Wakilii

Damian Akankwasa v Uganda (Constitutional Petition No. 4 of 2011)

Constitutional Court · [2011] UGCC 8 · 2011 Reference Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the High Court (Anti-Corruption Division) for interpretation of Articles 28(7) and (12) of the Constitution.
Decision
Reference dismissed; record returned to the lower court for the trial to proceed forthwith.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court held that the prohibition in Article 28(7) requires only that the acts charged constituted a criminal offence, defined and punishable, at the time they were committed — not that the accused be charged under a law in force at that time. Between August 2007 and February 2008 causing financial loss was a criminal offence under section 269 of the Penal Code Act, carrying a prescribed penalty. Section 20 of the Anti-Corruption Act is a re-enactment of section 269, the only difference being an enhanced sentence, which the court held immaterial. The applicant was therefore properly charged under section 20(1). Following Uganda v Atugonza Francis, the court dismissed the reference with costs.

Facts

The applicant, former Executive Director of the National Forest Authority, was charged with causing financial loss contrary to section 20 of the Anti-Corruption Act. It was alleged that between 13 August 2007 and 29 February 2008 he unlawfully allocated 100,000 cubic metres of round wood at Katugo Central Forest Reserve to Nile Plywood (U) Ltd at Shs 62,500 per cubic metre instead of the set price of Shs 82,500, knowing or having reason to believe this would cause the Authority a financial loss of about UGX 2,000,000,000. On plea-taking, the accused sought, and the prosecution consented to, a constitutional reference questioning whether the charge under the Anti-Corruption Act offended Articles 28(7) and (12), given that the conduct predated that Act's enactment and the repeal of the Penal Code Act offence of causing financial loss.

Issues

  1. Whether charging and prosecuting the applicant under section 20(1) of the Anti-Corruption Act for acts allegedly committed between August 2007 and February 2008, before that Act's enactment, is inconsistent with Articles 28(7) and (12) of the Constitution.
  2. Whether section 20 of the Anti-Corruption Act is a re-enactment of section 269 of the repealed Penal Code Act such that the charge offends the prohibition on retroactive criminal liability.

Orders

  • The constitutional reference is dismissed with costs.
  • The record of the lower court is returned with a direction that the trial magistrate proceed with the trial of the applicant forthwith.

Key headnotes

Constitutional Law — Article 28(7) — Prohibition of Retroactive Criminal Liability — Conduct Criminal When Committed
Article 28(7) is satisfied where the act or omission charged constituted a defined and punishable criminal offence at the time it was committed; it does not require that the accused be charged under a statute in force at the time of the conduct.
Statutory Interpretation — Re-enactment of Offence — Effect of Repeal and Enhanced Penalty
Where a later statute re-enacts an existing offence in substantially the same terms, the offence is treated as continuous; a mere enhancement of the prescribed sentence is immaterial and does not create a new offence for the purposes of the bar on retroactive criminality.
Criminal Law & Procedure — Causing Financial Loss — Continuity Between Penal Code Act s.269 and Anti-Corruption Act s.20
Section 20 of the Anti-Corruption Act is a re-enactment of the repealed section 269 of the Penal Code Act; an accused whose conduct fell within section 269 when committed may properly be charged under section 20.

Legislation cited (7)

  • Constitution of Uganda Article 28(7)
  • Constitution of Uganda Article 28(12)
  • Constitution of Uganda Article 44(c)
  • Anti-Corruption Act 2009 s.20(1)
  • Anti-Corruption Act 2009 s.11(1)
  • Penal Code Act s.269
  • Penal Code Act s.87

Cases cited (1)

  • Uganda v Atugonza Francis (Constitutional Reference No. 31 of 2010)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.