[2024] UGCC 29

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Buteera-DCJ, C. Barishaki, M. Kibeedi, M. Mugenyi & E. K. Luswata JJCC)

# **CONSTITUTIONAL PETITION NO. 50 OF 2017**

#### **PETITIONER** WILBERFORCE TURYAHABWA $\qquad \qquad \blacksquare\blacksquare\blacksquare\blacksquare\blacksquare\blacksquare\blacksquare\blacksquare\blacksquare\blacksquare\$

### **VERSUS**

# **1. THE ATTORNEY GENERAL 2. THE INSPECTORATE OF GOVERNMENT === RESPONDENTS**

### **JUDGMENT OF RICHARD BUTEERA, DCJ**

I have had the opportunity of reading in draft the Judgment of my learned sister Lady Justice E. K. Luswata, JCC.

I agree with her reasoning, decision and declarations she proposed. I have nothing useful to add.

As Barishaki, Kibeedi and Mugenyi, JJCC members of this Coram also agree that Section 41(1) & (2) of the Anti-Corruption Act, 2009 does not contravene Article 28(3)(a) of the Constitution. Therefore, I find that this Petition has no merit and the same is accordingly dismissed with costs to the Respondents.

Dated this ....................................

Richard Buteera DEPUTY CHIEF JUSTICE


# THE CONSTITUTIONAL COURT OF UGANDA AT KAIVIPALA

(Coram: Buteera, DCJ; Barishaki, Kbeedi, Mugenyi & Luswata, JJCC)

# GONSTITUTIONAL PETITION NO.50 OF 2017

WI LBERFORC E TU RYAHABWA PETITIONER

## VERSUS

1. ATTORNEY GENERAL

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2. THE INSPECTORATE OF GOVERNMENT RESPONDENT

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# JUDGMENT OF MONICA K. MUGENYI. JA

I have had the benefit of reading in draft the judgment of my sister, Luswata, JCC in this Petition. I agree with the decision that the Petition be dismissed on the terms proposed in the lead judgment.

)?)-- Dated and delivered at Kampala this day of 2024.

\*Monica K. Mugenyi Justice of the Gonstitutional Court

. This judgment was signed before the judge relinquished the office of Justice of the Constitutional Court.

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# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

# **CONSTITUTIONAL PETITION NO. 50 0F 2017**

(Coram: Buteera, DCJ; Cheborion-Barishaki, Kibeedi, Mugenyi & Luswata, JJCC)

# **BETWEEN**

# WILBERFORCE TURYAHABWA :::::::::::::::::::::::::::::::: PETITIONER

# **AND**

# 1. ATTORNEY GENERAL

2. THE INSPECTORATE OF GOVERNMENT::::::: RESPONDENTS

# **JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI, JCC**

I have had the benefit of reading in draft the judgment of my learned sister, Hon. Lady Justice Eva K. Luswata, JCC. I agree that this Petition be resolved in the terms she has proposed.

Dated at Kampala, this....................................

**MUZAMIRU MUTANGULA KIBEEDI** JUSTICE OF THE CONSTITUTIONAL COURT

### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

### CONSTITUTIONAL PETITION NO.sO OF 2OL7

#### BETWEEN

WI LBE RFORCE TU RYAHABWA PETITIONER

AND

### 1. ATTORNEY GENERAL

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#### 2. THE INSPECTORATE OF GOVERNMENT RESPONDENTS

(Coram: Richard Buteera DCJ, Cheborion Barishoki, Muzomiru Kibeedi,Monico Mugenyi, Eva K. Luswota, JJCC )

#### JUDGMENT OF CHEBORION BARISHAKI JCC

I have had the benefit of reading in draft the judgment of my learned sister Eva K. Luswata JCC in the above Petition and I agree with the reasons she has advanced and the conclusion she has reached that Section 41(1) and aLQl of the Anti-Corruption Act does not contravene Article 28(3Xa) of the Constitution.

I also agree with the conclusions she has reached on the other issues raised in the Petition and the orders she has proposed.

Clearly, there is no merit in this Petition and I too would dismiss it with costs.

It is so ordered.

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Dated at Kampala this....................................

**Cheborion Barishaki**

JUSTICE OF CONSTITUTIONAL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT I(AMPALA

# CONSTITUTIONAL PETITION NO.sO OF 2OI7

### BETWEEN

### WILBERFORCE TURYAIIABWA : : : : : : : : : : : : : : : : : : : : : : : : : : : PETITIONER

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### AI{D

1. ATTORNEY GENERAL

2. THE INSPECTORATE OF GOVERNMENT:::::::: RESPONDENTS

CORAM:

HON MR. JUSTICE RICHARD BUTEERA, DCJ HON MR. JUSTICE CHEBORION BARISIIAKI, JCC HON MR. JUSTICE MVZAMIRU KIBEEDI, JCC HON LADY JUSTICE MONICA K. MUGENYI, JCC HON LADY JUSTICE EVA K. LUSWATA, JCC o 15

# JUDGMENT OF HON. LADY JUSTICE EVA K. LUSIVATA. JCC

# A brief backqround

1] The facts of this petition are contained in the petition filed in this Court on 22nd December, 2017. In brief, the petitioner states that he is a civil servant attached to the Ministry of Local Government

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⁵ and works as a Principal Systems Analyst. He was on Stt' October 2Ol7 , charged in the Anti-Corruption Division of the High Court (HC Crim. Case No. 99 l2OL7 , Uganda versus Wilberforce Turyahabwa & 4 Ors), with the offences of Embezzlement contrar5r to section 19 of the Anti-Corruption Act, 2OO9 (herein after the AC Act), and false accounting contrary to Section 22 of the same Act. That upon being charged, he was interdicted and committed to the High Court for trial, where he secured release on bail on Stn October, 2017.

2l The petitioner further states that on the 23,a day of October 2OL7, while still under prosecution by the Inspectorate of Government, (hereinafter the IG), the same office directed him to furnish a written statement regarding his income, assets and liabilities. The petitioner formerly protested that request for the reason, firstly that, after his interdiction, he cannot be categorized as a leader under the Leadership Code Act, 2002 and secondly, the request is an attempt by the IG as prosecutor, to violate his right against self-incrimination and presumption of innocence given under Article 28(3)(a) of the Constitution of Uganda. Further, that in a letter dated 15th December 2017, the Inspector General of Government (hereinafter the IGG), citing her powers under Sections 41(1) arrtd 41(2) of the AC Act, issued another formal letter to the petitioner directing him to furnish information under oath of all his assets. 20 25

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- ⁵ 3] The petitioner alleges that the impugned sections of the AC Act are also inconsistent with Article 28(4) of the Constitution in so far as there is compulsion against an accused person to make a confession on oath which amounts to self-incrimination and would assist the prosecutor to prove charges against him. The petitioner contends that he has a right during his prosecution to be presumed innocent with no duty to prove his innocence. He has thereby sought declarations that Section 41(1) and 41(2) of the AC Act 2009, be declared inconsistent with Article 28(3)(a) and a(a) of the Constitution of the Republic of Uganda 1995. He thus petitioned this Court seeking the following declarations. 10 15 - a) Section 4L(1) and 4l(2) of the Anti Corruption Act,2OO9 are inconsistent with Articles 28(3)(a) of the Constitution of the Republic of Uganda, 1995. - b) Section 4L(1) and 4L(21 of the Anti Corruption Act, 2OO9 be struck off the Statue books. - c) The Respondents pay costs of this petition. - 4l The petition was supported by an affidavit sworn by the petitioner. He deposed to facts most of which we have related in the brief background above and therefore, I shall not repeat them here. - 5l The respondents opposed the petition. The lst respondent filed an answer to the petition supported by the affidavit of Ms. Amusugut Jackeline a State Attorney in the chambers of the Attorney General. The 2"a respondent also filed an answer to the petition 25

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⁵ supported by the affidavit of Ms. Irene Mulyagonja Kakooza, who at the material time held the post of IGG.

- 6l In their answer to the petition, the 1"t Respondent contends that the petition does not raise any issues for interpretation of the Constitution and that the Declaration of Incomes, Assets and Liabilities is a mandatory requirement under Section 4A of the Leadership Code (Amendment Act) 2OL7, which does not violate the petitioner's right to presumption of innocence and silence guaranteed by Article 28(3) of the Constitution. It is their view that the request for the information by the IGG does not result into self-incrimination of the petitioner, nor is it inconsistent with the Constitution. They however concede to the argument that the petitioner is presumed innocent of all charges until proven guilty, but contend that a request for information by the IGG, would not remove that right. - 7l The 2"a respondent in its answer to the petition also contended that the petition does not disclose issues for constitutional interpretation. They contended further that a request for information was made to the petitioner under the AC Act, and that having pleaded not guilty to the charges for which he is being prosecuted, furnishing of that information to the 2"a respondent does not compromise the petitioner's innocence during the criminal trial especially when the sworn statement for better particulars can be prepared with guidance of counsel, in order to emphasize correctness of the content.

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o ⁵ 8l That it is within the power and mandate of the IG to summon any person to record a sworn statement and that such methodologr is neither irregular, nor inconsistent with any provisions of the Constitution. Further, that the petitioner's interdiction and prosecution is lawful and therefore, they envisage no prejudice against the petitioner if he furnished the sworn statement under the AC Act, 2OO9. They contend further that the AC Act was enacted with objectives of combating cormption and promoting good governance, and striking out the impugned sections will defeat the spirit and purpose for which it was enacted.

9l In her affidavit, Ms. Mulyagonja Kakooza, repeated much of what was stated in the formal reply by the IG. She emphasized that notwithstanding the preferred criminal charges against the petitioner, the IG is conducting more investigations in IG case Reference No. HQT/ LS I LO / 15(1) and it is their mandate to summon and record statements which methodolory is not irregular or inconsistent with any provisions of the Constitution. And with specific reference to the petitioner, that furnishing the information required did not compromise the petitioner's innocence during trial especially when he had previously selfrecorded statements on oath during information gathered by the IG in another trial in which he was a co-accused. That in fact, according to Section 41(3) of the AC Act, the petitioner will be permitted to grve an explanation or amplification of that statement, which is admissible in evidence. That in any case, the petitioner who was represented at his trial did not disclose the

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⁵ prejudice he would suffer or how his innocence will be affected if he complied with the IGG's request.

1Ol Ms. Mulyagonja contended further that it is in public interest that sections 41(1) and (2) as some of the operational provisions of the AC Act are not struck out in order to satisfy individual interests of people like the petitioner who are being prosecuted in the Anti-Corruption Court. On the whole, she considered that the impugned provisions do not conflict with or are not inconsistent with any of the provisions of the Constitution. She considered the petition to be misconceived and ill founded, and prayed for its dismissal with costs.

#### Repreqent4tjion

111 At the hearing of the petition, Mr. Okong Innocent appeared for the petitioner, while Ms. Charity Nabasa a Senior State Attorney appeared for the l"t Respondent. On the other hand, Ms. Nabbale Hasipher, Supervisor Litigation in the Inspectorate of Government, appeared for the 2"d Respondent.

# 2s Grounds of the appeal

L2l I have observed from the record that there was no conferencing to enable the parties come up with uniform issues for determination by this Court. As a result, each party has formulated its own issues in their respective submissions. However, for consistency, and with due regard to the proceedings and evidence filed, I will come up with issues that this Court will use to resolve the petition. Those should be:

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- 5 1 Whether the petition raises any question for constitutional interpretation. - ii Whether Section 41(1) and (2) of the Anti- Corruption Act, contravenes or is inconsistent with Article 28(3)(a) & (a) of the Constitution of Uganda 1995. - ¹⁰ What remedies are available the parties? 111 - 13] The petitioner and the 1st respondent have raised preliminary points of law in their respective submissions. I will address those first. The objection raised by the 1st respondent points to an issue of locus standi. - 15

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# Obiection by the l"t Respondent

L4l The 1"t respondent counsel raised a preliminary objection to the effect that the 2"d respondent is not a proper party to this petition as it has no corporate status or legal capacity conferred upon it by any law passed by Parliament. For guidance, counsel referred to the case of Sentiba Gordon & 2 Others versus The Inspector of General of Government, Civil Appeal No. O6 of 2OO8. Counsel then contended that the mandate to represent Government is exclusively bestowed upon the Attorney General under Article Il9(4) of the Constitution and Section 10 of the Government Proceedings Act. She submitted in conclusion that by suing the 2"d Respondent, the Petitioner is depriving the l"t Respondent of its representative capacity. She prayed that the 2"d Respondent be struck off the record and the 1"t Respondent be allowed to defend the matter as required under the law.

# s Response to the preliminarv obiection bv the 2"a Respondent

151 In response, the 2"d Respondent's counsel referred to the Supreme Court decision of Attorney General and Inspectorate of Government v Afric - Cooperative society Limited r 2Ol4 UGSC 6 125 March 2OL4l in which the powers of IGG were discussed in detail. Counsel argued that the facts there were specifically distinguished from the Gordon Sentiba case. In her view, the l"t respondent had not shown that they had suffered any injustice by the inclusion of the 2',a Respondent in the action before us. She prayed that we disregard the objection and instead consider the merits of the petition.

### Analysis and decision of Court

- ²⁰ 161 The issue to be determined in this preliminary objection is whether tl:..e 2nd Respondent is a proper party included in this petition. - L7l Article 225(1) of the Constitution of the Republic of Uganda provides for the functions of the IG. Those functions shall be prescribed by Parliament and include the following: - i. to promote and foster strict adherence to the rule of law and principles of natural justice in administration; - ii. to eliminate and foster the elimination of corruption, abuse of authority and of public office; - iii. to promote fair, efficient and good governance in public offices;

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⁵ lV. subject to the provisions of the Constitution, to supervise the enforcement of the Leadership Code of Conduct; to investigate any act, omission, advice, decision or recommendation by a public officer or any other authority to which this article applies, taken, made, given or done in exercise of administrative functions;

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- V to stimulate public awareness about the values of constitutionalism in general and the activities of its office, in particular, through any media and other means it considers appropriate. - 15 20 181 Additionally, Article 225 (21 confers upon the IG the investigative powers of any complaint placed before them, which power can be effected on its own initiative, or upon complaint made to it by any member of the public, whether or not that person has personally suffered any injustice by reason of that matter. According to Article 227 of the Constitution and Section 10 of the Inspectorate of Government Act 2OO4, (hereinafter IG Act), the IG acts independently of any other office or person save for some degree of control by the Parliament. - 25 191 Clearly Articles 225 and 227 of the Constitution and Section 10 of the IG Act do not in any way confer legal capacity upon the 2"a respondent to sue or be sued. When discussing the powers of the IG in that respect, the Supreme Court held in the case of Sentiba Gordon & 2 others v Inspectorate of Government (supra! as follows: 30

... There is no provision in the Constitution, the *Inspectorate of Government Act or any other law which* confers corporate status on the respondent and it would be wrong for the Court to confer such status on the *respondent when Parliament in its wisdom did not find* it necessary to do so for effective enforcement of the powers of the respondent. However, Parliament has power to review the matter and confer corporate status *on the Inspectorate of Government.*"

The Court agreed with her earlier decision in John Ken 15 **Attorney** General and Lukvamuzi versus Another **Constitutional Appeal No. 2 of 2007**, in that regard.

201 I have observed that the $2^nd$ Respondent referred to the case of Attorney General & Inspector General of Government v Afric - Cooperative Society Limited (supra). I agree with the submission that the case is distinguishable from the facts in the **Sentiba** case. In **Sentiba** (Supra) the Court rejected the IGG's application requesting Court to allow her to investigate civil matters pending before the Court for being contrary to the clear provisions of the law that limit the IGG in that regard. On the other hand, in Attorney General & Inspector General of Government **v Afric – Cooperative Society (Supra),** there were no proceedings before the Court in respect of HCCS No. 84 of 1981 by the time the IGG was requested initially by the President of Uganda, and later, by the Ministry of Finance, to look into the validity of claims which had been made by Afric Coop involving colossal sums of money. In so doing, the IGG was acting under powers vested in it under Article $225(1)(e)$ and (2) which gives it authority to

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⁵ investigate any matter referred to under Sub Article 1, by any person or on its own volition.

2Ll Clearly the circumstances of the current petition are in line with the case of Sentiba Gordon (Supral and not Attorney General & Inspector General of Government v Afric Cooperative Society (Supra). The 2"a Respondent had no capacity to be sued in this petition and need not have appeared to contest the petition. It is the Attorney General who has the constitutional mandate derived from Article 119(1) and 119(4) (c) of the Constitution. Although the petitioner's claim is levied principally against the IGG, it was sufficient for the Attorney General to be sued in this petition to represent both the Government and the IG.

221 I therefore find merit in the preliminary objection raised by the l"t Respondent, and it is allowed. The 2"d Respondent is accordingly struck off the petition.

## Obiection by the Petitioner

231 The Petitioner raised an objection to the effect that the individual who swore the affidavit on behalf of the 2"a Respondent had no authority to do so without first seeking permission of the two Deputy Inspectors General of Government (DIGG). Counsel contended that the deponent had to seek the consent of her two deputies which she did not do, thus rendering her affidavit incompetent. He prayed that the affidavit be struck off the record. 30 25

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⁵ 241 In response, 2nd Respondent's counsel contended that the petitioner raised the preliminary objection devoid of any provisions of the law to back it. She contended further that counsel did not clarify how the consent of the two DIGG could have been obtained. Citing Rule 23 of the Rules of this Court, she argued that Order 19 rr 3 of the Civil Procedure Rules would apply in this case. That provision permits a deponent to depose to facts in their knowledge and would not therefore require the consent of the DIGG. That in fact, the charge sheet upon which the petitioner was indicted was consented to by the IGG without her two deputies signing it, a fact that attracted no objection from the Petitioner. She accordingly prayed that the objection be rejected with costs 10 15

### Analysis and decision of Court

25) I have when resolving the objection raised by the l"t Respondent struck out the 2.'d Respondent, and with it, their pleadings and evidence. I therefore consider this objection to be moot. I will make no finding on it and shall instead turn to the grounds of this petition which are now raised against the l"t Respondent only. 20

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#### Issue one

# ItrIhether the petition raises anv question for constitutional interpretation

- 30 - 261 The Respondent objects to the petition on the ground that the petition does not raise any questions or issues for constitutional interpretation by this Court. They consider the petition to be merely speculative, misconceived and ill founded. Conversely, the

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⁵ petitioner contends that the petition falls within the ambit of Article 137 of the Constitution. However, Mr. Okong conceded that not all violations merit the intervention of the Constitutional Court but that for a petition to succeed, the petitioner must show that the allegations made give rise to the interpretation of the Constitution and for appropriate declarations. Mr. Okong relied on the cases of Phittip Karugaba v Attorney General, Constitutional Petition No. 11 of 2OO2r Ismail Sserugo v KCC Constitutional Appeal No. 2 of 1998, AG v Tinyefuza, Constitutional Appeal No. 1 of 1998 and Charles Kabagambe v Uganda Electricity Board Constitutional Petition No. 2 of L999, to support his arguments.

271 Mr. Okong contended further that the acts of the Respondent do not merely contravene Article 28(3) of the Constitution, but are also a violation of the constitutional principles of legality in regard to the presumption of innocence, and therefore, require interpretation as provided in Article 137(3)(b) of the Constitution. He emphasized that in this case, the Court is being called upon to determine the meaning of Articles 28(3)(a), 9(c) and (a)(a) of the Constitution alleged to have been violated, and whether the conduct complained of has actually violated those Articles. That the Petitioner in addition seeks a declaration and redress to that effect.

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- ⁵ 281 The issue for determination is whether the petition raises any Constitutional questions for this Court's determination and interpretation. Similar to other civil proceedings, the burden of proof to prove it, rests with the Petitioner and once that burden is discharged, the State or Respondent must rebut it, or justify a limitation, if any. See; Charles Onyango Obbo and Anor v Attorney General,l2OO4l UGSC 81. 10 - 291 This Court and the Supreme Court have on numerous occasion been tasked to address that issue. There is as a result a wealth of decisions to provide reliable guidance. Setting out the established principles of constitutional interpretation, will be a good start. It is provided in Article 137(1) of the Constitution that:

"anA questions as to the interpretation of this Constitution shall be determined bg the Court of Appeal sitting as th.e ^Co nstittttional C ourt. ^o

Article 137 (3)(a) and (b) provide that;

"A person who alleges that an Act of Parliament or anA other law or angthing in or done under the authoritg of anA law or anA a.ct or omission bg qnA person or authoritg, fs inconsistent with or in contrauention of a prouision of this Constittttion, maA petition the constitutionql court for a declqratioru to that effect, and for redress where appropriate."

The remedial provision is Article 137(a)(a) and (b) which provides that:

"Where upon determination of the petition under clause (3) of this article the constihttional court considers that there is need for redress in addition to the declaration

o sought, the constitutional court may grant an order of redress or refer the matter to the High Court to investigate and determine the appropriate redress."

#### In Davis Wesley Tusingwire v Attorney General, [2017] UGSC 30]

**11.** She held as follows:

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- $i.$ "The constitution is the Supreme law of the land and" forms the standard upon which all other laws were judged. Any law that is inconsistent with or in *contravention of the Constitution is null and void to the* extent of its inconsistency (see Article 2 $(2)$ of the *Constitution). Also see* **Presidential Election Petition** No. 2 of the 2006 (SC) Rtd Dr. Col. Kiiza Besigye v Y. K. Museveni. - *In determining the constitutionality of a legislation, its* ii. and effect must he taken purpose into consideration. Both purpose and effect are relevant in determining the constitutionality of either effect animated by the object, the legislation intends to achieve. Also see Attorney General v Silvatori Abuki Constitutional Appeal No. 1988 (SC). - iii. The entire Constitution has to be read together as an integral whole with no particular provision destroying *the other but each sustaining the other. This is the rule* $of$ *harmonu.* the rule *of completeness* and exhaustiveness. (Also see P. K. Ssemwogere and Another v Attorney General Constitution Appeal No. $of$ **2002** $(SC)$ $and$ **The** $\boldsymbol{1}$ **Attorney** General of Tanzania v Rev Christopher Mtikila $(2010)$ EA 13. - *A Constitutional provision containing a fundamental* iv. *human right is a permanent provision intended to cater* for all times to come and therefore should be given *dynamic, progressive liberal and flexible interpretation*

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keeping in view the ideas of the people, their social economic and political cultural values so as to extend the benefit of the same to the maximum possible. See also Okello Okello John Livingstone and 6 others $v$ The Attorney General and Another Constitutional Petition No I of 2005.

- *Where words or phrases are clear and unambiquous,* $\mathbf{v}$ . they must be given their primary, plain, ordinary or natural meaning. The language used must be construed in its natural and ordinary sense. - *Where the language of the Constitution or a statute* vi. sought to be interpreted is imprecise or ambiguous, a liberal, general or purposeful interpretation should be given to it. (See also **Attorney General v Major David** Tinyefunza Constitutional Appeal No. I of 1997 $(SC)$ . - *The history of the country and the legislative history of* vii. the Constitution is also a relevant and useful quide to Constitutional Interpretation See also (Okello John Livingstone and 6 others v Attorney General and **Another** (Supra). - *The National objectives and Directive principles of state* viii. policy are also a quide in the interpretation of the *Constitution. Article* of the Constitution $8A$ $i\mathrm{s}$ *instructive for applicability of the objectives.* - 30

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$31$ Additionally, the petition so filed must disclose a cause of action. In Baku Raphael Obudra and Obiga Kania v Attorney General, **Constitutional Appeal No. 1 of 2003**, Justice Mulenga cited with approval the decision in **Ismail Serugo v Kampala City Council** & Attorney General, Constitutional Appeal No. 2 of 1998 and held that;

"a petition discloses a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or alleged to have contravened by the act or *omission, and prays for a declaration to that effect.*

Even then, a mere allegation by a Petitioner that an act or acts of a Respondent is in breach or inconsistent with the Constitution is not sufficient to trigger the jurisdiction of this Court. The petitioner must show that there is need to interpret a certain provision of the Constitution in its whole context *visa* $-a$ -*vis* that of any other statutory law or act or omission, and by doing so, determine whether or not the statutory provision or act or omission is in contravention of the Constitution.

32] In the more recent decision of **Foundation for Human Rights** $20$ Initiative v Attorney General, Constitutional Petition No. 53 of 2011, followed with approval in Geoffrey Nangumya v Attorney General & 2 Ors, Constitutional Petition No. 1 of 2021, Hon. Justice Christopher Madrama, JCC went to great length to explain the meaning of the phrase; He had this to say: $25$

> "The mandate of the Constitutional Court only arises where there is a doubt or precisely, a dispute as to the meaning of an Article or Articles i.e. a question as to interpretation........ *An allegation of inconsistency with an article of the Constitution can fulfil the requirements of Article 137(3) of the Constitution but it is not sufficient on the face of it to merely* allege breach or inconsistency with an Article or Articles of the Constitution by any act, omission or law. For the *Constitutional Court to have jurisdiction, such an allegation* must have in it a controversy as to interpretation of the

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Constitution of the Republic of Uganda. It follows that the question before court should involve a controversy about interpretation before the Constitutional Court assumes *jurisdiction in the matter.* (Emphasis applied)."

### Also see: Wycliffe Kiggundu v The Attorney General, Civil 10 Appeal No. 27 of 1993 and Tumukunde v The Attorney General and Another [2005] 2 EA 291 at 293.

331 The Petitioner seeks in his petition interpretation as to whether Section 41(1) and 41(2) of the AC Act, 2009 is inconsistent and/or 15 contrary to Article 28(3) and (4) of the Constitution in as much as $\frac{1}{2}$ the said sections violate his right to the presumption of innocence and silence as guaranteed in the Constitution. The Petitioner contends that by requesting him to furnish certain information on oath under Section $41(1)$ and $41(2)$ of the AC Act, the IGG is compelling him as an accused person facing criminal charges, to make confessions on oath, thereby bolstering the IGG's case as prove those charges, which removes prosecutor to his constitutional right to remain silent, as well as the resumption of innocence. $25$

341 Applying the principles above, we agree with the arguments raised for the Petitioner. The Court is being called upon to determine whether the acts of the IG amounts to a violation of Article $28(3)$ of the Constitution. The Court is in addition tasked to resolve a controversy as to the import of that constitutional provision $v$ is $a$ *vis* the rights of one facing prosecution for anti-corruption related charges and the legal burden on them to provide certain

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- ⁵ information on requirement by the IG. To that extent, the petition on the face of it discloses a cause of action for constitutional interpretation and we shall need to apply the principles of constitutional interpretation to resolve it. - 351 I therefore resolve the first issue in the affirmative and will proceed to consider the main dispute. 10

### Issue two

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### Whether Section 41(1) and (21 of the Anti- Corruption Act.2OO9 is inconsistent with Article 28(3Xal & (41 of the Constitution. 15

## Submissions the Petitioner

36] By way of introduction, Petitioner's counsel, Mr. Okong Innocent reiterated certain established principles of criminal trials. He in particular referred to Article 28 (3)(a) and 28\$l(a) of the Constitution and stated that the burden of proving a criminal offence lies with the prosecution as mandated by the Constitution. He emphasized that the burden does not shift as the accused can only be convicted on the strength of the prosecution case and not the weakness of his defence. For reference, he cited (inter alia) the case of Ssekitoleko v Uganda 11967l EA 531 and Miller vs Minister of Pensions lL947l 2 ALLER 372. He then submitted that the standard of proof in criminal cases is beyond reasonable doubt which however, does not mean proof beyond a shadow of doubt. For guidance he referred to Section 1O1 of the Evidence Act and Woolmington v DPP (1935) AC 462.

- ⁵ 371 Mr. Okong submitted further that Section 41(1) of the AC Act as interpreted by the IG, creates an undue burden on the accused/ petitioner in a criminal trial to provide information for the prosecution case. In his view, the impugned provision is inconsistent with Article 21(1) of the Constitution which guarantees that all persons are equal before and under the law, because accused persons being prosecuted under the AC Act are treated differently from other categories of accused persons. In his view, the defense of silence is available to any accused person whether a public official or not, or whether they are prosecuted by the KCCA, IG, DPP, URA, or UPDF in the Court Martial. Counsel then drew Court's attention to the decision of the US Supreme Court in Brady vs Maryland,373 U. S 83 (1963) where it was held that the prosecution is obliged to avail exculpatory evidence to the defense, even if the defense is not aware of it, the logic being that the prosecution bears the burden to disclose all evidence it collected and intended for use during the prosecution proceedings. That there is no reciprocal duty on the defence in that regard, and the accused person has a right to remain silent and say nothing in their defence. 10 15 20 - ²⁵ 3Bl With regard to the right to remain silent, counsel referred to the case of Miranda v Atizona 384 U. S 436 (19661 where the US Supreme Court held that an accused person has the right to remain silent as any evidence he avails can be used against him in Courts of law. Counsel then submitted that by initiating ^a criminal prosecution against the petitioner, the IG relinquished its right to request for any material from him for it had by doing so, 30

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⁵ fully assumed the burden of proof. In that regard, Mr. Okong considered the Petitioner's prosecution as premature; one carried out without a proper investigation. In his view, after realizing that it had a weak case, the IG attempted to use threats aimed at bullying the Petitioner into self-incrimination which amounted to fraud or deception. For guidance, he referred to the Supreme Court decision of Fredrick Zaabwe v Orient Bank & Others Criminal Appeal No. 4 of 2o,0,6.

391 Counsel also alluded to forgery as created under Section 342 of the Penal Code Act. He in that regard cited two decisions; Re-Windor (19651 1O Cox 118 and lVelham v Director of Public Prosecution [196U AC 1O3, 125 that discussed the offence of forgery. In his view, the IG's requests for information from the Petitioner was an attempt to deceive unsuspecting members of the public that the right to remain silent in a criminal trial is reserved for some, but not all accused persons, which would be unequal treatment before the law, and thus a violation of Article 21(1) of the Constitution. He further opined that the consequence of a prosecution and conviction made in contravention of section a1(1) AC Act, would remove the standard defence for an accused to remain silent and avoid self-incrimination. 15 20

401 He argued further that as a Government agency, the IG has a wide range of tools available to it to obtain the information it required from the petitioner. He cited for example the third party doctrine by which the IG as a Government agency can access information from other sources e.g. the Land Registry or Uganda Registration

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⁵ Services Bureau (hereinafter URSB). That in this case, for as long as the threat of prosecution of the petitioner remains, he has no obligation to release any information to the IG.

- 4Ll Counsel argued in the alternative that the Petitioner could voluntarily offer any information once the threat of prosecution was removed or, if they pleaded guilty. For guidance counsel cited the case of Common Wealth of Pennyslavania v Billy Cosby 252 A. 3d LO92, where the US Supreme Court vacated the conviction of Mr. Cosby whom a prosecutor had promised he would not criminally prosecute in exchange for Cosby's testimony in a civil case. The Court reasoned that Cosby would not have given up his right to remain silent had he still been under threat of criminal prosecution. Counsel concluded this point by submitting that if the IG intends to benefit from the impugrred provisions of the AC Act, then it may have to withdraw the criminal proceedings against the Petitioner. - 421 In conclusion, counsel submitted that Section 41(1) of the AC Act is inconsistent with Article 28(3) & (4) of the Constitution and that the law should be applied by allowing any parties interested in seeking third party information on accused persons to obtain information through Courts of Law, and not directly, as envisioned in Section aLQ) of the AC Act.

# l"t Respondents submissions

431 In response, Ms. Charity Nabasa was in agreement that the petitioner has challenged the constitutionality of the impugned sections. She then referred to Article 79 of the Constitution which

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⁵ gives Parliament powers to make laws, and through which the AC Act that provides for the effectual prevention of corruption in both the public and private sector, was enacted.

441 Ms. Nabasa then drew Court's attention to Paragraph 5 of Ms. Mulyagonja's affidavit wherein she stated that the petitioner received both cash payments and credits into his Bank Account No. 3O LOOO327 5 at the Centenar5r Bank, after which he submitted falsified accountabilities resulting into his prosecution vide Criminal Case No. 99 of 2Ol7 , at the Anti-Corruption Division of the High Court. Ms. Nabasa insisted that the letter/ request to furnish information on oath, was premised on Section 41(1) and (21 of the AC Act. She considered as correct Ms. Mulyagonja's testimony that sworn statements are one of the methodologies used by the IGG when carrying out investigations by the IG and that the petitioner had equally self-recorded statements on oath in IG Case Reference No. HQT/ L5/LO/15(1) pursuant to Section 25(2) and Section 26(1)(b), (2) of the Inspectorate of Government Act 2OO2 (hereinafter IG Act).

45] Counsel submitted further that the foregoing evidence and averments are consistent with the provisions of Article 230 of the Constitution which provide for the special powers of the IG. For further guidance, counsel referred to Sections 14(1), (2), (5) and (6) of the IG Act, 2OO2 and submitted that the IGG has special powers pursuant to Article 230 of the Constitution and Section 14(5) of the ISP Act to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases

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⁵ involving corruption, abuse of authority or of public office. She for that reason considered the Petitioner's allegations as being misconceived.

461 Ms. Nabasa similarly cited Article L37 of the Constitution then submitted that the entire Constitution has to be read together as an integral whole with no particular provision destroying the other but each sustaining the other. She referred to this as the rule of harmony, completeness and exhaustiveness, and in that regard cited the decisions of P. K. Ssemwogerere and Another v Attorney General, Constitutional Appeal No. 1 of 2OO2 (SCl and Attorney General of Tanzania v Rev Christopher Mtikila (2O1O) EA 13. She then submitted that although Section aLQ) of the AC Act gives the DPP and IGG powers to obtain information with sanctions of prosecution and attendant penalties for failure to comply, that by itself does not limit the Petitioner in the enjoyment of his constitutional rights as claimed. In her view, the impugned provisions are limitations that are acceptable in a free and democratic society. She cited the decision of the Supreme Court of Zimbabwe of Mark Gova Charmnduka & Another v Minister of Home Affairs & Another Supreme Court, Civil Application No. L5,6199 in that regard. She in addition moved the Court to consider the objective and purpose of the AC Act, which is found in the preamble and for emphasis, cited the decision of Uganda vs Atugonza Francis, Constitutional Reference No. 31 of ?OLO, in that regard.

o ⁵ 471 Ms. Nabasa contended that the constitution is the Supreme law of the land and has binding force on all authorities and persons throughout Uganda. That as the primary legal instrument, the Constitution contains provisions on measures, concepts and institutions that are geared to preventing, monitoring and combating corruption. She added that under the National Objectives and Direct Principles of State Policy, (NODPSP), the Constitution stipulates that the State and citizens of Uganda are to "preserue and protect and promote a qilture of preseruing public propertg" and that all measures should be undertaken to eradicate corruption and abuse of office or misuse of power by those in public office. She in particular referred to Article 2(Ll of the Constitution, Objective XXV and Objective XXVI. Leveraging upon those provisions, counsel continued that the Constitution mandates all public offices and those in positions of leadership as answerable and accountable to the people of Uganda by preserving and protecting public property and to combat corruption. She in conclusion made reference to Article l7(1)(d) of the Constitution, and Section 2 (a) and (b) of the AC Act, to contend that it is in the public interest that the impugned provisions are not struck out. 15 20

48] Ms. Nabasa additionally moved the court to apply the proportionality test. She explained that the limitation imposed on a right must be proportionate to the objective pursued, and that the principle or test seeks to determine whether, by the state action, there has been a balance between protecting rights and freedoms of the individual, and interests of society as a whole. In her view, the use of sanctions such as those contained in Section 25 30

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- ⁵ 4l(2l,of the AC Act is quite proportional and not arbitrary, unfair or based on irrational considerations. - 491 Ms. Nabasa in addition submitted that a law that seeks to limit or derogate from the basic rights of the individual on grounds of public interest, will be saved by Article 43 of the Constitution, if it satisfies two essential requirements. Firstly, that such a law must be lawful in a sense that it is not arbitrary, and secondly, that the principle of proportionality requires that such a law must not be drafted too widely so as to net everyone to include the untargeted members of society. She referred to the decision of Charles Onyango Obbo & Another v Attorney General l2OO4l UGSC ¹ 1O February 2OO4) in that regard. In her opinion, the punishment on conviction of a term of imprisonment not exceeding three years, or a fine not exceeding sevent5r-two currency points or both, is clear and unambiguous. Further that, when read together with Section 41(1) of the AC Act, it is specific to the members in society that are targeted.

5Ol Ms. Nabasa further conceded that Article 28(3)(a) of the Constitution provides for the presumption of innocence and cited the U. S Supreme Court decision of Bell vs Wolfish, 441 U. S 52O ll979l in that regard. She insisted however that the right should be construed together with the other constitutional provisions and also that the law may require an accused person to prove certain facts within their peculiar knowledge, which would not be inconsistent with the presumption of innocence, or shift the burden of the prosecution to prove a case beyond reasonable

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- ⁵ doubt. She in that regard referred to Article 28(a)(a) of the Constitution which permits the law in certain cases to impose the burden of proof on a person that is charged with a criminal offence. Counsel then contended that Article 28 l4l (a) has to be read together with Section 105 of the Evidence Act which amounts to an exception to the general rule of proof in criminal matters. For guidance, counsel referred to Nalongo Naziwa Josephine v Uganda, SCCA No. 35/2OL4 and Taylor v Kentucky, 43,6 U. S. 47A (1e78). 10 - 511 Ms. Nabasa explained that stemming from the authorities above, the presumption of innocence requires more than mere suspicion. It also implies that even if one is presumed innocent, it does not remove the burden required of them to prove particular facts, and therefore, the IGG's constitutional mandate is consistent with the provisions of Article 28\$)(al of the constitution. In addition, counsel referred to Section 4L(3) of the AC Act which provides that the DPP or the IGG may, in the course of any investigations into or relating to an offence under the Act, invite any person who has given a sworn statement to give an explanation or amplification of that statement, if he or she considers that it is necessary or desirable to do so. 15 - 521 Counsel contended that the actions/provisions being challenged are not in contravention with the Constitution but rather in fulfilment of the mandate of the IG under Article 23O of the Constitution. Therefore, the Petitioner should not be allowed to exploit a mere challenge of the impugned provisions of the AC Act

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- ⁵ claiming that his right to presumption of innocence has been infringed. In her view, this petition is an abuse of court process one that is intended to circumvent, interfere with, or frustrate an ongoing criminal trial. - 531 The second leg of the petition is that although Section 5 of the Leadership Code Act2OO2, requires leaders to declare their assets, the petitioner is not a leader as construed in that Act because he had at the time of being prosecuted, already been interdicted from office. 10 - 541 In response, Ms. Nabasa referred to Paragraph lo(vii) of Ms. Irene Mulyagonja's affidavit where she averred that the Petitioner misconstrued the provisions of 5.41(1) and (21 of the AC Act as one restricted to a leader. Counsel contended that the provisions under which the Petitioner was required to furnish sworn statements are not restricted to leaders only. That those provisions equally apply to investigations or proceedings into, or relating to an offence by any person employed by any public body under the AC Act. She submitted in the alternative that the Petitioner in fact falls under the category of leaders in the Leadership Code Act. For guidance, she referred to Article 233(1) and 234 of the Constitution. 15 20 25 - 55] Counsel further referred to Section 4A of the Leadership Code (Amendment) Act No. 5 of 2017 which provides that a public officer who is not a leader is required to submit to the accounting officer or the head of their Ministry, Department or agency, a written declaration of their income, assets and liabilities, and to ensure

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- ⁵ its correctness. She argued then that the Petitioner here is ^a public officer and as such, is subject to the provisions of the Leadership Code Act. - 561 In conclusion, Ms. Nabasa invited this court to find that section 41(1) and (2) of the Anti-Cormption Act do not in any manner contravene Articles 28(3)(a) and 28\$l(al of the Constitution.

## Petitioners submissions in reioinder

- 571 In rejoinder, Mr. Okong adopted his earlier submissions and stated that by adopting Section 41(1) and 4L(2),of the AC Act, the actions of the IGG defeated the purpose of the constitutional right on presumption of innocence as the petitioner is treated and compelled to act in a way that portrays guilt. In his view, that decision was coercive and limited the Petitioner's ability to prepare his defence. In addition, that the request by the IGG will compel him to furnish the prosecution with evidence that may be detrimental to his defence. He contended that no provision in the Constitution makes it mandatory for an accused person to furnish the prosecution with any evidence in their case. - 581 In conclusion, counsel repeated his prayers for declaration and costs.

## ²⁵ Analysis

59] The issue for determination before this Court is whether Section 41(1) and (2) of the Anti-Corruption Act, 2009 is inconsistent with Articles 2B(3)(a) of the Constitution. When resolving that question, we have studied the petition and the answer to it, as well as all

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- ⁵ the affidavits with evidence, in support thereof. I have also given due regard to submissions by counsel, as well as the laws and authorities cited in support of their arguments. I have in addition considered authorities found applicable to the petition although not cited by the parties. - 601 Mr. Okong contends that it is the duty of the prosecution to discharge the burden of proof in all criminal trials. He argues that Section 41(1) of the AC Act places un due burden on the petitioner to prove his innocence, and by so doing, erodes his constitutional right to be presumed innocent until proved guilty, or until he has pleaded guilty. The petitioner contends further that he has a right to remain silent, with no obligation, whether as a public servant or not, to aid the prosecution case by positively responding to a request by the IGG to provide a written statement regarding his income, assets and liabilities, as part of the proceedings of his prosecution. 10 15 20 - 611 In response, the 1"t Respondent conceded that the presumption of innocence in a criminal trial is guaranteed by the Constitution, but the law does in certain cases permit lifting of the defence of silence by compelling the accused to prove special facts in their knowledge. Ms. Nabasa explained that the s€une Constitution allows certain limitations to the right of innocence, and in essence, the request for information during the petitioner's trial falls within the mandate of the IG to combat corruption and deems the IGG's request a limitation which is free and fair. Counsel further argues that the sanctions for noncompliance created by section alQl ot

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⁵ the AC Act, are proportionate to the mischief being prevented and are neither arbitrary nor irrational. Finally, that sworn statements are one of the methodologies used by the IG to aid its investigations, falling within its mandate under Article 230 of the Constitution. Finally, that the petitioner, although interdicted, is a public officer who is subject to the law which binds him to declare his wealth and assets.

621 The presumption of innocence is guaranteed under Article 28(3)(a) of the Constitution which provides that:

> "Euery person who is charged utith a criminal offence shnll be presumed to be innocent until proued guilty or until thot person hr"s pleaded guiltg".

631 There is an assumption then that in every criminal case, the prosecution has to build its case and the person on trial has no obligation to assist the prosecution in compiling a case against them. Therefore, ar:. accused person may choose to say nothing in their defence and according to Article 28(11) of the Constitution, once criminal proceedings have been commenced, such person or their spouse cannot be compelled to give evidence that implicates them.

641 In Ernest Saunders vs United Kingdom; European Commission of Human Rights Application No. 19L8191, the Court stated that; 25

> "the priuilege against self-incrimination is also closely q"ltied to the prtnciple of presumption of innocence protected in Article 6 parq.. 2 (Art. 6-2) of the Conuention intha| it reflects tlrc expectationthat the State bears the

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⁵ genera.l burden of establishing the guilt of an accused, in uthich process the accused is entitled not to be required to furnish ang inuoluntary assistance bg utag of confession."

651 According to Black's law Dictionaryl, self-incrimination is the act of indicating one's own involvement in a crime or exposing oneself to prosecution especially by making a statement. The privilege against self-incrimination is meant to protect against unreliable confessions and the abuse of power by the State. This protection manifests itself in the form of the \*right to silence.' It is therefore triggered only where the individual being compelled to give information is in an adversarial, or at least an inquisitorial, relationship with the State. It also vests the Court trying a criminal matter, with the duty to ensure that the right of the accused is protected and that he is not forced or intimidated or in any way compelled by law enforcement agencies to give evidence that implicates him or her in the commission of a crime. This principle which in the US jurisdiction is sometime referred to as the "Miranda Right" was espoused in the case of Miranda versus Atizona, (Supra) which is of persuasive import to our Court. It was held that: 10 15 20 25

> " The foremost requirement, upon which lqter admissibilitg of a confession depends, is that a fourfold warning be giuen to a person in custodg before he is qtestioned, namelg, that he has a right to remqin silent, that angthing he sags maA be used against him, that he hos a right to haue present an attorneg

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l Bryan A. Garner, Black's Law Dictionary, gth Edition, at Page1482

⁵ during the questioning and that if indigent, he hc-s a rtght to' a lautger uithout charge."

> Similar provisions are contained in Article 23(3l.,23(5) (b), 28(3)(a)(b)(d)(e) and 28(4)(a) of the Constitution.

- 661 Counsel Okong points out that were the Petitioner to comply with the IGG's request, his statement would amount to selfincrimination. Common law draws a fundamental distinction between incriminating evidence and self-incriminating evidence. The former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his or her own admission, or based upon his or her own communication. In my view the impugned statutory provisions would appear to offend the well-grounded principle of common law that the prosecution bears the burden of proof in criminal trials with a high burden of "beyond reasonable doubt" the so called "golden threat principle" that was established in the well followed case Woolmington versus DPP (supra). L0 15 20 - 671 That burden must be discharged even where the accused person chooses to raise nothing in their defence. However, it is contended for the Respondent that the right to remain silent is not absolute, or at least, the impugned sections do not limit the Petitioner in the enjoyment of his rights and that the limitation is in line with criteria established by the Courts. In the decision of Charles Onyango Obbo & Anor v AG (supra), the Supreme Court decided that when determining the limitation imposed by a law that appears to limit constitutional rights, the court must be guided by the values and principles essential to a free and

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⁵ democratic society. The Justices of Appeal agreed with criteria that was advanced by the Supreme Court of Zimbabwe in Mark Gova Charnrnduka & Another v Minister of Home Affairs and Another (supra) that in order to justify a law imposed to limit guaranteed rights, the following must be satisfied:

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- the legislotiue objectiue which the limitqtion is designed to promote must be sulficientlg important to warrant ouerriding a fundqmentq"l right; - O the measures designed to meet the objectiue must be rationallA connected to it and not arbitrary, unfair or bqsed on ircational considerations ; - o the means used to impair the right or freedom must be no more thqn necessary to accomplish the objectiue.

681 In context to the above, the object of the AC Act is contained in the preamble. It is stated in the preamble that it is an act meant to:

> "..... prouide for the effecfiial preuention of corntption in the public and piuate sector, to repeal and replace the preuention of Corntption Act, to conseqtentiallg amend the Penal Code Act, the Leadership Code Act to prouide other related matters."

## 691 Section 4UU of the Anti-Corruption Act provides that:

In the course of an inuestigation or proceedings into or relating to an offence by anA person emploged bg any public bodg under this Act, the Director of Public Prosecutions or the Inspector General of Gouernment mag, notwitltstanding anything in ang other witten lqw to the contrary, bA written notice require that person to furnish a" swolTL statement in uriting enumerating all mouable or immouqble property belonging to or possessed bg the person and

o by the spouse, sons and daughters of the person, and specifying the date on which each of the properties enumerated was acquired *whether by way of purchase, gift, bequest, inheritance or otherwise;*

- a) require that person to furnish a sworn statement in *writing of any money or other property sent out of* Uganda by him or her during such period as may be specified in the notice; - b) require any other person to furnish a sworn statement enumerating all in writing *movable* $\overline{or}$ immovable property belonging to or possessed by that person where the Director of Public Prosecutions reasonable grounds to believe that the has *information can assist the investigation;* - c) require the regional commissioner of income tax to *furnish, as specified in the notice, all information available to him or her relating to the affairs of any* person where the Director of Public Prosecutions or *Inspector General of Government has reasonable grounds to believe that the information can assist the* investigation and to produce or furnish, as specified in the notice, any document or a certified copy of any document relating to that person which is in his or her *possession or under his or her control;* - d) require the Minister responsible for any department, office or establishment of the Government, or the president, chairperson, manager or chief executive officer of any other public body or the secretary, *manager or principal officer of any company* $\overline{or}$ *association or body of persons whether incorporated* or not, or a partner in any partnership to produce or *furnish, as specified in the notice, any document or a certified copy of any document which is in his or her possession or under his or her control; or*

$\mathsf{S}$

- e) require the manager of a bank to give copies of the accounts of that person or of the spouse or son or *daughter of that person at the bank.* - Noncompliance with the Act attract sanctions contained in section 701 $41(2)$ of the AC Act. It provides as follows:

"A person to whom a notice is sent by the Director of Public Prosecutions or the Inspector General of *Government under subsection (1) shall, notwithstanding* any written law or an oath of secrecy to the contrary, comply with the terms of that notice within such time as may be specified in the notice and any person who willfully neglects or fails to comply commits an offence and is liable on conviction to a term of imprisonment not *exceeding three years or a fine not exceeding seventy* two currency points or both."

In my view, beyond the importance of the impugned sections in 711 combating corruption, the powers of the IGG to solicit certain information from accused persons are rationally necessary for its proper administration. As pointed out by Ms. Mulyagonja in her affidavit, providing the information required of the Petitioner does not curtail his constitutional rights and cannot erase his plea of not guilty. The declaration sought from the appellant is relevant and necessary to the on-going investigations in respect of his trial and is neither unfair nor irrational. The law specifically targets persons charged with corruption cases but not all those standing trial for other matters. Even so, the IGG retains the discretion to effect Section $41(1)$ of the AC Act, and may not do so in all cases. Requesting for a declaration is the best reasonable method of

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obtaining information from an accused person and will accomplish the objective of discovery without being unfair or irrational.

Further, as correctly stated by Ms. Nabasa, Section $41(2)$ of the 72] Anti-Corruption Act derives its power and authority from Article 230 of the Constitution which provides for special powers of the IG and IGG. It provides as follows:

- *of Government shall* $1.$ The *Inspectorate* have power to cause investigation, cause *investigate.* arrest, *arrest,* prosecute or cause prosecution in respect of cases involving *corruption, abuse of authority or of public office.* - 2. *The Inspector General of Government may, during the course* of his or her duties or as a consequence of his or her findings, make such orders and give such directions as are necessary and appropriate in the circumstances. - 3. Subject to the provisions of any law, the Inspectorate of Government shall have power to enter and inspect the premises or property of any department of Government, person or of any authority, to call for, examine and where necessary, retain any document or item in connection with the case being investigated, found on the premises; and may, in those premises, carry out any investigation for the purpose of its functions.

*4. The Inspectorate of Government shall,* when enforcing *the Leadership Code of Conduct, have all the powers* conferred on it by this Chapter in addition to any other powers conferred by law.

5. Subject to this Constitution, Parliament shall enact any law *necessary for enabling the Inspectorate of Government to* discharge its functions effectively and efficiently and, in particular, to ensure that the discharge of those functions is *not frustrated by any person or authority.*

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I also agree with Ms. Nabasa's submissions that when interpreting 73 $\mathsf{S}$ the Constitution, the Court should apply the rule of harmony and completeness to give due regard to the complementary effect of other provisions of the Constitution, specifically Article 230 read together with **Article 28(4)(a) of the Constitution,** which permits the law in certain cases to impose the burden of proof on one 10 charged with a criminal offence. It provides:

> "Nothing done under the authority of any law shall be *held to be inconsistent with clause 3(a) of this article, to* the extent that the law in question imposes upon any *person charged with a criminal offence, the burden of proving particular facts."*

- $74$ I am in agreement with Mr. Okong's submission that the office of the IGG can obtain information to bolster its prosecution by a Court order to access the Petitioner's personal records, or apply $20$ the third party doctrine which allows the IG to access information about the petitioner from other sources for instance, the office of the Land Registration or USRB. However, the AC Act, empowers the IGG to explore the more direct alternative of requesting an $25$ accused person to furnish a written statement of their income, assets and liabilities. The IGG chose the latter option which, as I have found above, cannot be classified as a violation of the petitioner's rights, in the manner stated. - I find so because, the Petitioner was requested, but not compelled $75]$ to make a statement. In my view, what he was asked to do, falls 30 in line with the provisions of Article $28(4)$ (a) of the Constitution. Needless to say, according to Section $41(3)$ of the AC Act, after

⁵ making the statutory statement, should he consider it necessary or desirable, the appellant who is represented at his trial, is permitted to give an explanation or amplification of it. The fact that the accused is given such an opportunity to explain his statement is an indication that provision of the statement per se would not render him guilty as charged, and the allegation that the presumption of innocence has been compromised, is thereby negated.

- 76) In addition, the Petitioner contends that he cannot be categorized as a leader under the Leadership Code Act, 2OO2 from whom declaration of income, assets and liabilities can be sought. His counsel specifically submitted that the Petitioner was a Principal Systems Analyst at the time he was charged, and therefore, a government civil servant attached to the Ministry of Local Government, but currently on interdiction. - 771 Section 1 of the Leadership Code (Amendment) Act, 2Ol7 defines a public oflicer to mean a person holding or acting in any public office. It is then provided in Section 4A of the Leadership Code (Amendment! Act, 2Ol7 as follows: 20

"A public officer to uthom Section 4 of the Code does not applg shall,

- (a) uithin three months of commencing work in the public seruice and; - (b) thereafi.er, euery two gears submit to the accounting oJficer or the head of the ministry, department or agencA a utritten declaration of ltis or her income, cssefs and liabilittes'.

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⁵ Further according to Item 8 of Section F, Part (F-S) at page L29 of the Uganda Public Service Standing Orders, 2OLO interdiction of a public servant is defined as:

> " ....... the temporqry remouq.l of a public olficer from exercising his or her duties while an inuestigation ouer partianlar misconduct is being cqrried out.

- 781 I agree then with the submission made for the Respondent, which is supported by the evidence on record, that the Petitioner is a leader as construed in the Leadership Code Act, 2002. Given the office that he was holding before being interdicted, he is, categorized as a public officer. The provisions of the Standing Orders are clear. His interdiction did not amount to a dismissal from service. The standard procedure is that once his prosecution commenced, the petitioner had to step down from his office to pave way for uninterrupted investigations. - 791 In conclusion, I fail to find merit in the contention that Section 41(1) and (2) of the Anti-Corruption Act is inconsistent with Article 28(3)(a) and28(4) of the Constitution. Therefore, the second issue is resolved in the negative.

zs Issue three

## What remedies are available the parties

## Submissions for the Petitioner

801 Mr. Okong submitted that the impugned provisions be declared unconstitutional and that the petitioner be awarded costs as there is no reason to deny him.

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## s Submissions for the Respondent

B1l In response to the Petitioner's prayers, Ms. Nabasa submitted that the Petitioner is not entitled to any of the orders and declarations sought as the petition is misconceived and is an abuse of Court process. She then prayed that the petition be dismissed with costs.

## Decision

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o ⁸²¹As I have already found that Section 41(1) and (2) of the Anti-Corruption Act does not contravene Article 2B(3)(a) of the Constitution, I find no merit in this petition. I would accordingly ¹⁵ dismiss it with costs to the Respondent.


JUSTICE OF APPEAL CONSTITUTIONAL COURT