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Turyahabwa v Attorney General and Another (Consitutional Petition 50 of 2017)

Constitutional Court · [2024] UGCC 29 · 2024 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of statutory provisions
Decision
Petition dismissed with costs; the impugned provisions of the Anti-Corruption Act upheld as constitutional and the Inspectorate of Government struck off as an improper party

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Holding

The Constitutional Court held that Section 41(1) and (2) of the Anti-Corruption Act, 2009 — empowering the IGG or DPP to require a person under investigation to furnish a sworn statement of income, assets and liabilities — does not contravene the presumption of innocence under Article 28(3)(a) or Article 28(4) of the Constitution. The power is rationally connected to combating corruption, proportionate, and saved by Article 28(4)(a), which permits placing the burden of proving particular facts on an accused. The petitioner was requested, not compelled, and could later explain his statement under section 41(3). The Court also upheld a preliminary objection striking out the Inspectorate of Government as an improper party lacking legal capacity to be sued. Petition dismissed with costs.

Facts

The petitioner, a Principal Systems Analyst in the Ministry of Local Government, was charged in October 2017 in the Anti-Corruption Division of the High Court with embezzlement and false accounting under the Anti-Corruption Act, 2009. He was interdicted and released on bail. While he remained under prosecution, the Inspectorate of Government directed him to furnish a written statement regarding his income, assets and liabilities, and the Inspector General of Government, citing Sections 41(1) and 41(2) of the Act, issued a formal letter requiring him to declare all his assets under oath. The petitioner protested, arguing that following his interdiction he could not be categorised as a leader under the Leadership Code Act, and that compelling him to furnish such information violated his right against self-incrimination and his right to be presumed innocent under Article 28(3)(a). He petitioned the Constitutional Court for declarations that Section 41(1) and (2) were inconsistent with the Constitution and should be struck off. The respondents contended that the request fell within the IG's constitutional mandate to combat corruption, did not compromise the petitioner's innocence, and that he remained a public officer bound to declare his wealth.

Issues

  1. Whether the 2nd respondent (the Inspectorate of Government) is a proper party with legal capacity to be sued in the petition.
  2. Whether the petition raises any question for constitutional interpretation under Article 137.
  3. Whether Section 41(1) and (2) of the Anti-Corruption Act, 2009 is inconsistent with Article 28(3)(a) and 28(4) of the Constitution.
  4. What remedies are available to the parties.

Orders

  • The preliminary objection raised by the 1st respondent is allowed and the 2nd respondent is struck off the petition.
  • Section 41(1) and (2) of the Anti-Corruption Act, 2009 does not contravene Article 28(3)(a) and 28(4) of the Constitution.
  • The petition is dismissed with costs to the respondents.

Key headnotes

Constitutional Interpretation — Jurisdiction under Article 137 — Threshold for Interpretive Jurisdiction
The Constitutional Court's interpretive jurisdiction under Article 137 arises only where a petition discloses a genuine controversy as to the meaning of a constitutional provision; a mere allegation that an act, omission or law breaches the Constitution is insufficient to invoke that jurisdiction.
Presumption of Innocence — Anti-Corruption Act s.41 — Power of the IGG to Require a Sworn Asset Declaration
Section 41(1) and (2) of the Anti-Corruption Act, 2009, which empowers the IGG or DPP to require a person under investigation to furnish a sworn statement of income, assets and liabilities, does not contravene the presumption of innocence guaranteed by Article 28(3)(a) of the Constitution.
Limitation of Rights — Proportionality Test for Justifying a Statutory Limitation
A statutory limitation on a guaranteed right is justified only where the legislative objective is sufficiently important to override a fundamental right, the measures are rationally connected to that objective and not arbitrary or unfair, and the means impair the right no more than is necessary to accomplish the objective.
Burden of Proof — Article 28(4)(a) — Imposition of Burden of Proving Particular Facts
Article 28(4)(a) of the Constitution permits a law to impose on a person charged with a criminal offence the burden of proving particular facts within their peculiar knowledge, and such a law is not inconsistent with the presumption of innocence under Article 28(3)(a).
Parties — Legal Capacity — Whether the Inspectorate of Government Can Be Sued
The Inspectorate of Government has no corporate status or legal capacity conferred by law to sue or be sued; the Attorney General is the proper party to represent both the Government and the Inspectorate of Government in proceedings.
Right Against Self-Incrimination — Distinction Between Request and Compulsion
A request, as distinct from compulsion, to furnish a sworn statement which the person may later explain or amplify under section 41(3) of the Anti-Corruption Act does not amount to compelled self-incrimination offending the presumption of innocence.

Legislation cited (33)

  • Anti-Corruption Act 2009 s.41(1)
  • Anti-Corruption Act 2009 s.41(2)
  • Anti-Corruption Act 2009 s.41(3)
  • Anti-Corruption Act 2009 s.19
  • Anti-Corruption Act 2009 s.22
  • Anti-Corruption Act 2009 s.2
  • Constitution of Uganda 1995 art.28(3)(a)
  • Constitution of Uganda 1995 art.28(4)(a)
  • Constitution of Uganda 1995 art.28(11)
  • Constitution of Uganda 1995 art.21(1)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.119(1)
  • Constitution of Uganda 1995 art.119(4)
  • Constitution of Uganda 1995 art.225
  • Constitution of Uganda 1995 art.227
  • Constitution of Uganda 1995 art.230
  • Constitution of Uganda 1995 art.233(1)
  • Constitution of Uganda 1995 art.234
  • Leadership Code Act 2002 s.5
  • Leadership Code (Amendment) Act 2017 s.1
  • Leadership Code (Amendment) Act 2017 s.4A
  • Inspectorate of Government Act 2002 s.10
  • Inspectorate of Government Act 2002 s.14
  • Inspectorate of Government Act 2002 s.25(2)
  • Inspectorate of Government Act 2002 s.26(1)(b)
  • Evidence Act s.101
  • Evidence Act s.105
  • Penal Code Act s.342
  • Government Proceedings Act s.10
  • Civil Procedure Rules Order 19 r.3
  • Uganda Public Service Standing Orders 2010

Cases cited (35)

  • Sentiba Gordon & 2 Others v Inspectorate of Government (Civil Appeal No. 6 of 2008)
  • Attorney General and Inspectorate of Government v Afric-Cooperative Society Ltd [2014] UGSC 6
  • John Ken Lukyamuzi v Attorney General and Another (Constitutional Appeal No. 2 of 2007)
  • Phillip Karugaba v Attorney General (Constitutional Petition No. 11 of 2002)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1998)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Charles Onyango Obbo & Another v Attorney General [2004] UGSC 1
  • Davis Wesley Tusingwire v Attorney General [2017] UGSC 11
  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 53 of 2011)
  • Geoffrey Nangumya v Attorney General & 2 Ors (Constitutional Petition No. 1 of 2021)
  • Wycliffe Kiggundu v Attorney General (Civil Appeal No. 27 of 1993)
  • Tumukunde v Attorney General and Another [2005] 2 EA 291
  • Ssekitoleko v Uganda [1967] EA 531
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Brady v Maryland, 373 U.S. 83 (1963)
  • Miranda v Arizona, 384 U.S. 436 (1966)
  • Fredrick Zaabwe v Orient Bank & Others (Criminal Appeal No. 4 of 2006)
  • Re Windsor (1865) 10 Cox 118
  • Welham v Director of Public Prosecutions [1961] AC 103
  • Commonwealth of Pennsylvania v Cosby, 252 A.3d 1092
  • Woolmington v DPP [1935] AC 462
  • Mark Gova Charmnduka & Another v Minister of Home Affairs & Another Supreme Court, Civil Application No. 156/99
  • Uganda v Atugonza Francis (Constitutional Reference No. 31 of 2010)
  • Bell v Wolfish, 441 U.S. 520 (1979)
  • Nalongo Naziwa Josephine v Uganda (Supreme Court Criminal Appeal No. 35 of 2014)
  • Taylor v Kentucky, 436 U.S. 478 (1978)
  • Saunders v United Kingdom (Application No. 19187/91)
  • P.K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev Christopher Mtikila (2010) EA 13
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Okello Okello John Livingstone and 6 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • Rtd Dr. Col. Kiiza Besigye v Y.K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v Major David Tinyefuza (Constitutional Appeal No. 1 of 1997)
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