THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
CORAM: HON. JUSTICE L.E.M. MUKASA KIKONYOGO, DCJ
HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
HON. JUSTICE A. TWINOMUJUNI, JA
HON. JUSTICE C.K. BYAMUGISHA, JA
HON. JUSTICE S.B.K. KAVUMA, JA
CONSTITUTIONAL PETITION NO.10 OF 2008
JIM MUHWEZI & 3 OTHERS…………………….PETITIONERS
V E R S U S
ATTORNEY GENERAL AND ANOR……………RESPONDENTS
JUDGMENT OF THE COURT:
This petition was brought under article 137(3) of the Constitution and the Constitutional Court (Petitions and References) Rules, 2005. The petitioners had originally filed four separate petitions but they were eventually consolidated into this petition and tried jointly.
The 1st petitioner, Major General Jim Muhwezi is a Member of Parliament for Rukungiri Municipality Constituency. He is a former Minister of Health in the Central Government of Uganda. The second respondent, Capt. Mike Mukula and the third respondent, Dr. Alex Kamugisha were at the material time Deputy Ministers of Health and the 4th respondent, Alice Kaboyo was at all material times employed as Private Secretary to his Excellency the President at State House Nakasero.
In October 2007, the four respondents were charged at Buganda Road Chief Magistrates Court of various offences of abuse of office, theft, embezzlement, causing financial loss, making false documents, forgery and uttering false documents all in connection with Global Alliance for Vaccines and Immunization (GAVI) Funds which were donor funds being administered by the Ministry of Health. The charges were preferred after the Inspector General of Government [IGG] had made a report to the President implicating the four respondents in the misuse of the funds. It was the IGG who had investigated the case on orders of the President and it was that office conducting the prosecutions in the aforementioned court.
At the trial, the respondents pleaded not guilty and objected to being prosecuted by the IGG on the grounds that it would be unconstitutional for that office to prosecute them. They obtained a court order staying the proceedings until the constitutionality of the proposed trial was determined by the Constitutional Court. They filed this petition seeking for the following remedies:-
(a) A declaration that the arrest and prosecution by the Inspector General of Government of your petitioners with offences other than offences mentioned in article 230(1) was and is in contravention of and ultra vires the powers conferred upon the IGG under article 230(1) of the Constitution of the Republic of Uganda 1995.
(b) A declaration that the arrest and prosecution of your petitioners by the IGG for the offences mentioned herein above was and continues to be done without authority or legal basis and in contravention of the supreme law of the land and is unconstitutional to the extent that it is inconsistent with and contravenes the provisions of Article 230(1) of the 1995 Constitution.
(c) A declaration that the act of arresting and prosecuting your petitioners by the IGG with offences for which the IGG has no authority to arrest and/or prosecute anyone is illegal, ultra vires the powers conferred upon the IGG under the Constitution and is nullity.
(d) An order that the prosecution of your petitioners be discontinued for being ultra vires and inconsistent with and in contravention of the Constitution of the Republic of Uganda.
At the hearing of the petition Mr. Oscar Kambona represented the 1st petitioner. Mr. Muwema appeared for the 2nd petitioner, Mr. Tunyakira represented the 3rd petitioner while the 4th petitioner was represented by Mr. Bob Kansango. On the other hand, the Attorney General was represented by two State Attorneys, namely Margaret Nabakooza and Patricia Mutesi while the IGG was represented by Mr. Kasujja and Mr Lwanga who are legal officers in the IGG’s office. The following issues were agreed:
(a) Whether the commencement of the investigations by the 2nd respondent and subsequent arrest of the petitioners was in contravention of articles 225, 227, 228, 42 and 231 of the Constitution.
(b) Whether the appointment of the IGG from the Judicial Bench contravenes articles 128(1) and (2), 223(3) and (4), 139, 144(2)(3) and (4), 224 and 225 of the Constitution.
(c) Whether the prosecution of the petitioners for the respective offences complained of in the petition contravenes article 230(1) of the Constitution.
(d) Whether the petitioners are entitled to reliefs sought.
 CONSIDERATION OF ISSUES
This is whether the commencement of the investigations by the 2nd respondent and subsequent arrest of the petitioners was in contravention of articles 42, 225, 227, 228 and 231 of the Constitution.
In order to be able to follow the arguments of counsel on this issue, we here below set out the provisions of the Constitution cited above.
Article 42 states:-
“Right to a just and fair treatment in administrative decisions.
Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”
Article 227 provides:-
“Independence of Inspectorate.
The Inspectorate of Government shall be independent in the performance of its functions and shall not be subject to the direction or control of any person or authority and shall only be responsible to Parliament.”
Article 228 provides:-
“Branches of Inspectorate.
The Inspectorate of Government may establish branches at district and other administrative levels as it considers fit for the better performance of its functions.”
Article 231 provides:-
“Reports of Inspectorate.
(1) The Inspectorate of Government shall submit to Parliament at least once in every six months a report on the performance of its functions, making such recommendations as it considers necessary and containing such information as Parliament may require.
(2) A copy of the report referred to in clause (1) of this article shall be forwarded by the Inspectorate of Government to the President; and where any matter contained in the report relates to the administration of any local authority, an extract of the portion of the report on the matter shall be forwarded to that local authority.
(3) The Speaker shall lay before Parliament the report submitted under clause (1) of this article within thirty days after it has been submitted, if Parliament is then in session, or, if Parliament is not in session, within thirty days after the commencement of its next following session.
(4) The President or any local authority referred to in clause (2) shall at least once every year cause a report to be submitted to parliament on actions taken by the president or the local authority on reports submitted to the President or the local authority by the Inspectorate of Government, for the information of Parliament.
(5) Parliament shall discuss expeditiously any reports submitted to it under clause (1).
This issue was argued by Mr. Oscar Kambona on behalf of the petitioners. He submitted that there was sufficient evidence on record to prove that:-
(a) By a letter written by His Excellency the President on 21/2/2006, he directed the Inspector General of Government [IGG] to investigate the petitioners in relation to the GAVI Funds and report to him.
(b) The IGG carried out the investigations and forwarded a report to the President on 5/4/2007.
It is his contention that both these activities of the President and the IGG were unconstitutional because the President had no powers to direct the IGG to do anything as that office is independent of any person or authority. He further contended that the IGG had no duty to report to the President as the Constitution demands that he only reports to Parliament. In his view, the actions of the President and the IGG contravened the above stated articles and were therefore void.
Mr. Kasujja who represented the 2nd respondent [The IGG] argued this issue. He submitted that the actions of the President and the IGG did not at all contravene any article of the Constitution. He submitted that the complaint was made pursuant to article 24 of the IGG Act which provides:-
“24 A complaint or allegation under this Act may be made by an individual or anybody of persons whether corporate or not, and shall be strictly confidential and addressed to the Inspectorate General.”
In so doing the President was inviting the IGG to use her powers provided under articles 225, 226 and 232 of the Constitution. Mr. Kasujja submitted that section 19(e) of the IGG Act required the IGG to work together with the President in order to be effective. The President only requested the IGG to investigate the use of the GAVI Funds but he did not direct her how to investigate the matter. Since it was a constitutional duty of the IGG to carry out investigation, she did no more than was her duty under the Constitution. He invited us to find no merit in this issue and to dismiss it totally.
Article 230(1) of the Constitution provides:-
“The Inspector General of Government shall have power to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public office.”
As we have seen, the IGG under section 24(1) of the IGG Act has the power to investigate complaints or allegations made by any individual or by any body of persons. Under section 24(3) of the Act the complaint has to be
(a) made by the complainant or his/her legal representative.
(b) be in writing and addressed to the IGG.
(c) signed or thumb printed by the complainant.
The President did all these in the impugned letter to the IGG. He like anyone else has the right to make a complaint to the IGG. It is the absolute right of the IGG to investigate and determine how to do it. Whether the President ‘directs” or “instructs” the IGG is in my opinion of no consequence since the office of the IGG is Independent and the IGG must take the decision independently whether to investigate and how to investigate. Article 99 vests the Executive authority of Uganda in the President. It is unlike a Head of State to write to his junior “requesting or begging” for his junior to carry out his duty. He will most likely use terms of command like “direct’, “order” or “instruct”, even where the officer ordered, directed or instructed has the powers under the Constitution to choose to act or not to act. If the President directs the IGG to investigate anyone and the IGG does it, the report made by the IGG does not become void merely because such words were used as long as the President does not interfere with the IGG’s power to decide whether to investigate or not and how to do so. In the instant case, there is no evidence that the President interfered in any way with the investigations. He simply “presidentially” requested the IGG to perform her duties under the Constitution. The resulting report on the investigation cannot be said to be unconstitutional. In our humble view, the investigations and subsequent arrest of the petitioner was done lawfully under the powers conferred on the IGG by the Constitution of the Republic of Uganda. We answer this issue in the negative.
This is whether the appointment of the IGG from the Judicial Bench contravened articles 128(1) and (2), 223(3) and (4), 139, 144(2) (3) and (4), 224 and 225 of the Constitution.
This issue was argued before us by Mr. Bob Kasango on behalf of the petitioners. This issue refers specifically to the appointment of Hon. Justice Faith Mwondha as the Inspector General of Government. Mr. Bob Kasongo contended that at the time of her appointment as IGG, she was a sitting judge of the High Court which office was governed by the provisions of article 128 of the Constitution. She had taken an oath of office to administer justice to all independently, impartially and without fear or favour from any quarter. On her appointment as IGG, which was done under article 223 of the Constitution, she did not resign her office as a judge of the High Court. The duties of the IGG are prescribed under articles 225 and 230 of the Constitution. These powers include the power to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or public office.
According to counsel, Justice Faith Mwondha could not possibly perform her role as an independent orbitor (the judge) and at the same time investigate, arrest, prosecute, a role that put her office under the Executive Arm of Government. In his view, her acceptance to serve as IGG violated the provisions of the above mentioned provisions of the Constitution especially those regarding separation of powers, the independence of the judiciary and the functions and duties off he IGG. As IGG, she became a litigator on behalf of the state something that no judge should ever do.
Mr. Kasango cited to us two cases to support the petitioner’s contention that the appointment of Hon. Justice Faith Mwondha was unconstitutional and therefore all her actions performed by her as IGG were unlawful and null and void. These cases are:-
(a) Gachiengo vs Republic  1 EA 67.
(b) South African Association of Injury Lawyers vs Health (CCT 27/00)  ZACC, 22, 2001,South Africa: Constitutional Court.
In reply, counsel for the respondent submitted that the appointment of the IGG from the judicial bench was constitutional and did not contravene any provision of the Constitution of Uganda. They contended that Hon. Faith Mwondha was appointed IGG by the President under the provisions of article 223 of the Constitution. She was then granted a leave of absence by the judiciary to enable her perform her duties. While she performed the duties of the IGG, she did not perform any functions as a judge of the High Court and did not receive salary from the judiciary. In their view, all the acts she performed during her term of office as IGG were an exercise of her constitutional mandate and were therefore lawful
Counsel contended that the two cases cited by counsel for the petitioners above were distinguishable from the situation at hand here in the instant case. In the case of Gachiengo (supra) Justice Ringera who presided over the anti-corruption authority remained a High Court Judge whereas in this case justice Mwondha sought and obtained leave of absence from judiciary and did not perform the duties of a judge while she was the IGG. They contended further that the term of IGG is specified in the Constitution as four years whereas that of Anti Corruption authority is not.
Regarding the South African case (supra) counsel submitted that in that case a judge was appointed to head a special investigating unit [SIU] similar to those of the IGG. Counsel submitted that unlike the IGG whose term of office is limited to 4 years renewable only once, the Head of SIU had unlimited term of office.
Secondly, in the South African, the President could issue a proclamation as to how the Head of SIU was to carry out his investigations whereas in the case of IGG, the procedure was spelt out by the law.
Thirdly, in Uganda, a person under investigations by the IGG had a right to be heard, which was not necessarily the case in South Africa where a person was being investigated by SIU. They invited this court to hold that both cases relied upon by the petitioners were distinguishable and not applicable to the office of the IGG in Uganda.
Resolution of issue No.2.
In order to resolve this issue, we must give answers to the following three questions raised by the issue:-
(a) Does the Constitution of the Republic of Uganda make provision for separation of powers?
(b) If it does, did the appointment of Hon. Justice Faith Mwondha, to the post of IGG contravene the doctrine of separation of powers?
(c) Does the Constitution permit one individual to hold the position of a judge and IGG at the same time?
(a) Separation of Powers:
Separation of powers is defined by BLACK’S LAW DICTIONARY (Eighths Edition) as:-
“The division of governmental authority into three branches of government, legislative, executive and judicial, each with specified duties on which neither of the other branches can encroach; the constitutional doctrine of checks and balances by which the people are protected against tyranny.”
The Dictionary illustrates the meaning of separation of powers with three extracts from the works of three jurists as follows:-
“The doctrine of separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was both to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Justice Louis Brandeis (as quoted in Roscoe Pound. The Development of Constitutional Guarantees of Liberty 94 (1957).
“Although in political theory much has been made of the vital importance of the separation of powers, it is extradionarily difficult to define precisely each particular power. In an ideal state we might imagine a legislature which had supreme and exclusive power to lay down general rules for the future without reference to particular cases; courts whose sole function was to make binding orders to settle disputes between individuals which were brought before them by applying these rules to the facts which were found to exist; an administrative body which carried on the business of government by issuing particular orders or making that decision policy within the narrow confines of rules of law that it could not change. The legislature makes, the executive executes, and the judiciary construes the law.” George Whitecross Paton. A Textbook of Jurisprudence 330 (G.W. Paton & David P. Derham eds., 4h ed. 1972).
“Separation of powers means something quite different in the European context from what it has come to mean in the United States. … Separation of powers to an American evokes the familiar system of checks and balances among the three coordinate branches of government legislative, executive and judiciary – each with its independent constitutional basis. To a European, it is a more rigid doctrine and inseparable from the notion of legislative supremacy.” Mary Ann Glendon et al. Comparative Legal Traditions 67 (1994).
The Constitution of Uganda makes provision for separation of powers. It is a fact that three organs of state are not rigidly separated in functions and powers. The separation of powers between the executive and the legislative may overlap here and there but the distinction is very clear. However, the Constitution provides for strict separation of powers between the judiciary on one hand and the executive and the legislative on the other hand. The separation is embedded in the doctrine of the independence of the judiciary in article 128 of the Constitution and other constitutional provision contained in Chapter eight thereof.
We would therefore answer the first question in the affirmative, namely that the constitution of Uganda makes provisions for separation of powers.
(b) Whether the appointment of Hon. Justice Faith Mwondha to the post of IGG contravened the doctrine of Separation of powers.
This question can be put slightly differently without altering its substance:-
“Is the job of a judicial officer under the Uganda Constitution compatible with the job of IGG under the same constitution?
In the case of South African Association of Personal Injury Lawyer (supra) the Constitutional court of South Africa was faced with a similar situation as we are dealing with now in the instant case. The facts of that case as can be ascertained from the introduction and background of the judgment of SHASKALSON. P. (the President of the Court) are as follows:-
“The special Investigating Units and Special Tribunals Act(the Act) came in force in November 1996. According to the long title of the Act, its purpose is:
‘To provide for the establishment of special Investigating Units for the purpose of investigating serious malpractices of maladministration in connection with the administration of State institutions, State assets and public money as well as any conduct which may seriously harm the interests of the public, and for the establishment of Special Tribunals so as to adjudicate upon civil mattes emanating from investigations by Special Investigating Units; and to provide for mattes incidental thereto.”
This appeal concerns the constitutionality of important provisions of the Act and of two proclaminations issued by the President pursuant to its provisions. It reflects a tension that often exists between the need on the part of government to confront threats to the democratic state, and the obligation on it to do so in a manner that respects the values of the Constitution…………..
In March 1997 the President, acting under the provisions of the Act, established a special investigating unit (SIU), which is the second respondent in this appeal. The head of the SIU is the first respondent who is a judge of the High Court. I will deal later with the role of the head of the SIU and with the powers versed in the SIU by the Act. For the moment, it is sufficient to say that the SIU has extensive powers including powers to investigate allegations of corruption, maladministration and unlawful or improper conduct which is damaging to State institutions, or which may cause serious harm to the interests of the public or any category thereof and to take proceedings to recover losses that the state may have suffered in consequence thereof.
On 26 March 1999 an allegation was referred to the second respondent for investigation in terms of the Act. The allegation was that there had been
‘a failure by attorneys, acting on behalf of any person with regard to a claim for compensation from the Road Accident Fund, to pay over to such persons the total net amount received in respect of compensation from the Road Accident Fund after deduction of a reasonable and/or taxed amount in respect of attorney client costs….”
The appellant is a voluntary association whose members are attorneys and advocates whose practices involve personal injury litigation. It contends that the investigative powers vested in the second respondent by the Act are highly intrusive, that the exercise of such powers against any of its attorney members would constitute an invasion of their privacy, and would cause irreparable damage to their professional reputation. Although the appellant denies that any of its members has ever acted unlawfully or improperly in connection with amounts received by them on behalf of their clients in respect of compensation from the Road Accident Fund (RAF), it says that it has ascertained that the SIU is soliciting complaints against some of its members to enable the unit to investigate the way they deal with RAF claims.
It was in these circumstances that the appellant brought proceedings in the Transvaal High Court. It asked for an order declaring certain provisions of the Act to be inconsistent with the Constitution. Further, the appellant asked for orders reviewing and setting aside the proclamation under which the first respondent was appointed and the proclamation under which allegations concerning personal injury lawyers were referred to the second respondent for investigation. Other relief not relevant to this appeal was also claimed.”
The application was dismissed by the High Court (Coetzee AJ) and leave was granted to the applicants to appeal to the Constitutional Court of South Africa. One of the issues which were framed in that court contended:-
“[That] section 3(1) of the Act and the appointment of the first respondent as head of the SIU are inconsistent with the Constitution because they undermine the independence of the judiciary and the separation of powers that the Constitution requires;”
The provisions on separation of powers in the Constitution of South Africa are remarkably similar to those in the Constitution of Uganda. The President of the Constitutional Court first considered the importance and role of the doctrine of separation of powers in their Constitution:-
“The separation required by the Constitution between the legislature and executive on the one hand, and the courts on the other, must be upheld otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights, and other provisions of the Constitution, will be undermined. The Constitution recognises this and imposes a positive obligation on the state to ensure that this is done. It provides that courts are independent and subject only to the Constitution and the law which they must apply impartially without fear, help or prejudice. No organ of state or other person may interfere with the functioning of the courts,and all organs of state, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.”
During the arguments before the Constitutional Court of South Africa, Mr. Trengore, learned counsel for the appellant and Mr. Marcus for the respondent submitted on the issue whether Separation of powers is comprised when a judge is required to perform non-judicial functions. They considered authorities from the United States, Australia and South Africa. It was suggested to the court that the following considerations should be made to determine whether or not under the Constitution, it was permissible to assign a judge non-judicial functions:-
Whether performance of the function:
“(a) is more usual or appropriate to another branch of government.
(b) is subject to executive control or direction;
(c) requires the judge to exercise a discretion and make decisions on the grounds of policy rather than law;
(d) creates the risk of judicial entanglement in matters of political controversy;
(e) involves the judge in the process of law enforcement;
(f) will occupy the judge to such an extent that he or she is no longer able to perform his or her normal judicial functions.
In response to these arguments the President of the Court stated:-
“These considerations seem to me to be relevant to the way our law of separation of powers should be developed. Mr. Marcus did not dispute their relevance, but submitted that they must be seen in the context of each particular case. They should be given a weight appropriate to the nature of the function that the judge is required to perform, and the need for that function to be performed by a person of undoubted independence and integrity.
It is undesirable, particularly at this stage of the development of our jurisprudence concerning the separation of powers, to lay down rigid tests for determining whether or not the performance of a particular function by a judge is or is not incompatible with the judicial office. The question in each case must turn upon considerations such as those referred to by Mr. Trengove, and possibly others, which come to the fore because of the nature of the particular function under consideration. Ultimately the question is one calling for judgment to be made as to whether or not the functions that the judge is expected to perform are incompatible with the judicial office, and if they are, whether there are countervailing factors that suggest that the performance of such functions by a judge will not be harmful to the institution of the judiciary, or materially breach the line that has to be kept between the judiciary and the other branches of government in order to maintain the independence of the judiciary. In making such judgment, the court may have regard to the views of the legislature and executive, but ultimately, the judgment is one that it must make itself.”
The learned President of the Constitutional Court considers cases where the law or other organs of the state may require a judge to perform non judicial functions such as presiding over commissions of inquiry or sanctioning the issuing of search warrants and observed:-
“In dealing with the question of judges presiding over commissions of inquiry, or sanctioning the issuing of search warrants, much may depend on the subject matter of the commission and the legislation regulating the issue of warrants. In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required to the performance of judicial functions – independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information. The same can be said about the sanctioning of such warrants, where the judge is required to determine whether grounds exist for the invasion of privacy resulting from searches.
In conclusion on this issue the Constitutional Court held:-
“The fact that it may be permissible for judges to perform certain functions other than their judicial functions does not mean that any function can be vested in them by the legislature. There are limits to what is permissible. Certain functions are so far removed from the judicial function, that to permit judges to perform them would blur the separation that must be maintained between the judiciary and other branches of government. For instance under our system a judicial officer could not be a member of legislature or cabinet, or a functionary in government, such as commissioner of police. These functions are not appropriate to the central mission of the judiciary. They are functions central to the mission of the legislature and executive and must be performed by members of those branches of government.”
The conclusion arrived at by this Court were arrived at after an exhaustive review of authorities made on similar situations in the Commonwealth countries of the world and the United States of America. We should be pardoned for quoting from the judgment of CHASKALSON P. at great length because we find the case highly similar to the one we are dealing with now. We are not bound by the decisions of Commonwealth, United States or South African Courts of Law but where the law and the facts upon which the decision was made is similar to ours, then this court will treat the decision with a lot of respect and as persuasive and in appropriate cases may follow the decision.
Judicial Office vs IGG.
Before we finally resolve issue No.2., it is now necessary to compare the constitutional duties and functions of a judicial officer and those of the Inspector General of Government and to determine whether our constitution permits a person to hold both offices at the same time. The principles that govern the exercise of judicial power in Uganda are spelt out in articles 26 and 28 of the Constitution of Uganda.
Article 126 states:-
“Exercise of Judicial Power
(1) Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the value’s, norms and aspirations of the people.
(2) In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles:-
(a) justice shall be done to all irrespective of their social or economic status;
(b) justice shall not be delayed;
(c) adequate compensation shall be awarded to victims of wrongs;
(d) reconciliation between parties shall be promoted; and
(e) substantive justice shall be administered without undue regard to technicalities.”
Article 128 provides:-
“Independence of the judiciary.
(1) In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.
(2) No person or authority shall interfere with the courts or judicial offices in the exercise of their judicial functions.
(3) All organs and agencies of the State shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts.
(4) A person exercising judicial power shall not be liable to any action or suit for act or omission by that person in the exercise of judicial power.
(5) The administrative expenses of the judiciary, including all salaries, allowances, gratuities and pensions payable to or in respect of persons serving in the judiciary, shall be charged on the Consolidated Fund.
(6) The judiciary shall be self-accounting and may deal directly with the Ministry responsible for finance in relation to its finances.
(7) The salary, allowances, privileges and retirement benefits and other conditions of service of a judicial officer or other person exercising judicial power shall not be varied to his or her disadvantage.
(8) The office of the Chief Justice, Deputy Chief Justice, Principal Judge, a justice of the Supreme Court, a justice of Appeal or a judge of the High Court shall not be abolished when there is a substantive holder of that office.”
The main roles of a judicial officer are:-
(a) To adjudicate over disputes in society.
(b) To interpret the law.
(c) To enforce the law.
In doing so, the judicial officer is guided by the above stated principles in articles 126 and 128 of the Constitution. The judicial officer is further guided by the oath of allegiance to the Constitution and the Judicial oath which states:-
“I, ______________________________, swear in the name of the almighty God/solemnly affirm that I will well and truly exercise the judicial functions entrusted to me and will do right to all manner of people in accordance with the Constitution of the Republic of Uganda by law established and in accordance with the laws and usage of the Republic of Uganda without fear or favour, affection or ill will. [So help me God.]
On the other hand the duties and functions of the IGG are to be found in articles 225, 226, 227 and 230 of the Constitution. These powers and functions of the IGG are repeated verbatim in the Inspectorate of Government Act, 2002. I have already in this judgment reproduced the provision of article 225 of the Constitution.
Article 226 provides:-
“Jurisdiction of inspectorate.
The jurisdiction of the Inspectorate of Government shall cover officers or leaders whether employed in the public service or not, and also such institutions, organisations or enterprises as Parliament may prescribe by law.
Article 227 provides:-
“Independence of inspectorate.
The Inspectorate of Government shall be independent in the performance of its functions and shall not be subject to the direction or control or any person or authority and shall only be responsible to Parliament.”
The most important and relevant article to this question is article 230 which provides:-
“Special powers of the inspectorate:
(1) The Inspectorate of Government shall have power to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public office.
(2) The Inspectorate General of Government may, during the course of his or her duties or as a consequence of his or her findings, make such orders and give such directions as are necessary and appropriate in the circumstances.
(3) Subject to the provisions of any law, the Inspectorate of Government shall have power to enter and inspect the premises or property of any department of Government, person or of any authority, to call for, examine and where necessary, retain any document or item in connection with the case being investigated, found on the premises; and may, in those premises, carry out any investigation for the purpose of its functions.
(4) The Inspectorate of Government shall, when enforcing the Leadership Code of Conduct, have all the powers conferred on it by this Chapter in addition to any other powers conferred by law.
(5) Subject to this Constitution, Parliament shall enact any law necessary for enabling the Inspectorate of Government to discharge its functions effectively and efficiently and, in particular, to ensure that the discharge of those functions is not frustrated by any person or authority.”
In a nutshell, the duty of a judge is to adjudicate disputes in society and to interpret and enforce the law. In doing so the judicial officer and judiciary are independent of any person or authority. On the other hand the duties and functions of the IGG, include, the powers to investigate, arrest, cause arrest, prosecute, cause prosecution in respect of cases involving corruption, abuse of authority or of public office.
Section 6 of the Inspectorate of Government Act requires a person to take the following oath of office before assumption of that office:-
“I…………………………………….having been appointed to exercise the functions of Secretary to/Officer of/employee in/the Inspectorate of Government, swear in the name of almighty God/solemnly affirm that I will at all times well and truly serve the Republic of Uganda, and that I will perform the functions of Secretary to/office of/employee in the Inspectorate in accordance with the Constitution and laws of the Republic of Uganda, and that I will not directly or indirectly reveal to any unauthorised person any matter document, communication or information that comes to my knowledge in the discharge of my duties and is committed to my secrecy.(So help me God).
Now, it is a cardinal principle of our jurisprudence that a judge must be Independent, Impartial and just to all manner of people. He must take the judicial oath to inculcate these principles in his person. How do these duties, functions and powers of a judicial officer relate to those of the IGG? Are they related in such away that a person under the judicial oath can take another oath to perform the duties of the IGG without conflict? How would one individual honour two oaths to perform conflicting duties and exercise conflicting powers?
The President of the Constitution Court of South Africa in the South African Association of Injury Lawyer’s Case (supra) hinted at the answer to issue No.2. He held:-
“Under our Constitution, the judiciary has a sensitive and crucial role to play in controlling the exercise of power and upholding the bill of rights. It is important that the judiciary be independent and that it be perceived to be independent. If it were to be held that this intrusion of a judge into the executive domain is permissible, the way would be open for judges to be appointed for indefinite terms to other executive posts, or to perform other executive functions, which are not appropriate to the “central mission of the judiciary.” Were this to happen the public may well come to see the judiciary as being functionally associated with the executive and consequently unable to control the executive’s power with the detachment and independence required by the Constitution. This, in turn, would undermine the separation of powers and the independence of the judiciary, crucial for the proper discharge of functions assigned to the judiciary by our Constitution. The decision, therefore, has implications beyond the facts of the present case, and states a principle that is of fundamental importance to our constitutional order.”[Emphasis supplied]
In our judgment the functions and powers of the IGG are incompatible with those of a judicial officer and it was a gross violation of the provisions of the Constitution separation of powers and the independence of the judiciary. The answer to question (b) above is in the affirmative. To the extent that the appointee was a sitting judge, it was null and void.
(c) The third issue is whether the Constitution of Uganda permits one individual to hold the position of a judge and that of the IGG at the same time.
Article 223(4) of the Constitution provides:-
“The Inspector General of Government and a Deputy Inspector General shall be appointed by the President with approval of Parliament and shall not, while holding office, hold andy other office of emolument in public service.” [Emphasis supplied]
Again, at the trial, this question revolved around the personality of Hon. Justice Mwondha. It was submitted for the petitioners that at the time she was appointed IGG, she was a sitting judge and she was not eligible to be appointed to be IGG unless she first resigned, which she did not do. The point the petitioners were trying to drive home is that since she never resigned the post of judge, she never legally became IGG and therefore everything she did during he r tenure of office was a nullity.
On the other hand counsel for the respondent submitted that when she was appointed IGG, she sought and obtained leave of absence from the judiciary to enable her take up the position of IGG. That therefore she did not need to resign as a judge of the High Court. They however, did not produce any evidence to prove that she obtained such leave of absence from the judiciary. Even if such evidence was available, her appointment to the position of IGG would have a problem if the office of judge was construed to be an “office of emolument” with the meaning of article 223(4) of the constitution. According to BLACK’S LAW DICITITONARY (8th Edition) the word “office” means “a position of duty, trust or authority especially one conferred by a government authority for a public purpose.”
The same dictionary defines the word “emolument” to mean “any advantage, profit or gain received as a result of ones employment or one’s holding of office.”
It was submitted that Mrs Mwondha did not get any salary or allowances from the judiciary when she was IGG and therefore in her case her being a judge at the same time exempted that office from being “an office of emolument” within the meaning of article 223(4) of the Constitution. With great respect to learned counsel, we do not agree with that submission. Emolument does not consist of only salaries and allowances in monitary terms. The definition of the word talks of “advantage or gain or profit” received as a result of holding an office. The office of a judge is one of the most respected in this country. It is a very prestigious office to the holder whether the holder is actually being paid for it or not. Holding the office confers gains, which Mrs Mwondha continued to get. Her salary was increased to fit that of a judge though it was not paid by judiciary. It was paid by the Uganda tax payer because she was still a judge. Her period of service continued to earn her pension in public service. Therefore she should have relinquished the office of a judge in order to take up the office of the IGG. In the result, her holding of the office of IGG was unconstitutional and therefore void.
Whether the prosecution of the petitioners for the respective offences complained of in the petition contravenes article 230(1) of the Constitution.
Article 230(1) of the Constitution provides:-
“The Inspectorate of Government shall have power to investigate cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public office.”
Learned counsel for the petitioners submitted that the word “corruption” is not defined in the Constitution of Uganda but it is defined in the Prevention of Corruption Act, 1970. According to that definition, the offences with which the petitioners are being charged at Buganda Road Court are not included. The definition does not include embezzlement, obtaining by false pretences, causing financial loss, forgery and uttering false documents. According to counsel, the IGG’s powers under article 230(1) of the Constitution does not extend to offences which are not mentioned in the definition of corruption as contained in the Prevention of Corruption Act, 1970. They ask this court to declare that the IGG has no power to prosecute them for the offences which are contained in the charge sheet annexed to the petitioners affidavit in support of this petition.
Counsel for the respondent did not agree with this argument. They contended that when the Prevention of Corruption Act of 1970 was enacted, the office of the IGG did not exist. With the creation of that office a new definition of the word corruption was made in the Inspectorate of Government Act, 2002 as follows:-
“Corruption’ means the abuse of public office for private gain and includes but is not limited to embezzlement, bribery, nepotism, influence peddling, theft of public funds or assets, fraud, forgery, causing financial or property loss and false accounting in public affairs.”
In their view the powers of the IGG under article 230(1) of the Constitution gives that office the mandate to prosecute all those offences contained in the definition of “corruption” in section two of the Inspectorate of Government Act, 2002.
To this argument, learned counsel for the petitioners argued that the Inspectorate of Government Act, 2002 did not repeal the Prevention of Corruption Act, 1970 and since that act was the principle act governing prosecutions for the offence of corruption, it is its definition which applies.
With respect to learned counsel for the petitioners, we do not accept their argument that under article 230(1), the IGG has no powers to prosecute them. The definition of the word “corruption” in the Prevention of Corruption Act is narrow as this court observed in the case of Attorney General vs Ekemu & Anor Constitutional Reference No.9 of 2002. However at the time of that decision, the Inspectorate of Government Act had not been enacted. With the enactment of that Act, Corruption is defined as quoted above and now covers all the offences contained in the charged sheet under which the petitioners were charged at Buganda Road Court. We therefore find no merits in this issue which should fail.
Whether the petitioners are entitled to reliefs sought.
We have determined on issues No.1 and No.3 that the investigation, arrest and prosecution of the petitioners for alleged offences of corruption, embezzlement and abuse of public office did not contravene any provision of the Constitution of Uganda. We have further held that the IGG has power to prosecute related offences such as theft, fraud, forgery, causing financial loss e.t.c. because the definition of the word “corruption” contained in section 2 of the Inspectorate of Government Act, 2005 was expanded to include all offences for which the petitioners are charged with at Buganda Road Chief Magistrates Court.
The fact that we have found on the third issue that Mrs. Faith Mwondha was irregularly appointed IGG and held that office during the investigation of the GAVI Funds does not affect our findings on issues No.1 and No.2. The office of the Inspector General of Government must be separated from its holder. The Inspectorate of Government is not a one man or one woman show. The IGG has deputies, Inspectors, Investigators, Legal Officers, Accountants and other officers who help the Inspectorate fulfil its mandate. Any defect in the appointment of the holder of that office does not nullify everything he does in office as long as they are within the constitutional mandate of that office. In that regard, it would be absurd to nullify everything Justice Mwondha did in office for a period of four years merely because her appointment was not in accordance with the Constitution. It should be noted that the powers that the IGG exercises are vested in the Inspectorate. Article 223 of the Constitution provides that the Inspectorate of Government consists of the IGG and such a number of Deputy IGGs as Parliament may prescribe. Therefore whatever Hon. Justice Mwondha did while in office remains valid as long as it was within the mandate of the Inspectorate of government.
We have held that the appointment of a judge to the post of Inspector General of Government of Deputy Inspector General violates the Constitution because the job is not compatible with that of a judge. It violates the principle of Separation of Powers enshrined in our Constitution. It also contravenes article 223(4) which provides that the IGG or Deputy IGG “shall not, while holding office, hold any other office of emolument in public service.”
The office of “judge” in Uganda is an office of emolument and nobody can lawfully hold the office of IGG while at the same time holding the post of judge. A judge should on appointment as IGG be required to relinquish the judicial office in order to take the oath of the office of the IGG.
In the result we make the following declarations:-
(1) This petition succeeds in part to the extent that the appointment of an IGG who is a judicial officer contravenes the doctrine of Separation of Powers established in Chapters six, seven and eight of the Constitution and is therefore void. It also contravenes the provision of article 223(4) of the Constitution. It does not contravene any other provisions of the Constitution.
(2) The investigations the arrest and prosecution of the petitioners by the IGG at the request or “instructions” of the President did not contravene any article of the Constitution.
(3) The prosecution of the petitioners by the IGG did not contravene the provisions of article 230 of the Constitution or any other article.
(4) Each party shall bear its own costs.
Dated 14th day of May, 2010
Hon. Justice L.E.M. Mukasa Kikonyogo
DEPUTY Chief Justice
Hon. Justice A.E.N. Mpagi Bahigeine
JUSITCE OF APPEAL
Hon. Justice A. Twinomujuni
JUSITCE OF APPEAL.
Hon. Justice C.K. Byamugisha
JUSTICE OF APPEAL
Hon. Justice S.B.K. Kavuma
JUSTICE OF APPEAL.