Justice: Right to institute private prosecution can’t be wished away

Wednesday January 29 2020
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Daniel M. Walyemera

The outgoing Director of Public Prosecutions (DPP), now Supreme Court Judge, Mike Chibita, at a National Validation Workshop of a National Prosecution Policy, is reported to have asked “why a normal human being would leave the police, prosecutors from the office of the DPP and other prosecuting agencies that are being paid by government and choose to institute a private prosecution by themselves?”

The answer to this question he posed, has been deliberated upon by many courts in the Common Law system, from which our Ugandan legal system is grounded. It is important to note that this constitutional safeguard is provided for in Uganda’s Constitution.

Consequently, the right to institute a private prosecution cannot be wished away by anybody. Its exercise cannot also be restricted by the DPP drafting a National Prosecution Policy, to limit its enjoyment.
If the right to institute a private prosecution is being abused by busy bodies, there are sufficient mechanisms within the law, as it is now, to safeguard its abuse.

The first safeguard is grounded in Article 120(3)(c) of the Constitution, where the DPP can take over and continue the criminal proceedings. The DPP’s power to take over a private prosecution, does not include the power to discontinue, as Chibita was quoted as saying. The DPP can only discontinue the said proceedings with consent of court as provided for by Article 120(3)(d).

The second safeguard is grounded in section 42, sub-sections 4 and 5 of the Magistrates Courts Act (MCA), where a magistrate before signing a charge sheet, ensures that the charge brought by way of private prosecution, is not “frivolous or vexatious” in other words a “mischievous” charge sheet, as Chibita fashions it.

But even when a private prosecution “escapes” this safeguard and a charge sheet is indeed signed by a sluggish magistrate and it is found “mischievous,” at the end of the private prosecution, section 196 of the MCA provides for a third safeguard.

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It provides that on dismissal of any private prosecution by a Magistrate’s Court, which is deemed frivolous and vexatious, a private prosecutor may be ordered to pay trial costs and a reasonable sum of compensation to the accused person, for the trouble and expense they have been subjected to, as result of the private prosecution.

There are several reasons why an individual citizen would choose to institute a private prosecution even when we have government agencies mandated to investigate and prosecute crime. One of the key reasons is that those government agencies could go to “sleep” over some crimes that are committed by “powerful” individuals either within those very agencies or out of them. This inaction, at the end of the day, would create an environment where impunity reigns supreme.

In 2013, the UK Supreme Court emphasised the importance of the right to institute a private prosecution. In the case of Gujra, R (on the application of) v. Crown Prosecution Service, it noted that “Private prosecution is, and I think always has been, a safeguard against the feelings of injustice that can arise when, in the eyes of the public, public authorities do not pursue criminal investigations and proceedings in a manner which leads to culprits being brought before a criminal court. The impunity that the offenders appear to enjoy can be socially detrimental”.

Consequently, the constitutional right to institute a private prosecution could be a handy legal tool in a society whose democratic accountability structures have been overrun and criminalised. This especially so, where impunity reigns with abandon.

Mr Walyemera is a managing partner at Walyemera and Company Advocates.

dwmasumba@gmail.com

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