Mbusa Philimon v Attorney General (Constitutional Petition No. 18 of 2022) [2025] UGCA 241 (21 July 2025)
Full Case Text
#### THE REPUBTIC OF UGANDA
## IN THE CONSTITUTIONAT COURT OF UGANDA AT KAMPATA
(Coram: Obura, Tibulyd, Kazibwe Kowumi, Mugenyi, Ssekaono, llCC.)
#### CONSTITUTIONAL PETITION NO. O18 OF 2022
#### BETWEEN
MBUSA PHILIMON PETITIONER
AND
### ATTORNEY GENERAT RESPONDENT
u
### JUDGMENT OF MOSES KAZIBWE KAWUM!, JCC
#### lntroduction
20 This Petition was brought under Article 137 of the Constitution of the Republic of Uganda 1995 and the Constitutional Court (Petitions and References) Rules, S.l. 91 of 2005.
The Petitioner contends that in 2008, he was arrested, tried, convicted and sentenced to 30 years' imprisonment for the offence of murder on Sth
25 December 2011. The Petitioner was not satisfied with the decision of the court and he lodged an Appeal in the Court of appeal vide Criminal Appeal No. 013 ol20t2.
30 It is contended that prior to lodging the Notice of Appeal, the Petitioner had on various dates written to the High Court requesting to be supplied with the record of proceedings in vain.
- <sup>5</sup> The Petitioner later on 22d January 20L7 saw his name listed among those whose files were stated to be missing from the High Court registry published in the New Vision newspaper. The Petitioner contends that the Principal Judge in office at the time, promised to take action but nothing was done. - 10
On 22"d November 2018, the Petitioner with leave of court filed <sup>a</sup> Memorandum of Appeal. On 6th December 2018 the Registrar of the High Court at Kampala wrote a letter calling for the record of proceedings from High Court of Uganda, Lira High Court Circuit. However, the record of proceedings was not remitted and the letter was not replied to by the Registrar of the court at Lira.
The Petitioner later on 16th November 2020 filed Miscellaneous Application No.058 of 2020 seeking to be released on bail pending the appeal. lt had not been listed for hearing by the time he filed the Petition on 18th May 2022. The Petitioner attributes the failure by the court to fix the appealfor hearing, on the missing record of the proceedings in the High Court at Lira. 20
- The Petitioner therefore, contends that the failure by the High Court to avail and forward the record of proceedings to the Court of Appeal has obstructed the hearing and determination of his appeal which is inconsistent with Articles 2, 20, 28 (1) & (6) and 44 (c) of the Constitution. 25 - contravenes Articles 2,8,20 and 21 (1) of the Constitution. 30 lt is further contended by the Petitioner, that the failure by the High Court to avail the record of proceedings and judgment while availing the same documents to other tried and convicted persons in their respective cases amounts to unequaltreatment. He contends that it is inconsistent with and
- <sup>5</sup> The reliefs sought by the Petitioner are; - L. A declaration that the failure by the High Court to forward the record of proceedings in Criminal Case No.010 of 2010 to the Court of Appeal is inconsistent with and in contravention of Articles 2,20,28 (1) & (6) and 44 (c) of the Constitution. - 2. A declaration that the failure by the High Court to avail and forward the record of proceedings in Criminal Session Case No.010 of 2010 while other convicts in similar circumstances were availed with their records amounts to unequal treatment under the law contrary to Articles 2,20,2L(7) & (3) of the Constitution. - 3. An Order that the continuous detention of the Petitioner for more than 10 years as a convict without being heard on appeal amounts to delayed justice and unfair treatment which is null and void. - 4. That the Petitioner be set free unconditionally or be granted bail until when the court avails his record of proceedings for the determination of the appeal. - 5. An Order for the Petitioner's appeal to be cause listed for determination in the absence of the record of proceedings and judgment of the lower court. 25
The Respondent opposed the Petition contending that it does not raise any questions for constitutional interpretation. lt is further contended that the Petition seeks for redress of alleged violation of the Petitioner's rights to access information and the right to a fair hearing which are matters of enforcement outside the jurisdiction of this court. 30
#### <sup>5</sup> Representation
At the hearing of the Petition on 4th March 2025, the Petitioner represented himself. The Respondent was represented by Ms. Harriet Nalukenge, a Principal State Attorney in the Chambers of the Attorney General. Submissions filed by the parties were adopted by the court as their final arguments in the determination of the Petition.
#### lssues
The Petitioner framed two issue for resolution by the court;
- 1. Whether there was a violation of the Petitioner's rights under Articles - 15 - 2,20,2L,28 and 44 (c) of the Constitution. - 2. What remedies are available to the parties.
# Submissions by the Petitioner
- Relating to the first issue, it was submitted that Article 28 of the Constitution of Uganda, envisions a fair and speedy hearing specifically under Article 28 (6) which entitles one tried of a criminal offence to a copy of their proceedings upon payment of a prescribed fee. 20 - Itwasfurthersubmitted that Rules 64 (1)& (2)of the Court of Appeal Rules Directions oblige the registrar of the High Court to prepare a record of appeal and judgment and to transfer the same to the Court of Appeal registry for purposes of having the appeal heard. 25 - The Petitioner submitted that since his conviction in 201.1 he has requested for the record of proceedings in vain which has resulted in his appeal not being heard hence the abuse of his right to a fair hearing under Articles 28 (1) & (6) of the Constitution. 30
- <sup>5</sup> The Petitioner further claims that the failure to be availed with the record of proceedings while other appellants' files were transferred amounts to discriminatory treatment which is a violation of Article 21(1) of the Constitution. - The Petitioner submitted that he is entitled to the declarations sought and to either be released on bail until the Court is ready to hear his appeal or to be unconditionally released on account of the delayed justice and unfair treatment. The Petitioner also proposes that the Court of Appeal may consider fixing his appeal for hearing in the absence of the record of proceedings. 10 15
The attention of the court was drawn to the decisions of the Court of Appeal in Kibirige Umar Baker v Uganda l202Ll UGCA 184 and Tuuni Stephen & Another v Uganda [2018] UGCA 37 to support the submission about the remedy of unconditional release on account of the delayed trial due to the missing record of proceedings.
# Submissions for the Respondent
It was submitted that the Petition does not raise matters for constitutional interpretation as required by Article 137 of the Constitution. lt was argued that for a Petition to qualify as one that raises a question for constitutional interpretation, there must be a real substantial question about the meaning, purpose or scope of a constitutional provision, especially where the constitutionality of an act, law or omission is challenged. 25
It was submitted that the Petition raises matters for the enforcement of rights to a fair hearing and the right not to be subjected to unequal treatment all arising from the alleged act of failure to be provided with the record of proceedings. The matters raised are however outside the jurisdiction of the Court it was argued. The Court was urged to find that the Petitioner is not entitled to the remedies sought.
<sup>5</sup> Counsel for the Respondent relied on Mbabali Jude v Edward Kiwanuka Sekandi [2019] UGCC 1; lsmail Serugo v KCC & AG, Constitutional Appeal No.2 of 1998; Attorney Generalv Major General David Tinyefunza [1998] UGSC 34 on what amounts to a question for constitutional interpretation and to support the argument moving the court to dismiss the Petition.
# Re-joinder by the Petitioner
The Petitioner re-joined contending that the matters raised in the Petition entitle him to be heard by the court as his right to a fair trial is curtailed by the omission by the High Court to avail the record of proceedings which fact was not denied by the Respondent.
The Petitioner referenced Centre for Health, Human Rights and Development (CEHURD) & Others v The Attorney General [2015] UGSC 69 to support his arguments about the merits of the Petition.
# Resolution of the l't issue
The facts on which the Petition is premised are not disputed by the Respondent. The Petitioner was convicted of murder and sentenced to 30 years' imprisonment by the High Court on Sth December 2011. The Petitioner filed Criminal Appeal No.013 of 201,2 in which a Memorandum was subsequently filed on 12th November 2018.
The Petitioner wrote Letters requesting to be availed with the record of proceedings on 27th January 2017, l2th September 2017, 22nd November 2018, 18th January 2019 and 18th June 2019 in vain.
On 6th December 2018, the Registrar High Court also wrote calling for the record of proceedings from Lira High Court. There is no evidence adduced to prove that the record was remitted to the Court of Appeal.
<sup>5</sup> The Respondent's contention is that what the Petition raises is a matter for enforcement of the Petitioner's rights and not for constitutional interpretation and should therefore not be entertained by the court. The two parties premise their arguments on Article 137 of the Constitution which mandates the court to handle questions as to the interpretation of the Constitution. Article 137 (1) and (3) of the Constitution provides;
> "1j7. Questions os to the interpretotion of the Constitution (L) Any question os to the interpretotion of this
Constitution sholl be determined by the Court of Appeal sitting as the constitutional court."
- (j) A person who olleges that- - (o) on Act of Porlioment or any other low or onything in or done under the outhority of ony law; or - (b) ony act or omission by ony person or outhority, is inconsistent with or in controvention of <sup>a</sup> provision of this Constitution, may petition the constitutional court for o declaration to that effect, ond for redress where appropriate." - The Petitioner claims to have filed a Notice of Appeal within fourteen days from Sth December 2011. lt is not denied that a file for Criminal Appeal No.013 of 2072 was opened in the Court of Appeal registry but the record of the trial court has never been availed to the Petitioner. I deem it pertinent to lay out the rules guiding registrars in the preparation of records of appealfor a proper determination as to whether the claims by 25 - the Petitioner merit constitutional interpretation. 30
# <sup>5</sup> Rule 64 (1) and (7) of the Court of Appeal Rules provides;
"64. Preparotion of record of oppeol.
- (1) As soon os practicable after a notice of oppeol hos been lodged, the registror of the High Court shall prepare the record of oppeal." - (71 Every registror responsible for preporing records of appeol sholl do so within six weeks or in such time ond manner os the Chief Justice moy direct."
Rule 65 (1) and (2) of the same rules provides;
"65. Service ond tronsmission of record of oppeal, exhibits, etc.
(1) As soon as the record of oppeal hos been prepored, the registror of the High Court sholl couse o copy to be served on the oppellont ond a copy on the respondent and sholl send four copies to the registror.
(2) The registrar of the High Court shall ot the some time send to the registror the original record of proceedings in the High Court ond the originol documentory exhibits in the High Court, other thon ony of greot bulk, but sholl not send ony exhibits other thon documentory ones, unless requested to do so by the registrar.
It is evident from the above provisions of the Court of Appeal Rules that the duty to prepare and transmit the record of proceedings lies on the registrar of the High Court. The quoted provisions of the Rules of this Court are couched in mandatory terms and a time line within which the record has to be remitted to the court is laid out in rule 6a0) of the Rules of this Cou rt.
- <sup>5</sup> The record has not been remitted to date or else evidence to the effect would be on record. Even after this Petition relating to the same subject was filed on LSth May 2022, the Court Registry does not seem to have taken any steps to craft a solution for the Petitioner. The Court of Appeal has not fixed the appealfor hearing and the unrebutted presumption is that it is so - because there is no record of appeal. 10
Article 28(1) of the Constitution relates to the right to a fair hearing and provides as follows;
"28. Right to a foir heoring
(7) ln the determinotion of civil rights ond obligations or ony criminol chorge, o person shall be entitled to a foir, speedy ond public heoring before an independent ond impartiol court or tribunol estoblished by low."
Among the considerations for a fair trial is the time within which a trial is conducted. A speedy trial is defined in the Merriam -Webster Dictionary (2021)as; -
"a triol conducted according to prevoiling rules and procedures that tokes ploce without unreosonoble or undue deloy or within a stotutory period."
The Courts are the custodians of the records of their proceedings. Going 30 by the undisputed facts in the Petition, one unit of the Judiciary called the "High Court" failed in its duty to deliver the record of proceedings to another called the "Court of Appeal" to the detriment of the Petitioner. Rules 64 (7) and (7) of the Court of Appeal Rules provide for the expediency with which the preparation and transmission of the record of proceedings 3s was to be effected but to no avail.
<sup>5</sup> ln Kenneth Adrapi v Hon. Dritoo Martin, Attorney General and the Electoral Commission lz02Ll UGCC 29, Justice Remmy Kasule, JCC (as he then was) stated:
"An issue for constitutional interpretotion arises where the Constitutionol Court is being colled upon to discover and ascertain the meoning of o provision of the Constitution in its whole context vis-o vis thot of any other stotutory low or oct or omission so os to be oble to determine whether or not the stotutory provision or act or omission is in controvention of thot porticulor provision of the Constitution."
The Petitioner's claim is not about being denied information as lazily argued by Counsel for the Respondent. The quest for the record of proceedings by a person tried of a criminal offence is a constitutional right under Article 28(5) of the Constitution. The necessity for the record of proceedings is more apparent in a case likethat of the Petitionerwho has
to depend on it to prepare for his appea I a nd for the Cou rt of Appeal wh ich may not proceed without it.
- The omission by the Court to ensure that the record was availed within reasonable time examined vis-a vis the Petitioner's right to a fair hearing under Article 28 (1) of the Constitution constitutes the question for constitutional interpretation. 25 - As at the date of this judgment, the Petitioner has spent over twelve (12) years without being availed the record of proceedings and without his appeal being heard on account of the unremitted record. By any metrics the delay by the High Court in remitting the record of appeal and/or the failure by the Court of Appeal to craft an administrative solution to alleviate the Petitioner's plight is unreasonable. 30
- <sup>5</sup> The argument that the Petition raises matters for enforcement of rights does not in my view hold any merit. lt would imply that the Petitioner has to wait for an undefined period to get a remedy which this court is mandated to offer as indeed suggested by the Petitioner among the reliefs sought. The court would be condoning an illegality to the further detriment - of the Petitioner who cannot be discharged without a remedy yet it has the mandate to do so under Article 137(aXa) of the Constitution. 10
## ln Bruce R Sanderson v The Attorney General of Eastern Cape, CCT 10 of 1997 bythe ConstitutionalCourt of South Africa, KrieglerJ in his judgment stated; -
'"The right to o trial within o reosonoble time olso seeks to render the criminol justice system more coherent ond fair by mitigoting the tension between the presumption of innocence ond the publicity of trial. lt ocknowledges that the occused olthough presumed innocent is nevertheless "punished" ond in some coses, such os pre-trial incorceration, punishment is severe. The response of the Constitution is a progmotic one-the triol must be 'within a reasonoble time."
- Whereas the Petitioner is a convict who under the law is no longer presumed innocent, the right to a speedy hearing of his appeal is not lessened by his status under Article 28 (1) of the Constitution. The appellate court may find merit in his appeal and order for his release or order for a retrial but he will have suffered for a number of years under incarceration and uncertainty about the fate of his appeal. 25 - 30
q
- <sup>5</sup> The right to a speedy trial which is an aspect of a fair trial is recognized by lnternational Conventions to which Uganda is a signatory. The African Charter on Human and People's rights guarantees the right to a fair trial and in Article 7 emphasizes the importance of the due process and fair hearing within a reasonable time. - 10
The lnternational Convention on Civil and Political Rights in Article 1a3 (c) guarantees the right to a fair and public hearing within a reasonable time. It is also not by accident that the same right was included in the category of non-derogable rights under Article 44 (c) of the Uganda Constitution.
t5
The time taken by the Court of Appeal without disposing of the Petitioner's appealis a breach of Article 28 (1)of the Constitution. Article 20 (2)of the Constitution further obliges the court to respect and uphold the rights and freedoms of the Petitioner which has not been accomplished since he lodged Criminal Appeal No.013/2012.
<sup>I</sup>find merit in the Petitioner's claim to the violation of his right to a fair trial under Articles 20 (2l1,28 (1) and 44 (c)of the Constitution and the Petition succeeds on that aspect.
The Petitioner also sought a declaration about his being subjected to unequal treatment or discrimination on account of the fact that other convicts got their record of proceedings and had their appeals determined while his stalled on account of the missing record of appeal. The complaint
is premised on Article 21 (1) of the Constitution that was allegedly violated by the Respondent.
Article 2L of the Constitution provides for equality and freedom from discrimination in the following terms; -
## <sup>5</sup> "21. Equality and freedom from discriminotion
- (1) All persons ore equol before ond under the law in all spheres of politicol, economic, sociol and culturol life and in every other respect and sholl enjoy equol protection of the low." - Discrimination may be on grounds of sex, race, colour, ethnic origin, tribe, birth, creed or religion among others considerations laid out in Article 21 (2) of the constitution. The term "discriminotion" is defined in Article 21(3) of the Constitution as below: 10
(3) For the purposes of this orticle, "discriminote" meons to give different treotment to different persons ottributable only or moinly to their respective descriptions by sex, roce, colour, ethnic origin, tribe, birth, creed or religion, sociol or economic standing, political opinion or disobility."
The Petitioner did not lead evidence to show that the record of proceedings required for the determination of his appeal was available but was for purposes of discriminating him not remitted to the Court of Appeal based on any ofthe grounds set out in Article 21 (2) stated above.
The Petitioner did not also name any of those convicts whose records of proceedings were availed without substantial delay for their appeals to be heard as opposed to his delayed on account of discrimination. The Petitioner did not further name any person who he alleges to have intentionally stalled his appeal on account of what he alleges to be discrimination which rendered this claim speculative.
the Constitution which is accordingly dismissed. I find no merit in the claim relating to discrimination under Article 21 (1) of
## <sup>5</sup> Resolution of the 2nd issue
The Petitioner seeks declarations and further proposes redress for the rights contravened by the respondent. The Petitioner seeks either to be unconditionally released or granted bail pending the hearing of his appeal when the record of proceedings is availed.
The Petitioner further proposes that his appeal is cause listed in the next criminal appeals session for determination in the absence of the record of proceedings and judgment of the lower court.
The mandate to order for redress by the Court stems from Article L37 l4l of the Constitution which provides thaU 15
"137. Questions os to the interpretation of the Constitution
- (4) Where upon determinotion of the petition under clouse (3) of this article the constitutionol court considers thot there is need for redress in oddition to the decloration sought, the constitutionol court moy- - (o) grant an order of redress; or - (b) refer the motter to the High Court to investigote ond determine the oppropriote redress." - It would not be feasible to release the Petitioner on bail pending an appeal the record of which has gone missing for over thirteen (13) years. The implication would be to unnecessarily prolong the Petitioner's plight for another undefined period of time. This would still be in further breach of the Petitioner's rights underArticles 28 (1)and 44 (c)of the Constitution. 25 - The court of appeal in Tuuni Stephen & Another v Uganda (supra) was faced with a situation where only the judgment of the High Court was missing from the record of proceedings on appeal. 30
- <sup>5</sup> The appellant had been sentenced to 17 years and l-5 years to be served concurrently on two counts of aggravated robbery. The appeal had been pending for seven (7) years which the Court found to be an unjustifiable inordinate delay and egregious. The court was left with no alternative but to quash their conviction and set aside the sentences imposed upon them - rather than ordering a retrial as was proposed by the prosecution. Court further stayed any prosecution of the appellants in relation to the facts of the case. 10
ln Muwonge lssa & another v Uganda [2020] UGCA 2081 the Court of Appeal on being satisfied that the appellants had made efforts to ensure that the missing judgment of the High Court could not be availed, quashed the conviction, set aside the sentences of both appellants and ordered for their immediate release. The appellants had spent 9 years in pre-trial custody and post -conviction. 15
I am alive to the fact that the above cited authorities arose from criminal appeals and not constitutional matters. The remedy handed down by the court on facts similar to the present Petition is however relevant and applicable to the circumstances in which the Petitioner finds himself. We are also aware of similar cases where the Court of Appeal ordered for <sup>a</sup> retrial as the circumstances of those cases so merited. 20 25
Turning to this petition, the Petitioner was arrested in 2008 and was sentenced on Sth December 2011. He has spent more than 13 years without being availed with the record of proceedings he has requested for since 2012. The Petitioner has further spent more than 12 years without
his appeal being heard on account of the missing record of proceedings.
- 5 The justice of the case demands that the Petitioner's plight is resolved at the earliest. ln a nutshell, the Petition succeeds and I propose the following declarations and orders; - a) The omission by the High Court by failing to avail to the Petitioner the record of proceedings in Lira Criminal Session Case No.0010 of 2010 was inconsistent with and in violation of his right to a fair trial enshrined in Articles 28(1) and 44(c) of the Constitution. - b) The failure by the High Court to remit the record of proceedings in Lira Criminal Session Case No.0010 of 2010 did not amount to discrimination of the Petitioner as enshrined in Article 21 (1) of the Constitution. - c) The Court Registrar is hereby directed to cause list Criminal Appeal No.013 of 20t2 whose memorandum of appeal was filed by the Petitioner on 22nd November 20L8 for urgent hearing and disposal in the next criminal session of the Court of Appeal. - d) Costs of the petition are awarded to the Petitioner.
{T Dated, signed and delivered at Kampala this 2J day of . 2025.
Moses Kazibwe Kawumi 30 Justice of the Constitutional Court
$\mathsf{S}$
#### THE REPUBLIC OF UGANDA
#### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
(Coram: Obura, Tibulya, Kazibwe Kawumi, Mugenyi, Ssekaana, JJCC.)
#### **CONSTITUTIONAL PETITION NO. 018 OF 2022**
**BETWEEN**
**MBUSA PHILIMON**
**PETITIONER**
**RESPONDENT**
**AND**
#### **ATTORNEY GENERAL**
#### JUDGMENT OF DR. ASA MUGENYI, JCC
I had the benefit of reading the draft judgment by my learned colleague Hon. Moses Kazibwe Kawumi, JCC. I agree with the reasoning and orders proposed.
Dated and delivered at Kampala this $\mathcal{L}^{\circ}$ day of ... $\mathcal{J}$ ..... 2025.
20 ungen . . . . . . . . . . . . . . . . .
Dr. Asa Mugenyi Justice of the Constitutional Court
## THE REPUBLIC OF UGANDA
## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
(Coram: Obura, Tibulya, Kazibwe Kawumi, Mugenyi, Ssekaana, JJ. CC.)
## CONSTITUTIONAL PETITION NO. OI8 OF 2022
### BETWEEN
MBT]SA PHILIMON PETITIONER
### AND
ATTORNEY GENERAL RESPONDENT
## JUDGMENT OF MARGARET TIBULYA, JCC
- l. <sup>I</sup>have had the benefit of reading in draft the judgment of my leamed brother Hon. Justice Kazibwe Kawumi, JCC. I do not agree with the finding that this petition raises matters for constitutional interpretation (see paragraph 25, page 10 of the judgment). - 2. The facts, issues and counsel's submissions have been set out in the judgment of Hon. Justice Kazibwe Kawumi, JCC. They will therefore not be reproduced here. I shall, however, refer to them if need arises. - 3. This Petition was brought under Article 137 of the Constitution and the Constitutional Court (Petitions and References) Rules, SI 91 of2005, under
which this court derives jurisdiction to determine constitutional petitions and references. Article 13? provides in relevant parts as follows:
- (l)Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court. - (3). 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."
4. The jurisprudence conceming the import of article 137 is firm and replete. In Ismail Serugor for example, the Supreme court held that;
"...for the 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' "
5. More to the point, Kanyeihamba, JSC as he then was had this to say; ,'There is a number offacets to the decision ofthe supreme court in that case. Nevertheless, when it comes to that Court's view of the jurisdiction of the
l serugo v Kampala City Council & Another [19991 UGSC <sup>23</sup>
Court of Appeal as a Constitutional Court, its decision in that case is that the Constitutional Court has no original iurisdiction merely to enforce rights and freedoms enshrined in the Constitution in isolation to interprzting the Constitution and resolving any dispute as to the meaning of its provisions. The judgment of the majority in that case [Wambuzi, CJ, Tsekooko, JSC, Karokora, tSC and Kanyeihamba, JSCJ is that to be clothedwithiurisdiction at all, the Constitutional Court must be petitioned to determine the meaning of any part of the Constitution in addition to whatever remedies are sought from it in the same petition. It is therefore erroneous for any petition to rely solely on the provisions of Article 50 or any other Article of the Constitution without reference to the provisions of Article 137 which is the sole Article that breathes life in the jurisdiction of the Court of Appeal as a Constitutional Court. "
- 6. The issue therefore is whether this petition raises matters for constitutional interpretation. The Petitioner contends that the failure by the High Court to avail and forward the record of proceedings to the Court of Appeal has obstructed the hearing and determination of his appeal which is inconsistent with Articles 2, 20, 28 ( I ) & (6) and 44 (c) of the Constitution anC seeks <sup>a</sup> declaration thereofto that effect. The respondent does not rebut or evenjustifu the actions and omissions complained about by the petitioner. There is therefore no controversy in that regard. This court2 has held that where there is no arguable controversy as to meaning of the constitutional provisions in issue, the matter does not involve constitutional interpretation. - 7. In my view, the petitioner's contentions represent a cause of action and do not raise any issue which requires this court to interpret the Constitution. He
<sup>2</sup>Xiiza Eesigye Vs Attorney General (2021) UGCC 41.
describes the actions and omissions ofthe respondent, which he alleges have contravened his fundamental rights under Articles 2,20,28(1) & (6) and a4(c) of the Constitution. He is, clearly, only seeking to enforce his constitutional rights.
- 8. The legal position which confines the constitutional court's jurisdiction to matters of constitutional interpretation aligns with the main objective for the creation of the court, which was to interpret the constitution' - 9. Needless to say, this court is bound by the supreme court jurisprudence which holds that it has no original jurisdiction in any matter which does not involve the interpretation of the provisions of the constitution3' This is such matter. - l0. Since the petitioner solely seeks to enforce his rights under article 50 ofthe constitution rather than seeking this court's interpretation ofthe Constitution' I would find that the court has no jurisdiction in the matter' - ll. Iwouldthereforedismissthepetitionforwantofjurisdiction.
Dated and delivered at Kampala this ...2-'.'..t.' day of 7rt-f 2025.
a-
Ma aret Tibulya J tice of the Constitutional Court.
<sup>3</sup>AG v Major General David Tinvefuza [19981 UGSC 34
#### THE REPUBLIC OF UGANDA
## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
## **CONSTITUTIONAL PETITION NO. 0018 OF 2022**
MBUSA PHILIMON::::::::::::::::::::::::::::::::::::
#### **VERSUS**
ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: 10
## JUDGEMENT OF JUSTICE MUSA SSEKAANA, JCC
I have heard the benefit of reading the leading Judgment of His Lordship Hon. Justice Moses Kawumi Kazibwe and I concur with the same.
Dated at Kampala this ....................................
......... **MUSA SSEKAANA** JUSTICE OF CONSTITUTIONAL COURT
.........
$\mathsf{S}$
# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION 018 OF 2022
(Coram; Obura, Tibulya, Kazibwe, Mugenyi, Ssekaana, JJCC)
## MBUSA PHILIMON PETITIONER
## VERSUS
ATTORNEY GENERAL RESPONDENT
## JUDGMENT OF HELLEN OBURA, JCC
I have had the benefit of reading in draft the judgment of my learned brother, Hon. Justice Moses Kazibwe Kawumi, JCC in the above Constitutional Petition. I mncur with his analysis and conclusion with nothing useful to add. I agree with his proposed declarations and order as to cosls.
Since Mugenyi and Ssekaana, JJCC also agree, by a majority of 4-1, with Tibulya JCC dissenting, this petition is allowed in part with the following declarations and orders:
- a) The omission by the High Court by failing to avail to the Petitioner the record of proceedings in Lira Criminal Session Case No.0010 of 2010 was inconsistent with and in violation of his right to a fair trial enshrined in Articles 28(1) and 44(c) of the Constitution. - b) The failure by the High Court to remit the record of proceedings in Lira Criminal Session Case N0.0010 of 2010 did not amount to discrimination of the Petitioner as enshrined in Article 21 (1) of the Constitution.
- c) The Registrar, Court of Appeal is hereby directed to cause-list Criminal Appeal No. 013 of 2012 whose memorandum of appeal was filed on 22<sup>nd</sup> November 2018 for urgent hearing and disposal in the next criminal session of the Court of Appeal. - d) Costs of the Petition are awarded to the Petitioner.
**Dated** at **Kampala** this....................................
Hellen Obura
## JUSTICE OF CONSTITUTIONAL COURT