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Kampala, Uganda | THE INDEPENDENT | High Court has dismissed an application by Male Mabirizi challenging the trial of politicians for the diversion of iron sheets and property under their ministries and departments as opposed to Accounting Officers. In April 2023, Mabirizi petitioned the Anti-Corruption Court challenging the arrests, interrogations, detention, and subsequent prosecutions of politicians such as the Vice President, Speaker, Ministers, Members of Parliament, and Local Government leaders for the diversion of government property under their dockets.
It came after the Minister in Charge of Karamoja Affairs Mary Gorreti Kitutu wrote directing the Accounting Officer to release 12,200 pieces of iron sheets for the vulnerable groups in the Karamoja region under the Affirmative Action Programme. However, the iron sheets released ended up in the hands of politicians scattered in different parts of the country, which to the arrest of Kitutu, her junior Minister Agness Nandutu, the State Minister for Finance and Economic Planning, Amos Lugoloobi, and others who are still at large.
As a result, Mabirizi petitioned the Anti-Corruption Court on April 17th, 2023 seeking to nullify the piecemeal investigations, arrests, detention, and prosecutions by Uganda Police Force, Director of Public Prosecutions or any other state agency in respect of, Vice President Prime Minister Ministers, Members of Parliament and Local Government Councils basing on the said Memo. He explained that under the law, the Vice President, Ministers, Speakers, and Local Government leaders cannot be answerable on matters regarding accountability stemming from their ministries and departments under their supervision arguing that they are policy markers and have nothing to do with accounting.
He added that if such continues, the government is most likely to jail lay people (politicians) when the government is employing technical people who should be held accountable. He noted that the law says if there is evidence against the politicians arising from one Memo, it should be gathered in one file as opposed to being scattered on multiple files, which is tantamount to abuse of the court process. Mabirizi said that the actions by the DPP and the Attorney General who are the only respondents in this case have caused him psychological anguish and should be nullified by the court. He asked the court to award him Shillings 80 million in compensation for the damages caused to him.
On his part, the Attorney General and the DPP represented by Principal State Attorney Peter Masaba asked the court to dismiss Mabirizi’s application with costs, saying it lacks merit and that he doesn’t have the locus to file it on behalf of the accused persons. According to Masaba, the arrest, interrogation, and prosecution do not contravene the constitution or any legislation because the politicians are being charged as individuals but not because of their offices.
Masaba said the investigations and prosecutions are not piecemeal in nature, arguing that Mabirizi’s application has no cause for action. In his ruling on Tuesday, Justice Lawrence Gidudu indicated that Mabirizi had the locus to file the application before Court, but his application was misconceived. “Clearly, the application was misconceived from the word go because if the Principal/President can be held accountable criminally what about the subordinates? The only difference is the timing. The Principal/President must first leave office before being charged, as for those below, the law must act in time,” said Gidudu.
He went on to explain that in 2011, the Constitutional Court in the petition filed by then Vice President Professor Gilbert Bukenya, it was held that immunity from prosecution was only provided to the President temporarily as long as he or she was in office and if he or she leaves office, he or she can be prosecuted. He said Bukenya had been charged with corruption-related offenses but he challenged the trial on grounds that he is a political leader, a Vice President, and a Cabinet Minister who acts on instructions of the President, and since the President is immune from prosecution, he was immune by implication.
According to Gidudu, the Court held that such immunity must be specifically granted by law and it went ahead to emphasize that no one else, not even the President who delegates or assigns duties can grant immunity to anyone else. “It follows in my view that political leaders can be charged with criminal offenses committed whilst holding Office. It is up to the Prosecution to prove beyond reasonable doubt the individual culpability or guilt of each accused,” said Gidudu.
As to whether the accounting officers and not the Ministers should be the ones to be charged, the Judge said this is a decision informed by investigations in regard to participation, which is a key ingredient in criminal cases.
He said therefore, the decision to consolidate their files is premature and there is no way how their rights enshrined in the Constitution will be violated in investigating, arresting, detaining, and prosecuting them in law.
“Accused Persons have rights under articles 23 and 28 of the Constitution such as not being detained beyond 48 hours, the right to Counsel, the right to apply for bail, right to be taken to court, the presumption of innocence, the right to an interpreter among others,” said Gidudu.
According to Gidudu, criminal liability is individual and one cannot ask DPP to drop charges against a certain category of suspects and instead charge another. “Even the President is only given temporary immunity whilst in office but after he or she vacates office, criminal charges can be slapped against him or her,” said Gidudu.
Mabirizi said he will appeal against this decision. On June 24th, 2023, the Director of Public Prosecutions Jane Francis Abodo informed Journalists that she had closed 17 case files of suspects implicated in the iron sheets scandal due to lack of sufficient evidence.
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