THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO
(CORAM:WAMBUZI, C.J. ODER, J.S.C.,TSEKOOKO, J.S.C.,KAROKORA,
J.S.C.
MULENGA, J.S.C., KANYEIHAMBA, J.S.C., KIKONYOGO, J.S.C.
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CONSTITUTIONAL APPEAL NO. 1 OF 1997
B E T W E E N
ATTORNEY GENERAL ...................... APPELLANT
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V E R S U S
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MAJOR GENERAL DAVID TINYEFUZA .........RESPONDENT

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(Appeal from the decision and orders of S.T. Manyindo,

D.C.J., A.M. Okello, J., A. M. Bahigaine, J.,
J.P. Tabaro, J., F. M. Egonda-Ntende, J.,
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Constitutional Court at Kampala dated 25th

in

April, 1997 in the Constitutional case No. 1

of 1996)
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JUDGMENT OF KAROKORA, J.S.C.

I have had the advantage of reading in draft the judgment of
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the Chief Justice, in which the facts are clearly brought out and
grounds of appeal are elaborately discussed. I am therefore not
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going to repeat them in my judgment. I shall confine myself to

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six important matters which we were called upon, as the final

Court in the land, to resolve. These are:-
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1.Whether a preliminary point of law which is raised and

its determination could dispose of the case,
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ought to be determined before embarking on the

substantive case.

2.Whether there was a cause of action and if so,

whether the Constitutional Court had
jurisdiction to deal with the case before it
in its original jurisdiction.

3.Whether the newspaper reports and Exht 2 were

admissible.

4.Whether the appointment of the respondent as the

Presidential Advisor on Defence and Internal
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Affairs under Article 104(1) of the 1967
constitution by the President terminated his
a
membership with UPDF as major General.
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5.Whether the letter of Minister of State for

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Defence to the respondent advising him that if

he wanted to resign he should do so in
accordance with the provisions of Regulation
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28(1) of the NRA (conditions of services)

(officers) Regulations 1993 was inconsistent
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with Article 25(2).

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6.Whether there was any violation or threatened

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violation of the respondent's rights.

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I shall discuss the matters raised in the order in which they

are framed.
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On the issue of a preliminary point of law which was raised,

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I do agree with Mr. Bart Katureebe Senior Counsel and Attorney

General that where a preliminary objection is raised, touching
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substantive issues, which if decided, can dispose of the whole

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case, then a finding on the objection should be made.

In that respect, I do agree with the speech of Romer LJ in

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the case of Everett v Ribbands & anor (1952) 2QB 198 at page 206
where he held inter alia:-

"I think where you have a point of law which, if decided

in one way, is going to be decisive of
litigation, then advantage ought to be taken
of the facilities afforded by the Rules of
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Court to have it disposed of at the close of
the pleadings or very shortly after the close
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of the pleadings."
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In the instant case, however, when the preliminary objections

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were raised, Mr. Lule Senior Counsel for respondent resisted the
objections, arguing that the objections would not stand in view of
the provisions of Article 126(2)(e) of the Constituion, where it
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is provided inter alia:-

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"Substantive justice shall be administered without undue

regard to technicalities"
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It must be observed that this Court has handled a number of

cases where Counsel for defence have relied on Artcle 126(2)(e) of
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the Constitution resisting preliminary objections.

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This Court held in Utex Industries Ltd v A.g. civil

Application No. 52/95 SC (un reported) as follows:-
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"We are not persuaded that the Constituent Assembly

delegates intended to wipe out the rules of
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procedures of our Courts by inclusion of

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Article 126(2)(e) of the Constitution.

Paragragh (e) of clause 2 of Article 126 of
the Constitution contains a caution against
undue regard to technicalities. We think that

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the article appears to be a reflection of the
saying that rules of procedure are hand maids
of justice - meaning that they should be
applied with due regard to the circumstances
of each ease."

See also Kasirye & Byaruhanga & co Advocate v UDB civil

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Appeal No. 2/97 SC (unreported) where Utex Industries Ltd (supra)
was cited with approval.
a nd
I would hasten to add that Article 273 of the Constitution
has saved the existing law and rules which must be construed with
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such modifications, adaptations, qualifications and exceptions as

may be necessary to bring them into conformity with the
Constitution. The rules of Court must be applied bearing in mind
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the peculiar circumstances of each case. Therefore Article

126(2)(e) of the Constitution does not give licence to Courts to
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ignore rules of procedure and the law.

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In the instant case, at the close of submissions of both

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Counsel on the objection, Learned Justice Manyindo, D.C.J.,

recorded as follows:-
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"We will proceed to hear the case on merits and we will

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rule on the objection in the judgment."

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There was no ruling on the objection. It was deferred and I

think in some cases ruling on objection may depend on the evidence
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that may be adduced during the Course of the hearing. I would in

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the circumstances, find no fault in the course the Court adopted

in reserving the ruling on the objection and bringing it out in
the judgment, which was the case in the instant case.

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Turning to the issue of whether the petition disclosed a
cause of action, we have to look at the allegations made by the
respondent in his petition and determine whether they disclosed
any cause of action. Mulla on the Code of Civil Procedure, volume
1 14th Edition at page 206 defines cause of action:-

"As every fact that would be necessary for the plaintiff

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to prove if traversed in order to support his
right to the judgment of the Court. In other
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words, it is bundle of facts which taken with
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the law applicable to them gives the plaintiff
a right to a relief against the defendant. It
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must include some act done by the defendant

since in the absence of such an act no cause
of action can possibly
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accrue........................................
............................................It
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is a media upon which the plaintiff asks the

Court to arrive at a conclusion in his favour.
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The cause of action must be antecedent to the

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institution of the Suit."

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It is very well settled that the facts constituting the cause

of action must be alleged in the plaint or petition. See Sullivan
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V Ali Mohamed Osman (1959) EA 239 and A.G. V Oluoch (1972) EA 392.
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In the instant case, the Petition was grounded on two

allegations, namely: first, that the letter of the Minister State
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for Defence rejecting Petitioner's resignation from UPDF and

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directing that if he wanted to resign he should do so pursuant to

the provisions of NRA (conditions of service) (Officers)
Regulations 1993 (SI No 6/93) was unconstitutional and therefore
null and void on the following grounds:-

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(a)The Petitioner ceased to be a continuing full
time member of a regular force as defined in
the Army Code upon his appointment to the
Civil service of the Republic of Uganda as
Presidential Advisor on the 24/5/94.
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(b)The Petitioner was not resigning a commission as
required by Regulation 28(1) of the NRA
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(conditions of service) (Officers) Regulations
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1993, since no commission has ever been
issued him in accordance with Regulation 13(3)
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of the said Regulations.

(c)Having ceased to be a member of Regular force,

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the Petitioner was obliged to regularise his

status in relation to the regular force and
in

the High Command.

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It was contended that the letter of the Minister of state for

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Defence rejecting his resgination and requiring that if he wanted

to do so, he should comply with Regulation 28(1) of the above
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Regulations was tantamount to requiring him to perform forced

labour which was contrary to clauses (2) and (3)(c) of Article 25
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of the constitution of the Republic of Uganda.

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The above Article and clauses state as follows:-

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"(2)No person shall be required to perform forced

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labour.

(3)For the purposes of this Article, forced labour

does not include:-

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(a)...................................
(b)...................................
(c)any labour required of a member of
disciplined force as part of that
members duties as such .........."

There is no doubt that if the facts as alleged in the

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Petition are correct, the respondent would not be forced to comply
with Regulation 28(1) of the relevant Regulation SI No 6/1993.
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The appellant, however, in their reply averred that the respondent
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had never ceased to be a member of the Army. And therefore, the
issue of whether the Petitioner had already resigned by the time
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he filed his petition can only be resolved after hearing the

evidence and submissions from both sides. In the circumstances, I
would agree with the Constitutional Court that on the first
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allegation, the petition disclosed a cause of action.

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The second allegation by the respondent was that he was

threatened with Civil/or Criminal or disciplinary proceedings
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based on his evidence he gave before Parliamentary committee,

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which threat, he contended contravened Article 97 of Constitution.

Article 97 of the Constitution provides as follows:-
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"The speaker, the Deputy speaker, members of Parliament

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and any other person participating or

assisting in or acting in connection with or
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reporting the proceedings of Parliament or any

of its committees shall be entitled to such
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immunities and privileges as Parliament shall

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by law prescribe."

It was not clear in the 2nd allegation as to what type of

threat that would give rise to Civil or Criminal or disciplinary

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proceedings against the respondent by the appellant. It is not
clear what type of threat the Government made to the respondent.
The alleged threat were contained in the newspaper reports and Exh
P2. It is not yet resolved whether or not newspaper reports and
Exh.P2 were properly and rightly admitted in evidence. However,
be that as it may, the Constitutional Court admitted the newspaper
reports and Exh. P2 and held that their contents constituted
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threats to him for the evidence he had given before the
Parliamentary sessional committee on Defence, when his evidence
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was given on a privileged occasion. In fact it was contended for
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respondent that the respondent and the evidence he gave before the
Parliamentary committee were protected under Article 97 of the
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Constitution.

In my view, I think, the position is not like that. That

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Article in the Constitution does not guarantee any immunities and

privileges. The article gives powers to Parliament to make laws,
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providing for the immunities and privileges to those involved in

Law making and those who appear before Parliament to assist in the
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law-making process. Article 273 of the Constitution saved the

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existing laws and directed that existing laws shall have to be

construed with such modifications, adaptations, qualifications and
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exceptions as would be necessary to bring them into conformity

with the Constitution. There was already in existence Section
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14(1)(2) of the National Assembly (powers & privileges) Act(cap.

249) providing these immunities and privileges. Accordingly, it
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is my view that if there was any threat to respondent by the

state, for the evidence he had given before the committee, the
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threats offended the provisions of the Act of Parliament.

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Regardless of whether there were real threats or not, the fact is

that the respondent considered himself threatened. I shall be
coming to the issue of threats when discussing the admissibility
of newspaper reports and Exh. P2 later in my judgment.

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At this stage, I think, if there were any threats to
respondent, these were threats to violate the rights or privileges
and immunities granted by an Act of Parliament. The violation of
individual rights granted by an Act of Parliament Constitutes a
cause of action. However, I would hasten to add that this is a
matter which would be disposed of by any Court of competent
jurisdiction but not Constitutional Court.
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I now turn to the question of jurisdiction. The learned

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Attorney strongly submitted that the Constitutional Court had no
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jurisdiction to entertain this petition.
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Mr. Lule Senior Counsel appearing for respondent referred us

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to Mulla on the Code of Civil Procedure at page 225 for definition

of jurisdiction.
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There, jurisdiction is defined as:-

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"By jurisdiction is meant the authority which a

Court has to decide matters that are litigated
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before it or to take cognisance of matters

presented in a formal way for its decision.
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The limits of this authority are imposed by

the statute, charter or commission under which
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the Court is constituted and may be extended

or restricted by the like means. If no
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restriction or limit is imposed the

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jursidiction is unlimited".

The jurisdiction of the Court of Appeal as the Constitutional

Court is provided by the 1995 Constitution. Article 137(1)(3)

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provides as follows:-

1."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:-

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(a)an act of Parliament or any other law or
anything in or done under the
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authority of any law; or
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(b)any act or omission by any person or

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

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Further more, a matter which started in the High Court may be

referred to the Constitutional Court under clause (5) of Article
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137 or any of the parties to a case may request for the matter to
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be referred to Constitutional Court.

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In the instant case the respondent was challanging the letter

of the Minister of State for Defence as unconstitutional and null
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and void when it required him to apply for resignation under

Regulation 28(1) of the NRA (conditions of services) (Officers)
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Regulations 1993 when he was no longer a member of the UPDF,

having ceased to be so on his appointment to Civil service.
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Therefore requiring him to resign under Military Regulation was

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tantamount to forcing him to perform forced labour, which was

contrary to Article 25(2)(3)(c) of the Constitution.

There is no doubt that the above question involves

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interpretation of the Constitution vis-a-vis the Minister's letter
and Regulation 28(1) of SI 6/93. Clearly, it is the
Constitutional Court created by Article 137(1) of the Constitution
which is seized with exclusive jurisdiction to resolve the above
question when sitting in its original jurisdiction. So by way of
petition, the Constitutional Court had exclusive jurisdiction
under clauses (3)
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of Article 137 of the Constitution to resolve the question of
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interpretation of the Constitution vis-a-via the letter of the
Minister of State for defence and its contents eg. Regulation
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28(1) of SI No 6/93.

The Constitutional Court held that Article 137(3) of the

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Constifution must be read together with Article 50(1) of the same

Constitution. With respect, I would not agree with that view.
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Article 137(3) exclusively deals with the interpretation of the

Constitution vis-a-vis any allegation by any person that either an
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Act of Parliament or any other law or anything in or done under

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the authority of any law or any act or omission by any person or

authority, is inconsistent with or in contravention of a
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provisions of the Constitution. However, on the other hand,

Article 50(1) of the Constitution deals with enforcements of
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rights and freedoms guaranteed under the Constitution and provides

as follows:-
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"Any person who claims that fundamental or other

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rights or freedoms guaranteed under this

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Constitution has been infringed or threatened,

is entitled to apply to a competent Court for
redress which may include compensation."

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In my view, whereas any aggrieved party may find his
grievances requiring interpretation of the Constitution under
Article 137(3) of the same Constitution, the grievances falling
under Article 50(1) of the Constitution do not require
Constitutional interpretation. Some of the grievance may include
writ of Heabus corpus, compensation for eg, unlawful arrests and
false imprisonment, declaration of individual rights, etc.
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Clearly, the jurisdiction of Constitutional Court is confined

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to interpretation of the Constitution under clauses (1) and (3) of
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Article 137 of the Constitution. And unless any allegation made
under Article 50(1) of the Constitution requires interpretation of
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the Constitution, Article 137(3) would not be called in aid to

resolve any grievances brought under Article 50(1) of the
Constitution.
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Turning to the second claim by respondent that his testimony

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before Parliamentary committee was protected by immunities or

privileges guaranteeed by Article 97 of the Constitution, it must
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be noted that there is nothing in that article to suggest that it

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guarantees any immunities and privileges to speaker, Deputy

speaker, MP's and any person summoned to assist Parliament in its
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business. The Constitution does not specify any immunities and

privileges to those memebrs. All that it says, is that Parliament
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shall make law prescribing immunities and privileges which shall

be enjoyed by those appearing before it. There is already in
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Place a law dealing with immunities and privileges of witnesses

who appear before Parliament. The relevant law is the National
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Assembly (Powers & Privileges) Act (cap. 249). Accordingly, in my

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view, if there is any breach of the law made under the Act, the
remedy would not require interpretation of the Constitution. Any
breach of immunities and privileges would be a breach of the
statute, but not of the Constitution. Therefore whereas the

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Petitioner may have had cause of action for the threatened breach
of the provisions of the National Assembly (Powers & Privileges)
Act, the Constituional Court would have no jurisdiction to deal
with allegation under Article 137(3) of the Constitution, because
the allegation of threats never required interpretation of the
Constitution.
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I would therefore hold that the Constitutional Court had no
jurisdiction to entertain a claim which did not require
a
interpretation of the Constitution. That was a matter which could
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be resolved by any other Courts with jurisdiction.
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I now turn to the admissibility of Exh. P2. Its

admissibility had been opposed before the Constitutional Court.
The Court admitted it, holding it was relevant to the case for the
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Petitioner. The question of its admissiblity was seriously

contested. Mr. Kabatsi, Solicitor General for the Attorney
in

General submitted that it was inadmissible because its origin and

authorship were not known. From the evidence of DW 1, Amama
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Mbabazi, Minister of State for Defence, he admitted that it had

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similarity with the message he had received from the President,

copied to all members of the Army High Command, but he was not
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sure that it was the same. He stated he would have to compare it

with his copy. There was, however, no evidence that he was called
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upon to compare it with his copy and thereafter confirm that the
Exh. P2 was similar to the document that he had received from the
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President. The onus, in my view, was on the respondent to prove

that Exh P2 originated from the President. This was an exhibit
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which was not written by one person. However, Mr. Kabatsi

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Solicitor General for the appellant submitted that if this was

found to be a Public document as the Constitutional Court had
found then the document should have been accessed under Section 74
and 121 of the Evidence Act.

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Against the above submission, Mr. Lule Senior Counsel for
respondent submitted that the provisions of Section 121 of the
Evidence Act was made well before the new concepts of personal
liberty as are known today. He contended that the framers of the
Constituion wanted to give less powers to the authority when
dealing dwith Personal liberty. And in that pursuit, Articles 2,
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28(1)(4), 41 & 44(c) were inserted in the Constitution. Then
Article 41(2) of the Constituion provided as follows:-
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"Parliament shall make laws prescribing the classes
of information referred to in clause (1) of
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this Article and procedure for obtaining

access to that information."
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With due respect, it must be observed that Parliament has not

yet prescribed classes of information and procedure for obtaining
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the same. However Section 121 of the Evidence Act would be

relevant. And Article 273 of the Constitution saved the existing
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laws, relevant to the subject, which had to be applied with such

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modifications, adaptations, qualifiactions and exceptions as may

be necessary to bring it into conformity with the Constitution.
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So Section 121 of the Evidence had to be applied, bearing in mind

the provisions of Article 273 of the Constitution to reflect fair
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trial and personal liberty, but at the same time, ensuring that
security or sovereignity of the state were not jeopardised.
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So here I can state that there must have been conflict of

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interest. The respondent was a public officer with information

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which he had received by virtue of his office as a memebr of High

Command but which affected him personally. There was an element
of prejudice of security or sovereignity of the state at stake in
that document on one hand, and on the other hand, he must have

14
considered that his fundamental and personal liberty under the
Constitution were being threatened. Now question is: would he
proceed to seek leave to produce this document, Exh. P2, from
those he considered to be threatening his fundamental and personal
liberty?

I think, considering the circumstances in which the

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respondent found himself, it was not out of the ordinary that,
until Parliament made the law to reflect the spirit of Articles
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28(1)(2) (41)(1) of the Constitution, the document Exh. P2, was
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presented to the Court to determine whether it was relevant and
admissible notwithstanding the fact that it touched on the
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security of the state. It was heard by Court in Camera as

official document and was rightly, in my view, admitted in
evidence after directing its mind to Articles 28(1)(2) and Article
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41(1) of the Constitution and finding that it was relevant to the

case.
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I must state that considering all the circumstance, of the

case, I think I would not fault the conclusion of the
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Constitutional Court on the admissibility of Exh. P2.

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I turn to admissibility of newspaper reports. The learned

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D.C.J., held at page 389, first line as follows:-

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"The newspaper reports have not been denied. The

presumption must be that they were accurate."
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The other learned justices of Constitutional Court made no

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specific finding on the admissibility of the newspaper reports,

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but they all appeared to have accepted the newspaper reports as

their decisions hinge on these reports.

However, our Evidence Act provides the mode of receiving or

15
adducing evidence. Section 57 of the Evidence Act provides that
facts except the contents of a document may be proved by oral
evidence. Then Section 58 of the Act provides that oral evidence
must be direct. Section 59 of the Evidence provides that the
contents of documents may be proved either by primary or by
secondary evidence. Primary evidence is defined by Section 60 of
the Evidence Act as document itself produce for inspection by the
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Court. Section 60 of the Evidence Act states that Secondary
evidence means and includes:-
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(a)Certified copies given under
(b)Copies made from the original by Mechanical
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process.
(c)Copies made from or compared with the original.
(d)Counter parts of documents as against the
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parties who did not execute them.

(e)Oral accounts of the contents of a documents
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given by some person who has himself seen it.

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Here we were dealing with newspaper reports which were in

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photocopies. The original newspaper reports were not seen by the

Court. Even the original newspaper reports would not be primary
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documents, because these would be reproduction by machines of the

actual report filed in by reporters, after the reports were
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editted before publication. So there must be inaccuracies and

errors.
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Therefore the newspaper reports before Court would not be

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described as either primary or secondary evidence under Sections

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60 and 61 respectively. They are in the category of evidence

known as hearsay evidence, because they are copies of statements
by persons who were not parties to the cases and were not called
as witnesses to testify before Court. If such newspapers reports

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fall in the category of hearsay, as I have found, then the general
rule of evidence is that such evidence is inadmissible when they
are brought for purpose of proving the truth of the matter stated
therein.

Phipson on Evidence 10th Edition goes further to support the

above view on page 273 and states as follows:-
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"Oral or written statements made by persons who are
not parties and are not called as witnesses
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are inadmissible to prove the truth of the
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matter stated."
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However, there are exceptions to the above hearsay rule. In

Uganda, we have Section 30 of the Evidence Act which enumerates
exceptions to the general rule of hearsay evidence being
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inadmissible. These exceptions include the dying declaration,

declaration against interest of declarant etc and then hearsay
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which falls in the category of res-gestae, which are statements of

facts explaining the subject in issue of litigation. Sections 8,
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9, 10 and 14 of the Evidence Act refer to this type of evidence

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known as resgestae.
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Phipson on Evidence 10th Edition at page 284 the author

refers to exception of the hearsay rule and states:_
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"Statements which are part of the res-gestae

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expressions of mental or bodily feelings,

authentic documents, probabative of former
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possession and admissions by conduct are

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sometimes said to form further exceptions to

the rule excluding hearsay; but since
according to the better opinion, these are
receivable merely as presumptive evidence and

17
not to prove the truth of the matter stated,
they are not exceptions to the rule in its
usual sense."

Bearing the above in mind, I would agree with Mr. Kabatsi,

Solicitor General for the State that res-gestae evidence cannot
stand alone and form a basis upon which the petition is grounded.
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Res-gestee would come in to supplement an existing ground on
which the petition was based. In this case the petition was based
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on threats contained in the newspaper reports which cannot stand
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alone as they are hearsay.
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Although Mr. Lule, Senior Counsel for respondent forcefully

persuaded us that newspaper reports occupy central position in
modern state Management and that as such, newspaper reports should
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be admitted in evidence, he cited no authority which could

persuade us to hold that newspaper reports are admissible. I
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know, the Deputy Chief Justice held that because newspaper reports
had not been denied, the presumption was that they were accurate.
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With due respect, I would not agree that failure to deny

hearsay evidence would in any way render hearsay evidence
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admissible. In my view, even if assuming they were admissible,

the alleged threats contained therein would not be justiciable
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under Article 137(3) of the constitution by the Constitutional

Court as the threats would be offending the provisions of the
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National Assembly (Powers & Privileges) Act (cap. 249). In the

circumstances, the Constitutional Court would have no jurisdiction
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to deal with the threats allegedly infringing the immunities and

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privileges provided under Section 14(1)(2) of the National

Assembly (powers & privileges) Act. The remedy would be sought
from any other competent Court but not from the Constitutional
Court.

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In view of the above, I must state that the Constitutional
Court was in error when it proceeded to entertain the claim of
threats continued in newspapers reports without jurisdiction and
basing its decision on hearsay evidence.

I now turn to the issue of respondent's removal from the

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Armed forces. It was submitted for respondent that his
appointment into Civil service on 2nd February 1993 as the
a
Presidential Advisor on Defence & Internal Affairs terminated his
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membership with the UPDF. And the Constitutional Court (all five
justices) endorsed the submission of the respondent's Counsel.
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However, I am a little bit puzzled about Mr. Lule Senior

Counsel's submission that respondent ceased to be a member of UPDF
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on his appointment as the Presidential Advisor on Defence &

Internal Affairs; because the respondent himself before the
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Parliamentary sessional committee on Defence ........... stated on

oath on 29/11/96 in 3rd line from top on page 520 of the record of
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appeal as follows:-
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"I am a Major General in UPDF".

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Then on the same page 3rd line from the bottom, he stated:-
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"I am a member of the High Command . I am a memebr

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of the NRC but that is past and I represented

NRA which became UPDF in the C.A."
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At page 629 line 7 from top of the page he stated:-

"Now as far as an Army is concerned there is no

such things like resignation. This is a

19
deployment. The Commander-in-Chief says:-
Major General Tinyefuza now you are under
President's office as my Defence Advisor and
you are duty bound to accept that."

Then in his letter of resignation dated 3rd December, 1996,

he stated in line 8 down wards as follows:-
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"Your Excellency,
With great difficulty I have decided to resign as a
a
member of the Uganda Peoples Defence Forces
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and also resign from the UPDF High Command."
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The above facts clearly show how the respondent held himself
out to everybody who knew him and how he regarded himself as on
3rd of December, 1996.
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Then the evidence of Amama Mbabazi clearly shows that the

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respondent was a member of UPDF. In his affidavit sworn in reply

to the Petition, Amama Mbabazi, DW1, stated that the respondent
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was a serving officer. Even when he proceeded to testify before

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the Parliamentary Sessional Committee, he was summoned through the

Army Commander. In C.A., the respondent represented NRA in NRA
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uniform as a Major General.

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DW1, stated that in 1992 the Army High Command passed a

policy that Army Officers in NRA could be appointed to Public
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service jobs outside the Army but would still retain their
memberships of the NRA. Pursuant to that Policy, he cited a
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number of officers who had been appointment to the Posts of

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Ministers, Ambassadors, Managing Directors e.g. Major Butime,

Brigedier Oketcho, Major Mwesigye respectively.

The above evidence was not challanged by respondent.

20
Turning to the aspect of law, Section 5 of the National
Resistance Army statute 3 of 1992 provides as follows:-

Every member of a Regular Force shall be on

continuing full time Military service and
shall at all times be liable to be employed on
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active service."
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Section 3(a) of the same statute provides as follows:-
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"Each Regular force shall consists (a) Officers

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commissioned by the President."

The Regulation 15 of the NRA (condition of service)

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(officers) Regulations SI No. 6/93 states that Commissioned ranks

in the NRA shall be in the descending order,set out in the 4th
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schedule to these Regulations - starting with: General, Lt

General, Major General, Brigadier, Col. Lt Col, Major, Captain, Lt
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and 2nd Lt.

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Regulation 27 of the NRA (conditions of services) (officers)

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Regulation SI No. 6/93 clearly stated that no officer shall be

dismissed or have his services terminated except in accordance
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with the statute or Regulations made under the statute.

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However, if the officer wanted to resign from the Army, he

could do so pursuant to provisions of Regulation 28(1) of NRA
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(conditions of services) (officers) Regulations (SI No. 6/93)

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which provides as follows:-

"The Board may permit any officer to resign his

commission in writing at any stage in his

21
service or to retire on pension after a
minimum of 13 years of reckonable service."

Mr. Lule Senior Counsel for respondent submitted that the

President using his prerogative powers under Article 65(2) of the
1967 Constitution had removed the respondent from the Army when he
appointed him into civil service to be his Presidential Advisor on
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Defence and Internal Affairs. The Constitutional Court upheld
that submission, saying that being a member of Armed forces and
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serving in the Public service were matually exclusive in view of
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the provisions of Section 5(1) of the NRA statute (3/1992) which
requires a member of Regular force to be on continuing full time
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military service and liable to be employed on active service.

With respect, in my view, if the President wanted to remove

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the respondent from the Army I can find no discernable reasons why
he did not specifically say so. I do not even know how he could
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remove him without complying with the law. He could probably

remove him under Section 92(1)(c)(e) of NRA statute (3 of 1992) by
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merely dismissing him or dismissing him with disgrace if there was

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evidence of gross misconduct, which was not the case here. Even
then, the dismissal would be after the respondent had been given
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opportunity to he heard on the charge of that gross misconduct.

Otherwise the dismissal would be questioned as having been arrived
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at in total breach of the rule of natural justice of audi alterum

partem, which would render the dismissal unlawful.
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In view of the above, I cannot accept Mr. Lule's submission

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that the President terminated respondent's employment with UPDF

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loosely like that by his appointment to be the Presidential

Advisor on Defence and Internal Affairs, without considering his
retirement benefits in the Army. I must add that a decision by
this Court, endorsing Mr. Lule, Senior Counsel's submission on

22
this issue, would send dangerous signals to other UPDF officers
who are serving outside the Army; because some of them might still
be interested in being associated with UPDF. As far as I am
concerned, I do not see any breach either in the Constitution or
the statute for an Army officer to hold an office in Public
service. For instance, what is wrong with, a Captain in the Army,
who is a doctor, to be posted at Mulago and assist in the
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alleviation of scourge of cholera? Would his appointment as a
doctor at Mulago terminate his membership with UPDF when it is not
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expressly stated so?
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I must add that the case of Opoloto V AG (1969) EA 631 to

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which we were referred is distinguishable from the instant case,

because there, Opoloto had been expressly dismissed, unlike in the
instant case, where the respondent was given another assignment in
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the Public service. This assignment into Public service, did not
mean that the President had terminated his membership with UPDF,
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because the President could do so in accordance with the law. I

would wonder whether Opoloto case is still a good law in view of
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our present Constitution.

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In view of the above, I would not agree with Mr. Lule's

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submission that that appointment removed the respondent from the

Army. In my view the appointment of respondent into Public
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service went further to confirm and implement Government policy as

testified to by DW1, when he stated that in 1992 the Army High
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command passed a policy that Army officers in NRA would be

deployed in civil service but that they would retain NRA
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membership. The evidence of respondent before the Parliamentary

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committee confirmed that policy when he stated:-

"Now as far as Army is concerned, there is no such

thing like resignation. This is a deployment.

23
The Commander-in-Chief says; Major-General
Tinyefuza - Now, you are under President's
office as my Defence Advisor and you are duty
bound to accept that."

It appears that the policy has been going on smoothly and has
been accepted. A number of officers were mentioned who are
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working in public service, and are still retaining their Army
membership. This is, I think, a Government policy which is within
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the exclusive jurisdiction of the executive. The Courts would not
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be right to question the rationale of this policy, because it is
not within the Courts' jurisdiction to question the policy which
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the Government is pursuing unless in pursuit of that policy the

Government has encroached upon or infriged the fundamental human
and/or personal rights and liberties of individuals or unless the
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policy is found to be illegal.

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In this case the respondent was not challanging the policy in

question. In fact I do not see any law the policy in question is
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infringing, for an army officer to be moved to President's office

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as a public officer, but retaining his membership of the Army. In

the instant case the President as Commander-in-Chief knew how best
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he wanted the respondent to advise him on Defence and Internal

Affairs and from which Ministry he would best utilise him. Any
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problem I can see, could probably emerge in computing his pension,

but this would be resolved by Public service and UPDF since he is
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in the service of the Republic of Uganda.

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Therefore considering all the circumstances, of this case,

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there was no basis for the Constitutional Court to hold that the
respondent ceased to be a member of UPDF and its High Command when
he was appointed to be Presidential Advisor on Defence & Internal
Affairs on 2nd February 1993. His appointment into Public service

24
was done in pursuit of Government policy and was not inconstistent
with the Constitution or any other law. The respondent had not
been removed from the Army by the President on his appointment
into Public service. He is still an Army officer in UPDF and its
High Command though deployed to work in Public service as Defence
Advisor to the President.
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I must now turn to issue of whether the letter of the
Minister of State for Defence to respondent, he should do so in
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accordance with Regulation 28(1) of NRA (conditions of service)
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(officers) Regulations (SI No. 6/93) was tantamount to threatening
or subjecting him to performing forced labour which was contrary
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to articles 25(2) & 25(3)(c) of the Constitution.

The Deputy Chief Justice, Manyindo, held inter alia while

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dealing with the Minister's letter:-

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"Suffice it to say here that in my opinion the

letter in question was neither an act nor a
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threat to the petitioner's liberty and

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fundamental rights. It did not state that the

petitioner could not resign from the Army. On
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the contrary, it advised him to resign but

legally. So the threat of forced labour did
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not arise."
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I would agree with the above conclusion of D.C.J., that the

Minister's letter was advisory to the respondent to resign in
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accordance with the law.

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Therefore having found as I did, that the respondent was

never removed from the Army and that he is still a Major General

25
in UPDF and a member of its High Command, then no doubt that the
Minister's letter advising him to resign in accordance with the
provisions of Regulation 28(1) of the NRA (conditions of service)
(officers) Regulations (SI NO. 6/93) was in effect telling him
that if he wished to withdraw his labour he should do so according
to law. In other words, he should comply with Article 40(3)(c) of
the Constitution.
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I would in view of the above hold that the Constitutional

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Court was in error when it held that the respondent had been
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removed from the Army by the President when he appointed him his
Presidential Advisor on Defence & Internal Affairs. I must repeat
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that he was and still he is a member of UPDF and its High Command.
Therefore when the Minister of state for Defence wrote, advising
him to comply with Regulation 28(1) of the NRA (conditions of
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service) (officers) Regulations (SI No. 6/93), he was not

subjecting him to performing forced labour. In effect, the
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Minister's letter to respondent, advising him to comply with

Regulation 28(1) of SI No. 6/93 was not inconsistent with Article
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25(2) and Article 25(3)(c) of the Constitution.

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Therefore the issue of threats of forced labour could not

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arise merely because the Minister of state for Defence had advised
the respondent that if he wanted to resign he should comply with
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the provisions of SI No. 6/1993 Regulations 28(1), governing

resignations of Army Officers. In agreement with the finding of
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the Deputy Chief Justice, forced labour under clause (3) of

Article 25 of the Constitution does not include Military service.
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Having found that the respondent was an Army Officer, it is

my finding that he would not qualify to be called as conscientious
objector, merely because he had lost faith in the Army and fealt
scared by the investigations that were going on to find out if the

26
evidence he gave before the Parliamentary Sessional Committee
disclosed any offences. The authorities were perfectly entitled
to carry out investigations for purposes of establishing whether
or not his testimony disclosed any offences.

As regards the issue of whether there were threatened

violations of respondent's rights by taking disciplinary,
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administrative or civil action or criminal proceedings against the
respondent in any tribunal or Court of law, arising out of his
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testimony before the Parliamentary Sessional Committee, I have
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already held, while dealing with jurisdiction of the Court vis-a-
vis this issue, that the Constitutional Court had no jurisdiction
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under Article 137(3) of the Constitution to hear grievances of any

party that the evidence he gave before the Parliamentary Sessional
Committee was protected under Article 97 of the Constitution. The
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immunities and privileges which the Constitution guarantees to law

makers and to those who come to assist law makers under Article 97
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of the Constitution are provided by Section 14(1) of the National

Assembly (Powers & Privileges Act (Cap. 249). In my view if there
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were any threatened violation of respondent's rights provided by

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Section 14(1) of National Assembly (Powers & Privileges) Act, the

remedy would be sought from any other competent Court, but not
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from the Constitution Court.

Li

The alleged threatened violation of respondent's rights are

contained in the newspapers and Exh. P2.
br

I have already held herein above that newspaper reports were

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hearsay and hence inadmissible. Therefore no claim would be

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founded on the evidence contained in the newsapaper reports.

Now, turning to Exh. P2, it was claimed that it came from the
President and Commander in-chief addressed to all members of the

27
Army High Command. It was concerning the respondent's testimony
before Parliamentary Sessional Committee. In that Exh. P2, the
President did not beat about the bush. He stated he was most
infuriated by respondent's lies against UPDF when he stated in
evidence that it was in mess. He was not happy about
respondent's evidence before the Parlimentary Sessional Committee
touching the National security.
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In his view, he thought the evidence the respondent gave

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disclosed certain offences such as giving false information,
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intrigue, indiscipline and insubordination. He, however, conceded
that as he was not a lawyer, he would be consulting the Attorney
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General to advise him in view of the Parliamentary immunities and

privileges which the respondent claimed protected him.
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He, in the meantime, directed the Minister of state for

Defence (G) to convene a meeting of Army High Command and
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investigate the respondent's behaviour and advise him on the

course of action to be taken.
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In my view, considering the evidence of the respondent before

the Parliamentary Sessional Committee, the President and
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Commander-in-chief was perfectly correct to investigate and find

out if respondent's evidence disclosed any offence, upon which he
Li

could be dealt with. He conceded that he would be consulting the

Attorney General to advise him, bearing in mind immunities and
br

privileges enjoyed by witnesses who appear before the Parliament

and other committees. It would not be correct, in my view, to say
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that, there were violations or threatened violation to

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respondent's fundamental human rights or threats of disciplinary,

administrative, criminal or civil action to be taken against him
for what he had stated. In my view, the Petition on that ground
was premature and filed to pre empt any investigations the

28
President was carrying out. If the evidence he gave disclosed any
offences, the Petition would not absolve him. Exh. P2 did not
violate respondent's rights. Section 14(1) of the National
Assembly (powers & privileges Act (cap. 249) provides as follows:-

"Every person summoned to attend to give evidence

or to produce any paper, book record or
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document before the Assembly or committee
thereof shall be entitled in respect of such
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evidence or the disclosure of any
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communication or the production of any such
paper, .................................... to
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the same rights or privileges as before a

Court of law."
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However, Subsection (2) of Section 14 of the same Act gives

exceptions to the privileges given in Subsection 1.
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2."Except with the consent of the Secretary to the

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cabinet, no public officer shall:-

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(a)produce before the Assembly or a

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committee any paper book record, or

document, or
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(b)give before the Assembly or a

br

committee evidence, relating to the

correspondence of any naval
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Military or airforce matter; nor

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shall secondary evidence be

recieved by or produced before
Assembly or a committee of the
contents of any such paper, book or

29
record or document."

Therefore, whereas the evidence given before the

Parliamentary Committee may be privileged, the evidence which
relates to correspondance on any naval, Military or airforce is
not privileged. In other wards, a Public Officer who goes to
Parliamentary Committee as a witness will not be immune to
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prosecution if he gives evidence relating to any correspondence
i.e exchange of letters especially between two or more people or
a
naval, Military or airforce matters. In my view, the President,
nd
was perfectly entitled to investigate whether or not respondent's
testimony disclosed any offence for which he could be prosecuted.
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However, be that as it may, what is clear is that Exh. P2

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contained no threats or violation of respondent's Constitutional

rights. If there were any threats, these would be threats
in

offending provisions of Section 14(2) of the National Assembly

(powers & privileges) Act (cap. 249)which would not require
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interpretation of the Constitution under Article 137(3) of the

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Constitution. And even if assuming that there were threats of

respondent's Constitutional rights, the respondent would not
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enforce those rights through Constitutional Court, under Article

137(3) of the Constitution and seek his remedy. The
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Constitutional Court was established under Article 137(1)(3) of

the Constitution to deal with disputes which exclusively deal with
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interpretation of the Constitution vis-a-vis any other law or acts

done or omitted to be done under the law, which was not the case
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here.
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In conclusion I wish to caution the Public and the advocates

in particular that Article 137(1)(3) of the Constitution is not to
be invoked by any aggrieved party seeking enforcement of his

30
rights and freedoms that have been infringed upon. These rights
and freedoms can be obtained from any other Courts having
jurisdiction to grant the redress. The Constitutional Court is
there to deal with interpretation of the Constitution under
Article 137(3) or under clause (5), if the question of
interpretation of the Constitution is referred to it by any Court
of law other than a field Court Martial.
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In view of what I have stated, I would allow the appeal

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with no order as to costs.
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Dated at Mengo this ........ day of ............, 1998.

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A. N. KAROKORA,
JUSTICE OF THE SUPREME COURT.
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