Judge urges DPP to avoid criminalising civil matters

“We are going to have people who are not supposed to be in prison finding their way as remand prisoners and we might find them in prison as convicts,” Justice Mutonyi said last week during a Zoom session organised by the Uganda Association of Prosecutors.

“Litigants should not be at liberty to choose which path to pursue because the Constitution mandates the DPP to have regard to the public interest and interest in the administration of justice and the need to prevent abuse of the legal process,” she said.

She cited cases such as criminal trespass, intermeddling with the estate of the deceased person, malicious damage to property, and breach of contracts where parties abuse the court process to subdue their counterparts. 

Mr Felix Kintu Nteza, a lawyer and one of the participants in the Zoom session, said civil matters have been criminalised to the extent that obvious civil contests between individuals relating to their rights to property or contracts executed have been criminalised where the DPP decides to charge litigants with offences arising out of civil matters.  

Mr Kintu added that the DPP’s office has been slapping criminal charges on parties in commercial matters relating to breaches of contracts even where such contracts have been partly performed.

He asserted that the criminal justice system has been abused to the extent of being used for collateral purposes, blackmail, coercing litigants with legitimate civil claims into unfavourable settlements, and in some instances, extortion.

“...the DPP has a duty to look at the law broadly to decide whether to prosecute or not. Where the facts of the alleged crime arise out of a bonafide civil contest over property or contracts, the DPP should not prosecute but advise the complainant to pursue civil remedies because justice can be obtained either through criminal or civil law,” he said.

He implored the office of the DPP to always keep in mind Article 120(5) of the Constitution and Section 209 of the Magistrates Court Act. 

Mr Kintu also castigated the DPP for not walking the talk of the rule of law, especially in instances where the High Court has issued orders of stay of criminal proceedings on grounds of abuse. 

He said such matters should immediately be withdrawn from court since they were not to be prosecuted.

Mr George William Byansi, the Deputy Director of the Public Prosecutions (DPP) said crimes are created by statute and not by their office.

“A litigant should be at liberty to choose which option to follow without dictating on what should be followed whether civil or criminal path because what guides our (DPP) decisions is the evidence and the laws creating the offences. I see nothing wrong either in law or practice that should stop both cases going on where the evidence and facts disclose both options,” he said. But he was quick to say sometimes the system can be abused and matters that are not supposed to be criminal are treated as such.

“State attorneys should take caution while reading the police case files to ensure that all ingredients in the case are understood before they charge suspects,” Mr Byansi said.

“The practice of litigants challenging criminal proceedings and seeking to stay on the ground that the same issues they are being charged with in criminal are the same being litigated upon in civil will always be there but if our charges are well thought out and justifiable, we believe that the courts should always agree with us and look at all the circumstances and facts,” he added.