Masaba v Uganda (Criminal Appeal No. 294 of 2010)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

On a second appeal limited to matters of law, the Court of Appeal held that the power of the Inspector General of Government (or a Deputy IGG, or the DPP) to consent to charge sheets for corruption-related offences such as abuse of office under the Penal Code Act is non-delegable. A charge sheet consented to by junior officers in the Inspectorate, who lacked that capacity, was incurably defective and the consent ultra vires. The entire trial was therefore a nullity. The Court declined to order a retrial given the lapse of nearly two decades, quashed the convictions and sentences passed by both the trial and first appellate courts, and set aside the compensation orders.

Facts

The appellant was employed by Kayunga District Local Government as an Accounts Assistant. In 2004, the Inspector General of Government received a complaint that some health facility employees in Kayunga had not been paid their emoluments. Inquiries established that UGX 48,000,000 meant to be returned to the Commissioner Treasury Office of Accounts never reached the treasury. A cheque prepared to return the money was instead diverted to the appellant's personal account at Uganda Commercial Bank and withdrawn. The appellant and two co-accused were charged in the Chief Magistrate's Court of Mukono with causing financial loss, abuse of office and embezzlement. The appellant was convicted, including of theft (a lesser offence). On first appeal, the High Court upheld the convictions for causing financial loss and abuse of office, substituted theft with embezzlement, enhanced the sentence to five years, and increased compensation to UGX 16,000,000. The charge sheet had been consented to by junior officers of the Inspectorate, not the IGG, Deputy IGG or DPP.

Issues

1. Whether a charge sheet for offences of abuse of office and embezzlement consented to by junior officers of the Inspectorate of Government, rather than the Inspector General of Government, a Deputy IGG, or the DPP, was valid.
2. Whether the power to consent to charge sheets in corruption-related offences vested in the Inspector General of Government is delegable to other officers in the Inspectorate.

Orders

• Ground No. 1 of the appeal succeeds.
• The appeal succeeds.
• The convictions and sentences passed against the appellant in the Appellate and Trial Courts are quashed.
• The orders for compensation are set aside.
• The appellant is set at liberty unless held on other lawful charges.

Key headnotes

Legislation cited (20)

• Penal Code Act s.269(1)
• Penal Code Act s.270
• Penal Code Act s.87
• Penal Code Act s.88
• Penal Code Act s.268
• Penal Code Act s.18
• Penal Code Act s.85
• Penal Code Act s.86
• Inspectorate of Government Act 2002 s.14
• Inspectorate of Government Act 2002 s.14(5)
• Inspectorate of Government Act 2002 s.14(8)
• Inspectorate of Government Act 2002 s.3(2)
• Magistrates Courts Act s.86
• Criminal Procedure Code Act s.34
• Criminal Procedure Code Act s.45(1)
• Constitution Article 28(9)
• Constitution Article 223
• Court of Appeal Rules r.30
• Anti-Corruption Act 2009 s.11
• Anti-Corruption Act 2009 s.19

Cases cited (12)

• Uganda v Ndodo & Ors [1985] HCB 3
• Abdulla Suleiman El Hearth & Ors v R [1955] 22 EACA 404
• Charles Mwanja v Uganda (Criminal Appeal No. 35 of 2021)
• Marjani v Uganda 1967 EA 111
• Seifu s/o Bakari v R [1960] EA 338
• Des Raj Sharma v R [1953] 20 EACA 310
• Okwang Anthony v Uganda (Criminal Appeal No. 20 of 2000)
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Prof. Gilbert Balibaseka Bukenya v IGG (Petition No. 30 of 2011)
• His Worship Aggrey Bwire v Attorney General & Anor (Civil Appeal No. 8 of 2010)
• Kasule v Attorney General (1977) EA 423
• Polycarp Sekiboobo v Clare Obonyo (Civil Application No. 31 of 1993)