Court ruling sparks fight at DPP office

Top officials at the office of the Director of Public Prosecutions (DPP) are locked in a fight over who temporary takes the reigns following a Constitutional Court ruling that threw into jeopardy Justice Jane Frances Abodo’s leadership of the organisation.   

Justice Abodo, a judge of the High Court, was appointed DPP in April last year but she has been forced to keep out of office after a ruling in a petition filed by the late Bob Kasango declared that a judge must resign if she/he is to take up appointment in another arm of government. 

By the time the Constitutional Court judgement was handed down, Justice Abodo was on a working visit to Japan and had delegated her duties to Ms Alice Komuhangi Khaukha, one of the four deputy DPPs since March 2. 

It was during Ms Abodo’s absence that five justices of the Constitutional Court led by Justice Kenneth Kakuru ruled on March 18 that it is illegal for a judge to be appointed to any Executive or a constitutional officer unless the said judge resigns from the Judiciary. 

Other justices on the panel were Muzamiru Mutangula Kibeedi, Geoffrey Kiryabwire, Cheborion Barishaki and Stephen Musota.

The landmark judgment arose from a petition filed by late lawyer Robert Aldridge Kasango, who had challenged his prosecution by the then DPP, Justice Mike Chibita. 

The landmark judgment arose from a petition filed by late lawyer Robert Aldridge Kasango, who had challenged his prosecution by the then DPP, Justice Mike Chibita. 

Kasango, who along with the former Permanent Secretary in the Ministry of Public Service, Mr Jimmy Lwamafa, former Principal Accountant in the pensions department Christopher Obey, and former director of research and development  Stephen Kiwanuka Kunsa, was at the time battling charges of theft of Shs15.4b in the Anti-Corruption Court, had successfully argued that the appointment of Justice Chibita, who was at the time a judge of the High Court, to the position of chief government prosecutor had caused a fusion of the Executive and the Judiciary.

That, Kasango argued, had caused a fusion of the Executive and the Judiciary, hence undermining the independence of the Judiciary and separation of powers that the Constitution requires.

The deceased lawyer had also argued that the unconstitutional appointment of Justice Chibita and his subsequent prosecution by him rendered the proceedings against him unlawful and void.

“Henceforth, the appointment and actions of a judge to any other Executive or constitutional office prior to his or her resignation, renders his or her actions invalid,” Justice Kakuru ruled in his judgment.

“Before I take leave of this matter, I would like to observe that judges and justices who are being assigned and or appointed to various Executive and constitutional offices, the relevant authorities, especially the Judicial Service Commission, must ensure that before they take up another appointment, he or she first resigns,” Justice Kakuru added.

Justice Kakuru also called on those affected by the ruling, who included Ms Abodo and Electoral Commission (EC) chairperson Simon Byabakama, to obey the decision of the court since they are custodians of the Constitution.

Following the ruling, Ms Khaukha sent out an internal memo in which she told staff of the directorate that she was taking as acting DPP.

“Reference is made to the DPP’s memo dated March 2, where she delegated me to execute the functions of her office on her behalf during her absence on official duty. I will continue executing these functions in light of the Constitutional Court decision in the constitutional petition…” the memo read in part.

The memo has since sparked off accusations from sections of the legal fraternity that Ms Khaukha is trying to take over the office of DPP through the backdoor, a charge she denies. 

She told Sunday Monitor late on Friday that the decision for her to continue as acting DPP was arrived at during a meeting held on Monday.

“I wrote the memo with the consent of the top management, which was held on Monday. It (decision for her to continue as acting DPP) was not from me,” Ms Khaukha said.

Ms Khaukha said the ruling of the Constitutional Court had been made in such a way that Ms Abodo could no longer perform any duty, including assigning her as that would also have legal implications. It would lead to questions about whether she had the powers to delegate her powers.

However, Ms Khaukha’s accusers argue that even if the decision was reached in a meeting, the position should have gone to the most senior of the four DPPs.

Mr Charles Elem Ogwal is the most senior deputy DPP and has served as acting DPP for several months before Mr Museveni appointed Ms Abodo to take over as DPP last year.

Ms Khaukha’s accusers insist her appointment is illegal. They claim it contravenes Section 25 of the Interpretation Act.

The act provides that “Where, by any Act, a power is conferred on any authority to appoint any person to be a member of any board, commission, committee or similar body, that authority may, if during any period owing to absence or inability to act from illness or any other cause any member so appointed is unable to act as such, appoint some other person to act temporarily for that member during the period of absence or inability”.

Ms Irene Nakimbugwe, the DPP deputy spokesperson has, however, defended Ms Khaukha, saying there was no wrong doing on her part.

“That memo was an internal matter intended for internal consumption. It was not about her appointing herself DPP because the substantive DPP is not really out of office,” Ms Nakimbugwe said.

Ms Khaukha’s accusers, however, claim that naming her acting DPP was procedurally wrong. They argue that she should have written to both the Minister of Justice and the Public Service Commission (PSC) to notify them of the ruling of the court and invite them to either name an acting DPP or a substantive one as the case was in February last year when Mr Ogwal, after then DPP Chibita was named a judge of the Supreme Court.
However, Ms Nakimbugwe told Sunday Monitor that the scenarios are different.

“When Mr Elem wrote, the substantive DPP had been transferred, but in this case, the DPP is still in office. We appealed the decision of the court and we have also asked the Supreme Court to stay the implementation of the ruling of the Constitutional Court. We do not agree with the judgment,” Ms Nakimbugwe said.

Government appeals
The government last week petitioned the Supreme Court seeking to overturn the ruling of the Constitutional Court that, among other things, requires judges to retire prior to assuming a new job with the Executive arm of government or any other constitutional posting.

In their application, the Attorney General and the office of the DPP contend that the Constitutional Court orders will cripple the prosecution of suspected criminals.

“The said judgment, orders and declarations render the office of the DPP unable to perform its functions enshrined under the Article 120 of the Constitution and hence creating a legal lacuna in the delivery of criminal justice,” reads in part the affidavit of Mr Vincent Wagona, one of the senior prosecutors in the DPP’s office.

“There is need to preserve the status quo, otherwise going forward, all pending cases for decision and in courts of law are likely to be stayed owing to the absence of a substantive DPP,” Mr Wagona adds.

If the Supreme Court does not stay the lower court’s orders, Mr Wagona further argued, the pending appeal will be rendered nugatory.