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Isingoma Peter-Using Undercover Operations in Uganda to Combat Corruption.

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Undercover operations in Uganda can lead to investigative success against corruption and other organized crimes.

Isingoma Peter (LLM MUK)

Introduction

Undercover agents are used during undercover operations, which include sting operations, decoys, surveillance, traps, and many others.[1] Other undercover techniques include befriending operations and controlled deliveries.[2] These investigative techniques are provided for by the United Nations Convention against Transnational Organised Crime.[3] Article 20(1) of the Convention provides that:

“If permitted by the basic principles of its domestic legal system, each state party shall, within its possibilities, and under the conditions prescribed by its domestic law, take the necessary measures to allow for the appropriate use of controlled delivery, and, where it deems appropriate, for the use of other special investigative techniques, such as electronic or other forms of surveillance, and undercover operations, by its competent authorities in its territory to effectively combat organised crime”.[4]

Undercover operations are sometimes referred to as covert or proactive policing because they are used without the knowledge of the person being investigated. Overt investigative techniques on the other hand, are those tactics or methods (techniques) of investigation that are used openly with the knowledge of the person that is being investigated. Sometimes, overt investigations are referred to as overt policing, and covert investigations are referred to as covert or proactive policing. Overt investigative techniques include interviews, inspections, searches, system studies, among others. On the other hand, covert investigative techniques, which are sometimes referred to as undercover operations include any tactic used in secret or not openly acknowledged or displayed such as traps, surveillance, and sting operations, among others.[5]

The law enforcement agencies in Uganda that use undercover operations to investigate criminal offences include; the Inspectorate of Government (IG), the Uganda Revenue Authority (URA), the Uganda Wildlife Authority (UWA), Uganda People’s Defence Forces (UPDF), Internal Security Organisation (ISO), and the Uganda Police Force (UPF).[6] Undercover operations in Uganda are mainly used against criminal offenses that often tend to be organized such as corruption, drug-related offenses, terrorism, tax evasion, trafficking in people, money laundering, and other similar offenses. Regardless of the use of undercover operations by law enforcement agencies in Uganda, there is neither statute nor case law that defines undercover operations. The US Department of Justice Guidelines for the conduct of undercover operations define an undercover operation as an investigation involving a series of related undercover activities done over some time by an undercover employee. These guidelines define undercover activities to mean any investigative activity involving the use of an assumed name or cover identity by an employee of the FBI or another Federal, state, or local law enforcement organisation.[7] According to UNODC, during undercover operations investigators infiltrate criminal networks or pose as offenders to uncover organised crime activity.[8] Therefore, for this study, an undercover operation is a technique employed by law enforcement agencies whereby they assume false identities or pretend to be criminals to observe, and document the activities of real criminals, and their associates with the view of obtaining intelligence or evidence to use against the criminals. The investigators infiltrate criminal networks or pose as offenders to uncover organised crime activity.

During most undercover operations, law enforcement officers are not passive observers but active participants in the criminal enterprise as advisors, aides, counsellors, and abettors.[9] Due to this active participation by the law enforcement officers in the crime, defendants often allege that they have been entrapped by law enforcement officers. Defendants and suspects also allege that the undercover officers induced, and coerced them into committing the offence (i.e. entrapment).[10] In addition to entrapment, suspects also allege human rights violations, arbitrary targeting and other misconduct by the undercover law enforcement agents. Other allegations of misconduct include, deception, manipulation, invasion of privacy, torture, and threats, among others.[11] Misconduct encompasses illegal or unethical actions or the violation of individuals’ constitutional rights by law enforcement officers in the conduct of their duties. Ugandan law does not define misconduct. However, court in Roylance v General Medical Council[12] stated that misconduct is a word of general effect that involves some act or omission which falls short of what would be proper in the circumstances. The standard of propriety is often found by reference to the rules and standards that state agents are ordinarily required to follow.[13]

The Crime and Corruption Commission (Queensland) provides a valuable test of what constitutes misconduct. It defines misconduct as any conduct by a law enforcement officer that is disgraceful, improper, or unbecoming law enforcement officer, or shows unfitness to be or continue as a law enforcement officer, or does not meet the standard the community reasonably expects of a law enforcement officer.[14] The UNODC describes seven typical types of misconduct, that is to say, physical abuse, prisoner mistreatment, evidence manipulation, corruption, sexual misconduct, unauthorized disclosure of information, and extortion.[15] Misconduct amounts to ethical breaches, breach of duty, and tortious conduct which can lead to both civil, and disciplinary action. Furthermore, gross breaches of standards of conduct of conduct such as corruption, torture, harassment, fraud, violation of human rights, and abuse of office are crimes under the Police Act, the Penal Code Act, the Anti-Corruption Act, 2009 and other laws, which can lead to criminal prosecution.[16] Examples of misconduct include brutality, dishonesty, fraud, coercion, torture, abuse of authority, and sexual assault, including the demand for sexual favors in exchange for leniency.[17] Stoughton classifies misconduct into three broad categories; malfeasance, or the performance of unlawful acts; misfeasance, which is the performance of otherwise lawful acts unlawfully or wrongfully and nonfeasance, or failure to perform a legally required act.[18]

Misconduct has many negative consequences for law enforcement agencies, individuals, and the criminal justice system. For example, misconduct during undercover operations compromises the use of undercover operations, public trust in law enforcement agencies, and public trust between the state and its citizens that is fundamental to a democratic society.[19] For example, in the United States, and the United Kingdom, a section of the public is calling for the defunding and in some instances outright abolishment of the police due to outrage over racism, and police brutality against people of colour. There are no statistics on the number of complaints made against undercover agents employed by any of the law enforcement agencies in Uganda. On the other hand, the number of complaints of police misconduct arising from overt investigations that have been reported in Uganda has varied over the years. According to the Commonwealth Human Rights Initiative (CHRI), there were 250 cases reported in 1998, 650 cases in 1999, 317 cases in 2001, and 300 cases in 2004.[20]

In conclusion, undercover operations are effective in uncovering syndicated, and organised crimes. They create a deterrent effect on crime and produce very good evidence. Therefore, it is important to protect them from disrepute. Furthermore, due to the usefulness of undercover operations, it is not enough to simply ban them because this course of action would deprive the police and other law enforcement agencies of an effective tool against organised crime.

Background

As pointed out in the introduction, the IG, Uganda Revenue Authority, the Internal Security Organisation, and the Uganda Police Force use undercover operations such as traps, surveillance, sting operations and other undercover techniques during investigations.[21] The Directorate of Public Prosecution and the Inspectorate of Government use evidence obtained using undercover tactics such as traps to corroborate other evidence that points to the commission of a crime by an accused person.[22] The IG, URA and ISO use traps in their covert operations.[23] For example, the IG was advised by the Legal, and Parliamentary Affairs committee to lay traps against the District Service Commissions that ask for money to hire public officers.[24] However, in Uganda, there is no specific regulatory framework to govern the use of undercover tactics by these law enforcement agencies. Though there is no specific regulatory framework, Uganda has various laws that apply to the conduct of investigations by the law enforcement agencies, and that regulate the admission of evidence.[25] In this context, the lack of a regulatory framework means that there are no specific laws, and regulations to govern the use of covert investigations in Uganda and that laws that apply to undercover agents are inadequate.[26]

Undercover investigative techniques such as traps are prone to abuses which can compromise the evidence collected. For example, misconduct by undercover agents in Uganda was alleged in Uganda v Ekungu Simon Peter[27] against the Inspectorate of Government and in Uganda v Kisembo Stephen[28] against the External Security Organisation. It was further alleged by terrorism suspects in Omar Awadh Omar & 10 others v Attorney General[29] against the Uganda Police Force (UPF), and other regional security agencies, and Imere v Uganda v Uganda Revenue Authority,[30] and the Uganda Police Force. The misconduct by law enforcement agents whether during overt or covert investigations is different from misconduct by other public officers because of the very nature of law enforcement agencies, and their powers. They are tasked with the maintenance of law order, and enforcement of the law, and have a legal right to use force. They also have wide powers to restrict the freedom of individuals including the power of arrest, and detention. These wide powers to infringe on the freedoms of citizens carry with them a heavy burden of accountability. The Commonwealth Human Rights Initiative argues that good systems of governance require the law enforcement agencies to account for the way they carry out their duties, especially for the way they use force. It also points out that this ensures that the law enforcement agencies will consider carefully the methods that they use to protect peace and order, and that incidents of police misconduct or abuse of powers will be dealt with harshly.[31]

If law enforcement agencies abuse these powers, they can cause not only lethal harm but also abuse the rights of individuals. Harms caused by an officer’s actions can include, physical injury, sexual abuse, financial loss, damage to health, mental or psychological distress, reputational harm, loss of liberty (e.g., if a person has been wrongfully arrested or detained), and infringement of human rights.[32] Harm to law enforcement agencies, and the state can include, financial loss to the state, public distrust of law enforcement agencies, damage to the integrity of the criminal justice system, and damage to the rule of law in Uganda.[33] Given the seriousness of the harm to individuals, and the reputation of the law enforcement agencies, in many states misconduct leading to entrapment, and other abuses give rise to judicial and administrative remedies designed to prevent and remedy the misconduct of state agents and to acknowledge the accused’s diminished culpability, or both.[34] The judicial remedies include the entrapment defence, exclusion of evidence, and dismissal of the criminal charges against the entrapped defendant(s). However, it has been judicially concluded both at common law, and in the United States that private entrapment is legal, and cannot be used as a defence to any charge.[35]

Despite the fact that undercover operations in Uganda are substantially unregulated, their use by law enforcement agencies is increasing exponentially.[36] In addition to all this, law enforcement agencies continue to act with a lot of impunity, with both violent, and brutal consequences, while failing to properly fulfil their duties. How can these agencies be trusted not to abuse undercover policing techniques which are inherently prone to abuse? The current laws, disciplinary systems, and oversight mechanisms in place in Uganda do not adequately regulate the use of undercover policing.[37] Furthermore, there is a lack of transparency in enforcing disciplinary measures against law enforcement agents and deploying undercover agents. The government refused to implement personal responsibility for its officers for their misconduct thereby creating a protectionist culture and a lack of public trust.[38]

In the circumstances, given the risks of misconduct by undercover agents which can lead to entrapment, human rights abuses, and other abuses identified above, it is important to assess the efficacy of the current legal framework in deterring, preventing, and remedying misconduct by the undercover law enforcement agents in Uganda. It is also important to examine the measures that can be put in place to improve the regulatory framework to effectively deter, prevent and remedy misconduct by undercover state agents.

[1] Nanima D. Robert, Abusing the accused? Unpacking the use of entrapments in Uganda’s fight against Corruption, Journal of Anti-corruption Law, 2018, Volume 2, Number 1,109-131 at 110

[2] Hay, Bruce, Sting Operations, Undercover Agents, and Entrapment, 70 Mo. L. Rev. (2005)

[3] United Nations Convention against Transnational Organised Crime in Palermo, Italy, 2000

[4] Ibid, note 3. Section 20(1).

[5] The United Nations Convention against Transnational Organised Crime, 2000, article 20(1).

[6] Nanima, op. cit., note 1.

[7] US Justice Department, Attorney General’s Guidelines on FBI Undercover Operations, Revised 11/13/92, Available at: https://www.justice.gov/archives/ag/undercover-and-sensitive-operations-unit-attorney-generals-guidelines-fbi-undercover-operations. Last accessed on 18th June 2018.

[8] UNODC, Undercover Operations. Available at: https://www.unodc.org/e4j/en/organized-crime/module-8/key-issue.

[9] Donnelly, C., Richard, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 YALE L.J. 1091, 1098(1951) at Pg. 1091-1092.

[10] Bohler Narnia (1999), Lead us not into Temptation: The Criminal Liability of the Trappee Revisited, 12(3) South African Journal of Criminal Justice 317-330 at page 317.

[11] Nathan, Christophe, Liability to Deception, and Manipulation: The Ethics of Undercover Policing, at Pg. 370.

[12] Roylance v General Medical Council (No. 2) [2000] 1 AC 311 at Pg. 331.

[13] Jacobson v United States 503 U.S 540 (1992); Sorrells v United States 287 U.S. 435 (1932); Sherman v United States 356 U.S 369.

[14] Crime, and Corruption Commission (Queensland), Complaints against Police Officers, 2020. Available at https://www.ccc.qld.gov.au/corruption/police-oversight/complaints-against-police-officers. Last accessed on 20th June 2020.

[15] Gottschalk, Petter, Police Misconduct, and Crime: A Gender Study of Crime Types from Court Cases,Professional Issues in Criminal JusticeVol. 6(3 & 4), 2011 at Pg.75.

[16] Section 47, Police Act 2005, 108 Section 54(1), Police Act 2005, Section 49, Police Act 2005, Section 53(5) & (6), Police Act 2005, Section 52(1), Police Act 2005, Section (4), Police Act 2005, and Section 45, and First Schedule to the Police Act 2005, Section 2 of the Anti-Corruption Act, 2009.

[17] California Innocence Project, Police Misconduct, Available at https://californiainnocenceproject.org/issues-we-face/police-misconduct/; Last accessed 20th June 2020.

[18] Stoughton, W. Seth, Police Misconduct (Introduction), Legal Issues across the Globe, Vol. I 125 (Thomas Riggs, ed., 2018), Available at SSRN: https://ssrn.com/abstract=3140673 at Pg. 125.

[19] Harmon, A. Rachel, The Problem of Policing, 110 Mich. Law Rev. 761, 763, 776-81 (2012).

[20] Commonwealth Human Rights Initiative (CHRI). The Police: The People, the Politics: Police Accountability in Uganda, 2006 at Pg. 24. Available at: https://www.humanrightsinitiative.org/publications/police/uganda.pdf at Pg. 28-29.      

[21] The IG successfully used traps in investigating various cases that have been successfully prosecuted. These cases include; Kalungi Robert v Uganda Hct-00-Ac-Cn-0041-2015, Karakire v Uganda Criminal Appeal No. 33 OF 2015, and Mugizi v Uganda Criminal Session Case No. Hct-00-Ac-Cn-0001/2014, among others. Traps have been used by the Uganda Police Force in Malambala & Anor v Uganda HCT-00-AC-CO-0027/2015, and Ouma Adea v Uganda Criminal Appeal N0.109 of 2014, among many others. Traps have also been used by the Uganda Revenue Authority in Imere v Uganda Criminal Appeal Number 0065 of 2012. The Use of traps got wide media coverage in Uganda in 2016, when a trap was used against Hon. Herbert Kabafunzaki, a Member of Parliament, and the State Minister for Labor, Employment, and Industrial Relations.

[22] Nanima, op. cit., note 1 at Pg. 123.

[23] Ibid, note 22 at Pg. 122.

[24] Olive Nakatudde, New Asset Recovery Bill Still Facing Challenges – IGG, 12 Apr 2018, Published by Uganda Radio Network at https://ugandaradionetwork.net/story/new-asset-recovery-bill-still-facing-challenges-igg. Last accessed on 13th March 2020.

[25] Nanima, op. cit, note 1 at Pg. 120. Many laws in Uganda that apply to the conduct of overt investigations, and conduct of law enforcement agencies also apply to undercover operations. What is lacking is specific regulations and safeguards. By legal framework, I mean specific laws setting out how undercover operations should be conducted, and safeguards to protect the public rather than the absence of laws that apply to undercover operations.

[26] Nanima, op. cit., note 1 at Pg. 112.

[27] Uganda v Ekungu Simon Peter High Court Criminal Appeal No. 019 of 2011 (Unreported).

[28] Uganda v Kisembo Stephen Criminal Sessions Case No. 0203 of 2014.

[29] Omar Awadh Omar& 10 others v Attorney General Constitutional Petition Numbers 55, and 56 of 2011.

[30] Criminal Appeal Number 0065 of 2012.

[31] Commonwealth Human Rights Initiative, op. cit. note 19 at Pg. 24

[32] College of Policing Limited, Guidance on Outcomes in Police Misconduct Proceedings (2017), Para 4.42 to 4.44. Available at: https://www.app.college.police.uk/wp-content/uploads/2017/10/MIsconduct-C621I0617 at Para 4.57

[33] College of Policing, op. cit., note 31 at Para 4.57-4.58.

[34] Murphy, Brendon & Anderson, John, After the Serpent Beguiled Me: Entrapment, and Sentencing in Australia, and Canada (2014) 39:2 Queen’s LJ, Pg. 621.

[35] Leverick, Fiona and Stark, Findlay (2010), How do you solve a problem like entrapment? Jones, and Doyle v HM Advocate, Edinburgh Law Review, 14 (3). Pg. 467-472.

[36] Nanima, op. cit., note 1.

[37]  College of Policing, op. cit., note 32.

[38] Commonwealth Human Rights Initiative, op. cit. note 20 at Pg. 32.

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