[2025] UGCC 5

#### THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram; Egonda Ntende, Obura, Luswata, Kazibwe, Mugenyi, JJCC) CONSTITUTIONAL PETITroN o40 0F 2015

# CENTRE FOR PUBLIC INTEREST LAW : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : PETITIONER VERSUS

ATTORNEY GENERAL RESPONDENT

### JUDGMENT OF DR. ASA MUGENYI. JCC

### 1. INTRODUCTION

- 1 I This petitioner is seeking for an interpretation on the constitutionality of the sub judice rule. It contends that Rule 64 of the Procedure of the Parliament of Uganda and Rule 20 of the Advocates (Professional Conduct) Regulations Sl. 267 -2, which deal with rule on sub judice, are inconsistent and in contravention of Articles 29(11(al & (b), 4O(2) and 43(1) of the Constitution of Uganda. - 1.2 The petitioner sought and was granted leave to orally amend its petition filed on 30th November 2015, so as to make reference to the current Rules of Procedure of Parliament of Uganda. The petition was amended to replace reference to Rule 64 of the Rules of Procedure of the Parliament of Uganda 2072 witl: Rule 73 of the Rules of Procedure of the Parliament of Uganda, SI 30 of 2021.

### 2. BACKGROUND

2.7 The petitioner challenged Rule.64 of the Procedure of the Parliament of Uganda, now Rule 73, and Rule 20 of the Advocates (Professional Conduct) Regulations 51. 267 -2 which deal with the rule on sub judice. It contended that they are inconsistent and in contravention of Articles 29(1)(a) & (b), 40(2) and 43(1) ofthe

pc. 1

Constitution of Uganda. The petitioner also averred that the act of the Judicial Service Commission in denying it information concerning the interview for the positon of the Deputy Chief Justice and the recommendation thereto to the President were inconsistent with the Constitution. The reason for the denial was that the matter was sub judice, as there was a matter pending in court. The petitioner also alleged that the act of prohibiting any person, press or other media from reporting, commenting on, or publishing events proceedings in Parliament for the reason that they are sub-judice is in contravention of the Constitution.

- 2.2 Thc petition was supported by an affidavit of Ms. Annet Namugosa, a legal officer of the petitioner, an organization that seeks to promote respect for human rights, constitutiona-lism, rule of law and governance in Uganda. On l5th July 2O 15, she requested the Judicial Service Commission to avail her information conceming the interview and the results of the candidates interviewed for the position of Deputy Chief Justice plus the recommendation made to the President on the appointment in respect thereof. On 25th June 2015, the Judicial Service Commission replied stating it could not avail her the information as the appointment was being contested in a court of law in Miscellaneous Cause ⁷⁷l2Ol5; Simon Peter Dsomu u Attorneg General at the Mengo Chief Magistrates Court and was therefore sub judice. The deponent contended that the denial to avail her information was inconsistent and in contravention of Articles 29(1)(a), a1(1) and a3(1) of the Constitution. She contended that the right to access information is non- derogable and that the Secretary to the Judicia-l Service Commission did not demonstrate any reason justifiable in a free and democratic society to deny such information to the petitioner. - 2.3 Ms. Annet Namugosa further deponed that the Parliament of Uganda made Rules to regulate its practice and procedure. She contended that the said Rules are in contravention and inconsistent with the Constitution of Uganda. She stated that Rule 64 (now Rule 73) of the Rules of Procedure of the Parliament prohibits Members of Parliament from referring to any active criminal or civil proceedings

in courts of law. She contended that this violates Articles ⁴1 ( 1) of the Constitution and the right to freedom of speech and expression under Article 29(1)(a) of the Constitution. The deponent also contended that the Rule limits the right and mandate of Parliament in exercising its legislative role and oversight function. She stated that on the 12th and 13th February 2013, and on 23rd July 2013, the Speaker of Parliament stopped debates on alleged financial impropriety in the office of the Prime Minister as the persons involved were charged before courts of law and on the basis of the sub judice rule. She contended that the sub judice rule interferes with democracy and freedom of expression.

- 2.4 Ms. Namugosa stated that the she read the ruling of the Supreme Court in Alcon International Limited u The Neu Vision Printing & Pttblishing CO. Ltd & Another, Civil Application 04 of 201O that stopped the press from publishing any matter in respect of Civil Application 15 of 2009 on the premise that such publication would prejudice the application. She contended that ruling was made contrary to freedom of expression enshrined in Article 29(l)(a) of the Constitution. - 2.5 The respondent, in an affidavit in reply by Mr. Elisha Bafirawala, a Senior State Attorney in the Attorney General's chambers contended that the petition is devoid of merit and does not involve questions of constitutional interpretation. The deponent stated that under Rule 64 (now 73) a matter is considered sub judice, if in the opinion of the Speaker, it is likely to prejudice the fair determination of a case. He stated that the sub judice rule is supposed to prevent Parliament and politicians from usurping the courts' power to deal with legal issues. He submitted that the sub judice rule goes to the foundation of the principle of separation of powers that permit courts to administer justice without undue interference from anyone.

# 3. rssuEs

- 3.1 The parties agreed that the following issues be considered by the court in order to dispose of the petition. - I . Whether Rule 64 (now 73) of the Procedure of the Parliament of Uganda (20 12) and Rule 20 of the Advocates (Professional Conduct) Regulations S.l 267 -2 xe inconsistent with, and or in contravention of the Constitution? - 2. Whether the act of denying the petitioner information concerning the interview report, together with the results of all the candidates interviewed for the position of the Deputy Chief Justice and the letter of recommendation to the President on the appointment of the Deputy Chief Justice is inconsistent with and or in contravention with Articles 29(1)(a), 41(1) and 43(1) of the Constitution of Uganda? - 3. Whether the act of prohibiting any person, press and or any other media from reporting, commenting on events, surrounding court proceedings for the reason that it is sub judice is inconsistent with and or in contravention with Articles 2g(ll(al, a1(1) and 43(1) of the Constitution of the Republic of Uganda? - 4. Whether the sub judice rule is an acceptable and demonstrably a justifiable limitation under Article a3Ql of the Constitution of the Uganda? - 5. Whether the petitioner is entitled to the remedies sought in the petition?

## Representation

3.2 At the hearing of the petition on 12th November 2024, the petitioner was represented by Mr. Laston Gulume, Mr' Edward Babalanda and Mr. Edwin Tayebwa. The respondent was represented by Ms. Imelda Adongo, Principal State Attorney.

### 4. ANALYSIS AND DETERMINATION

- 4.1 Mwondha, JSC, summari zed the principles of constitutional interpretation that this court must bear in mind in interpreting the Constituti on in Dauid T\sinswire ^uAttorneA General, [2O 17] UGCC ¹1 , as follows: - "(i) The Constitution is t}re Supreme law of the land arrd forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of its inconsistency (see Article 2 (2) of the Constitution). Also see Presidential Election Petition No. 2 of the 2006 (SC), Rtd Dr. Col. Kiiza Besigge u Y. K. Museueni - (ii) In determining the constitutiona-lity of a legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining the constitutionality of either effect animated by the object the legislation intends to achieve. See Attorneg Generol u Siluation Abukl, Constitutional Appeal No. 1988 (SC). - (iii) The entire Constitution has to be read together as an integral whole with no particular provision destroying the other but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness. (See P. K. Ssemuogerere and Another u Attorneg General, Constitution Appeal No I of 2OO2 (SC) and tlle Attorneg General of Tanzania u Reu Chistopher Mtikilo, (2010) EA 13.). - (iv) A Constitutional provision containing a fundamental human right is ^a permanent provision intended to cater for all times to come and therefore should be given dynamic. progressive libera-l and flexible interpretation keeping in view the ideals of the people, their social economic and political cultural values so as to extend the benefit of the same to the maximum possible. See Okello John Liuingstone ond 6 others u The AttorneA General and Another, Constitutionai Petition No I of2005, South Dokata u. South Carolina 192, USA 268, 1940. - (v) Where words or phrases are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning. The language used must be construed in its natura.l and ordinarv sense.

- (vi) Where the language of the Constitution or a statute sought to be interpreted is imprecise or ambiguous a liberal, general or purposeful interpretation should be given to it. (See AttorneA General u Major Dauid Tinyefunza, Constitutional Appeal No. I of 1997 (SC)). - (vii) The history of the country and the legislative history of the Constitution is also relevant and useful guide to Constitutional Interpretation. See (Okello John Liuingstone and 6 others u. AttorneA General and Another (Suprall. - (viii) The National objectives and Directive principles of state policy are also a guide in the interpretation of the Constitution. Article 8A of the Constitution is instructive for applicability of the objectives."

I shall be guided by the foregoing principles of constitutional interpretation in resolving this petition.

4.2 \n Kizito u Attorneg General (supra) it was stated further that:

"secondly, the burden ofproofrests with the petitioner to raise a prima facie case that a fundamental right or freedom has been contravened. Once this is established the burden shifts to the state or respondent to rebut or justify the limitation. "

- 4.3 Having stated the guiding principles, I will now address the issues raised. Though the respondent submitted this petition does not raise questions of constitutional interpretation in its petition, it was not among the issues agreed upon. The appellant did not address it. Therefore, I shall not address it. Both parties addressed issues 1 and 3 together. However, I will also add issue 4 because it has a bearing on how issues 1 and 3 are resolved. - Issue 1. trIhether Rule 73 of the Procedure of the Parliament of Uganda l20t2l and, Rule 2O ofthe Advocetes (Professional Conductl Regulations S. I 267 -2 erc lnconsistent wlth and or in contraventlon ofthe Constitutlon? 5

Issue 3. Whether the act of prohtbitlng any person, Preas and or any other medla from reportlng, commentlng events, surroundlng court proceedlngg

for the reaaon that it is sub judlce is inconsistent with and or ln contravention with Articles 29(1)(a), 41(1f and 43(1) of the Constitution of the Republlc of Uganda? and

Issue 4, Whether the sub Judlce rule ls acceptable and demonstrably ^a Justlflable llmltatlon under Artlcle 43(2f of the Constltution of the Uganda?

### Parties submlsslons

5.0 The Constitutional Court adopted the parties' conferencing notes as their submissions and agreed to consider them in making its decision.

# af Petltloner's submissions

5. I On issues 1 and 3, the petitioner submitted that the sub judice rule is used to regulate reporting on matters before courts where proper administration of justice may be prejudiced or interfered with. The right to a fair trial will be infringed if presiding officers prejudge issues that are under judicial consideration, or if improper pressure is applied on witnesses or judicial officers involved in a matter. The petitioner submitted that, however, the right to a fair tria.l must be balanced against the right to freedom of expression and the right to access to information. It submitted that the test of sub judice was discussed in Midi Teleuision (Ptg) Ltd u Director of Public Prosecutions (Western Cope), l2OO7l 3 ALL SA 318, where it was stated that:

> "A publication will be unlawfu\ and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication tokes place. Mere conjecture or speculation that prejudice might ocanr uill not be enough. Euen then publication uill not be unlawful unless a court is satisfied that the disaduantage of atrtailing the free Jlow of information outu.teighs its aduantage. In making that eualuation it is not onlg the interests of those uho

are associated uith the publication that need to be brought to account but, more important, the interests of euery person in hauing accessing to information.'

The petitioner submitted that such tests have not been applied in Uganda making the sub judice rule oppressive.

5.2 The petitioner cited a law lecture by Justice G. N. Roy, Chairman, Press Council of India, on "Reasonableness of restictions on reporting on matters sub iudice" on 31"t August 2008, at Bhubaneswar where he was of the view that "a judge is unlikelg to be inJluenced except by what he hears or see in court or is judiciallg appropiate for the deliberation.. ." He also referred to Justice Felix Frankfurter who observed that:

> "A free press is not to be prefened to an independent judiciary, nor an ind.ependent judiciary to a free press. Neither has primacA ouer the other, both are indispensable to a free societg. The freedom of the press in itself presupposes on independent ludiciary through uhich that freedom may, if necessary, be uindicated. And one of the potent means for ossuing iudges their independence is a free press"

The petitioner submitted that this means that publications of allegations about a criminal case will almost never be thought to pose a "real risk of prejudice". It submitted that the media and judiciary are two pillars of democracy and complement each other.

5.3 On issue 4, the petitioner submitted that that the Rules 73 of the Procedure of the Parliament of Uganda (2O l2l and' Rule 20 of the Advocates (Professional Conduct) Regulations S.l 267 -2 dealing with rule on sub judice are inconsistent with Article 29(l)(o), 4l (1) and a3(l) of the Constitution in so far as they are not demonstrably justifiable in a free and democratic society. It submitted that the sub judice rule is meant to protect the right to a fair hearing which is a nonderogable right under our Constitution while the right to access information and the freedom of expression are not among those rights that are non-derogable' The petitioner submitted that the limitation imposed by the sub judice rule is not justifiable in a free and democratic society. It cited Charles Onyango Obbo ^u AttomeA General, Constitutional Appeal 2 of 2OO2, where Mulenga JSC. noted that:

"under that prouision a limitation on the enjoyment of a constitutional ight, on the ground of a public interest, is onlg ualid if it is acceptable and demonstrablg justifiable in a free and democratic societg.'

Mulenga JSC. also referred to a decision in R u Oakes 26, DLR (4th) 200. The petitioner submitted that that Uganda is a democratic state committed to adhere to the values and principles stated in the Constitution.

- 5.4 The petitioner submitted that the test of what is demonstrably justihable in a free and democratic society must be applied in the light of the principle set out in President of the Republic of South Africa and Others u South Afican Rugbg Football Union and Others, (CCTI6/98), which presupposes that judicial officers are presumed to be impartial in adjudicating disputes. The petitioner submitted that publications about a criminal case will not pose a real risk of prejudice to an accused. The petitioner cited Presid ent of the Republic of South Africa and Others u South Afican Rugby Football Union and Others, CCT 16/98, where several judges of the Constitutional Court were asked to recluse themselves from a hearing because of on apprehension that they would be biased. The Court argued that legal training and experience prep€re judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence. The petitioner argued that unlike jurors, judges will not easily be swayed by gossip or even by serious and credible allegations about an accused in a criminal case published in the media. The petitioner submitted that this means that publications of allegations about a criminal case will almost never be thought to pose a "real risk of prejudice" to an accused. - 5.5 The petitioner also cited the decision of the Supreme Court of Zimbabwe in Mark Gauo Chatrunduka & Another u Minister of Home Affairs & Another, Supreme Court Civil Appea.l 156 of 1999, (Unreported) referred to by Mulenga JSC. for justification of law imposing limitation on guaranteed rights. He stated that:

pc. 9 - The legislative objective which the limitation is designed to promote must be sufhciently important to warrant overriding a fundamental right. - The measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations. - The means used to impair the right or freedom must be no more than necessary to accomplish the objective.

The petitioner submitted that the act of prohibiting any person, press and or any other media from reporting, commenting on, or publishing events surrounding a trial does not warrant overriding freedom of expression and the right to access to information.

5.6 The petitioner submitted that Mulenga JSC. in Charles Onyongo Obbo u Attorneg General (supra), noted that there are two benefits in real terms that are derived from upholding the right to freedom of expression. First, that the individual derives self-fulfillment from the exercise of the freedom, or from receiving information or ideas from those who impart it. Secondly, the country as ^a democratic society derives the benefit of promoting and maintaining democratic governance. The petitioner submitted that the protection of this fundamental human right clearly outweighs any limitation. Secondly, the limitations imposed by the sub judice rule are not proportional to the apparent objective they are supposed to achieve.

#### b) Respondent's submissions

5.8 On issues 1 and 3, the respondent submitted that the sub judice rule is an internationally recognized limitation to the freedom of speech and expression. It submitted that the word 'sub judice' is derived from the Latin phrase adhuc sub judice il est, which means "the matter is still under consideration". In practice this rule is usually used to prohibit publications of matters which are likely to prejudice the right of a fair tria,l when legal proceedings are pending. The respondent submitted that the rule does not contravene Articles 29(t)(a) & (b), 40(2l|,4L(ll and 3(l) of the Constitution. It reproduced the said Articles verbatim, p8. 10

which we shall reproduce later. The respondent submitted that freedom of speech and expression and the right to access to information are some of the constitutionally guaranteed rights under Chapter 4 in a free and democratic society. However, these rights are not absolute. They are subject to permissible limitations under the law and the sub judice rule is one of those exceptions which are provided for in the statutes. The respondent quoted Mulenga JSC. in Chnrles Ongango Obbo & Anor u Attorneg General, SCCA 2 of 2OO2, where he observed that:

" ln my uieu, it is because of the commttment, and the importance of the freedom of expression to democracg, that restiction on the exercise of the freedom is permitted only in special circumstances."

The respondent further cited Moafika Newspaper: Rule Nisi (Sub-judice matter) (in Rex u. Mokhastso & Ors), CRW /95/02, where the court held that:

"As Mn Mda conectlA pointed, the sub-iudice rule constitutes a common lau-t's long standing and recognized. limitation upon the constitutional freedom of expression. It is contrauened bg the publication of ang material uhich objectiuelg interferes, influences or prejudices the conduct of pending legal proceedings... He quoted uith support thereof of S. V Hartman & Another 1984 1 SA 305 (ZSC) uhere the then Chief justice George of Zimbabwe Supreme Court had this to say, 'it is permissible therefore to make an inroad into the protected ight of freedom of speech in order to maintain the authoitg and independence of the courts but that inroad should not be uider or d.eeper than is required for the achieuement desired.'

5.9 The respondent submitted that the rationale of the sub judice rule was stated by Lord Diplock in Attorneg General v Times Newspaper Ltd, Il97 31 2 ALLER 54 as: "The due administration of lustice requires frst that all citizens haue unhindered occess to the constitutionallg established Courts of Ciminal or Ciuil juisdiction for the determination of disputes as to their legal rights and inabilities; secondlg, that theg should be able to rely upon obtaining in the Courts the arbitrament of a tibunal uhich is free from bias against anA partA uhose decision will be based upon those facts onlg that haue been proued in evidence adduced before it in accordance uith the procedure adopted in Couris of law; and thirdlg, that, once the dispute has been submitted to a Courl of lau-t, theg should be able to relg upon p8.11

there being no usurpation bg ang other person of the function of that courl to decide it according to lau-t. Conduct u.thich is calculated to prejudice any of these requirements or to undermine the public conf.dence that theA uill be obserued is contempt of Court/ sub judice."

5.10 On issue 4, the respondent submitted that the sub judice rule is an acceptable and demonstrably justifiable limitation under Article a3Ql of the Constitution. It cited Dimanche Sharon & 2 Ors u Makerere Uniuersitg, SCCA 2 OF 2004, where the Supreme Court of Canada relied on R. u Jakes, (19861 26 DLR (4th Edition) at 227 , in laying down the principle of proportionality in determining whether a limitation is reasonably justifiable in a free and democratic society as follows:

> "First, the objective which the measures responsible for a limit on a charter right or freedom are desigrred to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. R v Big M Drug Mart Ltd. (1985) 18 DLR (4tt' Ed) 321. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not ga.in protection. It is necessary at a minimum that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sulficiently important. Secondly, once a sufficiently significant objective is recognized, then the party invoking Section 1 (the limitation clause) must show that the means chosen are reasonable and demonstrably justified: This involves a form of proportionality test. R. V Big M. Drug Mart Limited (Supra) although the nature of the proportionality test will vary depending on the circumstances, in which each case Courts will be required to balance the interests of society with hosts of individuals and groups."

The supreme Court went to identify three components of the proportionality test S

"there are, in mg uiew three important components of a proportionalitA test. Ftrst the measures adopted must be carefullg designed to achieue the objectiues in Elestion. They must not be arbitrary, unfair, or based on inational considerations. ln short, theA must be rationally connected to the objechue. Secondlg, the means euen if rationallg connected to the objectiue in lheTtrst sense should impact as little

as possible the ight freedom in question: R. u Big Mart Limited (Supra). Thirdly there must be a proportionalitg betueen the effects of the measures which are responsible for limiting the charter, rtght or freedom and the objectiue which has been id.entified as of sufficient importance.'

The respondent quoted what Odoki CJ. stated in the said case:

'In determining uthat is acceptable and reasonablg justifiable in a free and democratic societg, it is necessary to applA the pinciples on a case-to-case basis because of the proportionalitg test, uthich calls for the balancing of different inreresrs. ln the balancing process, the releuant consideration u-till include;

- a) The nature of the right that is limited; - b) Its importance to an open and democmtic societg based on freedom and equalitg; - c) The extent of the limitation; - d) The efficiencg and particularlg uhere the limitation has to be necessary; and. - e) Whether the desired end could reasonablg be achieued through other less damaging means. " - 5. 11 The respondent submitted that the objective of the sub judice rule is to protect the fair administration ofjustice against any statement that has the substantial effect of prejudicing or undermining the impartiality, dignity or authority of the Court. It submitted further that the freedoms of speech and expression as provided for under the Constitution are not absolute. The petitioners in the enjoyment of their right must not prejudice the fundamental rights and freedoms of others or public interest as provided for under Article 43 of the Constitution.

# c) Petitioner's submissions in reJoinder

5.12 In rejoinder, on issues 1 and 3, the petitioner submitted that the respondent's argument that the freedom of speech and expression and the right to access to information are not absolute is flawed. It submitted that Rule 73 of the Rules of Procedure of the Parliament of Uganda and Rule 20 of the Advocates (Professional Conduct) Regulations Sl 267 -2 as well as the circumstances

surrounding them do not meet the parameters of the limitation test of what is demonstrably justifiable in a free and democratic society under Article 43 of the Constitution. The petitioner cited Charles Onyango Obbo and another u Attorneg General (supra). It submitted that the strict application of the test of what is demonstrated as justifiable in a free and democratic society points to the conclusion that the mere legislation of a limitation does not make it legitimate.

- 5.13 The petitioner further submitted that the need for the credibility ofjudicial officers may not to be swayed by mass media or debates in Parliament is premised on the presumption of impartiality as stated in President of the Republic of South Africa and others u SouthAfican Rugbg Football Union & olhers, (CCT16/98). The petitioner argued that a judicial officer determines a matter by what is presented before them in court. It argued further that the sub judice rule is intended to ensure a fair trial is not based on assumptions and speculations. - 5. 14 The petitioner submitted that the application of the sub judice rule is not proportionate to the primary obligations to respect, uphold and promote the inherent rights guaranteed by the Constitution. It argued that it is an affront of the rights and freedoms guaranteed by the Constitution. - 5. 15 On issue 4, the petitioner submitted that respondent only made general sweeping arguments with no specifications of how the sub judice rule meets the proportionality test. The petitioner stated that criteria for the proportionality test was set o:ut in Charles Ongango Obbo u AttorneA General (supra). The petitioner further submitted that the presupposed legislative objective of protecting the right to a fair hearing, independence of the judiciary is already guaranteed by the Constitution., other enabling statutes, professionalism and training of judicial officers. The petitioner submitted that the examples demonstrated in the petition show that the limitation by the sub judice rule is irrational in light of existing the safeguard measures. The petitioner further submitted that the

me€rns used to impair freedoms of free speech and expression and access to information by using sub judice do not meet acceptable standards.

### d) Resolutlon of lssues 1, 3 and 4

- 5.16 The appellant submitted that Rule 20 of the Advocates (Professional Conduct) Regulations 5.1 267 -2 and Rule 64 (now Rule 73) of the Procedure of the Parliament of Uganda) are inconsistent with and or in contravention of the Constitution. White the first Rule deals with the advocates' profession, the second Rule deals with the procedures of Parliament. - 5.17 Rule 2O of the Advocates (Professional Conduct) Regulations S. I 267-2 states:

### "2O Ree sub Judlce

'An aduocate shall not make announcements or cumments to netaswpers or other news media, including radio and television, conceming any pending, anticipated or current litigation in which he or she is not inuolued, u.thether in a professional or personal capacitg'

### Rule 73 of the Procedure of the Parliament of Uganda 2O21 provides that:

# "73. Sub-Judlce Rule

- lll Subject to sub tule (5) of this rule, a Member shall not refer to anA partianldr matter uthich is sub-judice. - (2) A matter shall be consid"ered sub-judice if it refers to actiue ciminal or ciuil proceedings and in the opinion of the Speaker, the disanssion of such matter is likelg to prejudice its fair determination. - (3) In determining whether a ciminal or ciuil proceeding is actiue, the following shall aPplg - lal criminal proceedings shall be deemed to be actiue uhen a charge has been made or a summons to appear has been issued by court; - (b) criminal proceedings shall be deemed to haue ceased to be actiue when they are concluded bg uerdict and sentence or charges haue been withdraun;

- (c) ciuil proceedings shall be deemed to be actiue u-then arrangements for heaing, such as setting dou.tn matters for hearing haue been made, until the proceedings are ended by judgment or settlement or withdrautal; or - (d) appellate proceedings uhether ciminal or ciuil shall be deemed to be actiue from the time when theA are commenced bg application for leaue to appeal or bg notice of appeal until the proceedings are ended bg judgment or withdraun. - (4) A Member alleging that a matter is sub judice shall prouide justification to shou.t that sub rules (2) and (3) are applicable. - (5) The Speaker shall make a ruling as to u-thether a matter is sub-judice or not before debate or inuestigations can continue.' - 5. 18 The provisions of the Constitution, the appellant contends are infringed are Articles 29(1)(a), 41(1) and 43(1) of the Constitution. Article 29(1)(a) of the Constitution deals with freedom of speech and expression. It states: - " ( 1 ) Euery person shall haue the right to - (a) Freedom of speech and expression which shall include freedom of the press and other media; - Article 41(1) which deals with the right to access to information states: - '(1) Euery citden has a ight to access to information in fhe possesslon of the State or ang other organ or agencg of the State except uhere the release of the information is likely to prejudice the security or souereigntg of State or interfere ttith the right to the piuacy of ang other person,"

Article 43(1) which deals with the general limitation on fundamental and other human rights and freedom. It states:

"(1) In the enjoyment of the ights and freedoms prescibed in the Chapter, no Wrson shalt prejudice the fundamental or other human rights and freedoms of others or the public interest. "

The effect of Article 43 is that no rights and freedoms in Chapter 4 of the Constitution are absolute.

5. 19 The word 'sub judice' is derived from the Latin phrase adhuc sub judice il est, which means "the matter is still under consideration", or in other words, "stlll

under judgment". It refers to matters that are being heard by court or a judge. Black's Law Dictionary 9th Edition page 1562 defines it as "adu. [Latin "under a judge"l (17c) Before the court of judge for determination." lt is a legal principle that restricts public discussion, reporting, or commentary on legal cases that are proceeding to ensure that they are not influenced or prejudiced.

- 5.20 The rule of sub judice was created to prevent the public and legal practitioners from discussing matters in ongoing trials or suits which would prejudice their outcome. The intended purpose of the sub judice rule is to support legal process and maintain the integrity of legal proceedings. By limiting public discussion of cases awaiting judgement, the rule seeks to: - i) Ensure that an accused person receives a fair trial and legal process is not obstructed. The presumption of innocence until proven guilty is upheld, thus upholding the rights ofan accused. - ii) Prevent jury, assessors or a judge's bias or perception of guilt before all evidence is presented. The right to an impartial trial and unprejudiced jury and judge is not fettered. - iii) Avoid contempt of court by restricting inappropriate commentary. Restricting inappropriate influence over ongoing legal cases. - iv) Uphold the standing and sanctity of the courts. Maintaining integrity of the judicial system.

Ultimately the sub judice rule aims to guarantee due legal process, unhindered legal deliberation and delivery ofjustice based strictly on evidence and facts. (See https: / / www. vintti. com / blos / sub-iudice-lcsal-conceot-cxnlainr:d accessed on 7th January 2O25)

5.21 I shall begin by addressing Rule 20 of the Advocates (Professional Conduct) Regulations S.l 267 -2 which prohibits lawyers from discussing matters that they are not involved, whether in a professional or private capacity. The petitioner admits that the rule is supposed to protect the right to a fair trial. However, he argues that the right to a fair trial must be balanced against the right to freedom

of expression and the right to access to information. On the other hald, the respondent submitted that freedom of speech and expression arrd the right to access to information are not absolute. They are subject to limitations, sub judice being one of them.

- 5.22 The rule of sub judice has revolved from court practice and case law to extend not only from counsel but to members of the public. The sub judice rule can be traced back to 7742, when in a case known as the St. James's Euening Post case, Lord Chancellor Hardwicke in holding the St. James Evening Post was in contempt of Court stated that, "it utas not only libelous to publish that a u.titness utho testiJied in actiue proceedings committed perjury, but a case for contempt of Court by publications". While the sub judice rule originated in English, common law it has found its place across many jurisdictions including Uganda. In Excel Assorted Manufacturers Limited u The Commissioner Land Registration, MC 40 of 2017 l2ol7l UGHCCD 108 (29 June 2O17), the court noted that the respondent acted illegally when the matter was sub judice. It stated that 'sub judice' simply means'before the court'. It is generally accepted that once a matter is before court it is sub judice. Therefore, public comments on such a matter are prohibited. In Civil Application 04 of 2010 Alcon Intemational Limited u The Neut Vision Printing & Pr.. Lblishing CO. Ltd & Another, the Supreme Court stopped the press from publishing any matter in respect of Civil Application No. 15 of 2009 on the premise that such publication would prejudice the ruling in the application. - 5.23 The rule on sub judice applies to the public. AttorneA General u Times Neuspaper Limited, ll9721 3 ALL ER 136 involved publication concerning legal proceedings. From about i958 to 1961, D Limited manufactured and marketed a drug known as thalidomide. In 196I many children were born with deformities. Investigations in the cause showed that it was due to the mothers of the children taking thalidomide during pregnancies. Writs alleging negligence were brought against the company. The defendant started to publish newspaper articles in the plight of the thalidomide children. The purpose was to persuade the company to recognize their moral obligation to the children. It intended to publish an article critical of the company in regard to its failure to test the drug and to react sufficiently when there were warning signs from tests by others suggesting negligence. The Attorney General sought an injunction against publication ofthe article on the ground it would be in contempt of court. The injunction was granted. The court held that it was contempt of court for a party in a pending action to be subjected to pressure by reason of a unilateral comment on their case if that pressure was of a kind which raised serious prospect that it would be denied justice. The court in per curium noted.

"It is not the function of the court in proceedings for contempt to balance competing interests, i.e. the protection of the administration of justice and the ight of the public to be informed on graue and weightg issues of the day. Where d comment raises a serious risk of interference uLith legal proceedings the law requires that it should be uithheld until lhose proceedings haue been determined."

The court noted that a person's right to a fair trial should not be prejudiced by publications in the media on the case.

- 5.24 Article 28 of the Constitution of Uganda provides for the right to a fair hearing. It reads: - "lll In the dete/mination of ciuil rights ond obligations or ang criminal charge, a person shall be entitted to a fair, speedg and public heaing before an independent and impartial court or tribunal established bg lau-t. - (2) Nothing in clause (1) of this article shall preuent the courl or tibunal from excluding the press or the public from all or any proceedings before it for reosons of morality, public order or national securitg, as may be necessary in ^afree and democratic societg'

The constitution does not spell out what a fair hearing is. Black's Laut Dictionary, 9th Edition, page 789 defines it as 'A judicial or administratiue hearing conducted in accordance uith due process. " In lhe Monaging Director Nationol Secttrity Fund and 196 others, Civil Appeal 285 of 2016, I2O22l UGCA 223, (8th August 2023), the Court of Appeal noted the right to a fair hearing is an absolute right guaranteed under Articles 28(1) and 44(c) ofthe constitution. It stated that a fair hearing is one of the principal pillars of natural justice because it guards among others again st bias. The court noted:

"Black's Law Dlctlonary 6th Edition defines a fair and impartial tial as; "A heaing bg an impartial and disinterested tibunal ; a proceeding which hears before it condemns, which proceeds upon inquiry, and renders judgment onlg afier lial, consideration of euidence and facts as a u.thole."

A fair hearing is a process where someone is listened to openly and impartially before a judgment is made. It's important to consider all sides of a story and avoid jumping to conclusions coming from sources other than what is in court. A fair hearing is about justice and impartiality. It is difhcult to say a decision maker may be impartial when lawyers who are not conversant with the matter are making public comments on it.

## 5.25 Article 43(1) of the Constitution provides that

"lll In the enjogment of the ights and freedoms prescibed in the Chapter, no person shall prejudice the fundamental or other human ights and freedoms of others or the public interest."

ln Charles Ongango Obbo and Anor u AttorneA General, [20041 UGSC 8I, the Supreme Court noted:

"where article 43 of the Constitution is called in aid to allow the limitation to the fundamental right the court must engage in a limitation analysis starting with the criteria laid down therein. Does the enjoyment of the fundamental right or freedom prejudice the fundamental rights and freedoms of other person or the public interest? If the answer is in the affirmative, is the limitation acceptable and demonstrably justifiable in a free and democratic society, or is it provided by the Constitution?'

ln Bakaluba Peter Mukasas V Nambooze Betty Bakireke, Election Petition Appeal 4 of 2OO9, Katureebe JSC. had this to say on the right to fair hearing.

"Fair trial .... is one of the fundamental rights guaranteed by the Constitution. This right is so fundamental that it is given in Article 44 of the constitution as one of those rights that are non- derogable. Because of its very importance,

allegations ofdenial ofthe right to fair hearing or trial are very serious and should not be made lightly or merely in passing because they impact on the very core of our trial system.'

In my view, since Rule 20 of the Advocates (Professional Conduct) Regulations S.l 267 -2 on sub judice impacts on the right to a fair hearing, which is a fundamental right and is non- derogable and impacts on the very core of a trial system, it is not unconstitutional even where it may limit one's right of freedom of speech and expression.

5.26 On issue 4, the petitioner submitted that the limitation imposed by the sub judice rule is not justifiable in a free and democratic society. The petitioner cited Charles Onyango Obbo u Attorneg General Constitutional Appeal 2 of 2OO2 where Mulenga J noted that:

> "a limitation on the enjoyment of a constitutional right, on the ground of a public interest, is only valid if it is acceptable and demonstrably justifiable in a free and democratic society."

Mulenga JSC, in Charles Onvango Obbo and Anor u AttomeA General (supra) formulated a limitation analysis in the following words,

. Similarlg, under Article 43(2) democratic ualues and pinciples are the citeria on uhich ang limitation on the enjoyment of ights and freedoms Waranteed bA the Constitution has to be justified. In detennining the ualiditg of the limitation imposed bg section 50 on the freedom of expression, the court must be guided bg the ualues and pinciples essential to a free and democratic societg.

In Mark Goua & Another us. Minister of Home Affairs & Another, [5. C. 3612000: Ciuil Application No. 156/991, the Supreme Courl of Zimbabwe formulated the follotuing summary of criteria, uith uthich I agree, for justification of law imposing limitation on gtaranteed ights-.

> - the legislatiue objectiue which the limitation is designed to promote must be suffictentlg important to u.)arrant ouerriding a fund.amental ight:

> - the measures designed to meet the objectiue must be rationally connected to it and not arbitrary, unfair or based on inational considerations:

- the means used to impair the ight or freedom must be no more than necessary to accomplish the objectiue."

\n Kizito u AttorneA General (supra) it was stated that:

" Thirdlg, u.there article 43 of the Constitution is called in aid to allow the limitation to the fundamental ight the courT must engage in a limitation analgsis starting with the citeia laid dou-tn therein. Does the enjoAment of the fundamental ight or freedom prejudice the fundamental ights and freedoms of other persons or the public interest? If the anstuer is in the affirmatiue, is the limitation acceptable and demonstrablg justifiable in a free and democratic societg, or is it prouided by the Constitution?

In my view, the presumptions that one is presumed innocent until proved guilty and that of an impartial arbitrator are fundamental principles of a legal system in a civilized society. A party before a hearing should not be put to pain as to whether a decision maker was influenced by negative public comments on his or her matter before court. Justice must not only be done but also be seen to be done. Discussion of matters that are before courts may interfere with one's right to a fair hearing. I agree with Moafika Newspaper: Rule lfisi (Sub-judice matter) (in Rex u. Mokhastso & Ors) CRW/95/02 where the court held that.

"As Mr. Mda canectlA pointed, the sub-iudice rule constitutes a common loul's long standing and recognized limitation upon the constitutional freedom of expression. It is contrauened by the publication of any mateial which objectiuelg interferes, inJluences or prejudices the conduct of pending legal proceedings... He quoted with support thereof of S. V Hartman & Another 1984 1 SA 305 (ZSC) where the then Chiefjustice George of Zimbabwe Supreme Court had this to say, "it is permissible therefore to make an inroad into the protected ight of freedom of speech in order to maintain the authority and independence of the aurts but that inroad should not be wider or deeper than is required for the achieuement of the declared."

I am not satisfied by the petitioner that the application of the rule on sub judice to the public and legal practitioners from discussing ongoing trials is not justifiable in a free and democratic society.

5.27 | will next address Rule 73 of the Procedure Parliament is one of the three arms of the state of the Parliament of Uganda. The others being the judiciary p9.22 and the executive. The duty of Parliament is to make legislation. But it also has an oversight role of the actions of the executive. The Parliament also provides a forum for open debate on important issues, allowing for diverse opinions and perspectives to be heard. This helps to inform public policy and promote transparency. Article 73(3) of the Constitution provides that Parliament shall protect this Constitution and promote democratic governance of Uganda. Therefore, in the exercise of its role of oversight, it is important that its powers and rights to discuss matters of importance are not arbitrarily curtailed. However, those powers and rights are subject to other rights in the Constitution. Articles 29 of th,e Constitution deals with freedom of speech and expression. Article 41 deals with access to information. There is need for a balancing act. Under Rule 73(1) of the Rules of Parliament, a Member shall not refer to any particular matter which is sub-judice. Under Rule 73

(2) A matter shall be considered sub-judice if it refers to active criminal or civil proceedings and in the opinion of the Speaker, the discussion of such matter is likely to prejudice its fair determination."

Under the subsequent rules

- "(4) A Member alleging that a matter is sub judice shall provide justification to show that sub rules (2) and (3) are applicable. - (5) The Speaker shall make a ruling as to whether a matter is sub-judice or not before debate or investigations can continue."

A causal reading of Rule 73(5) may imply that the Speaker has discretion to determine whether a debate on a matter that is sub judice should continue. Rule 73 should be read as a whole. Rule 73(1) states that a Member shall not refer to any particular matter which is sub-judice. Rule 73(5) gives the Speaker the power to determine whether a matter is sub judice. My understanding would be that if in her discretion, the speaker determines a matter is sub- judice, debate on it will not continue. If a member cannot debate on a matter which is sub judice, the speaker cannot continue any debate without them. Mr. Elisha BaIirawala, a Senior State Attorney in the Attorney General's chambers in his affidavit contended that that under Rule 64 (now 73) a matter is considered sub judice, if in the opinion of the Speaker, is likely to prejudice the fair pe.23

determination of a case. He submitted that the sub judice rule goes to the foundation of the principle of separation of powers that permit court to administer justice without undue interference from anyone. Rule 73 intends to protect the right of person to a fair hearing. It is not disputed that on the 12th alrd 13th February 2013, and on 23rd July 2013, the Speaker of Parliament stopped debates on alleged financial impropriety in the office of the Prime Minister as the persons involved were charged before courts of law and on the basis of the sub judice rule. In my view the intention of Rule 73 is that if ^a matter is sub judice in Parliament, no debate should continue. The question is: do the Rules of Parliament provide a balancing act between the right to a fair hearing and the oversight role of Parliament?

5.28 The legislature and the judiciary are equal partners in the governance of state matters. The petitioner alleged that on the 12th and 13th February 2013 and on 23rd July 2013, the Speaker of Parliament stopped debates on alleged financial impropriety in the office of the Prime Minister as persons involved were charged before courts of law, on the basis ofthe sub judice Rule. The petitioner contended that the sub judice rule interferes with democracy, freedom of expression. ln constitutionalism, there is the concept of checks and balances. Checks and balances is a fundamental principle in democratic governance. It ensures that no single arm of State fails to fulfill its constitutional mandate by providing each branch with some degree of oversight and control over the actions of the other branches. The Parliament monitors and scrutinizes the actions of the executive branch of government, holding it accountable for its decisions and policies. This involves questioning government officials, examining budgets, and investigating issues of public concern. So if the legislature is querying the executive, of what interest would a court have in stopping investigation or because a matter is in court? In Saueino Twinobusingge u AttorneA General, Constitutional Petition 47 of 2011, [20121 UGCC l, the constitutional court stated:

> "a mechanism of checks and balances was built in the Constitution to ensure that no single organ of the State acts in contravention of the Constitution without

being stopped by the rest ofthe other two organs, or any of them. Otherwise when ever5rthing is normal and in accordance with the Constitution, the internal management of the organs of the state is a no go area for the others. For example, the judiciary has no powers to interfere or question methods of interna-l management and running of the affairs of Parliament unless a complaint is raised by an aggrieved person in courts of law. "

The judiciary is an equal partner in the three arms of the state and not the first among equals. In any case, it would be the executive which the legislature would be probing. A matter being in court should not unnecessary deter the legislature from fulfilling its oversight mandate. Otherwise whenever a sensitive matter is being queried, interested parties may file court proceedings to deter Parliament from querying them. A matter maybe swept under the carpet to serve private interests. ln Brigadier Henry Tltmukunde u Attomeg General, Supreme Court Constitutional Appeal No. 2 of 2006, Engwau, acting Justice of the Supreme Court, at page l0 paragraph 2 stated;

\*The legislature must be allotued to enjoA its independence as an institution in the performance of its legislatiue duties under Articte 79 of the Constitution".

Article 79(1) of the Constitution provides that "Subject to the prouisions of this Constitution, Parliament shall haue the pouter to make laws on anA matter for the peace, order, deuelopment and good gouet'rlance of Uganda." Under Article 79(3) " Parliament shall protect this Constifution and promote democrotic gouemance in Ugandd'. What happens when a matter that is in court affects the democratic governance or the enforcement of the Constitution in Uganda? For instance, a matter involving treason or sedition, or a constitutional interpretation. When a matter is sub judice, it should not interfere with the legislature in the exercise of oversight role. The legislature should be given the latitude to discuss matters that may be sub judice if it is in the furtherance of its constitutional mandate.

5.29 The Rules of Parliament should a-llow and explicitly state that the Speaker has the discretion to allow a matter that is sub judice be debated on in Parliament. The Rules of Parliament should also provide safe guards for litigants who may be affected by a debate on a matter that is sub judice. The safeguards should p9.25

aim at preventing a debate prejudicing the fair determination of a matter that is in court. The Speaker may have the matter debated in a closed session, that is without attendance of the public, or may refer it to an ad hoc committee or sever the portion that is deemed sub judice from the debate or even prohibit the debate being reported in newspapers. In so far as the Rules of Parliament prohibit Parliament from debating matter that is sub judice, I find that it is uncon stitutional.

6. Issue 2. lVhether the act ofdenying the Petitloner informatlon concerning the interview report, together with the results of all the candldates interviewed for the positlon of the Deputy Chief Justice and the letter of recommendation to the Presldent on the eppointment of the Deputy Chief Justice is inconsistent with and/or in contravention with Articles 29(1)(a), 41(1) and 43(1) ofthe Constitution of Uganda?

## a) Petitioner's submisslons

6. I On issue 2, the petitioner submitted that denying it information on the interview of candidates for the position of Deputy Chief Justice because of pending court proceedings was inconsistent with Articles 29(l)(o), a1(1) and 3(l) of the Constitution. The petitioner submitted that the rationale of the sub judice rule as expounded in Attomeg General u Times Newspaper Limited, l2OO7l I WLR 885, is to limit prejudice to any of parties before a court. The petitioner argued that the Secretary of the Judicial Service Commission did not demonstrate any justifiable reason acceptable in a free and democratic society for denying such information.

## b) Respondent's submissions

6.2 The respondent contended that the act of denying the petitioner information concerning the interview report of the Deputy Chief Justice because it was sub iudice is not inconsistent with and in contravention of Articles 29(l)(a), 4 1 ( 1) and a3(1) of the Constitution. The respondent submitted that the reason advanced by the Judicial Service Commission in their letter dated 25th June 2015, is that the issue of access to information regarding the appointment of the Deputy Chief Justice of Uganda, was being contested in the Courts of Law in Miscellaneous Cause No.77201.5, Simon Peter Esomu u AttorneA General at Mengo Chief Magistrates. The respondent submitted that advising the petitioner to await the outcome does not contravene the provisions of the Constitution. The respondent also submitted that the sub judice Rule falls within the acceptable limits on the access to information. Further, the respondent submitted that the information sought by the petitioner is classified privileged communication under Section 16 of the Judicial Service Act. Under Section 16, the Commission is under no obligation to avail the information to the petitioner unless the Chairperson consents in writing to the same.

- 6.3 The respondent further submitted that although Article 41 of the Constitution guarantees the right to information, it also limits its access where the release of the information is likely to pre judice the security or sovereig-nty of the State, or interfere with the right to privacy of any person. - 6.4 In the alternative and without prejudice to the foregoing; the respondent submitted that the alleged failure to provide information to the petitioner does not raise questions for interpretation of the Constitution. The allegations made by the petitioner are matters that can be exhaustively dealt with by a competent court under Article 50 of the Constitution. - 6.5 The respondent submitted that the right to access to information is guaranteed under Article 41 of the Constitution. This right is not an absolute right under Article 44 of the Constitution which deals with prohibition of derogation from particular human rights and freedoms. Parliament under Article 41(2) of the Constitution made a law prescribing the classes of information referred to in clause (1) of Article 41 and the procedure for obtaining/accessing that information. Section 5 of the Access to Information Act provides where the information may be denied. This include where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person. Section 37 of the Access to Information Act 2005 provides for the procedure to be taken by any person aggrieved or is denied information. It states that a person may lodge a complaint with the Chief Magistrate, against the decision of an information officer to refuse a request for access.

## c) Petitioner's submissions in rejoinder

6.6 In rejoinder, the petitioner contended that the respondent's submission that the information sought by it was classifred privileged information is misconceived. The petitioner submitted that reasons given by the Judicial Services Commission in denying information to it and the Speaker from stopping Parliament from discussing the matters in contention were on grounds of sub judice. It contended that the respondent submitted on issues not raised in the petition.

#### d| Resolution of issue 2

6.7 The petitioner contended that it was denied information concerning the interview report, together with the results of all the candidates interviewed for the position of the Deputy Chief Justice and the recommendation to the President on the appointment thereof. It contended that this was inconsistent with and or in contravention with Articles 29(tl(a1,41(1) and 43(1) of the Constitution of Uganda. The Judicial Service Commission stated that it could not avail her the information as the appointment was being contested in court of law in Miscellaneous Cause 77 12015; Simon Peter Esomu u Attomeg General at the Mengo Chief Magistrates Court and was therefore sub judice.

- 6.8 Article 29(1)(a) ofthe Constitution provides that every person shall have the right to freedom of speech and expression which shall include freedom of the press and other media. The petitioner does not show how the said freedoms were infringed. I am not satisfied that by denying the petitioners the above information that its right to freedom of speech and expression were infringed. - 6.9 I will next deal with access to information. Article 41 of the Constitution deals with the right of access to information. Article 41(1) of the Constitution provides that: - "(1) Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person."

Article 43 deals with the general limitation to just and fair treatment in administrative decisions. Article 43(1) of the Constitution reads.

'(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest."

The petitioner is aggrieved by what it alleges are unconstitutional acts of the JSC not availing it information. Before I can determine whether the infringement of the rights of the petitioner was unconstitutional, I have to find out if it is followed the right procedure.

#### 6. 10 Article 41(21 of the Constitution provided that

"(2) Parliament shall make laws prescribing the classes of information referred to in clause (1) of this article and the procedure for obtaining access to that information."

In line with the said provisions, Parliament passed the Access to Information Act Section 5 of the said Act repeats what is in Article 4 I ( 1) of the Constitution. Section 11 states how the form of the request shall be made. An information officer may refuse to give information. Section 37 of the Act provides that

"A person may lodge a complaint with the Chief Magistrate against the decision of the information officer.

- (a) To a request to access; or - (b) Taken under S. 17(1) or 20(3), in relation to that person."

The petitioner did not follow the said procedure. This Court cannot usurp the powers of the Magistrate's court. Therefore, the said issue is improperly before this court. The petitioner ought to have lodged a complaint with the Chief Magistrate. Where a Magistrate feels that there is need for a question to be interpreted constitutionally, the matter maybe referred to this court. The petitioner ought to have exhausted the mechanism for addressing the refusal to allow it access information under the above Act before coming to this court.

- 6.1 ¹ Nevertheless, this does not prejudice me from commenting. Firstly, I already noted that when a matter is in court it is sub judice. The Judicial Service Commission stated it could not avail the information as the appointment was being contested in a court of law in Miscellaneous Cause 77 /2015; Simon Peter Esomu u AttorneA General at the Mengo Chief Magistrates Court and was therefore sub judice. I noted that the failure to provide information because a matter is sub judice is not unconstitutional. Generally individual are entitled to a right to privacy. Black's Law Dictionary 9th Edition page 1439 defines the right to privacy as " I . TtLe ight to personal autonomA... 2. The right of a person and the person's propertg to be free from unuarranted public scruting or exposure." Under Article 4 1( 1) of the Constitution the right to access of information in the possession of the state or any other organ should not interfere with the right to the privacy of any person. Releasing the said results would intrude on the right to privacy as far as the interview process was concerned. When the process is over there is no reason why such information may not be released. - 6. 12 However, public servants or those who choose to work in the public domain they should be open to public scrutiny. They cannot use the right to privacy as a shield. When one applies for a public office, it ceases to be a private matter. In

Hub for Inuestigatiue Media & Anor u Attorneg General, Constitutional Petition No. 3 of 2020, this Court referred to Objective XXVI of the National Objectives and Directive Principles of State Policy which provides as follows;

"i. All public offices shall be held in trust for the people.

ii. All persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people.

The court went on to say that Article 27 ought to be read together with Article 43( 1) of the Constitution. It provides as follows;

'1n the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.' (emphasis mine)

The court stated that Black's Lau Dictionary, revised 4th Edition, dehnes 'public interest'to be; " Something in uhich the public, the communitg at large, has some pecuniary interest, or some interest bg tuhich their legal ights or liabilities are affected." Taking the said authority in mind, when one applies for a public office, the public has an interest. Therefore, he or she cannot use the right to privacy as a shield when parties want to access information on his or her application. A government institution should be obliged to allow members of the public access information in regard to the interview of public officers.

#### 7. DECLARATIONS

7. 1. Taking the above into consideration, I find and make the following declarations.

- 1. I hnd that Rule 20 of the Advocates (Professional Conduct) Regulations S.l 267 2 is not inconsistent with and or in contravention of the Constitution. - 2. I also find that the sub judice rule is an acceptable and demonstrably ^a justifiable limitation under Article a3Ql of the Constitution of the Uganda. - 3. I find that the act of denying the Petitioner information concerning the interview report, together with the results ofall the candidates interviewed for the position of the Deputy Chief Justice and the letter of recommendation to the President on the appointment of the Deputy Chief Justice was not inconsistent with and

or in contravention with Articles 29(1)(a), a1(1) and 43(1) of the Constitution in so far as the petitioner did not comply with the law on how to access such information. Whether a matter is sub judice or not, an applicant for information has a right to access such information as long as he or she follows the procedure provided in the law.

- 4. I find that the act of prohibiting any person, press and or any other media from reporting, commenting on events, surrounding court proceedings in Parliament for the reason that it is sub judice is not inconsistent with and or in contravention with Articles 29(1)(a), a 1(1) and a3(1) of the Constitution of the Republic of Uganda. - 5. I find that Rule 73 of the Procedure of the Parliament of Uganda is unconstitutiona-l in so far as it prohibits Parliament from discussing matters that are sub judice. - 6. This petition succeeds in part. There shall be no order as to costs since it was brought in public interest.

t6 Dated at Kampala this 1 day of. . \4 l1) 2025.

7\*r

Dr, Asa Mugenyi JUSTICE OF CONSTITUTIONAL COURT

#### THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

lCoram: Egonda-Ntende, Obura, Luswata, Kazibwe Kawumi & Mugenyi, JJCq

#### CONSTITUTIONAL PETITION NO.40 OF 2OI5

#### BETWEEN

Centre for Public Interest La :::Petitioner

#### AND

Attomey General::::== Respondent

#### JUDGMENT OF FREDRICK EGONDA-NTENDE. JCC

- tl] ^Ihave had the opportunity ofreading in draft thejudgment ofour brother, Mugenyi, JCC. I agree with it and the declarations and orders proposed. - 12) As Obura, Luswata, Kazibwe Kawumi, JJCC, agree that this petition should be allowed in part and rejected in part, this petition is allowed in part and rejected in part with the declarations and orders proposed by Mugenyi, JCC.

^ -tL-, Dated, signed, and delivered at Kampala thii4day of ) ra v.,o ²⁰²⁵

redrick Egonda-Ntende Justice of Appeal

# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION (l4O OF 2015

(Coram; Egonda Ntende, Obura, Luswata, Kazibwe, Mugenyi JJCC)

# CENTRE FOR PUBLIC INTEREST LAW PETITIONER VERSUS ATTORNEY GENERAL RESPONDENT

## JUDGMENT OF HELLEN OBURA. JCC

I have had the benefit of reading in draft the judgment of my learned brother, Hon. Justice Dr. Asa Mugenyi in the above Constitutional Petition. I concur with his analysis and conclusion on all the issues with nothing useful to add. I agree with his proposed declarations and the proposal that there should be no order as to costs.

Dated at Kampala this L1 fr ..day of.. J :l.n P 2025.

Hellen Obura

JUSTICE OF CONSTITUTIONAL COURT

# THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Obura, Lustaata, Kozibute-Kauumi,

& Mugengi, JJCCI

## CONSTITUTTONAL PETITION NO O4O OF 2015

BETWEEN

CENTRE FOR PUBLIC INTEREST LAW......................... PBTITIONER AND

THE ATTORNEY GENERAL RESPONDENT

## JUDGMENT OF EVA K. LUSWATA, JCC

I have had the opportunity to read in dra-ft the judgment of my learned brother Hon. Justice Dr. Asa Mugenyi, JCC.

I agree with him and have nothing useful to add.

E Dated, sigrred and delivered at 2025. pafa this?I day of . J.r+.a.9.

> S1VATA JUSTICE OF / CONSTITUTIONAL COURT

> > 1

# THE REPUBLIC OF UGANDA tN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUT!ONAL PETITION NO. O4O OF 2015

(Coram; Egonda Ntende, Obura, Luswata, Kazibwe' Mugenyi' JJ( !)

# CENTRE FOR PUBTIC INTEREST tAW

PETITIONER

## VERSUS

# ¹⁵ ATTORNEY GENERAL

RESPOND:NT

# JUDGMENT OF MOSES KAZIBWE KAWUMI, JCC

^Ihave had the benefit of reading in draft the judgment prepared by my learned brother Dr. Asa Mugenyi, JCC.

^Iconcur with him that the appeal must be partially allowed. I also a 3ree with the order proposed by him and I have nothing useful to add.

Dated and delivered and Kampala this ^E 21, day of ^Jur-., ^C ²⁰²⁵

Moses Kazibwe Kawumi Justice of the Constitutional Court