Nantume v Uganda (Criminal Appeal No. 130 of 2017) [2019] UGHCCRD 9 (22 February 2019)

## (ARISING OUT OF CRIMINAL CASE. 436 OF 2016) CRIMINAL APPEAL NO 130 OF 2017 (CRIMINAL DIVISION) IN THE HIGH COURT OF UGANDA AT KAMAPALA **THE REPUBLIC OF UGANDA**

**APPELLANT .....................................**

**VERSUS**

*<u>KESPONDENT</u>* ......................................

## BEFORE: HON. MR. JUSTICE J. W. KWESIGA

## **JODGMENT:**

objection was capable of disposing off the case. counsel raised a preliminary objection. He stated that the preliminary with different counts. While the proceedings were on going the defence The brief facts from the lower court are that, the appellant was charged

almost stripped her naked. further she was arrested by a male Police Officer who molested her and days without being released on police bond despite her cry. That arrested on 03/1/16 she was detained at Jinja road police station for 8 her rights under article 23(4) of the constitution. That when she was He stated that when the appellant was arrested there was a violation of

violation of The Constitution which mandates the state to produce an Counsel then submitted that detention for more than 48 hours was in

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Versus Attorney General - Constitutional Petition No. 07/2007. entitled to compensation. He relied on Dr. Kiiza Besigye & Others renders prosecution a nullity and the sanction is that such a person is amounted to false imprisonment. That violation of a constitutional right accused after 48 hours from the day of arrest. That hence the detention

accused when prosecution is about to close their case is a technicality. through the Attorney General. That applying for the release of the were violated. That counsel would have applied for unconditional realise connsel has not furnished any proof that constitutional rights of accused The state objected the preliminary objection and stated that the defence

the trial. an accused without trial unless the violation was done in the course of of human right does not automatically lead to unconditional discharge of The learned trial Magistrate then passed her ruling that violation

wonld seek leave from high court hence this appeal on grounds that:-Counsel sought leave to appeal which was denied, but he stated he

rights. on a point of law in respect of violation of accused's inherent 1. The trial magistrate erred in law and fact when she failed to rule

stripped naked by a male police officer upon arrest. on a point of law in respect of the accused being molested and or 2. The trial magistrate erred in law and fact when she failed to rule

- wrongful decision. judiciously evaluate evidence before here thereby arriving at a 3. The trial magistrate erred in law and fact when she failed to - was a matter for constitutional court whereas not. 4. The trial magistrate erred in law and fact when she found that this

Tsekooko referring to section 216 (1) of the magistrate's court held that; Twagira Versus Uganda -SCCA. No 3 of 2003. Where justice appeal against the magistrate's ruling. He relied on Charles Harry the suoissimula ph the the appellant did not have a right to Appellant and started the transfer submissions. He started The parties were asked to file their written submissions however the

## magistrate in criminal matters". matter, i.e. discretionary orders or rulings of the Chief appeal to the High Court in respect of interlocutors "Clearly the above provisions do not confer a right of

No. 4 of LTSQ1 bates the bisery President stated that:in a wealth of decisions, as was In Attorney General Versus Shah appeal. the right to appeal is a creation of statute as it has been decided If has to be appreciated that there's no such right as an inherent right to

<pre>"""""""""""""""""""""""""""""""""""" statute. There is no such a thing as inherent Monstellate jurisdiction springs only from

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-: SWOllof Constitution Appeal No. 1 of 2005. B. J Odoki, CJ, also noted as And Duga Kania Versus the Attorney General - (Supreme Court,

be inferred or implied". $\mathcal{L}$ pe specifically created by law. It cannot jurisdiction. Appellate jurisdiction must et el les parties en la partie inherent ue se бијуз It is trite law that there is on such a

cannot sanction any illegality once brought to its attention. that is not bestowed upon it. The whole process is an illegality and court It follows that this appeal is a nullity, court cannot exercise jurisdiction

in further proceedings against the appellant. stripped her naked. It was counsel's submission that such violation bars she was arrested by a male officer who molested her and almost shed that she was detained more than the required 48 hours and that of violation of human rights. As stated in the brief facts, the Appellant Turning to the merits in this appeal, the appeal rotate around the issue

unless the human rights abuse was during the proceedings. automatically bar criminal proceedings against the accused person not seob styleir nemulation of holdstoiv is the seon styleir remulation of the seon styleir nemulation of the seon styleir remulation of the seon styleir nemulation of the seon styleir nemulation of the seon styleir nemula I have read through the record, and I agree with the learned $\Gamma$

-tedt besters framebult Constitutional Petition No. 07/2007, the court at page 38 of the Appellant Dr. Kiiza Besigye &others Versus Attorney General -That same position was the reasoning in the case relied on by the

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ssasout conut process". ne bne emit to essew a ed bluow strint theupesdue wew pue payee, and trial can be achieved and may matter how strong the evidence against them No pateloiv need to the extent described above. No proceedings, the human rights of the petitioners prosecution of the petitioners where during the рәпиізиоз Лe uoijoues cannot connt $S_{i}U_{i}$

expense of the petitioner's human rights. pronouncements because court process was being abused at the absolute. Dressed with the authority as court it had to make such evident that the petitions would not get the right to a fair trial which was which interfered with the independence of the judiciary. It was very There was an evident hand of the executive in the trials of the petitions, been denied their right to bail under unexplainable circumstances. charges in Mbarara, Arua, court Martial and the High court. They had to a fair trial. The petitioners in the above case were facing different behind the judgement. The court clearly based its decision on the right When you read the whole judgement comprehends the reasoning

merits. claim for compensation. This appeal is hereby dismissed for lack of accused. The appellant can file a suit for abuse of human rights and rights therefore does not bar any criminal proceedings against the threat to the right to the fair trail which is absolute. Violation of human Appellant's rights were being violated during proceedings putting a This is not the same case, in this case. There is no evidence that the

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with the proceedings. Magistrate's Court, Nakawa who shall summon the parties and continue and the state. Let the original trial court's file be returned to the Chief this court serves copies of this judgment on the Appellant's Advocate To expedite ends of justice, it is directed that the Deputy Registrar of appeal which, in my view was lodged to frustrate the substantive trial. This is a matter where the prosecution case was disrupted by this illegal

Dated this 22<sup>nd</sup> day of February 2019.

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Judge of the High Court.

$610z/z0/zz$

-: uo pərvəs ad ol

1. The Director of Public Prosecutions

2. Nantume Judith

Kampala.

C/o. Mugisha, Namutale Advocates,

Tel. 0702-611073.

3. Musoke godfrey

Complainant

$Tel: 0714-450443.$

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