Sunday, August 19, 2012
LEGAL CHALLENGES IN THE LAW AND PRACTICE AT THE ANTI CORRUPTION DIVISION OF THE HIGH COURT
By Jane F Abodo, Principal State Attorney (PSA) (DPP Magazine Volume 1, Issue 4, 2011/2012 ESTABLISHMENT OF THE ANTI CORRUPTION DIVISION The Anti Corruption Division (ACD) of the High Court is a creature of the High Court (Anti Corruption Division) Practice Directions of 2009. It is established under paragraph 3 of the Directions. It focuses on offences provided for under The Anti Corruption Act of 2009. The Act has combined offences previously under 3 Acts, namely The Prevention of Corruption Act, The Leadership Code and The Penal Code. The Act has also repealed the prevention of Corruption Act. It has created some new offences uch as nepotism, influence peddling, sectarianism and illicit enrichment. The Act has also gone further to include corruption in the private sector and not only in public bodies. Currently the ACD is made up of High Court Judges, a Registrar, 1 Chief Magistrate and 3 Grade 1 Magistrate. The DPP’s office (Anti Corruption Court Section – ACCS) is headed by a Principal State Attorney assisted by a Senior State Attorney and 7 State Attorneys. The DPP’s office also has 2 investigating offices attached to it, who do more of witness summoning than investigation. It should be noted that officers from the Inspectorate of Government also have offices at ACD. As noted earlier, the Anti Corruption Division deals with cases under the Act which are generally explained below. FORMS OF CORRUPTION UNDER THE ACT INCLUDE: BRIBERY – Bribery involves the promise, offering or giving of a benefit so as to influence the decision of a member of a public body. It also extends to an offer of a public body who solicits or accepts any gratification for himself or herself of another person so as to influence the decision of that person. EMBEZZLEMENT – Embezzlement involves the theft of a chattel, money or valuable security by a public servant, director or employee of a company, a clerk or servant or a member of an association which is received on behalf of or which belongs to the employer, company or association. CAUSING FINANCIAL LOSS – Causing Financial Loss involves actions or omissions by employees of Government, banks, credit institutions, insurance companies or public bodies who are aware that their actions or omissions would cause financial loss to their employers. DIVERSION OF PUBLIC RESOURCES – Diversion of Public Resources involves the conversion, transfer or disposal of public resources to purposes unrelated to what they were intended for, for personal gain or for the benefit of a third party. ABUSE OF OFFICE – Abuse of office involves a public servant or an employee of a public body or a company in which the government has shares, doing or authorizing to be done an act prejudicial to the interests of his or her employer. NEPOTISM – Nepotism involves the use of one’s office so as to perform favours for any other person on the basis of blood relations between the office holder and the person for whom the favour is done. CHALLENGES ENCOUNTERED IN PROSECUTING UNDER THE ACT One issue that had arisen at the commencement of cases before the ACD was how to deal with corruption offences that had been committed prior to the passing of the Anti Corruption Act (ACA), that is before those under the PCA had been repealed. It has been argued by some lawyers that the continued prosecution of these offences under the Penal Code Act is illegal/unconstitutional as it offends article 28(7) of the constitution because the PCA offences were repealed by the ACA, Article 28 (7) of the constitution provides as follows: “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.” Our view is that the continued prosecution of the PCA offences is not illegal or unconstitutional. This is because at the time the offences were committed they existed under the PCA. Section 13 of the Interpretation Act is clear on this issue as it caters for the effect of the repeal in such cases. Section 13 (2) (e) specifically provides as follows: “Where any Act Repeals any other enactment, then unless the contrary intention appears, the repeal shall not …. (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.” Our practical position on this has been to continue prosecution of cases of embezzlement and similar offences that were preferred in court before the enactment of ACA in the Chief Magistrate’s Courts especially where they are part-heard or pending judgment. These magistrates still have the power to try them. For offences that were investigated after the amendment and are to be preferred in court, we prefer the offences under the new law because it is lawful to do so. Offences that were created by the ACA and were not offences previously and will not at all be preferred under the new Act. If such acts were committed before the ACA was enacted there was no offence committed and no body would be charged in such a case. In view of the above provisions of the law, the repeal of the PCA offences by the ACA therefore did not affect the legal process in respect of offences which were committed before the commencement of the ACA. CAN SOMEONE BE CHARGED UNDER THE NEW ACT FOR AN OFFENCE COMMITTED BEFORE 2008/2009? The Constitutional Court has pronounced itself un Ug Vs ATUGONZA – CR No 31/2010 – “When a Statute is repealed and all or some of its provisions are at the same time re-enacted, the re-enactment is considered reaffirmation of the old law and a neutralization of the appeal, so that the provisions of the repealed Act which are thus re-enacted continue in force without interruption.” So, yes we can charge someone under the new Act for an offence committed before 2008/2009. On charges already before court under the repealed sections of the PCA: We submit that s.13 (e) of the Interpretation Act is very clear and unambiguous. ASSET RECOVERY – For ACD to have proper impact, a message must be sent out that, crime does not pay. There is urgent need to establish an Asset identification and recovery department (both in DPP and Police) to trace and keep track of ill gotten properties and assets of suspects in the course of investigations and in advance of trial. Though there is no law on asset recovery yet, there are a number of sections in the Anti Corruption Act which deal to some extent with asset recovery. The prosecutors and investigators should get into the habit of directing on investigations and investigating both the asset and the crime. However, asste recovery will come with a number of challenges, for proper management of assets confiscated there is need for adequate funding since there is need to preserve the economic value and security of the assets seized. COMMITTAL OF CASES BY THE DPP As regards committal however, S.169 of the MCA gives the DPP discretion to determine which cases should be committed to the High Court and which should remain in the Magistrate Court. For this purpose, the Directorate uses its own internal criteria for cases to be committed. Among these are: The amount of money involved - cases where the subject matter exceeds Ushs.50,000,000 are considered for committal to the High Court. Cases considered to be of public interest are also given consideration for committal. For example prosecution of cases arising from the Global Fund Inquiry. The personality of the accused person(s) is also of consideration. Senior Government officials in the private sector considered to be holding senior supervisory offices would be considered. The complexity of a case also has a bearing on whether a case is committed for trial to the High Court. STATISTICS OF THE ACCS (DPP) In 2011, ACCS handled a total of 403 cases. These are divided into 7 Criminal Appeals, 57 Criminal Miscellaneous Applications completed, 338 Criminal Cases of which 141 were completed and 1 Criminal Revision. More that 75% of the criminal cases handled in ACD were prosecuted by the Directorate and of the cases prosecuted to the end; the conviction rate exceeds 70%.