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\CRITICAL ANALYSIS OF THE ROLE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

IN THE ADMINISTRATION OF CRIMINAL JUSTICE IN UGANDA

A CASE STUDY OF KAMPALA

BY

TUMWINE WILSON

I 153-01032-

A RESEARCH REPORT SUBMITTED TO THE FACULTY OF LAW IN PARTIAL

FULFULLMENT FOR THE AWARD OF A DIPLOMA IN LAW OF

KAMPALA INTERNATIONAL UNIVERSITY.

APRIL, 2017

DECLARATION

I TUMWINE WILSON, Reg no. 1153-01032-03375 do therefore declare that this research on; A CRITICAL ANALYSIS OF THE ROLE OF THE DIRECTOR OF PUBLIC PROSECUTION (DPP) IN THE ADMINISTRATION OF CRIMINAL JUSTICE IN UGANDA" A CASE STUDY OF KAMPALA is my original work which has not been submitted to any other higher institution of learning for any of award.

Signature .~ ... Date J... .j .o:P./-

DEDICATION

This research paper is lovingly dedicated to my Grandfather Late Yonathan Kasharu and General Elly Tumwine who have been my constant source of inspiration

They have given me the drive and discipline to tackle any fast with enthusiasm and determination. Without their love and support this research would not have been made possible.

iii

ACKNOWLEDGEMENT

I highly appreciate the contributions rendered to me both morally and financially by my brother sisters and friends to ensure that this research is a success. Special thanks to my supervisor Mr Iga Stephen, who l highly appreciate for the guidance, advice, encouragement, patience, care and moral support rendered to me during my research in particular this dissetiation. In a special way also. I would like to acknowledge the contributions of all the staff members in the office of director of public prosecution for haring giving me all the information I need and also sacrificing their time and fore going to this work schedules and attend me.

1.9 Professor LLJ Edwards ......................................................................................................... II

                          - I. 7 Constraints of the Study
                       - I. 8Scope of the study
                    - 1.8 Content scope
                    - 1 .2 Geographical scope
                    - 1.8 Time scope I
                    - I. 9 Literature Review I
                 - I. 9 Lillian Tibatemwa Ekirikubinza I
                 - I .9 .2A Hand Book for Magistrates I
              - I. 9 Criminal Procedure and Practices in Uganda I. 9 B. Odoki II
           - I. 9 Media literature
           - I. 9.6 High Court overrules Makindye Court on DPP takeover of Kayihura cases
        - 1.9.6 New system to ease court case backlog
        - 1.9.6 DPP takes over MP Akena&amp;#039;s trespass case l
     - CHAPTER TW
                             - PROS ECUTI 0 NS IN UGANDA LEGAL AND INSTITUTIONAL FRAMEWORK OF THE DIRECTOR OF PUBLIC
  - 2 Introduction I
  - 2 Local and National legal Framework
  - 2.1 The 1995 Constitution of the Republic of Uganda (as amended)
  - 2.1 Criminal Procedure Code Act Cap

2.1 The High Court (Anti-Corruption Division) Practice Directions
2.1 The Penal Code Act Cap
2.1 The Magistrates Courts Act
2.1 The Evidence Act Cap - 2.1 The Police Act Cap 303 ····························································································:··········· - 2.1 The Trial on Indictments Act Cap - 2 International instruments and treaties - 2.2 The Rome Statute - 2 Institutional alignment and framework of the DPP - CHAPTER THREE - ADMINISTRATION OF CRIMINAL JUSTICE IN UGANDA THE ROLE OF THE DIRECTOR OF PUBLIC PROSECUTIONS IN THE - 3 Introduction - 3 Role of the Director of Public Prosecutions - 3 .1 Directing investigations - 3.1 Institute Criminal Proceedings against any person or authority - 3.1 Take over and continuing criminal proceedings - 3.1 Discontinue any criminal proceedings against any person or authority - 3.1 Control of Prosecutions/Relationship with the Police
- 3.1 Consenting to the charges
- 3 .1. 7 Perusal of police files
- 3 .1 Preparing committal papers.
3.1 Sanctioning of charges
3.1 0 Collaboration, Appointing and Training of Investigators and Prosecutors .3
3.1 Supervision and inspections
3 Conclusion

LIST OF CASES

I. Charles Harry Twakyira V Uganda (Criminal Appeal No of2D03) [2D05' UGSC I (3 August 2005); 2. RV Masiya 2007 (2) SACR 435 (CC) 3. Balikowa Nixon V Uganda Criminal Appeal No. 24 of 4. Uganda V Umutoni HCT-00-ICD-CRSC-N0-003/ 5. Uganda V Kunsemererwa Julius 6. Uganda V Thomas Kwoyelo Constitutional Appeal No. I of2012. 7. Uganda V Kisembo Moses & 3 Ors (Criminal Session Case No. 22 of2015) 8. Charles Harry Twagira V Attorney General, DPP &Kyomukama Sam (Civil Appeal No. 4 of 2007)Supreme court. 9. Woolmington V DPP (1935) AC

ACRONYMS

DPP Director of Public Prosecutions JLOS Justice Law and Order Sector SWAP Sector Wide Approach RSPs Resident State Prosecutors RSAs Resident State Attorneys UPS Uganda Police Service NETPL Network of Public Interest Lawyers LDC Law Development Centre SPSA Senior Principle State Attorney MCA Magistrate's Court Act PCA Penal Code Act

TIA Trial on Indictment Act

AG Attorney General

CHAPTER ONE

BACKGROUND TO THE STUDY

1 Introduction and Background 1 Introduction. In regard to Uganda's ctiminal histmy, this research tries to give a btief flash back on tl1e ctiminal justice system and how different regimes have influenced tl1e administr-ation of ctiminal justice putting into place tl1e progress of cotnt process and protection and promotion of tl1e tights of individuals. Tl1e resem-cher intends to look at how tl1e ctiminal justice system is appm-ently conducted m1d how tl1e custodian oftl1is task handles tl1e administr-ation ofjustice in Ugm1da

Tl1e 1-esem-cher intends to look at tl1e duties of the DPP in 1-espect to tl1e administr-ation of ciiminal justice in Uganda, the challenges they face m1d the 1-ecommendations to the sa topic tmder t-esem-ch.

Crime defined. Is a violation of a law in which there is injury to the public or a member of the public and a term in jail or prison, and/or a fine as possible penalties 1. There is some sentiment for excluding from the "crime" category crimes without victims, such as consensual acts, or violations in which only the perpetrator is hurt or involved such as personal use of illegal drugs.

The Osborn's law Dictionarldefines crime as an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsibly liable to punishment by fine or imprisonment through special proceedings instituted by the state. A crime can mean a felony or misdemeanor. A felony is a capital offence whereas a misdemeanor is a minor offence.

The Penal Code Act 3 defines a felony to mean an offence which is declared by law to be a felony or if not declared to be a misdemeanor, is punishable without proof of previous conviction, with death or with imprisonment for three years or more ..

1 Crime and criminology text book by Rob White (Amazon.co) 2 Osborn's Concise Law Dictionary.

customary law. The elders handled cases of different nature such as rape, theft, murder, robbery among other offences 9

These offences were accorded different punishments for instance in the North. once one was caught stealing, he was taken to the chiefs and would be beaten and humiliated. In the East, the Bagisu could burn such culprits in public. In the west. the Bakonjjo could tie the offender in the forest for about 24 hours, in the following morning if found alive, that person could be pardoned but in most cases, wild animals could eat them up. In several jurisdictions 111 Uganda, the mode of administering criminal justice was quite different. 10 1.2 Colonial era When the Blitish asstuned control, there are a munber of changes that were adopted to influence the judicial system in the cotm1ly and these were pasted fium tl1e English system of administetingjustice. For instance, local cotuts were created to aqjudicate over small claim disputes and minor offences. Tl1e Chiefs ru1d other local leaders were granted powers to preside over disputes in society. Fatal and more setious felonies were taken to the cotuts they themselves presided over.

At independence, tl1e resulting legal system consisted of tl1e High Cotut which herud cases involving mtuder, rape, 1l-eason ru1d other climes punishable by death or life imptisonment ru1d subordinate Magis1lutes' Comts which tried cases ptmishable by a sh01ter tem1s ofimptisonment, lines or whipping. The Magisnutes' cotuts' decisions could be appealed to the High Cotut.

1 Post-colonial era After gaining independence, ctiminal pmsecutions were hru1dled by tl1e Attomey General. Immediately tl1ereafier in ol962, tl1e constitution 11 tu1der S. 82(6) gave powers to pmliament to enact Two Ot'dii1ru1ces 1lunsfening power fium the Attomey General to the DPP. Tl1ese Ordinru1ces were Ntm1bers 9 and 38 of 1962. The Director of Public Pmsecutions appointed by the president, prosecuted criminal cases. Under the Attomey General's direction, tl1e DPP iilitiated ru1d conducted ctiminal proceedings other thru1 comt mrutial. Tl1e DPP also could appoint a public pmsecutor for a specific case. In some cases, the police official was the public pmsecutor ru1d tl1e DPP reviewed ru1d commented on tl1e trial pmceedings

9 photius .com/countries/Uganda 10 History of Uganda general and traditional knowledge on the customary attributes. 11 Of 1962

The legal system virtually broke down dming the 1970s in prut because Amintmdennined the judicial system when it attempted to oppose him. In March 1971, for instance when Amin granted the security forces the tight to search and atTest, they implemented the decree to hruass the political opponents. T11e cowts were then blocked fium rendering verdicts against secmity forces through a second decree granting govemment officials immtmity fium cowt pmsecution. By absolving soldiers and police of any legal accotmtability, Arnin tmleashed a reign oftenur on the ci~lian population that lasted for eight years.

T11e end of Amin regime bmught no significru1t improvement in the ctiminal justice system. In an effmt to reassett the rule of law, in 1984, the govemment pmhibited the rumy fium atTesting civiliru1 population. T11e rumy ignored the 1984law, however. ru1d continued to petpetrate climes against the civiliru1 population.

When Museveni cru11e into power in 1986, he pledged to end tl1e rumy tyranny ru1d refonn the cotmtry's ctiminal justice system. He succeeded in granting greater autonomy to tl1e cotuts. Subsequently, legislation allowed tl1e govemment to establish sepmate cotuts in tl1ese ru-eas, autl1mized tl1e rumy to at1-est insmgents, pennitted magistr-ates to suspend the rule of evidence to allow hemsay ru1d Lmconubomted evidence in tl1e cotutroom, and shifted tl1e bmden of proof fium tl1e accuser to tl1e accused. 12

T11e NRM t-egime enacted a new constitutimP whet-eby the tights of individuals ru-e given value ru1d impo1tru1ce attached to tl1em. T11ese rights ru-e inhe1-ent ru1d not granted by the state. Chapter IV stipulates tl1ese tights at11ong which the tights of suspects!ctiminals ru-e catet-ed for.

For instru1ce, tmder Article 23(6) 14 , states tl1at "whet-e a person is ru1-ested in t-espect of a ctiminal offence, tl1at person is entitled to apply to cotut to be released on bail" "whet-e a person is convicted and sentenced to a tem of imptisonment, ruw petiod he/she spends in lawfi custody in t-espect of tl1e offence befm-e tl1e completion of his or her trial." "The tight to order of habeas cotpus"

Article 2815 stiptuates tlmt "in the detennination of civil tights ru1d obligations, or ruw c1in1inal chruge, a person shall be entitled to a fair, speedy ru1d public heating befot-e ru1 independent ru1d imprutial comt or tribunal established by law"

12 Library of congress country studies and CIA world Fact book(cia/ .. ./the -worldfactbook) 13 Of the Republic of Uganda 1995 14 Supra 15 Supra

To date, the Directorate continues to increase its geographical coverage of the country by opening up new offices, and deploying requisite human resources. However, its non-wage recurrent and development budgets have not been substantially increased to match the expanded needs of the institutions and the demand for Office of the DPP's services across the country. The DPP office is however not a body corporate, capable of suing and being sued in its entity name. It is just a criminal department meant to run justice on behalf of the government as there is no legislation operationalizing its power to sue or be sued as was held in the following case.

Charles Harry Twagira V Attorney General, DPP & Kyomukama Sam 21 The DPP is a government department but it is not a body corporate with powers to sue and be sued. Article 150(2) of the constitution provides;- Civil proceedings by or against the Government shall be instituted by or against the Attorney General; and all documents required to be served on the Government for the purpose of or in connection with those proceedings, shall be served on the Attorney General. Therefore a suit against the DPP cannot be sustained and it is incompetent.

In addition, the Office of the DPP is present in most districts through the offices of the Resident State Attorneys (RSAs) and Resident State Prosecutors (RSPs). who represent the Directorate, and their mandate is to peruse files, offer legal advice and prosecute cases in their areas of jurisdiction. The objective of these field offices is to take prosecutorial services closer to the people- the users. A person is not qualified to be appointed a Director of Public Prosecutions unless and until that person is qualified to be appointed a Judge of the High Court. 22 1 Statement of the Problem Despite the existence of provisions in the Public Prosecutions Act 23 , the Constitution 24 , the Police Act, the Magistrates Act25 , Uganda prisons Act 26 and other legislations, the role of the DPP is compromised due to several interferences from other arms of the Government. It is

21 (Civil Appeal No. 4 of 2007) Supreme court.

22 Art. 120(2) of the 1995 Constitution of the Republic of Uganda. 23 24 the Constitution of the Republic of Uganda 1995 as amended 25 Cap 26

not clear whether the DPP is an independent office in reality. Should the rights of suspects to fair hearing and other freedoms be prejudiced due to such inconveniences?

The researcher established the problem as stated and suggested ways through which such can be overcome to dispense justice without interference and influence from other authorities. 1 Methodology/Data collection Method. In conducting this research, both secondary and primary methods were used to collect data. 1.4 Primary methods a) Interview During this research, data was collected by interviewing the Senior Principle Resident State Attorneys from different courts including Nakawa Court, Mengo Court, and High court Criminal Division Kampala, among other RSAs. The Researcher I also conducted an interview on the Prison wardens and the Police Officers to ascertain whether the Office of the DPP is carrying out its role effectively. This I helped him to find out how the rights of prisoners in and how they have been observed with regard to administration of Criminal justice in Uganda, and their recommendations on how obliterate the short comings.

b) Key lnfonnants Interview. In conducting this research, heads and members of various Non-Governmental Organizations like Human Rights Watch, Uganda, Foundation for Human Rights Initiative, JLOS among others were consulted to provide relevant information concerning the administration of Criminal justice in Uganda by the DPP.

c) Observation. In carrying out this research, observation as a tool of data collection was employed in observing the facilities and conditions under which the Office of the DPP administers criminal justice in Uganda.

d) Data analysis. In the course of the study, the researcher inspected, cleaned, transformed and modelled data with the goal of discovering useful information relating to dispensation of criminal justice by the Office of the DPP, suggesting conclusions and supporting decision making.

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