Naphatal Were and Another v Attorney General (Consolidated Constitutional Application No. 42 of 2012; Consolidated Constitutional Application No. 52 of 2012)

Constitutional Court · [2021] UGCC 9 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Consolidated constitutional petitions seeking declarations that the conduct of the Director of Public Prosecutions contravened the Constitution

Decision

Petition dismissed; the DPP held to have exercised its constitutional mandate lawfully

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The petitioners, charged with embezzlement and conspiracy to defraud MTN, alleged the DPP acted unconstitutionally by selectively charging them while leaving out implicated MTN executives, and under the influence of the complainant. The Constitutional Court held that the DPP has wide discretion to charge any number of persons in a chain of crime based on available evidence; charging two of several suspects did not amount to discrimination or unequal treatment under Article 21. A complainant's MOU and letter requesting non-prosecution were mere requests, not direction or control contravening Article 120(6). Challenges to prosecutorial decisions are properly brought by judicial review in the High Court. No constitutional provision was contravened; the petition was dismissed.

Facts

The petitioners were senior employees of MTN (U) Ltd, employed as Logistics Manager and Accounts Manager. They were investigated and charged at the Anti-Corruption Court with embezzlement and conspiracy to defraud MTN of large sums in US dollars and Uganda shillings, contrary to the Anti-Corruption Act and the Penal Code Act. MTN discontinued their employment upon charge. The petitioners pleaded not guilty, were released on bail, and the criminal matters remained pending. They petitioned the Constitutional Court, alleging the DPP selectively directed investigations and charged only them while excluding implicated MTN executive committee members who were mandatory signatories to the payments. They relied on a memorandum of understanding between MTN and Three Ways Shipping and a letter to the DPP as evidence that the complainant exercised overbearing influence over the DPP's decision to prosecute. The first petitioner died before the hearing concluded.

Issues

Whether the acts and conduct of the Director of Public Prosecutions in directing police investigations and instituting charges against the petitioners contravened Articles 20(2), 21(1), (2), (3), 42 and 120(5) and (6) of the Constitution.
Whether the acts and conduct of the Director of Public Prosecutions complained of contravened Articles 120(5), 28 and 44(c) of the Constitution.
What remedies, if any, are available to the petitioners.

Orders

The petition fails and is dismissed.
Each party shall bear its own costs.

Key headnotes

Administrative Law — Prosecutorial Discretion — Independence of the Director of Public Prosecutions

The Director of Public Prosecutions exercises prosecutorial discretion independently and, under Article 120(5), must have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of legal process; a complainant's mere request that charges be brought or discontinued does not amount to direction or control prohibited by Article 120(6).

Criminal Law & Procedure — Selective Prosecution — Equality Before the Law

The DPP may charge any number of persons in a chain of crime based on the facts, circumstances and evidence in each case, and a suspect cannot resist prosecution on the ground that others he wishes to be jointly charged with have not been charged; charging some suspects and not others, where supported by evidence, does not amount to discrimination or unequal treatment contrary to Article 21.

Judicial Review — Challenge to Prosecutorial Decisions — Appropriate Forum

A decision of the DPP to investigate and prosecute is properly challenged by judicial review proceedings in the High Court applying established judicial review principles, rather than by a constitutional petition seeking to stop a criminal trial; the court will not readily halt prosecutions, as the trial and appeal systems provide adequate remedies for any prejudice.

Constitutional Law — Constitutional Interpretation — Plain Meaning and Harmony

Where the words or phrases of the Constitution are clear and unambiguous they must be given their primary, plain, ordinary and natural meaning, and the entire Constitution must be read together as an integral whole with each provision sustaining the others.

Legislation cited (10)

Constitution of Uganda 1995 art.20(2)
Constitution of Uganda 1995 art.21(1), (2), (3)
Constitution of Uganda 1995 art.28
Constitution of Uganda 1995 art.42
Constitution of Uganda 1995 art.44(c)
Constitution of Uganda 1995 art.120(5), (6)
Judicature Act Cap 13 s.36(1)
Anti-Corruption Act 2009 s.19(b)(iii)
Penal Code Act s.309
Inspectorate of Government Act s.8

Cases cited (9)

Mohit v DPP of Mauritius (Privy Council Appeal No. 31 of 2005)
Prof Gilbert Balibaseka Bukenya v Attorney General (Constitutional Petition No. 30 of 2011)
Gordon Sentiba v Inspectorate of Government (Supreme Court Civil Appeal No. 6 of 2006)
Glenister v President of the Republic of South Africa (CCT 48/10) [2011] ZACC 6
S v Van Rooyen [2002] ZACC 8
Valente v The Queen (1986) 24 DLR (4th) 161 (SCC)
Dr. Tiberius Muhebwa v Uganda (Constitutional Petition No. 09 of 2012)
Jim Muhwezi & 3 Others vs Attorney General and Inspector General of Government
Matalulu v DPP (2003) 4 LRC 712

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