THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL REFERENCE NO. 17 OF 2011
NESTOR MACHUMBI GASASIRA ::::::::::::::::::::::::::::::::: APPLICANT
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
CORAM: HON. MR. JUSTICE A.S. NSHIMYE, JA/JCC
HON. MR. JUSTICE RUBBY OPIO AWERI, JA/JCC
HON. MR. JUSTICE KENNETH KAKURU, JA/JCC
HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC
HON. JUSTICE PROF. L. EKIRIKUBINZA-TIBATEMWA JA/JCC
This is a Constitutional Reference arising out of Anti-Corruption Criminal Case 183 of 2010 made by His Worship Baguma, Principal Magistrate Grade I to this Court under Article 137(5) (b) of the Constitution of Uganda.
Mr. Gasasira (“the Applicant”) was formerly the Principal Accountant in the Public Service in the Ministry of Health. On 5th December 2005 an investigation originated where the then Deputy DPP wrote to the Applicant requesting him to explain the source of his assets listed in the Declarations of Wealth, a required document for public officials, filed with the Inspector General of Government (“IGG”) in 2002 and 2005. The Applicant made a response to the inquiry on January 19, 2006, but further investigation by the IGG led to the issuing of a report by the IGG on October 12, 2009.
The 2009 IGG Report included information from independent valuations reports from 2006, and determined that the Applicant had misstated the value of various assets and withheld the disclosure of others. The IGG’s report came with recommendation to have the Applicant’s properties confiscated because they were alleged to be inconsistent with his income. The report further recommended the Applicant’s removal from public office and that he be prevented from being allowed to hold public office for 5 years, under the provisions of the Leadership Code Act.
The Applicant made a special civil appeal against the Report and the decisions of the IGG to the High Court acting as a special appellate tribunal under jurisdiction granted by the Leadership Code Act. The Learned trial Judge, Bamwine J (as he then was), allowed the appeal and quashed the IGG’s report findings and recommendations, primarily because of the IGG’s failure to adhere to the rules of natural justice by not granting the Applicant a fair hearing. The IGG then appealed the above decision of the High Court to the Court of Appeal in C.A. No. 98 of 2010, which appeal is still pending.
After the determination of the appeal by the High Court, the Applicant was arrested on the 29th October 2010 and charged with two counts of Illicit Enrichment under Sections 31 (1) (b) and 31 (2) of the Anti-Corruption Act of 2009 (“the Act”). The Act allows authorized officers, including the IGG, to investigate persons believed to possess “property disproportionate to his or her current or past known sources of income or assets.” The two counts of Illicit Enrichment related to eight apartments worth Ushs. 548,205,844/= and a residential house valued at Ushs. 330,262,946/=.
The Applicant was held in jail over a weekend, and, when he was produced before the Principal Grade 1 Court the following Monday, his Counsel made an application for a Constitutional Reference to this Court which was granted. The three questions which were framed for consideration by this Court are as follows:
1. Whether Section 31 of the Anti-Corruption Act No. 6 of 2009, under which the accused is charged with as an offence of being in possession of illicit enrichment is not in contravention of Article 28 (7) and (8) of the Constitution, in view of the valuer’s report attached to the IGG’s report of 12th October, 2009.
2. Whether [the Magistrate’s Court] has jurisdiction to entertain a charge which arises from the investigations, proceedings and a report of the IGG that has been quashed and set aside by the High Court and is subject of Appeal proceedings in the Court of Appeal.
3. Whether the property of the accused person can be subjected to forfeiture to the State on more than one occasion, in view of the Double Jeopardy rule and Article 28 (9) of the Constitution.
This reference was presented before a new panel of Justices and it was agreed by the parties and the Court that the Court decides the matter on the basis of submissions already on file.
Mr G. Kandeebe of M/s Ntambirweki & Kandeebe Co. Advocates and Mr A. Luwum of M/s Luwum, Rutaremwa & Co. Advocates appeared for the applicant while Ms S. Birungi appeared for the State.
Reference No 1: Whether Section 31 of the Anti-Corruption Act No. 6 of 2009, under which the accused is charged with as an offence of being in possession of illicit enrichment is not in the contravention of Article 28 (7) and (8) of the Constitution, in view of the valuer’s report attached to the IGG’s report of 12th October, 2009.
Case for the Applicant
Counsel for the applicant submitted that the charges brought under S.31 of the Anti-Corruption Act are unconstitutional, because they are based on the retroactive application of criminal statutes which is contrary to Article 28 (7) and (8) of the Constitution. Counsel for the applicant contended that the Anti-Corruption Act was not in existence, in any form, when the properties in question were acquired and when the reviewed Declarations of Wealth were submitted. It therefore followed that his ownership of the properties cannot be subject to charges under the Anti-Corruption Act.
Counsel for the applicant further submitted that no new valuations or investigations occurred after the enactment of the Anti-Corruption Act to corroborate that, under current valuations, the applicant’s ownership was not commensurate with his past or current income.
For the above reasons, Counsel for the applicant submitted that the applicant was protected under Article 28 (7) of the Constitution from the Anti-Corruption Act being retrospectively applied to actions that occurred before the said Act came into effect.
Counsel for the applicant submitted that the contention by the State that offences with which the applicant is charged are continuous is unworkable and would mean that future gains in the value of the property could make someone criminally liable yet previously the person was acting within the law. As proof of this argument, Counsel for the applicant submitted that Article 28 (7) and (8) of the Constitution requires the time of the offences committed to be known to prevent charges being created at any time from any point in history.
Case for the Respondent
Counsel for the respondent submitted that the charge of illicit enrichment, under S.31 of the Anti-Corruption Act, is a continuous offence. According to the Respondent, what matters is that, at the time the accused is arraigned in Court, he or she is in control or possession of the property in question which is believed to be disproportionate to his or her income and assets. Section 31 of the Anti-Corruption Act provides:
“[W]here there is reasonable ground to suspect that the person— . . . is in control or possession of pecuniary resources or property disproportionate to his or her current or past known sources of income or assets, the IGG may investigate such a discrepancy.
Counsel for the respondent submitted that the language of this section, makes irrelevant the issue of when the wealth was acquired, but instead focuses on when “the person is in control or possession” of that wealth.
Counsel for the respondent further submitted that this is not a retroactive application of a statute, which is barred by Article 28 of the Constitution, because even now the wealth in question is still in existence and in possession of the Applicant.
Resolution of the Court
The Court has considered the above reference question and the submissions of both counsel for which we are grateful.
We shall start by reviewing the legislation in question. Articles 28 (7) and (8) of the Constitution of Uganda provides
“…(7) No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.
(8) No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed…”
On the other hand Section 31 of the Anti-Corruption Act provides
- The Inspector General of Government or the Director of Public Prosecutions or an authorised officer, may investigate or cause an investigation of any person where there is reasonable ground to suspect that the person—
- maintains a standard of living above that which is commensurate with his or her current or past known sources of income or assets; or
- is in control or possession of pecuniary resources or property disproportionate to his or her current or past known sources of income or assets. (emphasis added)
- A person found in possession of illicitly acquired pecuniary resources or property commits an offence and is liable on conviction to a term of imprisonment not exceeding ten years or a fine not exceeding two hundred and forty currency points or both.
- Where a court is satisfied in any proceedings for an offence under subsection (2) that having regard to the closeness of his or her relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused, or acquired such resources or property as gift or loan without adequate consideration, from the accused, those resources or property shall, until the contrary is proved, be deemed to have been under the control or in possession of the accused.
- In any prosecution for corruption or proceedings under this Act, a certificate of a Government Valuer or a valuation expert appointed by the Inspector General of Government or the Director of Public Prosecutions as to the value of the asset or benefit or source of income or benefit is admissible and is proof of the value, unless the contrary is proved…”
It appears to us that the wording of the section 31 of the Anti-Corruption Act does not presently criminalise an activity that was not a criminal offence in the past. It merely seeks to investigate the alleged offender’s present life style and possessions and establish whether they are in consonance with the alleged offenders present and past income. (emphasis added)
This Court is not convinced by the argument of the State that the Section in the Anti-Corruption Act creates an offence that is a continuous one. A simple review of a property’s value at the time of purchase would alleviate any potential misplaced claims of an offence under the Act should a property’s value increase to a point that it is worth more than the individual could afford or could have afforded with their known income.
The Applicant tries to construe the “past known . . . assets” language of S.31 the Anti-Corruption Act as meaning that if an asset was already in existence before the Anti-Corruption Act was enacted then that asset cannot be used to bring criminal charges under the Anti-Corruption Act. Such an interpretation we find cannot be what was intended by the Legislature. Certainly the Act was passed in order to prevent persons from engaging in corrupt actions, per its name, not to regulate the timing of IGG investigations. The issue in our view is not the timing under which the possessions were acquired but rather whether such acquisitions are explainable by reason of the income and other sources of the alleged offender.
We shall now specifically address the relationship between the charges under Section 31of the Anti-Corruption Act charge against the Applicant and Article 28 of the Constitution. The offence looks to the present possessions of the applicant and had he disposed of them previously, then he would be outside the ambit of the said section.
However, the fact that the Applicant was still in possession of the property after the Anti-Corruption Act came into effect, and is to this day in possession, means that his ownership of the property comes under the Anti-Corruption Act’s jurisdiction of inquiry. The fact that the IGG questioned the legitimacy of the Applicant’s ownership of property to which he still had possession before the Anti-Corruption Act existed, is not, in and of itself, sufficient to establish that charges under the S.31 of the Anti-Corruption Act are unconstitutional under Article 28 of the Constitution. Section 31 (1) (b) the Anti-Corruption Act applies to property that a person “is in control or possession of” and is “disproportionate to his current or past known sources of income or assets.” The Applicant’s ownership of the eight apartments and the residence attached to counts one and two of the Charge Sheet, respectively, falls squarely under the jurisdiction of this section.
The above rationale also works to make moot the argument presented by the Applicant that new valuations and investigations were required before a charge could be brought. While Article 28 of the Constitution prevents charges being brought retroactively, it in no way prevents evidence collected before a Statute was passed from being used in a later suit.
For the foregoing reasons, this Court declares that there is no conflict or inconsistency between Section 31 of the Anti-Corruption Act and Article 28 of the Constitution.
Reference No 2: Whether [the Magistrate’s Court] has jurisdiction to entertain a charge which arises from the investigations, proceedings and a report of the IGG that has been quashed and set aside by the High Court and is subject to Appeal proceedings in the Court of Appeal.
Case for the Applicant
Counsel for the applicant submitted that the IGG has no authority to re-open a matter that the High Court, as a special appellate tribunal, decided, by using the same quashed reports in another case.
Counsel for the applicant submitted that the criminal trial before the Magistrate was not a new trial but was instead masked as a new trial using the same evidence under the guise of a new offence. Counsel for the applicant believes that to allow the Magistrate decide on charges that are based on the exact same evidence for which an appeal is pending at the Court of Appeal, would create confusion and unfairness.
Counsel for the applicant further submitted that the High Court, in its special jurisdiction, is a superior tribunal to the Magistrate Court, and as such, the Magistrate cannot overturn the decision of the High Court by hearing a case the evidence of which the High Court has quashed. Counsel for the applicant submitted that the respondent would place a lower court on a collision course with a superior court, and that it is an abuse of the judicial process to run parallel trials based on the same evidence, particularly where the initial case ended up with the evidence being quashed.
Case for the Respondent
Counsel for the respondent submitted that what is in issue in this question, is the subject matter of the case, not in whose favor the High Court disposed the appeal. Counsel for the respondent submitted that the matter before the High Court was the right to a fair hearing under the Leadership Code Act, but not a decision of the case on the merits of the questioned ownership.
Counsel for the respondent further submitted that this Court adopts the view that, while the civil remedy in the Leadership Code case was decided, such civil decisions should be independent of any criminal charges brought against the same party, as brought here under S.31 of the Anti-Corruption Act.
Resolution of the Court
We have considered the reference question and submissions of both counsel for which we are grateful.
While the second question has been framed as a single issue, it more properly breaks down into two separate issues.
The first issue being whether or not the IGG can legally institute criminal charges under the Anti-Corruption Act while a civil appeal awaits in the Court of Appeal regarding essentially the same matter. The second issue then becomes, if the criminal case before the Magistrate is legal, can the IGG base its case on their 2009 Report that has been quashed by the High Court? This Court will address the two issues in the order presented.
First, whether the criminal case before the Magistrate Court is competent considering the fact that there is a civil appeal on the same matter currently before this court?
We find that it is fairly settled law that criminal and civil proceedings are distinct from one another. They are not in the alternative and/or necessarily parallel. In the case of Joseph Zagyenda V Uganda, Criminal Application No. 11 of 2011, Hon Justice Lameck Mukasa held that:
“Civil proceedings are individualistic in nature while the criminal proceedings are public in nature.”
We are persuaded with these findings. In general, the remedies offered to victims of crimes through criminal proceedings do nothing to get them back to the state in which they were in, before the crime was committed against them. Similarly, civil proceedings do nothing to prevent future crimes from being committed by a person. In the Zagyenda case (supra), the Learned Judge allowed both a criminal case and a civil case regarding the same matter to go forward without either being stayed until the completion of the other. This approach we find is not inconsistent with Article 28 (9) of the Constitution which states:
“(9) A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.”
What prevents any inconsistency is the fact that one of the cases is criminal while the other is civil and therefore does not give rise to double jeopardy concerns.
There are concerns by the applicant that the IGG is involved in some form of forum shopping. Indeed forum shopping can be evidence of abuse of Court process. However we are of the considered view that a similar set of facts can lead to different causes of action and indeed remedies. Same facts by themselves is not a bar for a party to exhaust all available remedies open to them on the basis that this would amount to double jeopardy. The Constitution itself clearly defines double jeopardy as where one has been tried for a criminal offence and convicted or acquitted of that offence and as a result cannot again be tried for the offence, or for any other criminal offence. Similar principles like res judicata and lis pendens come into play in civil matters. Res judicata and double jeopardy should not be muddled up.
It is our finding that the fact that the IGG may have made procedural errors in its investigations for which the report was quashed does not mean that all other avenues of remedies open to IGG have also been quashed. Article 227 of the Constitution clothes the IGG with independence in the performance of its functions from the direction and control of any person or authority; especially whether or not to investigate a person (See Dr Tiberius Muhebwa V Uganda Constitutional Reference No 09 of 2012).
It is our finding that the appeal before this Court and this Constitutional reference are distinguishable when it comes to the Constitutional protections under Article 28 (9) of the Constitution because the appeal relates to a matter akin to Judicial review of Administrative action while this reference relates to a criminal charge. Therefore, the doctrine of lis pendens does not apply.
We now turn to the second issue of whether the criminal case before the Magistrate can legally be based on the 2009 Report that has been quashed by the High Court. The argument of the applicant that the matter relating to whether the applicant’s property is in consonance with his income was closed by the High Court quashing the 2009 Report is totally unconvincing. This is because the applicant submits that the evidence was quashed and so cannot be used against him in the criminal case. It is fairly settled law that when a report is quashed for procedural impropriety, that does not prohibit the report from being re-done albeit properly the next time around (see: John Jet Tumwebaze V Makerere University Council and 3 others, Civil Application No 353 of 2005). We also do not accept the argument that proceeding with the criminal case on its merit would cause confusion and unfairness because there is an appeal in the civil matter.
We accordingly answer this question in the affirmative.
Reference No 3: Whether the property of the accused person can be subjected to forfeiture to the State on more than one occasion, in view of the Double Jeopardy rule and Article 28 (9) of the Constitution.
Case for the Applicant
Counsel for the applicant submitted that the respondent directed that specific properties owned by the applicant be forfeited to the Government on 12th October, 2009. The High Court set aside and vacated the orders for forfeiture. Counsel for the applicant pointed out that the respondent made several applications for stay of the High Court Order, none of which were successful.
Counsel for the applicant submitted that the respondent’s attempt to re-use the IGG Report under the illicit enrichment charges, after the High Court quashed the report and vacated the forfeiture order, was improper because it falls under Article 28 (9) of the Constitution’s protection from double jeopardy. It is the case for the applicant that the Leadership Code case bears striking resemblance to a criminal offence through such aspects as investigations, hearings, defences, penalties for violation, right of appeal, etc. Counsel referred to the Supreme Court case of John Ken Lukyamuzi V IGG, Constitutional Appeal No 2 of 2007 where it was held that:
“…breaches of the Leadership Code are punished with severe penalties...”
Counsel for the applicant submits that the Applicant under the new criminal charges is being forced to raise the same defenses he raised under the initial Leadership Code case.
Case for the Respondent
Counsel for the respondent in reply submitted that the former case before the High Court was on a procedural matter regarding the right to a fair hearing under the Leadership Code Act; as opposed to the substantive criminal case under the Anti-Corruption Act. Hence, there cannot be double jeopardy.
Counsel for the respondent further submitted that any incompetence of the charge sheet should not have been raised on appeal to the High Court, as the same was raised before the trial Magistrate but was overruled.
Counsel for the respondent submitted that Section 85 of the Magistrate Courts Act, only requires that,
“[e]very charge shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
As such, the charge sheet in question contained the counts and proper particulars of the properties in question, their value which is disproportionate to the applicant’s past and current known sources of income and/or assets.
Resolution of the Court
We have considered the reference question and the submissions of both counsel for which we are grateful.
We have already analyzed Article 28 (9) of the Constitution, which deals with the issue of double jeopardy, in our response to the second reference question. As such, we will not repeat it here. Double jeopardy does not apply to this case/reference at this point in time. There has been no trial before a criminal Court at this stage. We do not accept the arguments by counsel for the respondent based on the Supreme Court authority of John Ken Lukyamuzi (supra) that actions taken under the Leadership Act are ipso facto criminal proceedings. The said authority does not say so.
That being the case, we find that the third reference question has no bearing on the matter before the Magistrate’s Court so as to stop the case from proceeding before the Magistrate’s Court.
Remedies and Direction
We find that having answered the reference questions as we have, the applicant is not entitled to any remedy from this Court.
It is hereby ordered that the prosecution of the applicant at the Magistrate’s Court in the Anti-Corruption Court in Criminal Case No 183 of 2010 should proceed. Each party will bear its own costs of this reference.
We so Order.
Dated this 20th day of October, 2014
HON. MR JUSTICE A.S. NSHIMYE, JA/JCC
HON. MR JUSTICE RUBBY OPIO AWERI, JA/JCC
HON. MR JUSTICE KENNETH KAKURU, JA/JCC
HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC
HON. JUSTICE PROF. L. EKIRIKUBINZA-TIBATEMWA JA/JCC