anti corruption amendment bill dpp submissions

8/13/2019 Anti Corruption Amendment Bill DPP Submissions

http://slidepdf.com/reader/full/anti-corruption-amendment-bill-dpp-submissions 1/11

Our Ref: 26th

November 2013

Your Ref:

The Chairman,Legal and arliamentar! "ffair# Committee,arliament of $ganda,arliament %ou#e,&O& 'o( )1)*,

+amala&

R-: CO..-NT/ ON T%- "NT CORR$TON"..-N.-NT 'LL, 2013

We make reference to the above and to your letter Ref: ……….. dated…………., inviting us to the Legal and Parliamentary Affairs for ourcomments on the Anti Corruption (Amendment !ill, "#$%.

We have studied the !ill and our comments are as follo&s'

/4N

CL"$/- CO..-NT/ 4ON/-R5"TON/

R-CO..-N"TON/ ON T%- 'LL

$. Clause 1 of the Bill

defines a “ political

office” to mean an

office relating to the

conduct of

government and

politics.

This definition lacks

clarity.

We propose that the term

“ political office” be

defined to mean ‘an office

held by a political leader’

since a political leader has

properly been defined

under the same clause.

". Clause 3 (a) of the

Bill provides for the

inclusion of a

‘ political leader’ to

the offence of causing

financial loss under

However term ‘ political

leader’ appears to be

misplaced in this !lause.

"t is not clear whether

this inclusion is intended

Clause % should berephrased to caterfor this ambiguity.

#

Directorate of Public Prosecutions,

Workers House 12 & 11th Floor Southern Wing,

Plot 1, Pilkington Road,

P. O. o! 1""#,

$a%ala '(ganda)

ad%in*d.go.ug

+++.d.go.ug

el- Director 2"/#012"#22"#0 .

Dt3. Director '4SS) 2"/#012"#5.

Dt3. Director 'P&67)2"/#012"1# 8eneral 2"/#012"## 2"#1.

Fa!- 2"/#012"5"/".

2"/#01011/.

mailto:[email protected]

mailto:[email protected]



Section 20 of the

principal $ct.

Clau#e 3b ofthe 'ill defininga company) tomean a companyincorporatedunder theCompanies Act,

"#$".

to punish an employee of

a political leader or the

political leader himself

or herself.

%econdly while this

!lause criminali&es acts

done it does not

criminali&e omissions as provided for under the

principal $ct.

*urther, this Clauseis limited to themonetary loss anddoes not coverother forms of loss,

(such as loss of abenefit or a servicethat are caused bythe acts andomissions of thepersons envisagedthere under.

+o&ever, limitingthe definition tocompaniesincorporated under

the Companies Actof "#$" may beeploited byoffenders, &herethe company &asincorporated before"#$".

We propose that thisphrase be revisitedto criminali-e theomission to do anact’ .

Clause % should beamended to includethe &ords ….or anyother loss…)after the

&ords …kno&ing orhaving reason tobelieve that the actor omission &illcause financialloss…), so as to caterfor other forms oflosses.

/n this regard, theshort title to the0ection "# of theprincipal Act shouldbe amended to readcausing loss’ .

We recommend thatthe &ordsCompanies Act)

should be replaced&ith Laws ofUganda’ .

'



%. Clau#e of the'ill provides forinsertion of ane& /e7tion21".

Clau#e of the'ill furtherprovides for

definition ofdealing &ithproperty) underthe proposedne& 0ection "$A(" of the !ill.

0ubsection ($ ofthe proposed0ection criminali-esthe dealing in

property , &here aperson believes orhas reason tobelieve that suchproperty &asac1uired as a resultof an offence underthe Anti CorruptionAct.

+o&ever, provingbelief on part of an

accused personmay add anunnecessaryburden onprosecutionconsidering thatbelief is al&ayspersonal to theindividual holding

it.

2he definition ofdealing with

property’ does notcater for instances&here 3egistrarsand 4fficials inLand 4ffice make

transfers or removecaveats from land,&here they havereason to believethat such land &asfeloniouslyac1uired5 yet this is

We suggest that the&ord believes) bereplaced &ithknows) askno&ledge can easily

be imputed andproved from thesurroundingcircumstances.

2he Clause should beamended to cater for

such instances and&e propose theinclusion ofparagraph (d to thedefinition of dealing&ith property) underthe proposed 0ection"$A(" to read asfollo&s'

(d does or omits todo any act thatfacilitates thetransfer of property.

(



one of the commonpractices fordissipating illicitlyac1uired property.

0imilarly, theClause does notcater for otherofficials and3egistrars in othergovernment offices,such, 63A &ithregard toregistration andtransfer of motorvehicles, and the6ganda 7ational

3egistration!ureau, amongothers.

8. Clau#e 6 of the'ill providing forreplacement of

/e7tion 3* ofthe principal Act.

2his Clauseprovides for anobligation to give

information to apolice officer orspecial investigator.

+o&ever, theClause leaves roomfor such person to&ithholdinformation basingon e.g. the internal

policies andbureaucracies of anorgani-ation.

We propose that theClause should 1ualifysuch ecuses 9

:ustifications, byaddition the &ords‘…except wheresuch information is

privileged.) at theend of 0ection %;($.

/n addition, this0ection should makeprovisions penali-ing

the giving of falseinformation.

<. Clau#e ) of the'ill provides forreplacement of

2he 0ectionprovides formandatory

)



/e7tion 63 ofthe principal Actthat provides forconfiscationorders.

confiscation ofproperty of aconvicted, person,&hich is a positiveamendment to theprincipal Act.

+o&ever, the0ection provides forindiscriminateconfiscation ofproperty o&ned bya person convictedof an offence underthe Act, &ithout anyregard to thenature of offence.

7otably, there aresome offencesunder the Act&here no benefitmay accrue to theconvicted person.

2hese include'nepotism,

sectarianism,personation, givingfalse informationand neglect of duty.

0econdly, the0ection is not clearon &hich propertyshould beconfiscated and the

value or etent ofconfiscation, inrelation to theoffence &ith &hicha person has beenconvicted.

Confiscation shouldbe limited toac1uisitive offencessuch asembe--lement anddiversion of publicresources5 and tooffences &here losshas been suffered asa result of theoffence &ith &hich aperson has beenconvicted.

2he 0ection shouldbe revisited toprovide for suchclarification &ithparticular regard tothe Constitutionalprovisions on theright to property andthe best practicesunder international

instruments, such asthe 67CAC, to &hich6ganda is asignatory.

*



=. Clau#e ) of the'ill providing forthe amendmentof /e7tion 632of the principalAct.

Clau#e ) furtherprovides formanagement ofconfiscatedproperty by aPublic 2rustee.

2his amendmentvests allconfiscatedproperty vest ingovernment.

+o&ever, it seemsunreasonable toindiscriminatelyvest property ingovernment, evenin cases &heregovernment is not aparty or victim ofthe offence.

2his amendment

appears to be inconflict &ith thespirit of the !ill asstated in subparagraph " ofparagraph $ of theob:ect of the !ill,&hich stipulatesthat the !ill is

intended to ensurethat government orother company ororgani-ationrecovers the loss, ifany, caused by aperson convictedunder the Act.

/n addition, the !ill

does not makeprovision for ho&private companiesor organi-ationscan recover theirloss from propertythat has been

2he Clause should beamended to vestproperty in theaggrieved party andto provide for thereali-ation of lossessuffered by privatecompanies as aresult of the offence&ith &hich a personhas been convicted.

+



vested ingovernment.

2he proposedamendment to/e7tion 632provides formanagement ofconfiscatedproperty by a Public

2rustee appointedunder the Public

2rustee Act.

7onetheless, thePublic 2rustee Act is

not designed tocater formanagement ofrestrained orconfiscatedproperty under theAct.

/n particular,

0ection 8(< of thePublic 2rustee Actprovides that thepublic trustee shallnot accept any trustthat involvesmanagement orcarrying on of anybusiness.

We note that theprohibited areessential to theeffectiveadministration ofconfiscatedproperty.

/t is pertinent that

the Clause makesprovisions for preconvictionmanagement ofproperty.

2he proposedamendment to

,



*urther, suchmanagement ofconfiscatedproperty afterconviction seems tobe superfluous. Wepropose that focusat this stage,should be put onthe realization ofproperty tocompensate thevictims as opposedto its management,&hich may attractunnecessary costs.

We note that/e7tion# 88 ("and 86 of theprincipal Act alsoprovide formanagement ofrestrained propertyby a person

appointed by courthave not beenrepealed but at thesame time, the !illintroduces thePublic 2rustee tomanage propertyunder the Act.

2his creates a

contradiction in themanagement ofproperty under theAct.

/e7tion 632 ofthe principal Actshould be looked atin light of 0ections882 and 86 of theprincipal Act.

>. Clau#e * 2he Clauseintroduces /e7tion

2his clause has beentaken care of by our

-



63", providing forpo&ers and dutiesof a Public 2rustee.

comments on0ection =%A above.

;. Clau#e# 9 and10

Providing for feesand confiscationcosts, respectively.

/n particular,Clau#e 10 re1uiresthat confiscationcosts shall be paidby a convictedperson.

2his provisionserves no purpose

since theconfiscation orderinvolves taking allthe convict)sproperty.

As above.

+o&ever, there isneed to appraisethese provisions inlight of the Ant?oney Launderingla&, &hich &e havenot had opportunityto look at as it hasnot been published.

@. aragrah 13 ofthe ?emorandumto the !ill

provides that the!ill seeks toreplace /e7tion682 of therin7ial "7t&

+o&ever, nomention of this0ection has been

throughout the !ill.

7evertheless, &epropose that time forconsidering a person

to have abscondedunder this 0ection bereduced to =months.

4ther Comments shortcomings of the principal Act that have not beenaddressed by the current amendment !ill'

/4N

Position of the

Current Law

Comments

$. Vague offence of abuse

of office under %ection

###/ of the principal

0nder this %ection a person who being employed in a

public body or a company in which the 1overnment

has shares does or directs to be done an arbitrary act

2



$ct. pre3udicial to the interests of his or her employer or of

any other person in abuse of the authority of his or her

office commits an offence.

The words “arbitrary act” are not defined. The %ection

has been critici&ed as not being consistent with the 04

!onvention $gainst !orruption which provides for

mensrea criminal intention/ and the offence arises

when there is a violation of laws.

". Effect of the u!ula

"igh Court #u$gment

$ccording to this 3udgment a minister is not an

employee of 1overnment.

This therefore means that a 5inister cannot be charged

with the offences of abuse of office and causing

financial loss as these offences only apply to an

employee under the present $nti !orruption $ct.

%. Public %fficer& 'ersus

Public %fficial&

The $nti corruption $ct interchangeably uses the

words public officer and public official without

defining either and leaving it unclear as to whether the

words mean the same thing.

8. Vagueness of the

offence of eglect of

*ut+,

4eglect of duty is an offence under %ection 'i/ of the

$nti !orruption $ct.

However its elements are unclear. "t is also unclear

whether the offence applies only to a public official .

There is a similar offence under %ection ##) of the

6enal !ode $ct where elements are clear and it applies

only to an employee.

<. Pa+ment of

com-ensation

0nder the present $nti !orruption $ct it only the

offence of diversion of public resources %.+/ that provides for a mandatory compensation order %.,/

re7uiring the convict to pay compensation to an

aggrieved party.

"n all other cases under the $nti !orruption $ct

compensation orders are made at the discretion of the

court using the powers under the Trial on "ndictments

#8



$ct and 5agistrates !ourt $ct.

=. Vague offence of illicit

enrichment.

The offence of illicit enrichment and its elements under

%.(# of the $nti !orruption $ct are not clearly defined.

What is defined %.(##/ are the grounds for causing an

investigation.

>. Section 3/ of the

-rinci-al ct providing

for restriction of assets

and banks accounts.

+o&ever, there is no clear distinctionbet&een assets and accounts under this0ection.

;. Section of the

-rinci-al ct providesfor the offence of

"nfluence 6eddling and

punishes persons who

do or omit to do acts in

contravention of

established principles or

procedures B0T the

!lause does not punish

persons who influence

and9or direct for suchacts to be done,

We propose that persons who influence such acts or

omissions be included under this %ection.

"mo# Ngolobe,eut! ire7tor of ubli7 ro#e7ution#

;OR: The ire7tor of ubli7 ro#e7ution#&

##

anti corruption amendment bill dpp submissions

Documents