Lack of Legal Personality by the Inspectorate of Government due to the erroneous decision of the Supreme Court in Sentiba Gordon & 2 Other v IGG
- According to Gray, to be a legal person is to be the subject of rights and duties. To confer legal rights or to impose legal duties, therefore, is to confer legal personality. This definition of legal personality is similar to that of Salmond who defines a legal person, therefore, as “any being to whom the law attributes a capacity of interests and, therefore, of rights, of acts and, therefore, of duties.
- The IG is a creature of the Constitution of Uganda, 1995 clothed with independence under Article 227 of the Constitution, with powers to fight corruption and abuse of office under Articles 225, 226, and 230 of the Constitution. The powers and functions were considered in John Ken Lukyamuzi vs Attorney General and Electoral Commission, Constitutional Appeal No 2 of 2007 (unreported?. These include:
a) The duty to promote the rule of law and principles of natural justice in administration, eliminate corruption and abuse of public office, supervise of the enforcement of the leadership code of conduct and promote good governance in public offices.
b) The powers to investigate, cause investigation, arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public office. The power to enter and inspect premises of any government department or person and to call for any document in connection with the case being investigated.
- In the Inspectorate of Government v Kikondwa Butema Farm Ltd and Attorney General the Constitutional Court held that the respondent had capacity to sue and be sued. In coming to that decision, the Court cited several cases where the appellant (IGG) has been a party and stated:
“In all these cases the issue of the applicant’s capacity to sue or be sued was not raised. Be that as it may, we think that there are legal provisions in the Constitution that set up the Inspectorate of Government and the Act that operationalized those provisions that indicate that the applicant has capacity to sue and be sued.”
- The Constitutional Court then went on to mention three sets of provisions which justified their legal position. The court identified those provisions as follows:
a) The first most important provision in the Constitution and the Act are Article 227 (supra) and Section 10 of the Act that guarantees the independence of the Inspectorate in the performance of its functions. It is not subject to the direction or control of any person or authority. It is only responsible to Parliament. It is therefore independent of all Government Departments and Agencies including the office of the Attorney General. This means as we understand it, that the Inspectorate and the Inspector General in particular must own its/her decisions and have the capacity to defend those decisions in any forum including courts of law if necessary.
b) The Inspector General of Government can be likened to the Registrar of Titles under the Registration of Titles Act. Although the post is held by a Traditional Civil Servant, the holder has been dragged to court from time to time to defend and explain decisions he/she takes in the performance of his/her duties.
c) The second provision is Section 7 that establishes an Appointments’ Board. The functions of the board are inter alia to appoint officers and other employees of the Inspectorate. This means that it can enter into contracts of employment. Such contracts are binding. A person who has capacity to enter into a contract has capacity to sue and be sued on such contract. By making this particular provision, in our view, Parliament clothed the Inspectorate with corporate status without saying so in many words.
d) The third provisions are those concerning the functions and jurisdiction of the Inspectorate, Articles 225 and 226 of the Constitution and Sections 8 and 9 of the Act. The functions and jurisdiction cover a wide spectrum of officers and leaders serving in many offices of Government, statutory corporations, the Cabinet, Parliament, to mention but a few.”
- In coming to that conclusion the Constitutional Court cited several cases where the appellant (IGG) had been a party such as”
a) Lubowa vs IGG – Civil Appeal No 85/2001(CA)
b) Gladys Aserua vs IGG, Miscellaneous Cause No 1214/99
c) Semakula vs IGG Miscellaneous Cause No 9/03
d) Owiny vs IGG – Miscellaneous Cause No 29/03
e) Robert Bakisula vs IGG – Civil Appeal No 24/03
f) IGG vs Orochi – Civil Application No 90/200 (CA)
g) Kikondwa Butema Farm Ltd vs Inspector General of Government – Civil Appeal No 35/2002.”
- However, in Sentiba Gordon & 2 Other v Inspector of Government the Supreme Court overruled the decision of the Constitutional Court in the Inspectorate of Government v Kikondwa Butema Farm Ltd and Attorney General . It reasoned that there is nothing in the Article 227 or Section 2 of the Act which confers on the IG corporate status or legal capacity to sue or be sued. That the Constitutional Court merely inferred corporate status by holding that Parliament vested that status in the respondent without saying so. The Supreme Court argued that If Parliament had wanted to confer corporate status on the IG nothing could have stopped it from doing so, but it did not in its wisdom do so. The Court concluded that There is no provision in the Constitution, the Inspectorate of Government Act or any other law which confers corporate status on the respondent and it would be wrong for the Court to confer such status on the respondent when Parliament in its wisdom did not find it necessary to do so for effective enforcement of the powers of the respondent. However, Parliament has power to review the matter and confer corporate status on the Inspectorate of Government.
- The decision of the Supreme Court in Sentiba Gordon & 2 Other v Inspector of Government is clearly misguided and ultravires the Supreme Court. The Supreme Court not only ignored established precedent without good cause, it also violated a specific provision of the Constitution. The Supreme Court overruled the Constitutional Court without the required Coram. Under 131 (2) of Constitution requires that when hearing appeals from the decisions of the Court of Appeal sitting as a Constitutional Court, the Supreme Court shall consist of seven members of the Supreme Court. The decision in the Inspector General of Government v. Kikonda Butema Farm Ltd and Another Constitutional Court Const. Appl. No. 13 of 2006 is a decision of the Constitutional Court and therefore subject to Article 131 (2). The case of Sentiba Gordon & 2 Others v The Inspector of Government, Supreme Court Civil Appeal No. 6 of 2008 was heard by a Coram of five Supreme Court Justices (Odoki CJ, Tsekooko, Katureebe, Tumwesigye and Kisaakye). Since the Supreme Court lacked the required Coram of 7 members provided for by Article 131(2), it could not overrule the decision of the Constitutional Court. The Decision of a court without the required Coram is a nullity. In American Procurement Company V Attorney General & Anor (Civil Appeal No. 0035 of 2009)Justice Kakuru, JA stated that the Supreme Court sitting in a civil appeal cannot set aside a decision of the Constitutional Court. It is only the Constitutional Appeal Court that has the power to set aside such a decision. Therefore the Gordon Sentiba case is not a binding precedent.
- The natural consequence of the decision of the Supreme Court in Sentiba Gordon & 2 Other v Inspector of Government the Supreme Court is that the IG lacks the legal personality to intervene on behalf of the state in cases where corruption is alleged against the Attorney General or his or her public officers. For example, if the Attorney General corruptly entered a consent judgment with a third party, the IG lacks legal personality to intervene on behalf of the state to prevent the corrupt bargain from taking effect. Since only court can set aside court orders and IG lacks legal personality, the Inspectorate of Government cannot intervene to set aside a judgment tainted by corruption by public servants employed in the Office of the Attorney General.
- This aspect of the Supreme Court is clearly misguided and wrong. Legal personality need not be expressly provided by statute or treaty. Legal personality can be implied from the functions, duties and powers of the entity in issue. The statute of a body can be such that if even if the body is not expressly clothed with legal personality, its functions, duties and powers are such that it can be said that the creators intended for it to have legal personality. In UN reparation case the ICJ held that the Organisation had “functions and rights which can only be explained on the basis of possession of a large measure of international personality. This is consistent with the decision of the Constitutional Court which based on the duties powers, and independence of the IG to hold that it has legal personality separate of the Attorney General. According to Brölmann & Nijman in Reparation Opinion the Court (ICJ) in one go positioned the UN as an international legal person; a status that would never be seriously challenged for the United Nations, or any other international organization in its wake.
- The decision of court in Sentiba Gordon & 2 Other v Inspector of Government is clearly questionable and defies logic because it ignores 60 years of implied Legal Personality. Neither the parties nor the Supreme Court examined customary international law as applied by the International Court of Justice (ICJ) in the UN Reparations case. The Supreme Court simply concluded that legal personality can never be implied without discussing or distinguishing this potentially binding precedent. It brushed aside the constitutional powers and functions of the IG and its independence from the Executive without properly evaluating the decision of the Constitutional Court.
- Under Article 38 of the International Court of Justice Statute, customary international law is binding on the state parties. The Supreme Court of the United States has held that Customary International Law is binding unless it conflicts with the Constitution. The Supreme of Uganda, has not pronounced its self on the status of Customary International Law but given the legal obligations of states to follow international law, customary international law is binding in Uganda unless it conflicts with the Constitution of Uganda.
- One of the Considerations of departing from previous Supreme Court precedent is whether the decision leads to workable results. Under this consideration, the court looks at the effect of the precedent in issue. For example, the court looks at how the decision has been applied by lower courts. It also looks at the practical effects on the rights and interests of the parties. That is to say, does it promote justice and fairness? The lower courts have continued to treat the Inspectorate of Government like as if it possess legal personality and legal practitioners continue to add it as a party to suits against the state. Courts allow the Inspectorate of Government to appear in such cases but deny it the ability to sue in its own name. On the hand, the Inspectorate of Government has continuously tried to represent itself even where it is sued together with the Attorney General. Furthermore, the state has slowly moved to a requirement that state agencies and departments cover their own legal liabilities from their own budgets. These developments show that it is increasingly unfair to prevent the Inspectorate of Government and other state agencies from representing themselves given that they are directly impacted by decisions made against them. The need to allow state agencies to represent themselves is even more urgent where the interests of the Attorney General and the state agency in issue differ or where there is allegations of corruption and collusion against the Attorney General. Given the wide spread allegations of incompetence and corruption in the Office of the Attorney General, it is no longer proper to allow legal personality to frustrate access to justice. Imagine a situation where the Attorney General refuses to defend actions or decisions made by an independent agency such as the Inspectorate of Government or the DPP, it is only proper for the agency in issue to defend itself. However, with legal personality the independent agency is left with no recourse but to accept the damaging decision of the Attorney General. How is can such an agency be said to be independent yet it must rely on the Attorney General to defend its self and protect it itself. In any case, the Constitution clearly states that the IG shall have the power to do anything that it deems fit to combat corruption within the legal framework in place. There is no statute that expressly denies the IG legal personality and thus it must be assumed to have it under this broad provision of the Constitution.
- The Constitutional Court clearly explained that given the powers of the IG as provided for by Articles 225 to 230 of the Constitution, its duties and functions and its independence which is expressly guaranteed by the Constitution, the IG has separate legal personality from the Attorney General. The Court realized that given its mandate to prevent corruption, the interests of the Attorney general and the IG might conflict and it would be contrary to the independence of the IG to expect the Attorney General to represent the IG in such circumstances. Parliament by failing to exercise its duty to provide IG with legal personality cannot amend a clear requirement of the Constitution that the IG is independent of Attorney General except by Constitutional Amendment.
Redemption that can arise from the Leadership Code (Amendment Act) 2020 and the Leadership Code tribunal
- Under section 13(1) a leader has a duty to protect and preserve public property under his or her personal use and shall not use such property or allow its use for any other purpose other than authorised purposes. Under section 13(2) “public property” includes any form of real or personal property in which the Government or public body has ownership; a plant, equipment, leasehold, or other property interest as well as any right or other intangible interest that is purchased with public funds, including the services of contractor personnel, office supplies, telephones and other telecommunications equipment and services, mails, automated data, public body records, and vehicles
- Under section 13(3) A leader who knowingly misuses or allows public property entrusted to his or her care to be misused, abused or left unprotected shall make good the loss occasioned to the property; and the value of the property or damage to the property shall constitute a debt from the leader to the Government or public body concerned. In its ordinary meaning misuse means the wrong or improper use of something or the use (of something) in the wrong way or for the wrong purpose.
- Section 13 imposes a duty of to take reasonable care of public property and a leader who fails to diligently exercise his or her duty to protect and preserve public property leaves the property unprotected leading to its loss. At common law an employee is under a contractual obligation of care to his employer. Other duties at common law include; the duty to obey the lawful orders of the master; the duty to be honest and diligent in the master’s service; (4) the duty to take reasonable care of his master’s property entrusted to him.
- According to Justice Stephen Mubiru in Omonyi v Attorney General & Another, Negligence refers to a person’s carelessness in breach of duty to others. As a tort, it is the breach of a legal duty to take care. It involves a person’s breach of duty that is imposed upon him or her, to take care, resulting in damage to the complainant. The tort was defined in Blyth v. Birmingham Water Works Co (1856) 11 Exch. 781 as a breach of duty caused by the omission to do something which a reasonable man guided by those considerations which ordinary regulate the conduct of human affairs would do or doing something which a reasonable man would not do. Outside the contractual duty, there is a general duty to take reasonable care to avoid acts or omissions which one can reasonably foresee, would be likely to injure persons who are so closely and directly affected by the act, that one ought reasonably to have them in contemplation as being to affected when one is directing his or her mind to the acts or omissions which are called in question. According to Justice Mubiru, negligence is essentially a question of fact and it must depend upon the circumstances of each case and the standard of care expected is that of a reasonable person.
- The burden of proof in a civil trial is on the plaintiff and the standard of proof is on the balance of probabilities, In Miller v Minister of Pensions, Lord Denning expressed the legal test in this way:
‘…the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determine conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.’
- The Leadership Code Tribunal under Section 19R (1) (d) of the Leadership Code Act may make any order which it deems appropriate to give effect to its orders. Under section 19S the Tribunal may determine its own procedure but proceeding before the Tribunal shall be conducted with as little formality and technicality as possible, and the Tribunal shall not be bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate. The tribunal may apply the rules of practice and procedure of any court subject to such modifications as the Tribunal may direct.
- Under Section 21 (1), where, according to the decision of the Tribunal under section 20, a leader is proved to have obtained any property through a breach of this Code, the leader shall, subject to any appeal which the leader may make under section 19V, forfeit the property by virtue of the decision of the Tribunal and the property shall be held in trust for the Government or the public body by an agent or broker appointed by the Tribunal, until it is lawfully disposed.
- Section 20(4) and (6) require that where a specific procedure is required to dismiss a particular leader by either the constitution or any other law, the responsible officer should follow the specified procedure. For example if the President was tried by the tribunal and removal from office is recommended, the rules and procedures for removal of the President apply. Under the Constitution only Parliament can remove the President by a special majority. This section could create a situation where a breach is adjudicated by both the tribunal and the various service commissions. It is not clear whether the services commissions have to re-litigate a breach or they can adapt the findings of the tribunal.
- Given that the IG cannot sue without the permission of the Attorney General, none conviction based asset recovery is impossible. However, the tribunal can be used to bypass the Attorney General because the IG can appear before the tribunal. None conviction based asset recovery is attractive because the standard of proof in a civil trial is on the balance of probabilities and it is theoretically possible to obtain remedies such as interest to compensate the lost value of money. In many cases where evidence against a person might not be enough for a criminal trial or where the IG determines that recovery of the embezzled or lost money and other property is more beneficial than a criminal trial, the tribunal can provide an extra avenue to pursue corrupt individuals.