Ingredients of Corruption Offenses in Uganda under the Anti-Corruption Act 2009

Corruption offenses in Uganda

Corruption offenses are usually committed by public Officers and according to court in R v Whitaker (1914) 3KB 1283 a public officer is any person who performs or discharges duties entrusted in him or her by virtue of her employment in a body that performs public duties using public resources. Under the Anti-corruption Act, 2009 a public officer includes any one employed by a public agency or who receives Public property or resources.

Corruption offense of bribery.

Bribery is an act or omission done with an intent to influence a public officer in his or her official duties to produce a certain result. See R v Gurney. In HM Advocate v Dick, Court held that there was no bribery because the bribe was paid to councillor to use his influence to encourage a magistrate to grant a license because the influenced behavior didn’t relate to the official duties of the councillor. However had the councillor approached the Magistrate to influence his or her behavior, then he would have committed the offense of bribery. Therefore, the influence must relate to the official duties of the public officer being bribed and can not relate to private matters. In Dr. Kiiza Besigye v Y.K Museveni SC EP No. 1 of 2001 court held that bribery is not committed unless the gift or money or other consideration is given or received by a person who is proved to be a registered voter. The offense of bribery is committed by making or offering payment or other consideration to influence a person holding a public office to disregard his or her duty at some future time. The occasion for the disregard of the duty need not have arisen and never needs to arrive in order to successfully prove the offense of bribery. This is the classic form of the offense of bribery where one person offers a bribe to a public Officer. The offense of bribery has been extended to include three distinct criminal offenses. It includes:

  • The offense of offering a bribe as defined above.
  • The offense of Soliciting for a bribe.
  • The offense of receiving a bribe.

The offense of bribery is Contrary to Section 2(a) and 26(1) of the Anti Corruption Act, 2009. S.2 (a) of the Anti Corruption Act 2009 provides that: “a person commits the offence of corruption if he or she does any of the following acts-

The Solicitation or acceptance, directly or indirectly, by a public  official, of any goods of monetary value, or benefits, such as a gift, favour, promise, advantage or any other form of gratification for himself or herself or for another  person or entity in exchange for any act or omission in the performance of his or her public functions”;

According to the High Court in Uganda v Odoch Ensio HCCA No. 28 of 2008 the offense of Soliciting or accepting a bribe requires proof that:

  • The accused person is a public officer or an employee of a public body
  • The accused received or solicited for gratification or inducement
  • The acts were done corruptly.

In Mugizi v Uganda HCT-00-AC-CN-No. 1 of 2014 court held that the prosecution does not need to prove Solicitation or acceptance jointly to prove the ingredients of this offence. One of those ingredients can stand alone. It is inconsequential how one receives a gratification as a public official to perform his or her public functions, whether it was due to Solicitation or without, the consequence is the same. In this case a public officer solicited a bribe to reduce the tax liability of the complainant. He reduced the tax liability from an initial assessment of 1.2bn to 131m.

Corruption itself means offering favours with the intent that they operate on the mind of the person receiving them to encourage them to enter a corrupt bargain. See R v Harvey Crim LR 70. It should be noted that according to the High Court in Uganda v Dr. Richard Ndyomugenyi Criminal Case No. 03 of 2010 Corruption offenses under section 2 of the Anti-Corruption Act are not strict liability offenses. The prosecution must prove that there was an offer which is known to the person sought to be bribed and which is capable of being accepted or rejected. What can not be rejected is not an offer. See R v Glynn.

In the circumstances, where prosecution is charging a private citizen who has offered a bribe, it must prove that;

  • The accused offered money or other consideration,
  • The offer was made to a person who performs Public duties or holds a public office in discharge of their official duties.
  • The purpose of accused person in making the offer intended to induce the public officer to disregard or act contrary to his or duties. See R v Allen 27 NSWLR 398 at 402.

These offenses are fairly easy to prove and should be a bedrock of any strategy to successfully combat corruption in Uganda. They can be easily investigated using simple traps where the complainant is willing to cooperate as was the case in Mugizi v Uganda HCT-00-AC-CN-No. 1 of 2014 However, they can be leveraged for sting operations and intergrity tests. The state has the legal right to offer citizens an opportunity to commit a criminal offense as long as it provides a none exceptional opportunity and its officers conduct themselves as other private citizens do. Such operations have a deterrent effect on corruption and can be used to eliminate persons that are prone to corruption from Public office.

Neglect of duty

The offense of Corruption by neglect of duty is created by Section 2(i) of the Anti-Corruption Act, 2009. According to Uganda v Moses Kisembo and 3 others Criminal Case No. 8 of 2014, to prove the offense, the prosecution is required to prove the following elements of the offence.

  • That the accused had a duty to perform.
  • That the accused neglected that duty.
  • That as a result of the neglect of duty, damage was caused to the prejudice of the state or public body

Neglect is defined in Black’s Law dictionary, as the omission of proper attention to a person or thing whether inadvertent or negligent or wilful; the act or condition of disregarding. The same dictionary defines negligence as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm.

According to court in Uganda v Dr. Richard Baruhanga Criminal Case No. 28 of 2008, the prosecution must prove that the corrupt conduct alleged and that the accused had the necessary mensrea. Court also held that Section 2 does not create strict liability offenses.

The test of negligence in a civil case is whether an ordinary person having the skills, knowledge and experience of the defendant would have acted as the defendant did. According to Lord Atkins’ in Donoghue v Stevenson. ‘it is not enough to show that another expert would have given a different answer . . the issue is . . whether [the defendant] has acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession’ and ‘How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man . . But where you get a situation which involves some special skill or competence, then the test of whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

However according to the House of Lords in R v Adamako, in a criminal trial the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, inaddition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. However, though this is a manslaughter case, its distinction between criminal negligence and civil negligence seems valid. The negligence required for the offense of neglect of duty must be recklessness. A person is reckless in respect of a risk if he is aware of the risk and elects to take it and in the circumstances it is unreasonable to take the risk.

In Uganda v Nakiryowa (Criminal Session Case No. 172 of 2015 Justice Mubiru defined rashness to mean doing an act with the consequences of a risk that evil consequences will follow but with the hope that they will not happen. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. On the other hand, negligence is a breach of duty imposed by law. It is the omission to do something which a reasonable person, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable person would not do. Negligence may either be civil or criminal negligence and the distinction depends upon the nature and gravity of the negligence. To amount to criminal negligence, it must be gross in nature. The test is whether the conduct of the accused was so bad in all the circumstances as to amount to a criminal act or omission (see R v. Adomako [1994] 3 WLR 288).

Embezzlement of public resources

The offense of Embezzlement is provided for by Section 19 of the Anti-Corruption Act, 2009. The offense is committed by:

  • An employee, a servant or an officer of the Government or a public body; or
  • A director, an officer or an employee of a company or a corporation; or
  • A clerk or servant employed by any person, association or religious or other Organisation; or
  • A member of an association or a religious organization or

Who steals a chattel, money or valuable security—

  1. Being the property of his or her employer, association, company, corporation, person or religious organization or other organization;
  2. Received or taken into possession by him or her for or on account of his or her employer, association, company, corporation, person or religious organization or other organization; or
  3. To which he or she has access by virtue of his or her office.

To prove the offense of embezzlement, the prosecution is required to prove the following elements of the offence.

  • That the accused is a government employee or an employee of a public body
  • That the accused received the money by virtue of her office.
  • That the accused the stole money.

The first two elements of the offense are very straightforward and easy to prove. However, stealing or theft requires more explanation. Theft refers to the dishonest assumption or exercise of the exclusive rights of an owner without the consent of the owner. It usually involves the carrying away of the property of another without the property of the owner but exercise of the exclusive rights of the owner without carrying away is sufficient appropriation without the need to carry away. The following acts are sufficient to amount to appropriation of the property of another person if done without consent;

Dishonesty

In Ivey v Genting Casinos [2018] AC 391, the Supreme Court ruled that whether or not a defendant’s conduct should be considered dishonest was to be decided in accordance with what ordinary, decent people would consider it to be. It was not necessary that the defendant themselves should be aware that ordinary people would consider the conduct dishonest. According to court.

…the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

Misappropriation

“Appropriates” does not require to be read as “misappropriates” and so there is no need to show that the property was taken without the owner’s consent. (Lawrence v Metropolitan Police Commissioner (1971) Cr App R 471: D, a taxi driver, was guilty of theft when the victim (a tourist who spoke little English) had permitted him to remove cash from his wallet which was far in excess of the fare payable. DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse interference with or usurpation of the rights of an owner.)

Permanently deprive

In R v Vinall [2012] 1 Cr App R 29 the Court of Appeal said:

“What section 6(1) requires is a state of mind in the defendant which Parliament regards as the equivalent of an intention permanently to deprive, namely “his intention to treat the thing as his own to dispose of regardless of the other’s rights”. The subsection does not require that the thing has been disposed of, nor does it require that the defendant intends to dispose of the thing in any particular way. No doubt evidence of a particular disposal or a particular intention to dispose of the thing will constitute evidence of the defendant’s state of mind but it is, in our view, for the jury to decide upon the circumstances proved whether the defendant harboured the statutory intention.”

Illicit enrichment

Illicit enrichment

This offence is created by section 31(1) (b) and 31(2) of the Anti-Corruption Act, 2009. According to court in Uganda v Wandera, HCT-00-AC-SC-2014 of 2012 and Uganda v Geoffrey Kazinda, HCT-AC/CO NO. 004/2016) its ingredients are:

  • The accused must be in control or possession of pecuniary resources or property; or maintains a standard of living above that which is commensurate with his or her current or past known sources of income or assets;
  • Penuniciary resources or property must be disproportionate to his or her current or past known sources of income or assets.

According to the Cambridge international Dictionary of English standard of living is the amount of wealth and comfort people have in a particular society. It is that level of wealth, comfort, material goods, and necessities available to a certain socioeconomic class, geographic area or person. In Uganda vs Akankwasa Damian HCT-00-Ac-SC-69 of 2010 it was held that in order to attain a conviction of illicit enrichment, prosecution must demonstrate that the accused’s enrichment cannot be justified from known sources of income.

Furthermore, in Uganda v B.D. Wandera HCT00-AC-SC-0012 court opined that once the prosecution proves the accused’s known current and past sources of income, and gives a proper valuation of his assets and shows that the property or assets are disproportionate to his known current and past income then an inference is drawn that he illicitly enriched himself if no plausible defence is given by the accused. Once these elements have been proved, the presumption is made by the Court, unless evidence is presented to the contrary by the accused. Further, that the Courts interpreted “known” to mean lawfully obtained income that is revealed by a thorough investigation and cannot refer to sources of income especially within the knowledge of the accused person.

In Akankwasa Damian v Uganda (Constitutional Petition No. 05 of 2011, the constitutional court rejected a challenge to the constitutionality of the offence of illicitly acquired wealth. The court stated that the purpose of the Anti-Corruption Act as we stated in our ruling in Atugonza’s case is to fight and eliminate all forms of corruption in public and private spheres. Section 31 gives power to the IGG and the DPP to prosecute all those who might have acquired property or assets whose value exceed their known lawful incomes or assets past or present. The section merely empowers the officers named therein to prosecute anyone whom they have reasonable grounds to believe that the property they hold was acquired through graft or corrupt means. The Constitutional Court concluded that Articles 26(1) and 27 can not be invoked to protect property which has been unlawfully acquired. The two articles protect property and assets which have been acquired using lawful means.

This offense is supposed to criminalize the plunder of public resources by punishing those that illicitly (through theft of public resources, bribes, kickbacks and other Corrupt means) acquire wealth that can not be explained by their known sources of income. Theoretically, after the state has proved that the wealth and assets of the accused exceed those that can be attributed to the known sources of income of the accused, the burden of proof shifts to the accused to prove that the assets were acquired legitimately. This is known as the reverse burden of proof.

Ordinarily under the trite rule in Woolingminton v DPP, the state has the burden of proof in a criminal trial and this burden never shifts to the accused person except for the proof of the defense of insanity. The reserve burden of proof gives the accused the burden to prove certain facts after the prosecution has proved the offense against the accused person because the facts are within the knowledge of the accused person and it would be onerous to require the state to bear the burden of proving them. The reverse burden of proof does not violate the right to a fair hearing.

Unfortunately, the courts in Uganda have not properly applied the reverse burden of proof imposed on the accused in cases of Illicitly acquired wealth thereby making it nearly impossible to prove the offense. It is very onerous for the prosecution to prove facts within the knowledge of the accused due to the right against self incrimination. See the cases below:

  1. R v Davies [2002] EWCA Crim 2949. A reverse burden of proof under sections 2 and 3 of the Official Secrets Act 1989 should be treated as an evidential burden only, in order to ensure compatibility with Article 6 of the European Convention on Human Rights (the right to a fair trial). 
  2. R v Lambert [2001] UKHL 37: “If [a legal burden of proof on an accused] is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary … If [an evidential burden only on the accused] is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way … A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused” (Lord Steyn, para 37).

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