Akankwasa Damian v Uganda (Constitutional Petition No. 5 of 2011) [2011] UGSC 7 (21 April 2011)

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

CORAM: Mpagi-Bahigeine DCJ, Byamugisha, Kavuma, Nshimye,&

Arach –Amoko JJA

CONSTITUTIONAL PETITION NO 05/ 2011(REFERENCE)

[Arising out of Criminal case No.69/2010 of the High Court (Anti-Corruption Division]

BETWEEN

AKANKWASA DAMIAN :::::::::::::::::::::: APPLICANT/PETITIONER

AND

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

RULING OF THE COURT.

The reference herein was sent to this court pursuant to Article 137(5) of the Constitution and the Constitutional Court (Petitions and References) Rules SI NO.91/05. It arose of out of criminal proceedings before His Worship Baguma, Grade One Magistrate of the Anti-Corruption Division of the High Court.

The applicant/petitioner formerly the Executive Director of National Forest Authority was charged with Illicit Enrichment contrary to section 31(1) (b) and 31(2) of the Anti-Corruption Act. It was alleged in the particulars of the offence that the applicant is in control and possession of a Guest House being constructed on Plot 11, St Balikudembe Road Naguru, Kampala, valued at Shs 580,800,000/=, a property which is disproportionate to his past and current known sources of income and/assets.

When the applicant appeared before court he did not take any plea. Instead an application for a constitutional reference was made before the presiding magistrate who obliged and the following two questions were framed for our determination namely

1. Whether section 31 of the Anti-Corruption Act No 6/2009 is inconsistent with Article 26(1) of the Constitution.

2. Whether the charging and prosecution of the accused under section 31(1)(b) and section 32(2) of the Anti-Corruption Act for offences allegedly committed between August 2007 and February 2008 is inconsistent with Articles 26(1) and 28(7) and (12) of the Constitution.

Both parties filed written submissions in accordance with rule 21(2) of the Constitutional Court (Petitions and Reference) Rules. Counsel for the applicant in his submissions framed additional grounds for our determination. The said grounds are:

1. Whether the investigation by the IGG of the accused dubbed “verification and investigation of your declarations of income, assets and liabilities” was inconsistent with or in contravention of Articles 28(1), 42 and 44 of the Constitution namely the right to a fair hearing and the right to just and fair treatment in administrative decisions; and

2. Whether the IGG security personnel’s conduct towards the accused in and around the High Court of Uganda on 2^nd June, 2010 contravened Articles 23(1), 26(6), 24, 28(1), 28(3), 44(a), 44(c ), 126 and 28(1) and (3) of the Constitution.

Rule 20 of the above mentioned rules provide for directions to be made before the Registrar of this court on the following matters:

1. Whether the questions or issues set out in the reference should be amended.

2. Whether at the hearing of the issues, apart from arguments of law, there is need for oral or affidavit evidence; except that the Court may, of its own motion call for such evidence as will assist it in determining the real issues arising out of the reference; and

3. The date of the hearing and the proposed length of the hearing which shall be within twenty one days or as soon thereafter as may be practicable.”

When the parties appeared before the Registrar of this Court on 2^nd February 2011 for directions, it was recorded in the proceedings that the parties were agreed on the issues as had been framed by the court which sent the reference. It was recorded that counsel for the applicant stated that he will file affidavits. Indeed on 09^th February 2011 affidavit evidence was filed in this Court with numerous annextures. It is on the basis of this affidavit that the additional issues/grounds were framed.

Rule 20(supra) allows amendment on issues that had been framed by the lower court for determination. When the Constitutional Court is determining a reference, it is exercising special and limited jurisdiction on matters and issues that had arisen in the proceedings before the court which sent the reference. The additional issues that were framed by counsel for the applicant are outside the scope of the reference which was sent to us by the lower court. We shall not consider them in this ruling.

Turning to the submissions, counsel for the applicant submitted on the first issue that section 31 of the Anti-Corruption Act contravene Article 26(1) of the Constitution which provides that every person has a right to own property either individually or in association with others. He pointed out that the right to own property is not absolute but Article 27 guarantees the right to privacy of home, correspondence, communication and property and the court has a duty to protect these rights under Article 20(1) and (2) of the Constitution.

Learned counsel submitted that the purpose of section 31 is to legalize violation of the right to own property under article 26(1) and the right to privacy under Article 27. He claimed that section 31 of the Anti –Corruption Act can only be enforced by violation of the stated rights. He pointed out that the purpose of the Anti-Corruption Act as the preamble states is to provide for effectual prevention of corruption in both the public and private sector. Learned counsel submitted that the effect of the impugned section is to subject any person who maintains a standard of living above that which is commensurate with his or current or past known sources of income or assets, or who is in control or possession of pecuniary resources or property disproportionate to his or her current or past known sources of income or assets to investigations and violation of his or her rights guaranteed by articles 26(1) and 27 of the Constitution. He further pointed out that such a person can be prosecuted and might face imprisonment of ten years or a fine not exceeding Uganda Shillings, 4,800,000/= or both.

Learned counsel pointed out that the above can happen to a person purely upon mere suspicion of the IGG or DPP or an authorized officer under the Act. He complained that the Act does not define what reasonable ground leading to suspicion means. It is purely in the mind of the IGG or the DPP. He claimed that the applicant was subjected to investigations, humiliation, threats on the basis of mere suspicion by the IGG founded purely on press reports regarding money which was stolen from the applicant’s house. He further submitted that press reports cannot constitute reasonable grounds envisaged in section 31 of the Act. it demonstrates, according to counsel, the unconstitutionality of the impugned section which in effect erodes the fundamental rights guaranteed under Articles 26(1) and 27 of the Constitution.

He prayed that court finds the impugned section inconsistent with the stated articles and therefore null and void.

Learned counsel for the respondent did not agree. He submitted that from the reading of the section, it does not in any way infringe nor is it inconsistent with Article 26(1) of the Constitution. He stated that the section does not seek to deny anybody the right to own property. He claimed that it only criminalizes illicit property acquisition and possession after investigations either by the IGG or DPP and where the court is satisfied that the person is found in possession of illicitly acquired pecuniary resources or property. He cited the case of Francis Atugonza v Uganda Constitutional Reference No.31/2010 in which this Court judiciary considered the purpose and objectives of the Anti-Corruption Act.

Before determining the reference on merit we shall set out the provisions of the law and the provisions of the articles of the Constitution which require consideration.

Article 26(1) provides:

“Every person has a right to own property either individually or in association with others.”

Article 27 states:

“(1) No person shall be subjected to-

1. unlawful search of the person, home or other property of that person’s

2. unlawful entry by others of the premises of that person.

(2)No person shall be subjected to interference with the privacy of that person’s home, correspondence communication or other property.”

Section 31 of the Anti-Corruption Act states:

2. The Inspector General of Government or the Director of Public Prosecutions or an authorized officer may investigate or cause an investigation of any person where there is reasonable ground to suspect that the person-

1. maintains a standard of living above that which is commensurate with his or her current or past known sources of income and assets; or

2. is in control or possession of pecuniary resources or property disproportionate to his or current or past known sources of income or assets.

(2)A person found in possession of illicitly acquired pecuniary resources or property commits an offence and is liable on conviction to a term of imprisonment not exceeding ten years or a fine not exceeding two hundred and forty currency points or both.

(3)Where a court is satisfied in any proceedings for an offence under subsection(2) having regard to the closeness of his or relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused, or acquired such resources or property as a gift or a loan without consideration, from the accused, those resources or property shall, until the contrary is proved, be deemed to have been under the control or in possession of the accused.

(4) In any prosecution for corruption or proceedings under this Act, a certificate of a Government Valuer or a valuation expert appointed by the Inspector General of Government or the Director of Public Prosecutions as to the value of the asset or benefit or source of income of benefit is admissible and is proof of the value, unless the contrary is proved.”

Chapter 4 under which articles 26 and 27 fall deals with protection and promotion of fundamental and other human rights and freedoms. Some of these rights are absolute while others are subject to some limitation and qualifications. The articles which have been cited give rights and freedoms which are not absolute. They protect the right to own property either alone or in association with others. The articles also protect the right to privacy and against unlawful searches and intrusions.

When considering the constitutionality of any legislation its purpose and effect must be taken into account. If the purpose of an Act of Parliament is inconsistent with a provision of the Constitution, the Act or the section which is being challenged will be declared unconstitutional. In the same way, if the effect of implementing a provision of the Act is inconsistent with a provision of the Constitution, the provision would be declared unconstitutional. The reason for this is that the Constitution is the supreme law of the land.

There is a rebuttable presumption that every legislation is constitutional and the onus of rebutting the presumption rests on the person or persons who are challenging its constitutionality.

In the matter now before us, the applicant/petitioner deponed an affidavit dated 8^th February 2011. In the affidavit he tried to explain away how he acquired his property that was being investigated by the Inspector General of Government. He further complained of how he was mistreated by the Inspectorate of Government during the investigations. Those avernments were irrelevant to the issues that were framed for determination by this court.

This court in its ruling of Francis Atugonza v Uganda (supra) set out the purpose of the Anti-Corruption Act under which the applicant/petitioner was charged. The applicant is challenging the implementation of section 31 alleging that its effect will be unconstitutional since it will interfere with the right to own property.

The purpose of the Anti-Corruption Act as we stated in our ruling in Atugonza’s case is to fight and eliminate all forms of corruption in public and private spheres. Section 31 gives power to the IGG and the DPP to prosecute all those who might have acquired property or assets whose value exceed their known lawful incomes or assets past or present. The section merely empowers the officers named therein to prosecute anyone whom they have reasonable grounds to believe that the property they hold was acquired through graft or corrupt means. We do not think that Articles 26(1) and 27 can be invoked to protect property which has been unlawfully acquired. The two articles protect property and assets which have been acquired using lawful means.

Consequently section 31 is not inconsistent with Articles 26(1) and 27 of the Constitution and we so find.

The second issue which was framed for our determination was not based on the facts which were before the court which sent the reference. The particulars of the offence which we have set out in this ruling speak for themselves. They have no specific dates when the applicant/petitioner is alleged to have illicitly acquired the property in question. Counsel representing the IGG ought to have objected to the framing of the issue since it is their office which had prepared the charge sheet. The second issue would fail.

For the reasons we have stated, the reference has no merit and is accordingly dismissed with costs to the respondent. The file is returned to the court which sent it with directions to proceed with the case forthwith.

Dated at Kampala this…21^st ...day of…April…2011.

A.E.N.Mpagi-Bahigeine

Deputy Chief Justice

C.K.Byamugisha

Justice of Appeal

S.B.K. Kavuma

Justice of Appeal

A.S.Nshimye

Justice of Appeal

M.S.Arach –Amoko

Justice of Appeal