Judgment: Hussein Khalid and 16 Others vs The Attorney General and 2 others, Petition No. 21 of 2017

On 14 May 2013, the Appellants, Hussein Khalid and others took to the streets to protest the actions of Members of Parliament to inflate their salaries and benefits. This demonstration, dubbed “Occupy Parliament,” was dispersed by the police and the Appellants arrested. After being held at Parliament Police Station for five hours, they were informed that they would be charged with the offence of cruelty to animals contrary to the Prevention of Cruelty to Animals Act and were released on free bond. On arraignment, the Appellants were also charged  with the offence of breach of peace and taking part in a riot contrary to the Penal Code.

The Appellants filed a petition to the High Court claiming their rights had been infringed because the trial at the Magistrate’s court was started and continued as a result of an illegal arrest; that the manner of arrest, detention and taking of plea was in violation oftheir rights and that some of the provisions they were charged under were unconstitutional for vagueness and lack of mens rea (the intention of knowledge of wrong doing that constitutes part of a crime). The High Court dismissed the petition. The Appellants appealed this decision to the Court of Appeal which was also dismissed.

Dissatisfied with the decision, they further appealed to the Supreme Court, which delivered a judgment on 18 October, 2019. The Supreme Court addressed the three main issues: whether the actions of the Respondents during the demonstrations and in arresting, detaining, and charging the Appellants violate the constitutional rights of the Appellants; whether the provisions under which the Appellants were charged were unconstitutional; and whether the failure of the Magistrate’s Court to consider constitutionalquestions was unconstitutional.

On the first issue of whether the arrest, detention, and charging of the Appellants violated their constitutional rights under Articles 32, 33, 36,49, and 50 of the Constitution, the Court found that the freedoms of assembly, demonstration, picketing, and petition are not absolute rights. They held that these rights are justifiably limited in the PublicOrder Act and the Penal Code. Any determination of whether the limitation was illegal in this particular case is a factual issue to be determined by the trial court on a case by case basis. Additionally, any constitutional challenge to the Public Order Act would need to be pleaded with greater specificity to have any merit.

Turning to Article 49 on the rights of arrested persons, the Court found that the Appellants were promptly informed of the reason for arrest in the circumstances and that although “promptly” is not defined, Article 49(1)(f) provides a reasonable time of 24 hours within which an arrested person should be brought before a court. The Appellants in thiscase were charged and released within about 5 hours.  The Court also found that it is an acceptable practice for the prosecution to amend a charge sheet to include new charges or exclude others. It is not required that an accused person be informed of the offence immediately upon arrest and that the police only be able to proceed on that charge alone.  However, the Court left questions relating to how the Appellants were arrested to the trial court to determine.

With regards to Article 50 on fair hearing, the Court distinguished between a fair hearing and a fair trial. The right to afair hearing speaks to the right to access a court of law that is independentand impartial. It was found that the Appellants have been able to access courts.The rights under Article 50(2)(j) to be informed in advance of the evidence the prosecution wishes to rely on and have reasonable access to the evidence, theCourt held that these rights are to be enjoyed in the course of a trial. The Appellants must transform from “arrested persons” to “accused persons” to fall within the protection of this article. For this to occur, they must first take plea and let the trial process commence.

With regards to the unconstitutionality of sections 78(1),78(2), and 94(1) of the Penal Code and section 3(1)(c) of the Prevention of Cruelty toAnimals Act theCourt held that the Appellants did not submit on the constitutionality of the Prevention of Cruelty to Animals Act at either the High Court or Court of Appeal, therefore it was inappropriate for parties to raise new arguemnts at an appellate stage at the Supreme Court. For the constitutional challenge to sections 78(1), 78(2), and 94(1) of the Penal Code, the Court found that the allegations were without merit. The ingredients of the offences are not vague and uncertain, and many cases set out what constitutes a breach of peace. A blanket condemnation of the provisions would be overreaching. Additionally, there is recourse in the civil justice system for an accused arrested and charged with an offence unknown in law.

Finally, the Court undertook an analysis of the role of the Magistrate’s Court in determining constitutional questions,as the said court declined to do so when the Appellants sought such a determination. Article 23(2) of the Constitution provides that subordinate courts only have jurisdiction to hear and determine constitutional questions if Parliament gives such jurisdiction through legislation. If not, the High Court is the court of first instance for such matters. As no such legislation was inplace at the time that the Appellants were before the Magistrate’s Court, they were correct in declining to hear the petition.

The Court noted that the Magistrates Court Act, No. 26 of 2015, has since been enacted. This legislation provides clarity on the jurisdiction of the Magistrate’s Court. Under section 8, the Court can hear and determine applications for the enforcement of certain limited constitutional rights.

The Court held that this judgment doesnot prevent the Appellants from seeking damages or other reliefs for specificviolations that may have occurred in the manner of arrest, detention, andarraignment. The Court explicitly stated that they have recourse under Article 22. However, it was found that these allegations should not warrant vitiating the trial process.

Ultimately, the petition was disallowed with each party bearing its costs. This judgment of the Supreme Court was inline with the findings of the High Court and the Court of Appeal. The Appellants are to return to the Magistrate’s Court to face trial on the criminal matters.

Download the full judgment here…


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