Court okays prosecution of ministers in iron sheets saga

The applicant moved Court citing numerous provisions of the Constitution, the Human Rights (Enforcement) Act, 2019 and the Judicature Act, Cap 13 seeking a wide range of declarations, orders and reliefs.

Specifically, the motion is brought under Article 50 of the Constitution; Sections 3, 4, 6, of the Human Rights (Enforcement) Act 2019 and Section 33 of the Judicature Act, Cap 13.

The applicant seeks the following declarations and orders:

1. That investigations, arrests, detentions and prosecutions by the Uganda Police Force, Director Public Prosecutions and any other State Agency of the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils in respect of l2,200 pieces of iron sheets processed vide internal memo of the Minister for Karamoja Affairs dated January 12, 2023 infringe on fundamental and other rights of the said persons, those of the applicant and other Ugandans in respect of equal protection of the law, liberty, fair hearing, participation in government affairs and fair treatment in administrative decisions.

2. That the piecemeal investigations, arrests, detentions and prosecutions by the Uganda Police Force, Director Public Prosecutions and any other State Agency of the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils in respect of 12,200 pieces of iron sheets processed vide internal memo of the Minister for Karamoja Affairs dated January 12, 2023 infringe on fundamental and other rights of the said persons, those of the applicant and other Ugandans in respect of equal protection of the law, liberty, fair hearing, participation in government affairs and fair treatment in administrative decisions.

3. That a permanent injunction issues against the Uganda Police Force, Director Public Prosecutions and any other State Agency from further conducting investigations, arrests, detentions and prosecutions against the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils in respect of 12,200 pieces of iron sheets processed vide internal memo of the Minister for Karamoja Affairs dated January 12,2023

4. That an order issue nullifying, invalidating and setting aside all investigations, arrests, detentions and prosecutions by the Uganda Police Force, Director Public Prosecutions and any other State Agency of the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils in respect of 12,200 pieces of iron sheets processed vide internal memo of the Minister for Karamoja Affairs dated January 12,2023

5. That the respondents pay general, exemplary and aggravated damages and costs.
The grounds for this motion are that:
I. The Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils are not holders of offices in the public service hence are not criminally liable as such.
II. It is the Permanent Secretary and subordinates are accountable for public resources and not the said officers.
III.  Piece meal investigations, arrests, detentions and prosecutions derogate the right to fair hearing.
IV. The investigations, arrests, detentions and prosecutions by the Uganda Police Force, Director Public Prosecutions and any other State Agency of the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils in respect of 12,200 pieces of iron sheets infringe on, violate and threaten the following rights of the said officers, the applicant’s and other Ugandans.
a) Right to equality and freedom from discrimination
b) Right to personal liberty
c) Right to fair hearing
d) Right to move freely throughout Uganda
e) Right to participate in affairs of Uganda
f) Fair treatment in administrative decisions.

The motion is supported by an affidavit of the applicant who described himself as a holder of a law degree from Makerere University and a businessman by choice.

The affidavit contains an attachment of a copy of an internal memo signed by Mary Goretti Kitutu Kimono requesting for 12,200 iron sheets for distribution to vulnerable groups in Karamoja. The rest of the contents of the affidavit are a repeat of the motion.

The motion is opposed by the respondent through an affidavit of Ms Josephine Namatovu, Assistant DPP. She stated that she supervises all prosecutions related to corruption cases brought by the Police.
She contested the applicant’s competence to bring this application.

She also contested the applicant’s assertion that the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils are immune to criminal investigations and prosecution.

She denied that investigations were piece meal. She stated that different individuals played different roles necessitating different investigations. She justified the on-going investigations because the iron sheets were diverted from the intended purpose and that there were no violations of any rights to warrant the prayers sought in the application.

In rejoinder, Mr Male Mabirizi stated that although the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils are not immune from criminal investigations, such investigations should be made against the permanent secretary.

The applicant appeared in person whilst the respondents were represented by Mr Masaba Peter (PSA) from the Attorney General’s chambers.

The following issues arise:
1. Whether the applicant has locus standi to bring this action
2. Whether investigations, arrests, detentions and prosecution of some ministers violated their fundamental rights and freedoms enumerated in the Motion.
3. Whether such investigations, arrests, detentions and prosecutions are piece meal and if so whether they violate the fundamental rights and freedoms listed in ground a(a) to (h) of the Motion.
4. Whether investigations, arrests, detentions and prosecutions in respect of the 12,200 iron sheets are demonstrably justifiable in a free and democratic society.
5. What remedies if any are available.

Issue number one is a preliminary point of law which I am enjoined to dispose of first. Accordingly, I will consider the respondents’ submissions in objection before that of the applicant.

Mr Masaba submitted that the applicant had no locus standi because he does not reveal in what capacity he brought the application. He cited section 3(21 of the Human Rights (Enforcement Act, 2019 and contended that the applicant does not fall within the ambit of persons who can bring this application.

He submitted that the applicant has not demonstrated that the political leaders are incapable of acting in their own name, or that the applicant is a member of an interest group or association or that he is acting in public interest.

Further, that there is no cause of action to entitle the applicant to come to court because he has not shown which of his right has been violated.

In reply, the applicant submitted that he did not file the application on behalf of others but in his own right under Article 50(2) of the Constitution. He contended that section 3(2) of the Human Rights (Enforcement) Act, 2019 does not oust Article 50(2) of the Constitution.

In respect to the complaint about lack of a cause of action, the applicant relied on Article 50 of the Constitution to say it clothed him with a cause of action.

The problem that I see is that the applicant in his Motion cited numerous provisions of the law making it difficult to know under what specific procedure he is moving court. In the process, he appears to be shifting from one law to another depending on how he is challenged. Article 50(1) & (2) of the Constitution provides as follows:
50. Enforcement of rights and freedoms by courts.
(1)  Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.
(2) Any person or organisation may bring an action against the violation of another person’s or group’s human rights.
Clearly, the applicant has audience as “any person” may bring an action against the violation of another person’s right. This would have been sufficient to entitle the applicant to move court without citing Section 3 of the Human Rights (Enforcement) Act, 2019.
The later has qualifications regarding who can move court and in what circumstances. Section 3 of the Human Rights (Enforcement) Act, 2019 provides as follows:
Enforcement of human rights and freedoms
(1) In accordance with article 50 of the Constitution, a person or organisation who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened may, without prejudice to any other action with respect to the same matter that is lawfully available, apply for redress to a competent court in accordance with this Act.
(2) Court proceedings under subsection (1) may be instituted by-
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of a group or class of persons
(c) a person acting in public interest; or
(d) an association acting in the interest of one or more of its members.
The applicant can only come to court under paragraph (c) which provides for public interest. He would be required to demonstrate how it is in public interest not to institute criminal proceedings against the said officials.
For the moment, as regards the issue of locus standi, I find that the applicant has a right of audience to present his application. The objection is overruled.
Issues number two and three are inter-twined. 
They both relate to whether the investigation, arrest, detention and prosecution by the Uganda Police Force, Director Public Prosecutions and any other State Agency of the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils in respect of 12,200 pieces of iron sheets processed vide internal memo of the Minister for Karamoja Affairs dated January 12, 2023 infringe on fundamental and other rights of the said persons, those of the applicant and other Ugandans in respect of equal protection of the law, liberty, fair hearing, participation in government affairs and fair treatment in administrative decisions.
I shall dispose of the two issues concurrently for brevity. These two issues are the basis of grounds one and two of the motion which I reproduce below for clarity.
i) That the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils are not holders of offices in the public service hence cannot be criminally liable as such.
2) That it is the permanent secretary Office of the Prime Minister and his/her subordinates who are responsible for accountability and not the Vice President, Speaker, Prime Minister, Ministers, Members of Parliament and Members of Local Councils.