There were many other deponements in Phillip Karugaba’s affidavit including that: -There are
other manufacturers, importers, distributors and retailers who may seek to be joined to the main
application if the applicant is to be believed and becomes successful.
I must confess, I do not grasp the relevance of this paragraph 9 of Phillip Karugaba’s affidavit
because, even if the other manufacturers, importers, distributors and retailers, in Uganda joined
the application, Court would be able to entertain them. Except for this paragraph, however the
rest of the deponents of Phillip Karugaba outlined in the paragraphs quoted above are, to a large
extent true. Application No. 39 of 2001 is not about declarations against the manufacture,
importation, distribution and retailing of Tobacco in Uganda. As Karugaba deponed, the thrust of
the application is against smoking in public places and, if you like, it is against those who smoke
in the public so as to injure or jeopardize the health of non-smokers like children and other
innocent passive smokers. My reading of the application is that it seeks provision by NEMA and
Government of places for smokers separate from those of non-smokers. This is acknowledged by
the respondent when they say that they are still working on the modalities of redressing the
situation, and that the application is premature.
Having said this, I should make it clear that the other declarations and decisions sought in
application No. 39 of 2001, namely, a declaration that smoking in public is a criminal offence
contrary to Sections 156 and 172, are declarations which this court would not be competent to
make. A criminal offence is a creature of Statute and therefore court cannot declare an act
criminal unless a Statute makes it so. I agree relief sought in paragraphs 3,4 and 5 of the
application must be of concern to B.A.T. They are: -
“1. A declaration that smoking in a public place constitutes an offence under S. 156 and
172 of the Penal Code”;
“2. An order that the 1st respondent take steps to ensure the prosecution of persons
committing offences under Sections 156 and 172 of the Penal Code”;
“3. An order that the 2nd respondent take the necessary steps to ensure the enjoyment by
the Uganda public of their right to a clean and healthy environment”.
As I told counsel at the hearing a criminal offence is a creature of a Statute. Courts do not create
criminal offences and therefore it would not be within the competence of this court to decide that
smoking in public places is a crime, as, indeed, it is not competent for the court to order the
prosecution of persons who smoke in public. The power to prosecute vests in the Director of
Public Prosecution who is not subject to court orders in his decision to prosecute or not to
prosecute.
Having then declined to adjudicate on the issues of criminality, my view is that the concerns of
B.A.T are no longer valid or credible. It is for this reason that I decided not to accommodate the
application of B.A.T to be joined as respondents in application No. 39 of 2001. And having
allayed the applicant’s fears that I would decline to decide on the issue of criminality of smoking
in public places, counsel for B.A.T nevertheless forged ahead to argue the issues that did not
concern his client. It is for this reason that in dismissing its application I awarded costs against it.
The above are my reasons for dismissing this application and for the award of costs that I made.
J.H. NTABGOBA
PRINCIPAL JUDGE
17/7/01