Wednesday April 2 2014

Not every suspected criminal offence must be prosecuted

By Ahmed Kalule Mukasa

The recent exercise of prosecutorial discretion vested in two of the country’s leading prosecution agencies - the Directorate of Public Prosecutions and the Inspectorate of Government, leaves a lot to be desired.

First, if there is no evidence implicating a suspect and/or an accused person, why does the DPP/IGG arraign such a person before court? These agencies have wide prosecutorial discretion but this discretion must be exercised in public interest, in the interests of justice and the need to prevent abuse of process. Why would public resources be wasted on a trial which is clearly a non-starter? Is it in the interests of justice to ceremoniously have somebody appear before court only for the case to be dismissed at the earliest stage because a prima facie case has not been made out? Wouldn’t such a trial be an abuse of process?

The prosecutorial powers of the DPP/IGG, though broad, are not unquestionable. I do not think the framers of the Constitution intended that anyone in this country should be vested with such absolute powers. The limitations on these powers are a promise by the framers of the Constitution that prosecutorial powers granted to some state actors should never be used to trample upon the guaranteed rights/liberties of honest citizens.

I have been a defence counsel in some of the recent high profile criminal trials of government ministers and former ministers. Even an ordinary citizen listening to the evidence before court would know that those trials were at best, simply a waste of time and public resources and at worst, a total abuse of process. How can all prosecution witnesses attending court and called to implicate the accused persons end up exonerating them, witness after witness? It points only to one conclusion: that the trials should never have commenced in the first place because there was no case at all.

I dare say that individuals or groups of individuals who make specious prosecution decisions leading to the waste of public resources must be put to account. But even more, and as Justice Paul Mugamba rightly observed in his ruling in the Chogm ministers’ case, such bogus cases create a bad impression for the fight against corruption and will most definitely stifle it.

I would expect that before a decision is made to prosecute, the DPP/IGG must have satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution. The existence of a bare prima facie case is not enough. Given the existence of a prima facie case, it must be understood that a prosecution should not proceed if there is no reasonable prospect of a conviction being secured before an impartial judicial officer.

This decision requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the court, and the admissibility of any alleged confession or other evidence. The DPP/IGG should also have regard to any lines of defence which are plainly open to, or have been indicated by the alleged offender and any other factors which, in the view of the prosecutor, could affect the likelihood or otherwise of a conviction.

I admit that this assessment may be a difficult one to make, and of course, there can never be an assurance that a prosecution will succeed. Indeed, it is inevitable that some will fail. However, application of this test dispassionately, after due and honest deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds. It has never been the rule in this country and I hope it never will be; that all suspected criminal offences must be the subject of prosecution. Indeed, that is why the framers of our Constitution provided that the DPP/IGG should only prosecute whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest, the interests of justice and the need to prevent abuse of process. Those must always remain the dominant considerations.

Secondly, where there are numerous offences disclosed by a particular set of facts, it is not always proper to have all of them on a charge sheet before court. Why would the DPP/IGG present a charge sheet with 100 counts? This slows down the trial process and the longer the trial delays, the more it plays in the hands of the accused. The purpose for which a prosecution was commenced in the first place may in the end, never be realised. The main objective of criminal prosecutions is largely twofold; that is to say, punish the offender for his criminal wrong and scare away possible offenders with harsh sentences. Yet this can be achieved without arraigning a suspect on 50 counts. Take a case in which a person is charged with embezzlement, abuse of office and causing financial loss. The combined maximum penalty/sentence for these offences is 35 years.

If the prosecution were to vigorously investigate and pursue a case for a maximum sentence on each of these offences, wouldn’t the purpose of criminal prosecutions be served? Which prospective offender would not tremble at the possibility of spending 35 years in jail?

Legal practitioners know that it has become the norm for judicial officers to exercise their discretion and order that an accused person who has been convicted on several counts should have his sentences run concurrently. This means even if a person is convicted on all the 50 counts, it is most unlikely that the judicial officer will sentence him/her to, for example, 150 years in jail, with the various sentences running consecutively. Then why should the state waste resources and time bringing all these charges to court?

In a recent well-intentioned effort to fight corruption in the civil service, part of the objective of the project should be to deter prospective thieves from walking off with public funds. This, in my view, requires that corruption related trials should take a reasonably short time in order for the intended effect to be felt. It will be very difficult for any public servant to touch public money if the DPP and IGG returned 100 convictions every quarter of a year. But if a criminal prosecution takes 5 years because there are 100 counts to prove, then clearly, the purpose may never be fully achieved. In a sea of probable offences, I would urge the DPP and IGG to select such small number of clear cut offences where clearly, a quick conviction would be secured.

Mr Mukasa is the honorary secretary, Uganda Law Society.