THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL REFERENCE NO.09 OF 2012

(ARISING FROM CSC NO. 209 OF 2011)

BETWEEN

DR. TIBERIUS MUHEBWA:::::::::::::::::::::: APPLICANT /ACCUSED

VERSUS

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

 

CORAM:   HON MR. JUSTICE S.B.K.KAVUMA, JA/JCC Acting DCJ

HON MR.JUSTICE REMMY KASULE, JA/JCC

HON LADY JUSTICE SOLOMY BALUNGI BOSSA, JA/JCC

HON MR. GEOFFREY KIRYABWIRE, JA/JCC

HON LADY JUSTICE PROF. Dr.  L.E.TIBATEMWA, JA/JCC

 

 

 

RULING OF COURT

This Reference was made upon the request of Counsel for the Applicant in Criminal Case No HCT-OO-ACD-OO C.R.SC 209/2011 at the High Court Anti-Corruption Division (“ACD”) before a Senior Principal Magistrate Grade One on the ground that a question as to the interpretation of Articles 24, 28, (1), (3) a, 44 and 120(5) of the Constitution of the Republic of Uganda (hereinafter referred to as the “Constitution”) had arisen  during the trial at the ACD and that the said question should be referred to the Constitutional Court to be disposed.  The question is:-

“Whether in the circumstances of this case and in the true meaning of Articles 24, 28 (1), (2) and (3)a, 44 and 120(5) of the Constitution, the decision of the Director of Public Prosecution to implement the recommendations of the Commission of Inquiry into Allegations of mismanagement of Global Funds to Fight Aids, Tuberculosis and Malaria, before an Application for Judicial Review by the Applicant challenging the same recommendations is determined, offends his constitutional rights, not to be subjected to torture, a fair hearing and the presumption of his innocence until proved guilty, offends Article 120(5) and is unconstitutional”.

INTRODUCTION

The Applicant was the Project Management Unit (PMU) Project Director of the Ministry of Health. A Commission of Inquiry into the mismanagement of the Global Fund to fight AIDS, Tuberculosis and Malaria, was ordered and conducted from September 2005 to May 2006 and it made a report with findings and recommendations that were said to implicate the Applicant into suspected criminality. The Applicant was dissatisfied with the findings and recommendations of the Commission of inquiry (hereinafter referred to as the “Commission”) and immediately filed an application for Judicial Review in the High Court under Miscellaneous Application No. 150 of 2009, claiming that he was denied a fair hearing and that the Commission was tainted with bias. Before the Court could determine the Application for Judicial Review, the Applicant was charged before the Senior Principal Magistrate Grade One of the  Anti-Corruption Division under CSC N. 209 of 2011 which charges the Applicant claims, arise from the recommendations of the Commission of Inquiry he is already seeking to challenge by way of the Judicial Review and therefore feels that his constitutional rights are being violated and his prosecution would violate Article 120(5) of the Constitution.

 

 

REPRESENTATIONS

At the hearing of the reference, Mr. Blaze Babigumira represented the Applicant while Mr. Kallemera Senor State Attorney represented the Respondent.

SUBMISSIONS OF COUNSEL

1. FOR THE APPLICANT

Counsel for the Applicant submitted that the mandate and functions of the Director of Public Prosecutions (hereinafter referred to as the “D.P.P”) under Article 120 of the Constitution was to control public prosecutions and  that these powers are not open-ended.  Counsel for the applicant submitted that the pertinent question for this Court to address was whether the DPP’s decision “…to implement recommendations of the Commission of Inquiry while the same are being challenged in the High Court [was] in the public interest, the interest of administration of justice and the need to prevent abuse of legal process?”

 Counsel for the Applicant submitted that the DPP’S decision to prosecute the Applicant while the application for judicial review had not been disposed at the High Court is totally unjust, contrary to public interest, an abuse of legal process and is oppressive.  In this regard counsel for the Applicant relied on the case of JIM MUHWEZI Vs ATTORNEY GENERAL  & I.G.G CONSTITUTIONAL PETITION MISC. APPLICATION No.18 OF 2007, which he submitted was on all fours with this application. There Justice Twinomujuni, J.A. (as he then was) allowed the prosecutions and other court actions arising out of GAVI inquiry report involving the applicant in that application to continue but stopped the implementation of the demands on the Applicant to refund the GAVI funds and attempts to punish the Applicant for alleged breach of the Leadership Code Act based on the report until “disposal of the application”. By contrast Counsel for the Applicant in this reference submits that by the DPP prosecuting the present applicant he was in effect implementing the contested findings and recommendations of the Commission.

Counsel for the Applicant submitted that the actions of the DPP above amounted to an abuse of court process. He relied on the case of Regina Vs Humphreys [1977] A.C. 1 for the proposition that it is the cornerstone of court’s power to protect its process from abuse. Counsel for the Applicant also referred to ARCHBOLD Criminal Pleading Evidence and Practice 2006 (pages 347-348) on the same issue of abuse of court process. He also referred Court to the text in BLACKSTONE’S CRIMINAL PRACTICE 2006 (pages 1437-1438) for the proposition that court has inherent power to protect its process from abuse.

Counsel for the Applicant further submitted that for the DPP to continue to prosecute the Applicant before the High Court determined his application for Judicial Review is frivolous, vexatious or oppressive. In this respect Counsel for the Applicant submitted that actions of the DPP infringes Articles 28 (1), 28 (3) (a), 24 and 44 of the Constitution. With regard to Article 44 of the Constitution he submitted that it was not a question of providing evidence as the Article does not create rights but rather there should be no derogation of the rights stated therein.

Counsel for the Applicant submitted in rebuttal that the DPP in exercising his constitutional powers should have regard to the public interest, the interest of the administration of justice and the need to prevent the abuse of legal process. In this regard he referred Court to Article 126 (1) of the Constitution which provides

“…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 the law and with the values, norms and aspirations of the people…”

Counsel for the Applicant submitted that this means that justice should not only be done but be seen to be done. He further submitted that this Court in the public interest cannot allow an injustice/miscarriage of justice to be perpetuated under the cover of exercising the constitutional mandate under Article 120 (6) of the Constitution.

Counsel for the Applicant therefore prayed that this Court allow the Reference and stay the charges against the Applicant in ACD pending the determination for Judicial Review by the High Court.

 

1. FOR THE RESPONDENT

In response to the Applicant’s reference, Counsel for the Respondent submitted that the D.P.P under Article 120 (6) of the Constitution exercises his powers without the direction or control of any person or authority and therefore in prosecuting the Applicant the D.P.P was  not acting in breach of any of the Constitutional provisions as alleged. He further submitted that the DPP did not act upon the recommendations of the Commission but rather the investigations by the Uganda Police Force and the findings as presented before him by the investigating officers which he found sufficient to sustain the Criminal charges as brought against the Applicant.

Counsel for the Respondent submitted that whereas the Applicant has the right to challenge the implementation of the recommendations of the Commission, that does not in any way act to halt his criminal prosecution if the D.P.P. on the basis of the facts before him reaches the conclusion that the applicant ought to be prosecuted for certain crimes.

He further submitted that the Respondent is of opinion that the D.P.P did not breach Article 24 of the Constitution which provides for respect for human dignity and protection from torture or cruel, inhuman or degrading treatment or punishment, and since there was no evidence adduced whatsoever to support the claim, the allegation should be dismissed.

With regard to the alleged breach of Article 28 of the Constitution, Counsel for the Respondent contended that in bringing the Applicant before the ACD the right of the Applicant to a fair hearing is indeed being adhered to and the Applicant’s allegation cannot stand.

Concerning Article 44 of the Constitution, counsel for the Respondent submitted that no evidence was adduced before the court to support the allegations that the Applicant’s rights guaranteed as to freedom from torture cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; right to a fair hearing or to an order for habeas corpus had been violated.

As to the alleged breach of Article 120(5) of the Constitution, Counsel for the Respondent stated that the D.P.P is acting within the powers granted to him under the Constitution, by prosecuting the Applicant.  Counsel submitted that the D.P.P. has sufficient evidence to sustain the charges that involve loss of huge amounts of money that was meant for public benefit.

Counsel for the Respondent submitted that the application for Judicial Review is in no way a bar to the D.P.P to exercise his prosecution powers and no substantive injunctions exist on the exercise of the same. In this regard counsel for the Respondent submitted that an application for Judicial Review is different from a substantive criminal prosecution and that the two can exist parallel to each other.

Counsel for the Respondent also relied on the case of JIM MUHWEZI (Supra) to submit that the ‘no freeze’ was placed by the Court  in that case on the prosecution of the applicant in that case so ‘no stay’ should be allowed with regard to the prosecution of the Applicant in this Reference as well.

He therefore submitted that the Reference be dismissed with costs and that Court orders that the criminal prosecution of the applicant as ordered by the D.P.P to continue.

CONSIDERATION AND DETERMINATION OF THE REFERENCE

This is a Reference regarding the interpretation of the Constitution to this Court under Article 137 (5) of the Constitution from the proceedings at the ACD. Where such a question arises in any Court of law other than a field court martial, that court

“… (a) may, if it is of the opinion that the question involves a substantial question of law; and

       (b) shall, if any party to the proceedings requests it to do so,

Refer the question to the Constitutional Court for decision in accordance with clause (1) of this Article…”

Article 137 (1) of the Constitution, deals with “…any question as to the interpretation of the Constitution…”  The procedure and remedies available are then found in Articles 137 (2), (3) and (4) of the Constitution which is by Petition. It follows therefore that a Reference to this Court under Article 137 (5) of the Constitution is to be handled in the same way as in a Petition under Article 137 (3) of the Constitution.

A reading of Articles 137 (3) and (4) of the Constitution together define the role of this Court in dealing with a Reference like this or any other Constitutional Petition to be where this Court finds

• an Act of Parliament or any other law or anything in or done under the authority of any law or
• any act or omission by any person or authority

is inconsistent with or in contravention of a provision of the Constitution then this Court shall make a declaration to that effect and provide for redress where appropriate. Where the Court considers need for redress in addition to the declaration then this Court may

• grant an order of redress or
• refer the matter to the High Court to investigate and determine the appropriate redress.

The Reference  made in this matter is quite lengthy but Counsel for the Applicant submitted that it can be summarized as whether the DPP’s decision to implement recommendations of the Commission of Inquiry while the same are being challenged in the High Court is in the public interest, the interest of administration of justice and the need to prevent abuse of legal process?

It is the case for the Applicant that the above question should be answered in the negative and furthermore the said decision is inconsistent with and contrary to Articles 24, 28 (1), 28 (3) (a), and 44 of the Constitution. For ease of reference, the Articles indicated above will be outlined hereunder:-

“..24. Respect for human dignity and protection from inhuman treatment.

No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.

28. Right to a fair hearing.

(1)In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

(2)Nothing in clause (1) of this article shall prevent the Court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security as may be necessary in a free and democratic society.

(3)Every person who is charged with a criminal offence shall-

(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty; (this is the cardinal provision relied upon)

Article 44. Prohibition of derogation from particular human rights and
freedoms.

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms-

1. freedom from torture and cruel, inhuman or degrading treatment or punishment;
2. freedom from slavery or servitude;
3. the right to a fair hearing
4. the right to an order of habeas corpus”
5.  

“120. Director of Public Prosecutions

(5). In exercising his or her powers under this article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of legal process.

(6). “….In the exercise of the functions conferred on him or her by this Article, the Director of Public Prosecutions shall not be subject to the direction or control of any person or authority…”

The mischief as this Court understands it is that there is an application for judicial review namely Misc Application No 150 of 2009 Dr. Tiberius Muhebwa V AG currently still pending at the High Court (that is 3 years old) that challenges the Commission Report findings and recommendations that include the prosecution of the present Applicant that has not been disposed of to date and yet, it is asserted for the applicant that the DPP has gone ahead to prosecute the Applicant in bad faith. There is no explanation from the applicant or any other source why the disposal of the application for judicial review has taken that long at the High Court. This has to be remedied as a matter of urgency by that Court.

That notwithstanding, both parties did not address court as to what the Commission actually decided. However excerpts of the Commission’s recommendations are to be found at pages 12-16 of the record of Reference. I shall only highlight relevant parts below relating to criminal liability (without the findings from which they arise)

Page 12 of the record of reference

“… (b) Recommendations

1. The IGG should conduct further and deeper investigations into PMU’s procurements:

• To get evidence of any association between Dr. Jemba and Dr. Muhebwa and the successful bidders/suppliers of the above items with a view to establishing criminal or improper conduct, if any, in these transactions…”

Page 15 of the record of reference

“… (b) Recommendations

1. The IGG should conduct further and deeper investigations into:

• PMU’s Procurement contracts, with a view to establish Dr Muhebwa’s involvement and linkages, if any with Dr Pito Jemba and the successful bidders/suppliers in those contracts; and especially whether Dr Muhebwa personally benefitted from any PMU procurement
• DFCU’s fraudulent foreign exchange transactions with the  PMU, to establish Dr Muhebwa’s involvement and linkages if any with Mr. Robert Katuntu, Mr. Kituuma Magala, and others; and especially whether Dr. Muhebwa personally benefited from any of these transactions
• The overall mismanagement of PMU and poor performance of sub-recipients with a view to determine whether Dr. Muhebwa had any financial, criminal or improper linkages with any sub-recipient of GF Funds, with a view to prosecution of person(s) involved in any frauds, kick backs or other criminal conduct…”

The first point to observe is that the Commission made recommendations and not decisions or orders. The Court’s first impression therefore is, with recommendations, there was a lot of discretion left in the person or authority to whom the recommendations were made to make a final decision. It would therefore appear to us that the decision whether or not to prosecute the applicant was left with the person to whom the recommendations were addressed.

Secondly, the clear reading of the said recommendations of the Commission show that they were addressed to the IGG (Inspector General of Government) and not the D.P.P who is the subject of this Reference.

Article 230 (1) of the Constitution gives the IGG special powers to

“…investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public office…”

Furthermore in the exercise of the IGG’s functions Article 227 of the Constitution provides

“…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…”

The powers of the IGG were the subject of findings of the full bench of this Court in Constitutional Petition No. 10 of 2008 Jim Muhwezi & 3 ors V Attorney General and Inspector General of Government (No 2). In that Constitutional Petition it was contested that H. E. The President had directed the IGG to investigate the Applicant, which was done when the IGG under the constitution was independent of any such direction. The Court held

“…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…” 

We see no reason for this Court to depart from such a finding. It would equally be our finding in this Reference that the Commission rightly made recommendations to the IGG relating to the Applicant because they were not clothed with the power to direct the IGG as to what to do, and even if they did, that direction would have been of no consequence. Other Constitutional Authorities with similar powers of independence include the Judiciary in Article 128 (2); the Auditor General Article 163 (6); the Central Bank Article 167 (2) and District Land Boards Article 241 (2) of the Constitution. 

The wording of Article 120 (6) of the Constitution in relation to the DPP is even tighter than that of the IGG and provides

“….In the exercise of the functions conferred on him or her by this Article, the Director of Public Prosecutions shall not be subject to the direction or control of any person or authority…”

This is because the wording “…and shall only be responsible to Parliament…” in Article 227 of the Constitution for the IGG, are not present for the DPP.  It follows that the DPP is fully independent in its decisions as to whether or not to institute criminal prosecutions against any person regardless of who recommends or directs him or her in this regard.

With regard to this Reference however, no such recommendation was made to the D.P.P, so there cannot be said to be any implementation of a recommendation from the Commission to the DPP as stated in the Reference question. In this regard we are inclined to agree with Counsel for the Respondent that in charging the Applicant in this Reference the DPP must have acted on his own sources. This in our view is fatal to this Reference as the powers of the DPP and IGG are separate and independent of each other. The Applicant in this Reference has erroneously mixed them up.

The above notwithstanding it has been argued that it is an abuse of process for the DPP to commence a prosecution against the Applicant while there was a pending application before the High Court to quash the recommendations of the Commission.

A lot of reliance has been placed on the Jim Muhwezi Application (Supra). However in that application Justice Twinomujuni made the following findings

“…Prosecution of the applicant for the offences I have mentioned above has began at Buganda Road Chief Magistrate’s Court. The charges have been preferred by the IGG and it is the IGG’s office which is conducting the prosecution. The question is: does the prosecution prejudice any constitutional rights of the applicant? It is a fact that the prosecution follows the report of the IGG into the GAVI funds but it could as well have followed a report of the Auditor General or from a police investigation. Even if the GAVI report was for any reason quashed or frozen by court order, the prosecution could legally continue because the success or failure of the prosecution does not depend on the strength or weakness of the GAVI report but on the credibility of the prosecution witnesses who would give their evidence independently of the GAVI report. Even if, in the unlikely event, the applicant was convicted before that application pending in this court is completed, mechanisms do exist in our justice system to extend his bail, to appeal against conviction or to obtain bail pending appeal. I do not think that refusal to grant this remedy would cause irreparable damage to the applicant…”

 

We fully agree with these wise findings of the learned Justice above in that, even though the recommendations of the Commission in this matter were quashed by way of judicial review at the High Court the prosecution could legally and independently continue. The learned Justice in that application further cautioned against stopping criminal trials on account of stating that the trial would not be free and fair and stated that,

 

“…The trial court is capable of fairly and accurately pronouncing itself on the matter without prejudice to the accused. Where any prejudice occurs, the appeal system of this country is capable of providing a remedy. Was it to be otherwise, a situation would arise whereby anyone charged with an offence could rush to the Constitutional Court with a request to stop the prosecution pending hearing his challenge against the prosecution. In due course, this court would find itself engaged in petitions to stop criminal prosecutions and nothing else. This could result into a breakdown of the administration of the criminal justice system and affect the smooth operations of the Constitutional Court. It is for this reason that I decline to grant this remedy…”

 

Indeed that caution weighs heavily in this Reference as well.

 

In the Privy Council decision of Humphreys (Supra) the speech of Lord Salmon is very instructive. Whereas he strongly pointed out that it would be of great Constitutional importance which should be jealously preserved that court should intervene to avoid an abuse of its process and stop prosecutions that amount to an abuse of process; are oppressive and vexatious he observed that such prosecutions are hardly ever brought. He went on to hold

 

“…that a judge has not and should not appear to have responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought...”
 

 

The authors of Archbold Criminal Pleading, Evidence and Practice 2006 (London Sweet & Maxwell 2006 Para 4-57 to 4-64) give a few examples on the subject of misuse and manipulation of the process of court with respect to criminal trials. At Para 4-58 (p352) provides

“…The jurisdiction to stay proceedings on the basis of abuse of process is to be exercised with the greatest caution; the fact that a prosecution is ill-advised or unwise is no basis for its exercise; the question whether to prosecute or not is for the prosecutor; if a conviction is obtained in circumstances where the court, on reasonable grounds, feels that the prosecution should not have been brought, this can be reflected in the penalty…”

The authors of Archbold (supra) then illustrate abuse of court process as follows:-

• It would not be an abuse of court process to prosecute a secondary party for murder when the principal had been convicted of manslaughter and when pleas of guilty to manslaughter had been accepted from secondary parties;
• No man should be punished twice for an offence arising out of the same or substantially the same set of facts and that this in the absence of special circumstances may give rise to the exercise of wider discretion power to stay proceedings;
• It would be vexatious and oppressive to permit the prosecution to pursue charges which were basically the same as those on which the justices had found no case to answer in the previous committal proceedings against the same defendant;
• That in R V Lincoln Magistrates Court, ex parte Wickes Building Supplies Ltd, The Times August 6, 1993, DC it was held that the laying of multiplicity of charges in respect of each Sunday trading breach under Section 47 of the Shops Act 1950, when the lawfulness of that section was being challenged in the European Court of Justice was not an abuse of process.

Such illustrations above are instructive as to what abuse of process would be and we find that actions against the Applicant in this particular situation would not be vexatious, oppressive and or an abuse of court process that warrant the exercise of judicial discretion. That would be placing the bar for judicial discretion too low. It would not also, in our view, be in full conformity  with the exercise of judicial power under Article 126 of the Constitution as accountability for the problems that arose during the Global Fund saga should be balanced with the constitutional rights of the Applicant.

With this background, we shall now consider and resolve whether or not there has been contravention of each Article of the Constitution as stated above.

With regard to Article 24 of the Constitution, the court does not find that the prosecution by the High Court Anti-Corruption Division as directed by the D.P.P is by any means in contravention with this Article and there is no further evidence provided by the Applicant to prove the same and the allegation is therefore dismissed.

With further regard to Article 28 of the Constitution, we find that the High Court Anti-Corruption Division is an impartial Court and if there is no further delay, the Court shall be able to afford the Applicant a speedy and fair hearing. No evidence has been provided to the contrary and as such the allegation of breach of this Article is also hereby dismissed.

On the presumption of innocence, we find that the prosecution at  the High court  Anti-Corruption division is in line with the presumption of the Applicant’s innocence as no sentence can be handed down on him simply based on the recommendations of the investigations of the commission without a trial hearing. This court therefore finds no breach of this right.

With regard to Article 44 of the Constitution, no evidence has been tendered to prove the contravention of the same and since the prosecution is not in breach of Article 28, it follows that the rights of the Applicant under Article 44 are not being infringed and therefore the allegation of breach of this Article is hereby dismissed.

Having found the above in the negative, it follows that the prosecution of the Applicant does not offend Article 120(5) of the Constitution as alleged by the Applicant and therefore the Applicant’s prosecution is not, for that reason unconstitutional.

Remedies:

We answer the question in issue in the negative and hold that the Appellant is not entitled to any remedy from this court. It is hereby ordered that the prosecution of the applicant in the High Court Anti-Corruption Division in Criminal case No 209 of 2011 does proceed. Each party will bear its own costs of this Reference. We so order.

 

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 HON MR. JUSTICE S.B.K.KAVUMA, JA/JCC Acting DCJ

          

…………………………………………………………….

  HON MR.JUSTICE REMMY KASULE, JA/JCC

 

………………………………………………………………………

 HON LADY JUSTICE SOLOMY BALUNGI BOSSA, JA/JCC

 

……………………………………………………………………

  HON MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC

 

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   HON LADY JUSTICE PROF. Dr. L.E.TIBATEMWA, JA/JCC

 

 

 

DATED THIS ___14^th ___ DAY OF  ___February___ 2014