"question as to the interpretation of [the] Constitution".*

Recently, in the judgment delivered on 03rd July 2020 in *Foundation*

for Human Rights Initiative Vs Attorney General, Constitutional 255 Petition No. 52 of 2011, Hon. Justice Christopher Madrama, JCC while considering the question as to whether the Constitutional Court had jurisdiction over the Petition in that case, went to great length to consider the meaning of the phrase, *"question as to the interpretation"* of [the] Constitution". 260

Page 10 of 24

The background to that case was that as part of the government response to the "Walk-to-Work" demonstrations organized by some political party activists, several political party activists were arrested by the Police in October 2011 from diverse places including the home of Dr. Kizza Besigye, and a taxi. With the sanction of the Director of Public Prosecutions (DPP), they were charged with the offences of treason contrary to Section 23 (1)(c) of the Penal Code Act, Cap. 120, Concealment of treason contrary to Section 25 of the Penal Code Act, Cap. 120 and Terrorism. The Petitioner, a Ugandan Human Rights Non-Governmental Organization, petitioned the Constitutional Court seeking to declare the said acts of arrest and charging of the Political Activists unconstitutional. The Petitioner also sought to declare Section 24 of the Police Act, Cap. 303 unconstitutional.

In the Answer to the Petition, the Attorney General contended that 275 the Petition raised no issues for constitutional interpretation. Further, that the arrests had been effected following the intelligence received by the Police that the arrested persons engaged in plans to disrupt public order and cause the overthrow of government by force of arms. 280

During the Conferencing, two issues were agreed upon by the parties for determination by the court namely:

1. Whether the acts of arrest and charging citizens with treason and/or terrorism for a non-violent act of peaceful demonstration by - walking to work contravene articles $28(1)$ , $28(3)$ , $28(7)$ , $28(12)$ , 285 38(1), 38(2), 43(2)(a) & (b) and 44 (a) & (c) of the Constitution. - 2. Whether Section 24 of the Police Act, Cap. 303 that permits the police to arrest and detain a citizen without charge, and/or trial for an indefinite period of time is inconsistent with and contravenes Articles 23, 28, 29 and 38 of the Constitution.

By a unanimous decision, the Court declared that Section 24 of the Police Act is not inconsistent with or in contravention of Articles 23. 28, 29 and 38 of the Constitution. Further, the Court (Egonda-Ntende & Remmy Kasule, JJA/JJCC dissenting) held that it had no jurisdiction to entertain the Petition with regard to the issue of the arrest and charging in court, of the complainants on whose behalf the Petition had been brought. Accordingly, the Petition was dismissed and each party ordered to bear its own costs.

As regards the meaning of the phrase "question as to the interpretation of [the] Constitution" under Article 137(1) of the 300 Constitution, Hon. Justice Christopher Madrama had this to say:

> 'My understanding is that the word "question" used in Article 137(1) means "controversy" or imports the meaning of an "arguable issue" which discloses a genuine dispute about interpretation of the Constitution so as to resolve the controversy. If the word "question" under Article 137(1) is read to mean "controversy" with particular reference to controversy as to interpretation, it would mean that the Constitutional Court ought to only determine petitions or references where there is a controversy or controversies about the meaning of a provision of the Constitution. This meaning is possible

because the High Court has the constitutional mandate to interpret any provision of the Constitution unless there is a dispute about meaning thereof. In that regard, all Judicial Officers take judicial oath to uphold the Constitution and the laws of Uganda as established thereunder.

... An allegation of inconsistency with an article of the Constitution can fulfil the requirements of Article 137(3) of

- the Constitution but it is not sufficient on the face of it to merely allege breach or inconsistency with an Article or Articles of the Constitution by any act, omission or law. For the Constitutional Court to have jurisdiction such an allegation must have in it a controversy as to interpretation of the Constitution of the Republic of Uganda. It follows that the question before court should involve a controversy about interpretation before the Constitutional Court assumes jurisdiction in the matter. As I have noted above, a question for interpretation must be an arguable case about interpretation and where there is some doubt about the meaning which the person having doubt needs cleared or their point of view adopted by the court while the adverse party has a contrary view about the meaning and scope of an article of the Constitution. In other words, it must be a doubt which makes the meaning of an article controversial and which controversy should be cleared by the Constitutional Court." - Applying the aforesaid criteria to the instant case, the question that 340 arises is: do the substantive issues raised by the Petition namely, issues 2, 3 and 4, prima facie call for resolution of an arguable controversy about the interpretation or meaning of the provisions of the Constitution alleged to have been contravened namely, Articles 23, $27(1)(b)$ , $27(2)$ , 28, $29(1)(d)$ , $29(2)(a)$ , $43(2)$ and $44(c)$ of the 345 Constitution of Uganda?

For ease of reference, I will reproduce below the substantive issues raised by the Petition:

Issue 2 - Whether Section 26 of the Criminal Procedure Code Act, Cap 116 and Section 24 of the Police Act, Cap 303 are inconsistent with and contravenes Articles 23, 28, 29(1)(d), $29(2)(a)$ , 43(2) and 44(c) of the Constitution of Uganda.

- Issue 3 Whether the acts of arresting the Petitioner, and detaining him at his residence are inconsistent with Articles 23, 28, 29(1), 43(2) and 44(c) of the Constitution. - Issue 4 Whether the continued presence of large numbers of security personnel on the Petitioner's land was inconsistent with Articles $27(1)(b)$ and $27(2)$ of the Constitution of Uganda. - I have closely analysed the Petition and the submissions of Counsel for the Petitioner. Nowhere is it demonstrated prima facie that the 360 interpretation of the provisions of the Constitution allegedly breached is necessary for the resolution of the said issues. Furthermore, I am unable to identify any arguable controversy raised as to the meaning of the provisions of the Constitution allegedly breached as set out in the Petition. What clearly emerges is that the substance of the 365 petitioner's complaints is about alleged abuse and infringement of his fundamental and other human rights and freedoms by the police and other security forces under the guise of "preventive arrest" pursuant to Section 26 of the Criminal Procedure Code Act, Cap 116 and Section 24 of the Police Act, Cap 303. 370

This court addressed the constitutionality of the police powers of "Preventive Arrest" arising from Section 24 of the Police Act, Cap 303 in Foundation for Human Rights Initiative Vs Attorney General Constitutional Petition No. 52 of 2011. The judgment of this court in that case was delivered on 03rd July 2020. And in a unanimous 375 decision, the court held that Section 24 of the Police Act is not inconsistent with or in contravention of Articles 23, 28, 29 and 38 of the Constitution. It was a judgment in *rem*. The facts giving rise to the said Petition were more or less the same as those that gave rise to the instant petition namely, the "Walk-to-Work" demonstrations of At the time of hearing the current Petition on 22nd October $2011.$ 2020, this court's declarations and orders in the case of Foundation for Human Rights Initiative Vs Attorney General (above) were in place and still fresh. But since we were not addressed by the parties on the legal effect of the said court declarations and orders on the 385 current Petition and/or Petitioner, I cannot make any pronouncements on it.

Suffice to state that whatever doubts or controversies that might have existed regarding the constitutionality of the Police powers of "Preventive Arrest" at the time this Petition was filed in 2011, they were cleared by the Constitutional Court the moment it delivered its decision in Foundation for Human Rights Initiative Vs Attorney General (above) on 03rd July 2020. The same issues could not thereafter again remain or otherwise qualify to be termed "questions for interpretation of the Constitution" in the terms of Article 137(1) of the Constitution in order to confer the Constitutional Court with

jurisdiction in a subsequent sitting over the same resolved questions. The same issues could not still fit within the meaning of the phrase "questions for the interpretation of the Constitution" as set out by Hon. Justice Madrama, JCC in the above case of Foundation for 400 Human Rights Initiative Vs Attorney General thus: "arguable issue[s]" which disclose a genuine dispute about interpretation of the Constitution so as to resolve the controversy'. This is in accordance with one of the principles of constitutional interpretation to the effect that the Constitution should be interpreted in the context that exists at 405 the time and not when it was passed, otherwise it will cease to take into account the growth of the society which it seeks to regulate – See Dhikusooka Maiidu & 21 Others Vs A. G. Constitutional Petition No. 10 of 2009 (Unreported).

I would agree with the respondent's submissions that the issues 410 raised by the instant Petition are the matters of enforcement and fall within the jurisdiction of the High Court as the "Competent Court" under Article 50 of the Constitution.

My view is further reinforced by the following reasons:

#### **The 'Existing Law" Context** 415

Both Section 26 of the Criminal Procedure Code Act and Section 24 of the Police Act in substance provide for the "Preventive" arrest and detention.

Section 26 of the Criminal Procedure Code Act, Cap. 116, is coached as follows: 420

# 'Arrest to prevent offences.

A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to the officer that the commission of the offence cannot otherwise be prevented."

On the other hand, Section 24 of the Police Act, Cap 303, states as follows:

## "24. Arrest as preventive action.

(1) A police officer who has reasonable cause to believe that the arrest and detention of a person is necessary to prevent that person—

a) from causing physical injury to himself or herself or to any other person;

- b) from suffering physical injury: - c) from causing loss or damage to property: - d) from committing an offence against public decency in a public place: - e) from causing unlawful obstruction on a highway: - f) from inflicting harm or undue suffering to a child or other vulnerable person, may arrest and detain that person.

(2) A person detained under subsection (1) shall be released—

- a) once the peril, risk of loss, damage or injury or obstruction has been sufficiently removed: - b) on the execution of a bond with or without surety where provision is made for him or her to appear at

regular intervals before a senior police officer, if so required; or

c) upon any other reasonable terms and conditions specified by the inspector general in writing.

(3) If the person detained under this section is not resident in Uganda, the bond referred to in subsection (2) may be secured by a surety resident in Uganda.

Both the Criminal Procedure Code Act and the Police Act were in existence before the commencement of the Constitution of Uganda, 1995 on 08th October 1995. The Criminal Procedure Code Act became operational on 15th June 1950 whereas the Police Act became operational on 14th October 1994. The Constitution made specific provisions for handling such legislation in Article 274 in the following terms:

## '[Article] 274. Existing law.

(1) Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution.

(2) For the purposes of this article, the expression "existing law" means the written and unwritten law of Uganda or any part of it as existed immediately before the coming into force of this Constitution, including any

Act of Parliament or Statute or statutory instrument enacted or made before that date which is to come into force on or after that date.' [Emphasis added]

My understanding of Article 274 is that the Constitution has itself put in place a mechanism for dealing with the aspects of what would have otherwise amounted to constitutional non-compliance on the 485 part of the "existing laws". The High Court and other Courts of Judicature are, in the ordinary discharge of their mandate, competent courts to resolve these aspects through construing the existing laws in such a way that they are brought in conformity with the Constitution. The *locus classicus* in the discharge of this mandate is 490 the case of Osotraco Ltd Vs Attorney General [2003] 3 EA 654 where Hon. Egonda Ntende, then a judge of the High Court of Uganda, construed Section 15 of the Government Proceedings Act in such a way as to bring it in conformity with the Constitution of Uganda, 1995. His decision was subsequently upheld by the Court of Appeal in 495 Attorney General Vs Osotraco Ltd Civil Appeal No. 32 of 2002.

It could not have been the intention of the Constituent Assembly that they would at the same time create a specialized court termed as the "Constitutional Court" under Article 137(1) to discharge the same mandate as the High Court and the other Courts of Judicature under Article 274 in respect of "existing laws". Such interpretation would be contrary to the cardinal rule of constitutional interpretation to the effect that in interpreting the Constitution the entire Constitution must be read as an integrated whole with no particular provision destroying the other but each sustaining the other so as to promote harmony of

the Constitution - see Dr. Paul K. Semogerere and 2 others Vs. A. G. Constitutional Appeal No. 1 of 2002.

As such, the Petitioner had to take a step further and demonstrate to this court that the issues he was raising in the Petition in the instant matter went beyond the mandate of the ordinary Courts of Judicature under Article 274 and instead required the exclusive and specialized jurisdiction of the Constitutional Court consisting of a Coram of five Justices of the Court of Appeal to resolve in the discharge of the court's original jurisdiction provided under Article 137 of the Constitution. Such demonstration was lacking in the instant case.

### The "Article 50" Context

Uganda's history has to a large extent been characterized by gross abuse of fundamental and other human rights and freedoms of our people by the state. This was in part captured in the Preamble of the Constitution of Uganda, 1995 thus:

"WE THE PEOPLE OF UGANDA:

RECALLING our history which has been characterized by political and constitutional instability ..."

As part of the constitutional safeguards against a repeat of our ugly constitutional and human rights history, the 1995 Constitution through 525 Article 50 vested the Courts of Judicature with the critical role of being the first points of call in the area of safe guarding and widening the human rights space in Uganda – subject, of course, to issues of jurisdiction and any other lawful criteria for making a particular court fit within the definition of "Competent Court" under Article 50 of the 530

Constitution. On the other hand, the Constitutional Court was made the vanguard and/or first point of call in the area of resolution of controversies or questions as to the interpretation of the Constitution under Article 137 (1) of the Constitution. But the Constitutional Court could likewise join the human rights struggle and defence, as a court of first instance, only in those situations where the interpretation of the Constitution needed to be followed with redress. The Constitutional Court is not the first point of call in matters requiring only redress for human rights abuses and breaches. That is my understanding of Article 137 (4) of the Constitution which is coached as follows:

"Where upon determination of the petition under [article 137(3) of this Constitution the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may –

- a) Grant an order of redress; or - b) refer the matter to the High Court to investigate and determine the appropriated redress." *IEmphasis* added]

In the circumstances above, I hold the strong view that the original 550 and specialized jurisdiction of this court under Article $137(3)$ & (4) should be interpreted in such a way that when it comes to allegations of human right violations and redress, the "Competent Courts" under article 50 of the Constitution are empowered to take over their constitutional leadership as the first points of call in that area. Only 555 after their original jurisdiction has been exhausted can the role of the appellate courts be set in motion to audit how that jurisdiction has

been exercised. It would greatly undermine the constitutional role of the "competent courts" under article 50, if I were to interpret the jurisdiction of this court under Article 137 in such a way that it ends 560 up being seen as the only and/or dominant point of call (also known as "court of original jurisdiction") in the adjudication of allegations of human rights violations even when the provisions of the Constitution allegedly violated have no apparent dispute as to their meaning requiring interpretation. Articles 50 and 137 were shaped by our 565 checkered history which was in part characterized by widespread human rights violations. This, in turn, dictated that the courts which are more widely spread all over the country, and are more accessible to the citizens and easier to constitute would be more appropriate to respond faster and resolve allegations of human rights violations 570 unlike this court which requires a whole five justices to be constituted and has very limited physical or geographical coverage in the country.

The injustice suffered by the petitioner in the instant matter after petitioning this court is clear evidence in support of my view. The 575 petition was filed in 2011 but only succeeded to come up for the hearing by the justices of this court after close to 9 years of waiting. And by that time, many of the complaints contained in the petition had already become part of history. The arrest and detention of the petitioner was over. And so was the presence of the large numbers of 580 security operatives on the petitioner's residence. During the hearing. Counsel for the petitioner, in response to one of the questions posed by court, informed court that those developments had, in part, been

Page 22 of 24

due to the timely intervention by the Magistrate's court of Kasangati from which the petitioner had sought relief. Kasangati is what was stated in the petitioner's Affidavit accompanying the Petition to be the geographical location of the petitioner's residence and from where the security forces were alleged to have committed the human rights violations against him. Court requested counsel to avail it copies of the decisions of court in the matter but by the time of writing this 590 judgment none had been availed to me.

It was in view of the aforesaid reasons, that I was constrained to hold that this court has no jurisdiction over the issues raised in the Petition.

#### **Remedies** 595

I would accordingly dismiss the petition for want of jurisdiction.

As for the costs occasioned by the dismissal, I would be reluctant to penalize the petitioner with costs. This is because it has taken the petitioner a whole 10 years to be told in very many words of legal lingua the simple message to the effect "you have no business here". The long wait has been more than enough injustice. To further penalize him with the costs of this petition would be tantamount to adding insult to injury.

Accordingly, I would dismiss the petition with no order as to costs.

this....... $\downarrow$ day of Dated 605 20..........

$\begin{array}{c}0\end{array}$ $\sqrt{ }$ $\overline{1}$ $\overline{C}$ **MUZAMIRU MUTANGULA KIBEEDI** JUSTICE OF THE CONSTITUTIONAL COURT

$\pm$ 01 and

### THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Elizabeth Musoke, Cheborion Barishaki, *Muzamiru M. Kibeedi & Irene Mulyagonja, JJCC)*

Constitutional Petition No.52 of 2011

### **BETWEEN**

Kizza Besigye::::::::::::::::::::::::::::::::::::

### AND

The Attorney General::::::::::::::::::::::::::::::::::::

### **JUDGMENT OF CHEBORION BARISHAKI, JA/JCC**

I have had the benefit of reading in draft the judgment of my learned brother Muzamiru Mutangula Kibeedi, JCC and I agree with the analysis and conclusion that this Petition should be dismissed with no order as to costs.

Dated at Kampala this $\frac{10}{5}$ day of $\frac{10}{5}$ 2021

**Cheborion Barishaki**

JUSTICE OF APPEAL/ CONSTITUTIONAL COURT

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

(Coram: Egonda-Ntende, Elizabeth Musoke, Barishaki Cheborion, Muzamiru M. Kibeedi & Irene Mulyagonja, JJCC)

# **CONSTITUTIONAL PETITION NO. 52 OF 2011**

### **BETWEEN**

KIZZA BESIGYE ::::::::::::::::::::::::::::::::::::

### AND

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

## JUDGMENT OF IRENE ESTHER MULYAGONJA

I have had the benefit of reading in draft the judgment of my brother, Hon. Justice Muzamiru Mutangula Kibeedi, JCC. I agree with the reasoning and the orders that he has proposed and have nothing useful to add.

Dated at Kampala this ........ day of ...................................

Irene Esther Mulyagonia JUSTICE OF THE CONSTITUTIONAL COURT/ **COURT OF APPEAL**