Muhwezi, Mukula and group face Anti-Corruption Court

By John Njoroge

IGG says he is ready for the trial

Three former health ministers Jim Muhwezi, Mike Mukula and Alex Kamugisha and State House aide Alice Kaboyo could be back in the dock following the Constitutional Court ruling that the Inspector General of Government (IGG) has powers to prosecute them on corruption charges.

Their files are ready. Investigations were completed long time ago and we have enough evidence to prosecute the accused persons. Since the Constitutional Court has ruled that this office has the power to prosecute the four, we see no reason to wait any longer, the IGG Raphael Baku told The Independent last week.

The IGG is yet to write to the Anti-Corruption Court to fix the trial date.

In October 2007 they were charged with embezzlement of donor funds from Global Alliance for Vaccines and Immunisation (GAVI). Their alleged crimes include theft, abuse of office, causing financial loss, forgery and uttering false documents.

They challenged the IGG, who had investigated them and was prosecuting them in Buganda Road Chief Magistrates Court. They petitioned the Constitutional Court claiming the IGG lacked such powers.

The trial was suspended pending the decision of the Constitutional Court on the matter.

The Constitutional Court on May 15 ruled that the IGG has powers to prosecute them.

Muhwezi, Mukula, Kamugisha and Kaboyo will now be tried in the Anti-Corruption Court which handles corruption cases following its formation in March 2009. The court is headed by Justice John Bosco Katutsi.

Between 2000 and 2007, Uganda received over US$87 million (about Shs180 billion) from GAVI in support of a National Immunisation Plan. An IGG investigation report in April 2007 accused the three former ministers, presidential advisor Kaboyo and others of gross mismanagement and abuse of the funds. The international community and donors castigated governments lack of action against the people implicated in the abuse of the funds. They pressured the government to prosecute the suspects and seek recovery of Shs1.6 billion.

Muhwezi, Mukula, Kamugisha and Kaboyo said the IGG at that time (Faith Mwondha) could not prosecute them because she had not been constitutionally appointed having not resigned from the Judiciary as a judge. They argued that the investigations she sanctioned were therefore a nullity. They had also contended that the offences on which they were being prosecuted were not defined in the Prevention of Corruption Act 1970 under which they had been charged. They held that they could not be prosecuted on offences which were not defined in law.

In October 2007, the four were charged at Buganda Road Chief Magistrates Court with various offences of abuse of office, theft, embezzlement, causing financial loss, making false documents, forgery and uttering false documents all in connection with GAVI funds which were being administered by the Ministry of Health. The charges were preferred after the Inspector General of Government (I GG) 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 petitioners 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 filed this petition seeking the following: 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 constitution and is a nullity;  an order that the prosecution of your petitioners be discontinued for being inconsistent with the Constitution.

At the hearing of the petition Oscar Kambona represented Muhwezi. Muwema appeared for Mukula, Turyakira represented Kamugisha while Kaboyo was represented by Bob Kasango. On the other hand, the Attorney General was represented by two State Attorneys Margaret Nabakooza and Patricia Mutesi while the IGG was represented by Kasujja and Lwanga who are legal officers in the IGGs office. The following issues were agreed:

(a) Whether the commencement of the investigations by the IGG 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.

Oscar Kambona on behalf of the petitioners submitted that there was sufficient evidence to prove that:-

(a) By a letter written by the president on 21/2/2006, he directed the 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 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 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.

Kasujja who represented the IGG argued that the actions of the president and the IGG did not contravene any article of the Constitution. He submitted that the president was inviting the IGG to use her powers provided under articles 225, 226 and 232 of the Constitution. Kasujja submitted that the IGG Act required the IGG to

: work with the president in order to be effective. The president only requested the IGG to investigate the use of the GAVI funds but 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 œinstructs 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 IGGs 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. We answer this issue in the negative.

Issue No. 2 is whether the appointment of the IGG from the Judicial Bench contravened the Constitution. This issue was

argued by Kasango on behalf of the petitioners. This issue refers specifically to the appointment of Justice Faith Mwondha as the Inspector General of Government. Kasango contended that at the time of her appointment as IGG, she was a sitting judge of the High Court. 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 she did not resign from the High Court as the constitution requires.

The IGG duties 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 judge and at the same time investigate, arrest, prosecute, a role that put her office under the Executive arm of government.

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 a nutshell, the duty of a judge is to adjudicate disputes in society and to interpret and enforce the law. On the other hand the duties and functions of the IGG, include, the powers to investigate, arrest, cause arrest, prosecute, cause prosecution m respect of cases involving corruption, abuse of authority or of public office.

Ruling:  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 on separation of powers and the independence of the judiciary. The answer to whether the appointment of Justice Faith Mwondha to the post of IGG contravened the separation of powers is in the affirmative. To the extent that the appointee was a sitting judge, it was null and void.

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 are not included. The definition does not include embezzlement, obtaining by false pretences, causing financial loss, forgery and uttering  false documents. They asked this court to declare that the IGG has no power to prosecute them for the offences which are contained in the  charge sheet.

Counsel for the respondent 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 article 230(1) of the Constitution gives the IGG the mandate to prosecute all those offences contained in the definition of “corruption” in section two of the Inspectorate of Government Act, 2002.

Ruling: 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. However, with the enactment of the Inspectorate of Government 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.

We have determined 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. We have further held that the IGG has power to prosecute related offences such as theft, fraud, forgery, causing financial loss etc because the definition of the word  “corruption” contained in section 2 of the IGG Act 2005 was expanded to include all offences for which the petitioners are charged with.

The fact that we have found on the third issue that 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 IGG must be separated from its holder. The IGG 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 fulfill 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 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. 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:-

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

article 223 (4) of the Constitution. It does not contravene any other provisions of the Constitution. 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. The prosecution of the petitioners by the IGG did not contravene the Constitution or any other article.

Each party shall bear its own costs.

The judges comprised Deputy Chief Justice Laetitia Kikonyogo, Mpagi Bahigeine, Amos Twinomujuni, Constance Byamugisha and Steven Kavuma.