How Kazinda floored IGG in regional court

The court held that the IGG of Uganda is not an institution of the East African Community (EAC) as envisaged under Article 30 (1) nor is she an organ of the Community as stipulated under Article 9(1) of the Treaty to be given audience.

“The actions of the applicant (IGG) can, therefore, only be challenged in this court through the Attorney General as the applicant does not personally fall within the purview of the Treaty. She cannot be joined as a respondent to any proceedings before this court and the court has no jurisdiction over her in that context,” the regional court ruled. 

It added: “Having determined that the IGG has no locus standi [the right or capacity to bring an action or to appear in a court] to appear in the capacity that she seeks to do in this court and that the court has no jurisdiction over them in that regard, the court cannot proceed beyond this point.”

The other justices were Charles O Nyawello (deputy principal judge), Charles A Nyachae, Richard Wabwire Wejuli and Leonard Gacuko.

Court documents that were supported by the affidavit of deputy IGG, Ms Patricia Achan Okiria, stated that the ombudsman investigated Kazinda on allegations of amassing wealth and went ahead and prosecuted him for illicit enrichment.

The Anti-Corruption Court in 2022 found Kazinda culpable.

But being dissatisfied with the court decision, Kazinda filed a reference at the regional court, seeking to annul the decision of the Anti-Corruption Court that had, among others, ordered the confiscation of his property.

Core to his argument was that the execution was unlawful and infringed on the East African Community Treaty that requires the partner states to abide by good governance, including adherence to principles of democracy, rule of law, and accountability.

In the course of the hearing, the IGG applied to join and rebuttal Kazinda’s reference on grounds that the Attorney General was not well conversant with the facts of the case.

But during the hearing, Kazinda who was representing himself, raised a preliminary objection of how the regional court has no jurisdiction to hear and determine an application filed by the IGG on grounds that she is neither a “legal” nor a “natural person” within the meaning of the Treaty.

To support his argument, Kazinda cited the court’s decision in Central Bank of Kenya Vs Pontrillas Investments Limited, EACJ application no. 6 of 2022 in which the court held that the Central Bank of Kenya was not the proper party over which the court can exercise its jurisdiction.

“The 1st respondent (Kazinda) contended that including the applicant (IGG) as a party would mean proceeding against her, which Article 30 does not permit as she is neither a partner state nor an institution of the Community,” reads in part the court documents.

In their analysis, the justices of the court agreed with Kazinda and held that the IGG of Uganda had no locus standi to appear before the regional court, and that also the court had no jurisdiction over the IGG.

“The court would be acting outside its mandate if it attempted to address the arguments raised regarding the 2nd respondent’s respective mandates under the Constitution of the Republic of Uganda,” ruled the justices.

They added: “The preliminary objection raised by the 1st respondent (Kazinda) is upheld.”

While condemning the IGG to costs, the justices reasoned that public institutions should strive to act in harmony and that this particular case is a typical example of how public bodies waste taxpayers’ money.

“This case is a typically unfortunate example of how public resources are put to imprudent and unnecessary waste over a matter that could have been resolved intra-government without having two government agencies deriding each other in this court over the improbable and otherwise avoidable costs to a taxpayer,” ruled the justices.

“…As the applicant unnecessarily dragged the 1st respondent (Kazinda) to this court in the instant application, she will bear the costs of the 1st respondent (Kazinda). The applicant’s application to be joined as a party in reference no. 25 of 2022 is accordingly dismissed.”

Background
In July 2020, the Constitutional Court judgment directed the Anti-Corruption Court to discharge Mr Kazinda in all cases and any future cases whose offences are founded on facts regarding his tenure as principal accountant at the OPM.

The court also prohibited the state from using any process of the court to initiate and prosecute Kazinda for any offences similar in character or founded on the same facts whatsoever arising out of, or in connection with his former employment as principal accountant in the OPM.

Costs
The court also declined to award costs to the Attorney General of Uganda despite being a joint respondent with Kazinda because: “If costs were granted to the 2nd respondent (Attorney General), this court would be compounding the uneconomic disbursement of public resources as both parties draw from the same public coffers.”

By press time on February 13, Kazinda who is currently incarcerated at Luzira prison, was yet to file his bill of costs to the regional court and be paid by the IGG.