MBALE – The Director of Public Prosecutions recently tabled a withdrawal letter otherwise known as a “Nolle Prosequi” withdrawing charges against three Bank of Uganda staff including Francis Kakeeto, the assistant currency director for Bank of Uganda Mbale branch, Fred Vito Wanyama, the verification officer and the currency director Charles Malinga Akol who were accused of allowing unauthorized cargo into a chartered plane hired by Bank of Uganda.
They were accused of neglecting to perform their duties by failing to refute or report the inclusion of the said unauthorized cargo yet Governor of Bank of Uganda had exonerated them of any wrong doing since they had reported the existence of unauthorized items in the inventory.
When Mutebile wrote to the head of State House Anti-corruption Unit Edith Nakalema to conduct a probe into the extra cargo, Nakalema arrested the trio and forwarded their file to the Criminal Investigations Department where they were subsequently charged before the Anti-Corruption court in June 2019.
By the time of withdrawing the case, the Prosecution brought in only one witness whose testimony was of no evidential value to the furtherance of the case. Faced with a dilemma of having the case dismissed, DPP directed that the matter be terminated arguing that they had previously called for the file for review and found that they did not have sufficient evidence against the accused persons.
The trio had been victimized, embarrassed and subjected to an interdicted from their respective over claims that they were not aware of and where the DPP had no chance of leading evidence into a conviction. The appointing authority may need to rethink the effectiveness of Nakalema’s activities as many of her cases may never see the light of day.
It is true that Article 120 of the Constitution gives powers to the DPP to discontinue any criminal proceedings at any stage before judgment is delivered without even giving reasons and I think this is too much power that is prone to abuse by the state.
Not so long ago, the Director of Public Prosecutions again tabled a letter to the International Crimes Division Judge David Wangututsi withdrawing the charges against all the persons accused of killing Major Kigundu and his body guard. The withdrawal letter was for the benefit of 11 suspects- all Muslims-who were facing charges of aiding and abetting terrorism, belonging or confessing to belong to a terrorist organization and referring support to a terror organisation.
At the time of the withdrawal, the case was still in its infancy and was due for teleconferencing in court. It may have appeared a welcome decision but prior to their arrest even without considering the presumption of innocence, the accused were severely tortured by security organs as a means of extorting information for onward use in court.
Left with no option and given that the mandate to discontinue the charges is a preserve of the DPP, Justice Wangututsi ordered the immediate release of the accused persons from Luzira prison where they had beenremanded since 2017. After four years of incarceration for no crime committed, it is nothing less of malicious prosecution that the DPP seems to take so lightly just because her actions are protected by law. I want to propose that this conduct by the police with the aid of the DPP should be treated as a crime against humanity. Left unattended to, the Government may use it as a tool of oppressing its opponents.
In the instant case, it was alleged that between October and November 2016, police received intelligence information that ADF based in the DRC had deployed its operatives to coordinate with their agents in Uganda and carry out terrorist attacks aimed at high profile government officials. I still wonder whether or not Major Kigundu at a rank of a major fell in the category of a high profile. It is alleged that the operatives were also recruiting for ADF and mobilize funds to support ADF activities among others. One wonders what precautions the Government put in place after obtaining the so called intelligence information on deployment of the ADF.
The farfetched story also claims that between 2010 and 2017 in various districts, the accused persons aided or abetted terrorism by mobilizing funds, purchasing commodities and harboring recruits of the Allied Democratic Forces, a terror organization. They reportedly did this while knowing or having reason to believe that the support would be applied or used in preparation or commission of acts of terrorism.
According to the charge sheets, the accused reportedly recruited, trained and transported ADF recruits from Uganda to the Democratic Republic of Congo. It is also alleged that the accused persons confessed to be members of ADF terror group that had a presence in districts such as Kampala, Wakiso, Mukono, Jinja, Iganga, Bugiri, Busia, Tororo, Masaka and Mbarara among others with the sole aim of eliminating certain people named on their terror list who included Kigundu and his bodyguard Sergeant Steven Mukasa.
One of the areas where the DPP and the Police need to be checked is the practice of arresting suspects out of impulse, detain them for as long as they want and having failed to get credible evidence, they arraign them before a magistrate court and confidently say investigations are still ongoing. The Magistrate will ordinarily have no option but to remand the accused awaiting committal to the High Court which is again a preserve of the DPP. For over 6 months, these suspects are brought to court but the DPP keeps informing court that investigations are not complete and given the gravity of the offence, some judicial officers are not comfortable to accept a prayer for dismissal even when the DPP has a right to reinstate the same at any time.
How do you keep somebody’s child, somebody’s mother or father in prison and then wake up one morning and file a withdrawal letter as if it is business as usual and life goes on without any one pointing a finger? Upon being discharged, the burden shifts from the DPP to Attorney General to defend the mistakes of the DPP which is the offending institution. Many victims of malicious prosecution have obtained orders for compensation from court but the Government always says it does not have any money to settle the awards.
Too much power. Prone to abuse:
The constitutional mandate of the Directorate of Public Prosecutions is to prosecute criminal cases in any court in Uganda apart from the court martial, and to direct Police to investigate information of a criminal nature. The functions of the DPP are geared towards the reduction of crime and the pursuit of justice.
Thus in all criminal matters with the exception of those cases instituted by the Attorney General, the opinion of the DPP is final and binding especially after exhausting the options of raising complaints with the Resident State Attorneys sitting at the various courts, those sitting at the regional level and finally at headquarters.
Article 120 (6) of the Constitution protects the DPP from the “direction or control of any person or authority” which is itself a fallacy. The powers of the DPP over criminal matters in Uganda are supposed to be absolute and opinion or decision can only be altered by a court of law. The framers of our Constitution clearly intended to shield the Director of Public Prosecution from any nature of interference in the execution of his/her duties. The DPP can easily be used by the executive to persecute its perceived enemies.
Courts are alive to the ends of justice:
In a recent ruling vide Misc Application No.26 and 31 of 2020 arising out of criminal case No.75 of 2019 at the anti corruption court which ruling has been appealed against, the DPP was reminded that there is a lot of incompetence in the way the institution was conducting investigations with its investigative arm the Uganda Police. Their investigations were found to be wanting and a conduit of procuring an injustice to the innocent.
Justice Gidudu in his ruling dated February 10, 2021 held that the office of the DPP should be above petty machinations by its investigators who should not manufacture evidence against suspects to fight their own wars. Justice Gidudu having been at the Anti corruption court for some time must have observed these syndicated games being played by the DPP and the Police in order to implicate the innocent and in the process exonerate the real culprits.
The findings of the judge were self explanatory that even a blind man could see. For me the appeal by the DPP is an attempt to clean their tainted image and will not escape ridicule from the Justices of the Court of Appeal. The DPP should have used the rulingas a mirror to look at the various cases that have been dismissed due to incompetence of police. The case should have helped the DPP carry out self reflection instead of keeping a public image withdirty linen.
It was an application against the Attorney General and a one Sergeant Oumo Joshua filed under the Human Rights Enforcement Act, 2019 and the rules made there under. It is on record that the Judge blasted the office of the Director of Public Prosecutions and the criminal investigators for charging out of malice some of the suspects facing money related offenses.
I cannot agree more that the ruling has exposed the criminality that goes on behind the scenes before some people are charged in court and arraigned before court for prosecution. Their conduct seems to be nothing less of being seen working but without a good case capable of succeeding at the end of the trial. The Judge added that, “The DPP has the discretion to decide on who to charge in court but malice or bad faith should never be part of that discretion.” Justice Gidudu blasted the DPP and investigators adding: “The office of the DPP should be above petty machinations by its investigators and should supervise them instead of being influenced by them in the way they conduct their investigations.”
If the powers of the DPP are not checked, many Ugandans will continue to suffer the wrath of unfairness orchestrated by the Police during investigation before being sanctioned by the DPP in an effort to “wipe” out criminality from society even where it does not exist.
Rogers Wadada is a Human Rights Activist and Politician