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Directorate of Public Prosecutions, Workers House 12 & 11th Floor Southern Wing, Plot 1, Pilkington Road, P. O. o! 1""#, $a%&ala '(ganda) ad%in*d&&.go.ug +++.d&&.go.ug

Our Ref: Your Ref:

26thNovember 2013

The Chairman, Legal and arliamentar! "ffair# Committee, arliament of $ganda, arliament %ou#e, &O& 'o( )1)*, +am,ala& R-: CO..-NT/ ON T%- "NT0 CORR$ T0ON 1"..-N2.-NT3 '0LL, 2013

We make reference to the above and to your letter Ref: .. dated ., inviting us to the Legal and Parliamentary Affairs for our comments on the Anti Corruption (Amendment !ill, "#$%. We have studied the !ill and our comments are as follo&s' /4 N $. CL"$/CO..-NT/ 4 ON/-R5"T0ON/ Clause 1 of the Bill This definition lacks defines a political clarity. office to mean an office relating to the conduct of government and politics. Clause 3 (a) of the Bill provides for the inclusion of a political leader to the offence of causing financial loss under R-CO..-N2"T0O N/ ON T%- '0LL We propose that the term political office be defined to mean an office held by a political leader since a political leader has properly been defined under the same clause.

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However term political Clause % should be leader appears to be rephrased to cater misplaced in this !lause. for this ambiguity. "t is not clear whether this inclusion is intended
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Section 20 of the to punish an employee of principal $ct. a political leader or the political leader himself or herself. %econdly while this !lause criminali&es acts done it does not criminali&e omissions as provided for under the principal $ct. *urther, this Clause is limited to the monetary loss and does not cover other forms of loss, (such as loss of a benefit or a service that are caused by the acts and omissions of the persons envisaged there under. We propose that this phrase be revisited to criminali-e the (omission to do an act. Clause % should be amended to include the &ords (.or any other loss)after the &ords (kno&ing or having reason to believe that the act or omission &ill cause financial loss), so as to cater for other forms of losses. ./n this regard, the short title to the 0ection "# of the principal Act should be amended to read (causing loss. We recommend that the &ords (Companies Act) should be replaced &ith (Laws of Uganda.

Clau#e 31b3 of the 'ill defining (a company) to mean a company incorporated under the Companies Act, "#$".

+o&ever, limiting the definition to companies incorporated under the Companies Act of "#$" may be e,ploited by offenders, &here the company &as incorporated before "#$".
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%.

Clau#e 6 of the 'ill provides for insertion of a ne& /e7tion 21".

Clau#e 6 of the 'ill further provides for definition of (dealing &ith property) under the proposed ne& 0ection "$A (" of the !ill.

0ubsection ($ of the proposed 0ection criminali-es the dealing in property, &here a person believes or has reason to believe that such property &as ac1uired as a result of an offence under the Anti Corruption We suggest that the Act. &ord (believes) be replaced &ith +o&ever, proving (knows) as belief on part of an kno&ledge can easily accused person be imputed and may add an proved from the unnecessary surrounding burden on circumstances. prosecution considering that belief is al&ays personal to the 2he Clause should be individual holding amended to cater for it. such instances and &e propose the inclusion of 2he definition of paragraph (d to the (dealing with definition of (dealing property does not &ith property) under cater for instances the proposed 0ection &here 3egistrars "$A(" to read as and 4fficials in follo&s' Land 4ffice make transfers or remove (d does or omits to caveats from land, do any act that &here they have facilitates the reason to believe transfer of property. that such land &as feloniously ac1uired5 yet this is
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one of the common practices for dissipating illicitly ac1uired property. 0imilarly, the Clause does not cater for other officials and 3egistrars in other government offices, such, 63A &ith regard to registration and transfer of motor vehicles, and the 6ganda 7ational 3egistration !ureau, among others.

8.

Clau#e 6 of the 'ill providing for replacement of /e7tion 3* of the principal Act.

2his Clause provides for an obligation to give information to a police officer or special investigator.

We propose that the Clause should 1ualify such e,cuses 9 :ustifications, by addition the &ords except where such information is +o&ever, the privileged.) at the Clause leaves room end of 0ection %;($ . for such person to &ithhold /n addition, this information basing 0ection should make on e.g. the internal provisions penali-ing policies and the giving of false bureaucracies of an information. organi-ation. 0ection for

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Clau#e ) of the 2he 'ill provides for provides replacement of mandatory

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/e7tion 63 of confiscation of the principal Act property of a that provides for convicted, person, confiscation &hich is a positive orders. amendment to the Confiscation should principal Act. be limited to ac1uisitive offences +o&ever, the such as 0ection provides for embe--lement and indiscriminate diversion of public confiscation of resources5 and to property o&ned by offences &here loss a person convicted has been suffered as of an offence under a result of the the Act, &ithout any offence &ith &hich a regard to the person has been nature of offence. convicted. 7otably, there are some offences under the Act &here no benefit may accrue to the convicted person. 2hese include' nepotism, sectarianism, personation, giving false information and neglect of duty. 0econdly, the 0ection is not clear on &hich property should be confiscated and the value or e,tent of confiscation, in relation to the offence &ith &hich a person has been convicted.
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2he 0ection should be revisited to provide for such clarification &ith particular regard to the Constitutional provisions on the right to property and the best practices under international instruments, such as the 67CAC, to &hich 6ganda is a signatory.

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Clau#e ) of the 'ill providing for the amendment of /e7tion 63123 of the principal Act.

2his amendment vests all confiscated property vest in government. 2he Clause should be amended to vest +o&ever, it seems property in the unreasonable to aggrieved party and indiscriminately to provide for the vest property in reali-ation of losses government, even suffered by private in cases &here companies as a government is not a result of the offence party or victim of &ith &hich a person the offence. has been convicted. 2his amendment appears to be in conflict &ith the spirit of the !ill as stated in sub paragraph " of paragraph $ of the ob:ect of the !ill, &hich stipulates that the !ill is intended to ensure that government or other company or organi-ation recovers the loss, if any, caused by a person convicted under the Act. /n addition, the !ill does not make provision for ho& private companies or organi-ations can recover their loss from property that has been
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Clau#e ) further provides for management of confiscated property by a Public 2rustee.

vested government.

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2he proposed amendment to /e7tion 63123 provides for management of confiscated property by a Public 2rustee appointed under the Public 2rustee Act. 7onetheless, the Public 2rustee Act is not designed to cater for management of restrained or confiscated property under the Act. /n particular, 0ection 8(< of the Public 2rustee Act provides that the public trustee shall not accept any trust that involves management or carrying on of any business. /t is pertinent that the Clause makes provisions for pre. conviction management of property.

We note that the prohibited are essential to the effective administration of confiscated 2he proposed property. amendment to
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*urther, such management of confiscated property after conviction seems to be superfluous. We propose that focus at this stage, should be put on the realization of property to compensate the victims as opposed to its management, &hich may attract unnecessary costs. We note that /e7tion# 88 (" and 86 of the principal Act also provide for management of restrained property by a person appointed by court have not been repealed but at the same time, the !ill introduces the Public 2rustee to manage property under the Act. 2his creates a contradiction in the management of property under the Act. >. Clau#e *

/e7tion 63123 of the principal Act should be looked at in light of 0ections 88123 and 86 of the principal Act.

2he Clause 2his clause has been introduces /e7tion taken care of by our
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63", providing for comments on po&ers and duties 0ection =%A above. of a Public 2rustee. ;. Clau#e# 9 and Providing for fees As above. 10 and confiscation costs, respectively. +o&ever, there is need to appraise /n particular, these provisions in Clau#e 10 re1uires light of the Ant that confiscation ?oney Laundering costs shall be paid la&, &hich &e have by a convicted not had opportunity person. to look at as it has not been published. 2his provision serves no purpose since the confiscation order involves taking all the convict)s property. aragra,h 13 of the ?emorandum to the !ill provides that the !ill seeks to replace /e7tion 68123 of the ,rin7i,al "7t& +o&ever, no mention of this 0ection has been throughout the !ill. 7evertheless, &e propose that time for considering a person to have absconded under this 0ection be reduced to = months.

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4ther Comments shortcomings of the principal Act that have not been addressed by the current amendment !ill' /4 N $. Position of Current Law the Comments

Vague offence of abuse 0nder this %ection a person who being employed in a of office under %ection public body or a company in which the 1overnment ##.#/ of the principal has shares does or directs to be done an arbitrary act
2

$ct.

pre3udicial to the interests of his or her employer or of any other person in abuse of the authority of his or her office commits an offence. The words arbitrary act are not defined. The %ection has been critici&ed as not being consistent with the 04 !onvention $gainst !orruption which provides for mensrea .criminal intention/ and the offence arises when there is a violation of laws.

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Effect of the u!ula $ccording to this 3udgment a minister is not an "igh Court #u$gment employee of 1overnment. This therefore means that a 5inister cannot be charged with the offences of abuse of office and causing financial loss as these offences only apply to an employee under the present $nti !orruption $ct.

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Public %fficer& 'ersus The $nti corruption $ct interchangeably uses the (Public %fficial& words public officer and public official without defining either and leaving it unclear as to whether the words mean the same thing. Vagueness of the 4eglect of duty is an offence under %ection '.i/ of the offence of )eglect of $nti !orruption $ct. *ut+, However its elements are unclear. "t is also unclear whether the offence applies only to a public official. There is a similar offence under %ection ##) of the 6enal !ode $ct where elements are clear and it applies only to an employee.

8.

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Pa+ment com-ensation

of 0nder the present $nti !orruption $ct it only the offence of diversion of public resources .%.+/ that provides for a mandatory compensation order .%.,/ re7uiring the convict to pay compensation to an aggrieved party. "n all other cases under the $nti !orruption $ct compensation orders are made at the discretion of the court using the powers under the Trial on "ndictments
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$ct and 5agistrates !ourt $ct. =. Vague offence of illicit The offence of illicit enrichment and its elements under enrichment. %.(# of the $nti !orruption $ct are not clearly defined. What is defined .%.(#.#/ are the grounds for causing an investigation.

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Section 3/ of the +o&ever, there is no clear distinction -rinci-al 0ct providing bet&een assets and accounts under this for restriction of assets 0ection. and banks accounts.

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Section 1 of the We propose that persons who influence such acts or -rinci-al 0ct provides omissions be included under this %ection. for the offence of "nfluence 6eddling and punishes persons who do or omit to do acts in contravention of established principles or procedures B0T the !lause does not punish persons who influence and9or direct for such acts to be done,

:::::::::::::::: "mo# Ngolobe, 2e,ut! 2ire7tor of ubli7 ro#e7ution# ;OR: The 2ire7tor of ubli7 ro#e7ution#&

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