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Strengthening the Right to Institute a Private Prosecution in Uganda by Amending Article 120(3) of the Constitution: A Comment on Uganda v. Inspector General of Police, General Kale Kayihura and 7 Others (17 August 2016)

Document Cited in Related
Vincent
DOI10.3366/ajicl.2017.0214
Pages590-607
Published date01 November 2017
Date01 November 2017
Author
INTRODUCTION

Article 120(1) of the Ugandan Constitution provides that the Director of Public Prosecutions (DPP) is appointed by the President of the Republic of Uganda. Article 120(3) states that the DPP has four functions which include:

to take over and continue any criminal proceedings instituted by any other person or authority1 [and] to discontinue at any stage before judgement is delivered, any criminal proceedings to which this article relates, instituted by himself or herself or any other person or authority; except that the Director of Public Prosecutions shall not discontinue any proceedings commenced by another person or authority except with the consent of the court.2

Article 120(4)(b) prohibits the DPP from delegating his function to discontinue criminal proceedings. Article 120(3) applies to both private and public prosecutions. Private prosecutions are instituted by ‘another person’ other than the DPP. These could be a victim of crime,3 another person on behalf of the victim,4 any member of public who decides to prosecute the alleged offender (for example in cases where there is no identifiable victim)5 or a statutory body.6 Unlike in other countries, such as South Africa,7 Botswana,8 Ethiopia,9 Zimbabwe,10 Swaziland11 and Namibia,12 in Uganda the DPP does not have to decline to prosecute before a private prosecutor may institute a private prosecution.13 Unlike in some countries such as Hong Kong,14 Australia15 and Canada16 where a private prosecution cannot be instituted unless the magistrate or the relevant court official is convinced that it is not frivolous, in Uganda there is no such requirement.17 This could explain, as demonstrated in this article, the many cases in which people have instituted private prosecutions against others. There have been cases where the DPP has taken over and continued with private prosecutions. This is done in line with Article 120(3)(c) of the Constitution and this power was confirmed recently by the High Court in the case of Uganda v. Inspector General of Police, General Kale Kayihura and 7 others18 and in other earlier decisions.19 There have also been cases in which the DPP has taken over and discontinued private prosecutions. These cases show that the DPP has discontinued these private prosecutions without the consent of private prosecutors. This could be explained by the fact that, unlike in the Gambian constitution,20 Article 120(3)(d) of the Ugandan Constitution does not oblige the DPP to seek a private prosecutor's consent before he discontinues a private prosecution. Section 43(1)(b) of the Magistrates Courts Act (MCA) 197121 empowers the DPP to discontinue a private prosecution without the court's consent. It is argued that this section is contrary to Article 120(3)(d) of the Constitution and therefore unconstitutional and should be amended. In Uganda v. Inspector General of Police, General Kale Kayihura and 7 others22 the High Court held the DPP does not have to make a formal application to the court before he takes over a private prosecution. The court also added that a private prosecutor does not have to be heard before a magistrate decides whether or not the DPP should take over a private prosecution. The author argues that in the light of the arguments advanced in Uganda v. Inspector General of Police, General Kale Kayihura and 7 others23 and the DPP's actions in cases where he has taken over private prosecutions and indirectly discontinued without the court's consent, there is a need to amend Article 120(3) to require the DPP to consult with a private prosecutor before taking over and discontinuing a private prosecution. The author will first highlight the law relating to private prosecutions in Uganda PRIVATE PROSECUTIONS IN UGANDA

As mentioned above, there are two types of private prosecutions in Uganda – private prosecutions by individuals (natural persons and possibly juristic persons) and private prosecutions by statutory bodies. Section 42 of the MCA 1971 provides for the process that has to be followed in the institution of criminal proceedings. It provides for three types of people who may institute prosecutions: a public prosecutor,24 a police officer25 and ‘any person, other than a public prosecutor or a police officer making a complaint … and applying for the issue of a warrant or a summons in the manner hereafter mentioned.’ Section 42(3) provides that:

Any person, other than a public prosecutor or a police officer, who has reasonable and probable cause to believe that an offence has been committed by any person may make a complaint of the alleged offence to a magistrate who has jurisdiction to try or inquire into the alleged offence, or within the local limits of whose jurisdiction the accused person is alleged to reside or be. Every such complaint may be made orally or in writing signed by the complainant, but if made orally shall be reduced into writing by the magistrate and when so reduced shall be signed by the complainant.

There are two important issues to note about section 42 of the MCA. Firstly, for a person to institute a private prosecution, he or she does not have to be a victim of crime or represent a victim of crime. It is because of this that some members of the public have instituted or attempted to institute private prosecutions against people for offences such as tax evasion and forging court documents;26 forging academic transcripts, uttering false documents, embezzlement and failure to execute the duties of an accounting officer;27 offences against the environment (wetland encroachment by private individuals and private companies);28 impersonation;29 making false tax declarations to the Ugandan Revenue Authority;30 and treason.31 Secondly, section 42 is not clear whether or not the ‘person’ in question has to be a natural person or could also be a juristic person. The MCA does not define the word ‘person’. Unlike in some countries such as South Africa32 and Zimbabwe33 in which courts have had to deal directly with the issue of whether a juristic person may institute a private prosecution, in Uganda courts are yet to address that issue. Unlike the Ethiopian Criminal Code,34 for example, the Ugandan MCA does not expressly state that a juristic person may institute a private prosecution.35 In the author's opinion, there is room for the argument that ‘person’ in section 42 of the MCA includes both natural and juristic persons. This is for two reasons. Firstly, section 2(uu) of the Interpretation Act36 defines a ‘person’ to include ‘any company or association or body of persons corporate or unincorporated’. Secondly, the Constitutional Court did not rule out the possibility of a company instituting a private prosecution. In Mugume & 5 Ors v. Attorney General& Anor37 the petitioners were prosecuted for allegedly embezzling large sums of money from the second respondent (a private limited company known as Mobile Telephone Network – MTN). They argued before the Constitutional Court that their prosecution was unconstitutional because, inter alia, it was being conducted by a firm of private lawyers instructed by the second respondent.38 The Constitutional Court held that

As to the complaint that the applicants were prosecuted by private Counsel of the second respondent, the applicants supplied no evidence … to support this assertion. The second respondent through … their Country Legal Counsel and Assistant Company Secretary denied that their Counsel privately prosecuted the applicants. At any rate, if there was such a private prosecution of the applicants by the lawyers of the second respondent, this could only have been done with the authorization of the trial Court, after ensuring that the applicants would get a fair trial. No evidence to the contrary has been availed to this Court by the applicants.39

 The applicants' complaint should be understood against the background that the Chief Executive Officer of the private company (MTN) had, before their trial, reportedly threatened to ‘prosecute those who defraud MTN and propagate false information to the detriment of MTN Uganda and the MTN Group to the fullest extent of the law.’40 In the above ruling, the Constitutional Court suggests that lawyers of a private company may institute criminal proceedings against the accused provided that the trial court has authorised them to do so after being satisfied that the accused will get a fair trial. In other words, what matters is not whether or not the prosecution has been instituted by a public prosecutor. What matters is that the accused will get a fair trial. It is argued that the best approach is for the accused to know from the beginning of the trial whether he is being prosecuted by a private prosecutor or a public prosecutor. This could enable him or her to prepare the objections he might have against the prosecution. The danger with allowing lawyers of a private company to prosecute the...

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