Ssewanyana & Another v Uganda (Miscellaneous Application 3 of 2023) [2023] UGHCICD 10 (25 September 2023)

#### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### 5 **(INTERNATIONAL CRIMES DIVISION KOLOLO)**

#### **MISCELLANEOUS APPLICATION NO.003 OF 2023**

#### **(Arising from Criminal Case No. 004 of 2022)**

#### **1. HON. ALLAN SSEWANYANA ALOYSIUS**

**2. HON. SSEGIRINYA MUHAMMED==================APPLICANTS VERSUS**

**UGANDA======================================RESPONDENT**

# **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA RULING**

#### **Introduction**

- 20 This Ruling is in respect of an Application by Notice of Motion brought under Section 33 of the Judicature Act Cap14 and Section 98 of the Civil Procedure Act. The Application seeks for the following Orders: - (a) An Order for stay of Criminal Proceedings vide No.004 of 2022 before International Crimes Division, Uganda Versus Sserwadda Mike & 6 others 25 pending the determination of Constitutional Petition No.4 of 2023; Hon. Allan Ssewanyana Aloysius & Hon. Ssegirinya Muhammed versus Attorney General; and - (b)Costs of this Application be provided for.

#### **Appearance and Representation**

The Applicants were represented by Mr. Samuel Muyizi Mulindwa and Mr. Musa Matovu of Caleb Alaka & Co. Advocates and Lukwago and Co. Advocates respectively while the Respondent was represented by Mr. Richrad Birivumbuka,

5 Chief State Attorney from the Office of the Director of Public Prosecutions.

#### **The Application**

This Application is supported by the Affidavits of the Applicants and opposed by the Affidavit in Reply deponed by Mr Lino Anguzu, Assistant Director of Public 10 Prosecutions in the Office of the Director of Public Prosecutions.

The summary of the grounds as contained in the Affidavits of the Applicants is as follows:

The two Applicants together with others are charged with the offenses of Murder, 15 Attempted Murder, Terrorism, and aiding and abetting Terrorism and currently undergoing pre-trial at the International Division of the High Court. At the same time, the Applicants and another have been indicted for Murder, and the matter is currently in Masaka High Court. They aver that the two cases should be handled together as opposed to being handled distinctly because they have a common theme, 20 set of circumstances, and common questions of law or fact. The two Applicants further aver that this Court (International Crimes Division) handled an *ex parte* application instituted by the Director of Public Prosecutions and it granted an order for restricted disclosures which violates their right to a fair hearing.

25 On the other hand, the Respondent avers that the Application has no merit and does not disclose any grounds for a stay of Criminal Case No.0004 of 2022. The Respondent further contends that Constitutional Petition No. 0004 of 2023 does not raise any issues for Constitutional interpretation because the issues raised in the Petition have already been litigated before Courts of Judicature in Uganda and clear principles have been laid down on the issues raised in the Petition. The Respondent

5 further avers that the Constitutional Petition does not have any likelihood of success but is only a delaying tactic by the Applicants.

The parties were given schedules and timelines within which to file written submissions and it is only Counsel for the Applicants that complied with the 10 timelines. As at the time of writing this Ruling, the Respondent had not filed their submissions and this Ruling, therefore, considered only the submissions filed by the Applicants.

#### **Background to the Application**

15 I have found it necessary to give a detailed background to this Application in order to furnish a clear context and perspective.

The two Applicants and four (4) others are jointly indicted for the offences of Terrorism contrary to Section 7(1) and (2) (b) and (d) of the Anti-Terrorism Act as amended by Act No. 9 of 2015, Murder contrary to Sections 188 and 189 of the 20 Penal Code Act, Attempted Murder contrary to Section 204(a) of the Penal Code Act and aiding and abetting Terrorism contrary to Section 8 of the Anti-Terrorism Act. They have been since committed to the High Court of Uganda (International Crimes Division) and currently undergoing a pre-trial process.

When the matter came up for further pretrial hearing on 20th September 2022, Court

25 informed the defence lawyers that the State had made an *ex parte* Application for restricted disclosure. Counsel for the accused then intimated to Court they would want to be heard on that Application. They then made an oral Application that court avails the defence team a copy of the *ex parte* Application and annexures if any to facilitate them to be made parties to the *ex parte* Application. They argued that the *ex parte* hearing infringes the non-derogable right to a fair hearing as enshrined in

5 Article 28 of the Constitution.

Counsel for the State vehemently objected to this Application and submitted that the Judicature (High Court) (International Crimes Division) Rules, Statutory Instrument No. 40 of 2016 provide for Applications of this nature to be *ex parte* in order to protect the identities of the Prosecution witnesses aimed at ensuring their safety and 10 security and that of the evidence. They further argued that availing this Application and its annexures to the defence team at this stage of the pre-trial hearing would prejudice the security and safety of the witnesses and subsequently, the Prosecution case. They also submitted that the Judicature (High Court) (International Crimes Division) Rules, 2016 under which this Application was brought are neither illegal

``` 15 nor unconstitutional. ```

After considering the merits of the Application, this Court disallowed the oral Application and ordered that Miscellaneous Cause No. 0014 of 2022 would be heard *ex parte*. The same was heard *ex parte* and Orders for restrictive disclosures were made (**See: Miscellaneous Cause No.14 of 2022, Uganda versus Serwadda Mike** 20 **and 6 others**).

The Applicants then instituted Miscellaneous Application No. 0019 Of 2022 in which they sought for Orders that Criminal Case No. 004 of 2022: Uganda Versus Sserwadda Mike and 6 Others for Terrorism, aiding and abetting Terrorism, Murder and Attempted Murder, pending trial at the High Court of Uganda at Kampala 25 (International Crimes Division Kololo) and CR-AA-258/2021: Uganda Versus Hon.

Allan Ssewanyana Aloysious, Hon. Ssegirinya Muhammed and Ssenyonga Wilson alias Nyonga Tonny for Murder pending trial at the High Court of Uganda at Masaka be consolidated and handled as one. Again, after considering the merits of this Application, this Court, in a detailed Ruling dated 28th September 2022 disallowed

5 the Application for consolidation. This Court observed *inter alia* that:

*"In light of the above therefore, it is clear that the persons in the charge sheet of Lwengo CRB 203 of 2021 cannot be safely joined on the charge sheet of Masaka CRB 605 of 2021 thereby answering the second question in the negative too. Having made that finding, I also find that failure by this Court to order for a joinder of counts and persons in the two case files that are the subject*

10 *of this Application, does not in any way violate the Applicants' rights to a fair hearing and is not prejudicial to them in any way. The two matters can be safely handled separately."*

## (**See: Miscellaneous Application No.0019 Of 2022: Hon. Allan Sewanyana Aloysius and Hon. Ssegirinya Mohammed Versus Uganda**)

After the above Ruling, the Applicants made an oral Application to the Court for a 15 Constitutional reference to be made under Article 137 (5) (b) of the Constitution to answer the following questions:

- 1. Whether the redaction/ protection of Witnesses in the manner within the Court's Ruling in HCT- ICD- Miscellaneous Cause No. 14 of 2022 contravenes and is inconsistent with Articles 28 and 44 of the Constitution of 20 the Republic of Uganda as amended; - 2. Whether Rule 22 of the Judicature (High Court) (International Crimes Division) Rules, 2016 is inconsistent with and contravenes Articles 28, 42 and 44 of the Constitution of the Republic of Uganda as amended; and - 3. Whether the act of proceeding on similar charges based on similar facts to try 25 the accused persons both at the International Crimes Division, Kampala and

High Court Masaka is inconsistent with and contravenes Articles 28 and 44 of the Constitution of the Republic of Uganda as amended.

After careful consideration of the questions, this Court declined to refer the 1st and 2 nd questions for Constitutional reference for reasons that the Constitutional Court 5 already pronounced itself on the same in the case of Soon Yeon Kong Kim and Kwanga Mao Versus Attorney General, Constitutional Reference No. 6 of 2007 and the ICD Rules are clearly in line with that Court decision. This Court also declined to refer the 3rd question for reasons that the question arose out of Miscellaneous Application No. 0019 of 2022 which was concluded and a ruling delivered on 28th 10 September 2022 thereby rendering this Court *functus officio* to make any Constitutional Reference in respect of that matter. It was also the reasoning of the Court that the issue of consolidation of the matters and the alleged

0019 of 2022.

15 It was after the above decision of the Court that the Applicants filed Constitutional Petition No.04 of 2023 seeking the Court's interpretation on the same questions. This Application seeks to have this Court stay proceedings in Criminal Session case No. 0004 of 2022 pending the decision of the Constitutional Court.

unconstitutionality had been exhaustively handled in Miscellaneus Application No.

#### 20 **Issue**

*Whether the Application satisfies the conditions for the grant of a stay of proceedings in Criminal Case No. 0004 of 2022 before this Honourable Court pending determination of Constitutional Petition No.004 of 2023.*

## **Resolution**

Counsel for the Applicants argued that this Court as a Court of first instance has jurisdiction to entertain and consider this Application as a matter arising from Constitutional Petition No. 0004 of 2023 which arises from Criminal Case No. 0004 5 of 2022 which is before this Honourable Court.

Counsel for the Applicants further submitted that the principles governing the exercise of the discretion for the grant of the stay were laid out in the case of *Tusingwire Versus Attorney General, Constitutional Application No. 6 of 2013* to include:

- 10 i) The Applicant must show that the Constitutional Petition *prima facie* has a likelihood of success; - ii) The Applicant must show that he will suffer irreparable damage or that the Petition will be rendered nugatory if a stay of proceedings is not granted; - iii) If i-ii above have not been established, the Court must consider where the 15 balance of convenience lies.

Counsel for the Applicants submitted that the Constitutional Petition is not frivolous and vexatious but rather raises triable issues and has a high likelihood of success. They attacked the legality and constitutionality of the duplicated and or concurrent charges in this Court and the High Court of Masaka. They relied on the Court

20 decision of *Attorney General Versus Uganda Law Society SCCA No.1 of 2006* where Mulenga JSC observed that:

*"I also agree with the majority holding of the Constitutional Court that the concurrent proceedings in two Courts were inconsistent with the principle underlying the provisions of Article 28(9) of the Constitution... All this is in recognition of the principle that the accused person should be subjected*

25 *to trial on the same facts only once. Needless to say, concurrent criminal proceedings in respect of the same facts entail trial more than once."*

Counsel further argued that Rules 19, 22 and 36 (9) (c) of the Judicature (High Court) (International Crimes Division) Rules and the decision and Orders of this Court permitting restricted disclosure were illegal, unconstitutional and improper.

As already observed in the background, the issue of a right to a fair hearing under 5 Article 28 of the Constitution and pre-trial disclosure was exhaustively discussed and interpreted by the Constitutional Court in the case of *Soon Yeon Kong Kim And Kwanga Mao Versus Attorney General*, Constitutional (supra) where the Justices of the Constitutional Court while also relying on the Kenyan Court decision of *Juma and others Versus Attorney General of Kenya (2003)2 EA 461* and the South 10 African case of *Shabalala & 5 others Vs The Attorney General of Transvaal (1995)2 SACR 761 (CC)* observed inter alia that:

*"We have stated here above that Article 28(1) and (3) require an accused person charged with any criminal offence to be presumed innocent and to be afforded all material statements and exhibits to enable him or her prepare his or her defence without any impediment. This is pre-trial*

- 15 *disclosure. This disclosure is not limited to reasonable information only. Counsel for both parties have agreed that the right to disclosure is not absolute. We respectfully accept that view. Such disclosure is subject to some limitations to be established by evidence by the State on grounds of State secrets, protection of witnesses from intimidation, protection of the identity of informers from disclosure or that due to the simplicity of the case, disclosure is not justified for purposes of a fair* - 20 *trial. This means that an accused person is prima facie entitled to disclosure but the prosecution may by evidence justify denial on any of the above grounds. It's the Trial Court that has discretion whether the denial has been established or not." [Emphasis Mine]*

## The Constitutional Court further observed that:

25 *"We are unable to give any hard and fast rule as to the time of disclosure because the circumstances of each case differ. Essentially, disclosure should be made before the trial commences depending on the justice of each case and on which documents to be disclosed. This is within the discretion of the trial court. In summary, Article 28(1)(3)(a)(c)(d) and (g) of the* *Constitution of Uganda in their plain, natural and practical meaning, prima facie entitle an accused person in a Magistrate's Court to disclosure of: -*

- *(a) Copies of statements made to Police by the would-be witnesses for the Prosecution;* - *(b) Copies of documentary exhibits, which the Prosecution is to produce at the trial; and*

5 *(c) The disclosure is subject to limitations to be established through evidence by the Prosecution."*

In light of the above, it is clear that the Constitutional Court has already given guidance on the interpretation of Article 28 of the Constitution, the right to a fair 10 hearing and pre-trial disclosure. Whereas the Justices of the Court stated that the right to a fair hearing entails disclosing material evidence to the accused persons, they also stated that the disclosure is not absolute but is subject to some limitations to be established by evidence by the State on grounds of State secrets, protection of witnesses from intimidation, protection of the identity of informers or that due to the 15 simplicity of the case, disclosure is not justified for purposes of a fair trial. They also

- did not give any hard and fast rule on when disclosure should be done. They left it to the discretion of the Trial Court to determine whether there is justification for limiting or restricting disclosure to the accused person (s) depending on the evidence availed to the Trial Judge justifying the limitation. - 20

Regarding Rules 19, 22, and 36 (9) (c) of the Judicature (High Court) (International Crimes Division) Rules, it is my considered view that the same is not unconstitutional but in line with the decision of the Court in the *Soon case (supra)* as already observed in the decision of this Court in the oral Application before this

25 Court for the Constitutional Reference. It was also on the basis of the Constitutional Court decision in the *Soon case* and the Rules on restricted disclosure that this Court allowed the restricted disclosure.

However, it is also worth noting that while making Orders in Miscellaneous Cause No. 0014 of 2022 (Application for restricted disclosure for witness protection), I was very mindful of the need to ensure the balance between the rights of the accused 5 persons and the need to protect the witnesses from any risk that may arise as a result

- of full disclosures of their identities at this stage of the Pre-trial. I ordered for disclosure of some statements in a summary form and redacted disclosure of others. I also ordered that full disclosure of the identities of the witnesses shall be made not later than fifteen (15) days prior to the commencement of the trial should this Court - 10 confirm the charges. I strongly believe and I am very satisfied that this brings about the required balance between the need to observe the rights of the accused persons to a fair hearing as enshrined in article 28 of the Constitution and article 44 thereof and the protection of witnesses. - 15 In light of the above, therefore, I find that the questions that this Court found did not call for constitutional interpretation in the oral Application for Constitutional Reference, are the same in the Constitutional Petition pending before the Constitutional Court. It therefore follows that it is my considered view that the Constitutional Petition has no likelihood of success. - 20

Counsel for the Applicants further argued that the Applicants will suffer irreparable damage and the Petition will be rendered nugatory if a stay is not granted. It was contended that the Applicants face serious charges which may result into a conviction and sentence before the determination of the Constitutional Petition 25 thereby causing irreparable damage to the Applicants.

Whereas it is true that the charges may attract a conviction and a sentence, I wish to note that the case against the Applicants is still in the early stages of pre-trial. This Court is yet to determine whether there is sufficient evidence to establish substantial grounds to believe that the Applicants and others jointly charged with them 5 committed each of the crimes charged and refer them for trial. Besides, having made a finding that the Constitutional Petition does not have a likelihood of success, I also find that failure to stay the proceedings will not render the Constitutional Petition nugatory.

10 Counsel for the Applicants also submitted that in the alternative, this Court must consider where the balance of convenience lies. They argued that the balance of convenience favours a stay of proceedings because the State would have no difficulty resuming trial should the Constitutional Petition fail. However, should the Petition succeed when trial has been conducted, the Applicants would have suffered 15 an irreparable inconvenience.

In resolving the above, I wish to note that the Applicants are considering their convenience without due regard to the totality of the entire case. As already observed, the Applicants are jointly charged with four others. Whereas the 20 Applicants were admitted on bail, the other accused persons are still on remand. I therefore find that staying the proceedings in this matter will cause immense inconvenience to the other accused persons.

## **Conclusion**

25 In light of the above therefore, I find that having disallowed the Applicants' Application for Constitutional Reference of the same questions which are currently before the Constitutional Court because the Application lacked merit, this Court cannot again stay its own proceedings pending the Consitutional Court decision on the same matter. It would be a grave contradiction. The Application for stay of Criminal Session case No.0004 of 2022 is hereby disallowed and accordingly

- 5 dismissed on the following orders: - 1. The pretrial of Criminal Session case No.004 of 2022 shall proceed on a date to be agreed upon by the parties; - 2. The applicants should seek an order for a stay of the proceedings from the Constitutional Court if they so wish; and - 10 3. No orders to costs have been made.

## **Dated at Kampala this 25th day of September 2023.**

………………………………

15 Alice Komuhangi Khaukha **JUDGE**

25/9/2023