When crime fighters fight

By Agather Atuhaire

Corruption suspects walk free as government agencies wrangle

All is not well among the three agencies charged with fighting crime and corruption in public office in Uganda; the police, the Directorate of Public Prosecution, and the Inspectorate of Government. Following a spate of losses of corruption cases in which there appeared to be overwhelming evidence against the suspects, the leaders of the anti-corruption bodies are blaming gridlock caused by interference from one another.

The Inspector General of Government (IGG) Irene Mulyagonja made this point on April 16 while appearing before the Legal and Parliamentary Committee of Parliament.

Mulyagonja is lobbying parliament for more powers and more resources so that, among other things, the Inspectorate will be able to defend its decisions in court if required.  Luckily for her, the changes contained in the Constitutional Amendment Bill currently before parliament, among other things, seek to amend Article 233 to give the Inspectorate a corporate status.

Mulyagonja told MPs that everyone expects her to be the one responsible for fighting graft yet the other agencies interfere and frustrate her work.

“We have more than one body investigating corruption, but when there is any blame, it falls on the IGG,” she said.

Then she added: “There is a very live conflict between the Inspectorate and the Uganda Police.  It is an issue that has got to be addressed. Where do the powers of the police start and stop and where does the Inspectorate start and stop?”

That Mulyagonja has clashed with the judiciary, the police and the Attorney General over corruption cases is well documented.

In 2013 she investigated irregularities surrounding the procurement of a contractor for the $2.2 billion Karuma Hydro-power Dam project but her report was quashed by court which ruled that she had no mandate to investigate the issue. Mulyagonja was not happy with the way former Attorney General Peter Nyombi defended the Karuma case and others involving the Inspectorate.

In the same year, she was investigating a top official of the Uganda Development Bank boss after a whistle-blower reported mismanagement and bribery at the bank but she was blocked.

Her latest complaint is over the scam in the Ministry of Public Service in which Shs165 billion is suspected to have been swindled in fictitious payments to phantom pensioners, in a racket involving officials of Cairo International Bank in Kampala.

The case appeared to have collapsed when, on April 13, a magistrate at the Anti-Corruption Court, threw it out because the state had failed to prosecute it. The decision has attracted massive public outcry and led the police and DPP to recommit to prosecuting it.

IGG Mulyagonja says that police interfered with and failed the investigations. But the Director Criminal Investigations and Intelligence Department (CIID), Grace Akullo has also accused some high ranking police officers of taking bribes to frustrate the investigations.

Akullo also complained about a new unit- Crime Investigations Unit created by the Inspector General of Police, Gen. Kale Kayihura was interfering with her work.

DPP complains

The Director of Public Prosecutions (DPP) Mike Chibita has also grumbled over interference and duplication.

He told journalists at the African Centre for Media Excellence (ACME) in December last year that even the donors complain about the seeming duplication of roles and wondered why there are many agencies investigating and prosecuting, especially corruption.

While Chibita says they have no problem with the IGG and have not interfered with her work, he says he is unhappy with the way court interferes with his work.

“There is a trend of criminal suspects running to civil court to stop investigations,” Chibita. He cited the case of pension scam where the civil court blocked prosecution against Cairo Bank officials.

“Someone who doesn’t understand rule of law will say it is a circus because the same government prosecuting is the same releasing criminals,” he said.

Chibita added that much as the DPP gets frustrated, it has no choice but to accept court’s decisions because court is the epitome of the rule of law.

But Mulyagonja wants the Constitutional Court to pronounce itself clearly on these issues.

“DPP has powers from the constitution,” Mulyagonja said, “Court has powers from the constitution. Why is it that one body that is a constitutional body in the civil realm is interfering with another constitutional body in the criminal realm?”

It is not clear, if Mulyagonja intends to pursue the matter in the Constitutional Court.   But allegations of interference and duplication of roles are not new and have, in the past, spilled over beyond borders.

In 2011, when MP Gerald Karuhanga (Youth Western region) tabled in parliament documents accusing senior ministers of taking bribes from oil companies, a committee of parliament was instituted to investigate the matter.

But the committee ran into trouble when it travelled to the countries where the transactions had allegedly taken place – Dubai and Malta, and the authorities there informed them that other teams of Uganda government officials had already been there seeking the same information. Members of parliament’s investigating committee spoke of how the officials in these places said they were surprised that more than three agencies of the same government can travel to the same places seeking the same information.

President Museveni had told journalists that he had heard about the allegations of bribery and had instructed the police and IGG to investigate them.

A study conducted by the Human Rights Watch in 2010 noted that duplication in Uganda’s governance system as a major hindrance to efficiency.

“You have so many people working on the same thing,” said the report, “they aren’t coordinating and because of that they clash.”

What is the problem?

The Human Rights Watch study also points to lack of clarity. The study says the roles of these agencies are not clarified and stressed the need for guidelines on when different agencies are supposed to take on a case.  The institutions of government that accused each other of interference and hindrance are established by the constitution and each is given a mandate and jurisdiction.   The IGG in Article 233 is given mandate to promote and foster strict adherence to the rule of law, to eliminate and foster elimination of corruption, abuse of authority and public office, to promote fair, efficient and good governance in public offices and to supervise the enforcement of the leadership code of conduct.

The police force which is provided for in Article 212 of the constitution is mandated to protect life and property, preserve law and order and to prevent and detect crime.

The DPP according to article 120 of the constitution has the mandate to direct the police force to investigate any information of a criminal nature and report to him expeditiously. The DPP also has the mandate to institute criminal proceedings against any person or any authority in any court, to take over and continue any criminal proceedings instituted by any other person or authority, and to discontinue at any stage before judgment is delivered, any criminal proceedings.

Although officials of the three agencies and some observers say there are overlaps in their roles, the contra-view is that all these agencies are necessary, and the role of each is clear. Instead, some experts say, the problem is with the people holding those offices.

A prominent constitutional lawyer in Kampala, Peter Walubiri, says the country does not need some of the institutions.

“We don’t need so many agencies doing the same work,” he told The Independent in an interview; “We just need to equip a few necessary agencies to handle these matters.  We are having too much government   for nothing.”

But the renowned researcher and policy analyst, Dr. Frederick Golooba Mutebi, says the current clashes have nothing to do with the number of institutions but has everything to do with the lack of clear demarcations of responsibility.

“Every institution has a purpose it was set up to serve,” Golooba said, “the solution doesn’t lie in abolishing them. The solution lies in streamlining and clearly demarcating their responsibilities.”

Golooba says inter-agency conflict happens everywhere. He gives the example of security gaps in Kenya that are being blamed on the conflicting mandate of many agencies.  “Inter-agency rivalry happens everywhere,” he says, “even between the CIA and FBI. The difference only lies in how governments deal with these issues.”

Another Lawyer, David Mpaga attributes the problem to institutional breakdown and poor interpretation of the law. He says the people who drafted the constitution did not make any mistakes in establishing all these agencies but they have been affected by a general institutional breakdown.

Walubiri agrees with Mpanga. He says the law is not a problem but the people who are entrusted to implement it are the problem.

“Unless President Museveni allows the constitution and the institutions it establishes to operate independently,” he says, “we will continue to deal with these problems.”

Walubiri says there is no goodwill to have competent, independent institutions.

Mpanga says that instead of clashing and interfering with each other’s work, these entities should seek clarification and interpretation from the constitutional court.

But Attorney General Fred Ruhindi said in an interview last year, that there are no overlaps but rather lack of cooperation and poor interpretation of the law.

“These clashes shouldn’t arise,” Ruhindi said, “it is unfortunate. These institutions should really interface and make sure that all organs of the state work together.”

Ruhindi also said that what looks like duplication largely happens because the constitution gives right to appeal to people who feel aggrieved and dissatisfied with the decisions of a certain institution. “You can’t deny any party that disagrees with the decisions of a particular institution their right to appeal”, he says, “but whatever these institutions do, they must relate closely to that command of the constitution.”