OFFENCES AGAINST THE STATE

Treason

This offence is provided for in the Constitution under Article 3 Clause 2 which states that any
person who singly or in concert with others by any violent or other unlawful means,
suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to
do any such act, commits the offence of treason and shall be punished accordingly by the
law. Under Clause 4, all citizens of Uganda have the right and duty at all times to defend the
Constitution especially resisting any person or group of persons seeking to overthrow the
established constitutional order. Anyone who resists the suspension, overthrow, abrogation
or amendment of the Constitution commits no offence as provided for in Clause of Article 3.
The offence of treason is provided for under S.23 PCA and this offence may be committed in
various circumstances which include levying war against the Republic of Uganda, unlawfully
causing or attempting to cause the death of the president or unlawfully wounds or does any
harm to the President or aims at the person of the President any gun, offensive weapon,
pistol or any description of firearm, plotting to overthrow the government and this is
expressed or declared or by any overt act in order or by force of arms to overturn the
government as by law established. Aiding or abetting another person in the commission of
the foregoing acts or becoming an accessory in the commission of the previously stated
circumstances.
Levying war would generally mean usurping the government or leading an insurrection
against the government.
A person who commits the offence of treason shall suffer death.

The use of force means force used in such a way as is likely to impair the safety of the state
or cause the death or grievous harm to citizens of the state. It should be noted that any
person who aids, abets or is an accessory also commits the offence of treason. With regard
to intention it must be expressed in terms of an overt act. Sec 32 of the PCA provides a
definition of an overt act and it may constitute enlisting support or even a conspiracy.
In the case of Mattaka v R 1971 EA 497 it was found that the overt act that the accused
person had been involved in was conspiring to effect treasonable acts an in that case they
conspired to effect the death of the president of Tanzania which conspiracy was proved
through letters which had been communicated through the plotters.
Gabula Bright Africa v Uganda 1993, Gabula and 8 others were charged with treason.
Evidence was adduced to show that on several occasions the accused had conspired to
overthrow the NRM government. Court noted that a conspiracy was sufficient to establish
an overt act however; the court also stated that "in treason cases it is not enough to merely
prove that an alleged treason plotter attended a meeting at which a treason plot was
discussed. It is necessary to go further and prove what the alleged treason plotter actually
said at the meeting and that what he said is treasonable. The courts of Uganda had the
jurisdiction to try the offence wherever it is committed outside Uganda by a Ugandan citizen
or a person resident in Uganda.

MISPRISION OF TREASON

The offence of misprision of treason is provided for under Sec 25 of the PCA which provides
that where one person knows that another intends to commit treason and does not disclose
this information to relevant authorities commits an offence. This section imposes a duty on
all citizens to report the existence of any treason activity.
In Gabula Bright Africa the court found that the appellant and his co-accused had known
that an organisation had been formed to overthrow the government by force of arms and
hadn’t given this information to the relevant authorities and they were therefore guilty of
misprision of treason.
In Mataka v R it was held that the offence of misprision of treason is committed when
someone knows that another intends to commit treason and doesn’t report the matter
promptly. The courts stated that there are two essential factors which must be considered.
First that the accused person must have had knowledge of the fact and not merely a
suspicion of the fact or belief. Secondly that the knowledge must be of an intention on the
part of the other person to commit treason.

TERRORISM
The offence is provided for under Section 26 PCA where terrorism is defined as the use of
violence or a threat of the use of violence with intent to promote or achieve political ends in
an unlawful manner and includes the use of violence or a threat of the use of violence
calculated to put the public in such fear as may cause discontent against the Government.

The offence of Terrorism is also provided for under the Anti-Terrorism Act, 2002 and also
the Anti-Terrorism Amendment Act 2017. S.7 of the Act is to the effect that any person who
engages in or carries out any act of terrorism, commits an offence and shall on conviction a)
be sentenced to death if the offence directly results in the death of any person b) in any
other case is liable to suffer death.

2) A person commits an act of terrorism who, for purposes of influencing the Government
or intimidating the public or a section of the public and for a political,religious, social or
economic aim, indiscriminately without due regard to the safety of others or property,
carries out among others; the following acts: Intentional and unlawful manufacture,
delivery, placement, discharge, or detonation of an explosive or other lethal device or
where one is directly involved in murder or kidnap whether actual, attempted or threatened
on a person or groups of persons in public or private institutions(a & b). Look at subsections
(c-h) in the Act.
The Anti-Terrorism Amendment Act 2017 inserts in S.7 that a person commits an act of
terrorism who a)carries out or perpetrates any act, whether occurring in Uganda or
elsewhere, that constitutes a crime in accordance with agreements, protocols and treaties
described in the annex to the International Convention for the Suppression of the Financing
of Terrorism, 1999; and b) travels outside Uganda for the purpose of the perpetration,
planning, or preparation of, or participation in terrorist acts or the providing or receiving of
terrorist training.”;

Any person who aids or abets or finances or harbours, or renders support to any person,
knowing or having reason to believe that the support will be applied or used for or in
connection with the preparation or commission or instigation of acts of terrorism, commits
an offence and shall, on conviction, be liable to suffer death. This is spelt out in S.8 of the
Anti-Terrorism Act.

Under Sec 3 of the Anti-Terrorism Act, this offence requires the consent of the DPP for it to
be prosecuted. Consent cases are statutorily creates with the requirement for consent being
imposed in order to prevent certain offences being prosecuted in inappropriate
circumstances. The legal requirement is generally for consent to have been obtained or
given before the prosecution is institutes. If the consent is not obtained before the
institution of proceedings, then the court will be acting without jurisdiction and if convicted
the accused will ordinarily be entitled to have his or her conviction set aside on conviction.

Under Sec 4 the courts of Uganda have jurisdiction to try the offence wherever committed
in Uganda or outside under the circumstances spelt out in S.4 (b) of the Anti-Terrorism Act.
Under S.4 (2), offences committed outside Uganda to which this section applies, shall be
dealt with as if committed in Uganda.

Under S.6 of the Act, the offence is only triable and bailable by the high court. The issue of
the court’s jurisdiction was discussed in the case of Uganda Law Society V AG CP 18 of 2005
where the Constitutional Court held by a majority that the offence of terrorism as provided
for under the Act can only be tried by the High Court. The back ground to this Petition is
that Col Rtd Dr. Kiiza Besigye and 22 others accused persons were charged with the offences
of treason and misprision of treason in Criminal Case No. 955 of 2005. Some of the accused
were granted bail by the High Court on the 16th November 2005 but before they left the
court premises, they were through the deployment of a unit of the UPDF arrested and
returned to Luzira Prison. On the 17th/11/2005 they were taken before the General Court
Martial and charged with terrorism and unlawful possession of firearms. Some of the
accused are civilians. The Petition was brought under Public Litigation.

Among some of the issues for determination were: Whether the trial of the accused before
the General Court martial on a charge of terrorism contravenes Article 22(1), 28(1) and
126(1) of the Constitution and secondly whether the trial of the accused for the offence of
terrorism before the General Court Martial in inconsistent with article 28(1), 126(1) and 210
of the Constitution.

The majority holding within the Court of Appeal which also sits as the Constitutional Court is
that the General Court Martial is not a court subordinate within the meaning of the
Constitution; it has no jurisdiction to try the offence of terrorism as this was reserved for the
High Court only. The offence of terrorism and any other offence punishable by more than
ten years imprisonment under this Act are triable only by the High Court and bail in respect
of those offences may be granted only by the High Court.

SEDITION

This offence in S.39 & 40 of the PCA was declared unconstitutional and therefore void in
August 2010 in a unanimous decision/ruling by the Constitutional Court. This emanated
from a case by the East African Media Institute and Andrew Mwenda a journalist who had
been charged with inciting public hatred against the person of the Head of State for stating
during a live radio program that the Ugandan government was partly to blame for the death
of the late Dr. John Garang the former of the Sudanese People’s Liberation Army who briefly
served as Sudan’s first Vice-President and died in July 2005 while travelling aboard a Uganda
Presidential helicopter that crashed. This case challenged the Penal Code provisions on
Sedition among others and the Constitutional Court declared them unconstitutional
contravening article 29 of the Constitution which guarantees freedom of speech and
expression which include freedom of the press and other media.
Include some information

OFFENCES AGAINST ADMINISTRATION OF JUSTICE

PERJURY

Perjury also known as false swearing is the wilful act of giving or swearing a false oath or
affirmation to tell the truth whether spoken or in writing concerning matters material to a
judicial proceeding.

This offence is provided for under S.94 of the PCA, which provides that a person is guilty of a
misdemeanour who a) in any judicial proceeding or for the purposes of instituting any
judicial proceeding b) knowingly c) gives false testimony d) touching any matter which is
material to any question then pending in the proceeding or intended to be raised at the
proceeding

Under S. 94 (3), any person who aids, abets, counsels, procures or suborns another person
to commit perjury is guilty of the misdemeanor termed subornation of perjury.

Judicial proceedings is defined as including any proceeding heard or taken in or before any
court, tribunal, commission of inquiry or person in which evidence may be taken on oath. A
person may give his evidence on oath or by affirmation (affidavit).
Perjury is considered to be a very serious offence as it can be used to usurp the power of
court resulting into a miscarriage of justice.

The term knowingly as an ingredient for the offence indicates that the accused person must
know that his testimony is false and that no belief to it is true. It is not sufficient for
prosecution to prove that the accused person when giving evidence made two contradictory
statements both of which can’t be true. The Prosecution must prove affirmatively that one
of the two statements was false and that the false testimony is material to the proceedings.

CORRUPTION

Definition

Corruption is defined as abuse of office or authority for personal gain. This is an act usually
implying money or gift given that alters the behaviour /decision of the recipient in ways not
consistent with the duties of that person or in breach of law. Under the Anti-Corruption Act
of 2009 there several instances where one commits the offence of corruption. These
include: solicitation of acceptance; offering or granting; diversion or use by public officials;
offering or giving or solicitation; fraudulent acquisition of property and neglect of duty for
personal gain.

Offences that constitute Corruption

Under section 2 (1) of the Anti-corruption 2009, a person commits corruption under the
following circumstances:
a) A public officer asking for directly or indirectly or accepting of anything in exchange of
doing or not doing his/her work;
b) Giving anything to a public official in exchange for something for or against his/her work.
c) A public official using anything in his/her office for his/her own benefit;
d) Giving or promising to give, asking or accepting anything by any person working for a
private organisation/company for their own good in exchange for him/her doing or not
doing his work;
e) Giving, accepting, asking for directly or indirectly by or to any power over any person;
f) Illegally getting, using or not disclosing property as a result of the above acts;
g) a public official acting or intentionally refusing to act by for personal gain;
h) an act or omission in the discharge of his/her duties done for the purpose of illicitly
obtaining benefits for himself of herself
i) neglect of duty
Gratification is defined in S.1 of the Anti-Corruption Act.

Proof of gratification

In Sewa Singh Mandia v R, 1966 EA 315, the appellant who was at the material time a
magistrate was charged and convicted of corruptly giving a bribe to a police officer as an
inducement to forbear from taking any proceedings on a number of traffic offences which
had allegedly been committed by the driver of the motor vehicle in which the appellant was
traveling. The appellant admitted giving the money, his motive being to test the constable
as he had “heard of these things and wanted to know if this was real.” The trial judge in
convicting the appellant held that it was not necessary for the prosecution to prove a
corrupt motive but merely an intention to corrupt the person to whom the offer was made.
On appeal, it was argued that the trial judge misdirected himself with regard to the word
‘corruptly’ in the Prevention of Corruption Act. It was held that a corrupt motive is an
essential ingredient of an offence Under the Prevention of Corruption Act and the
appellant’s state of mind, which included motive and intention, was an essential and
material factor in determining whether he was acting corruptly or not. That the appellant’s
motive was innocent and was therefore wrongly convicted.

In Makubi v R 1968 EA 667, the accused offered money to the executive officer who was
engaged in counting cattle for the purpose of a local rate. He was charged with corruption.
On his plea, the accused said that he had given the money as an inducement to the
executive officer not to include other person’s cattle with those of the accused, which the
executive officer was proposing to do. On appeal, it was held that it is a necessary ingredient
of the offence of corruption that the act should be done corruptly, i.e. with an ‘evil mind,’
but it was clear that there was no evil mind on the part of the appellant.

The meaning of Corruptly giving or receiving

The meaning of corruptly giving or receiving has been discussed in a number of cases. Sewa
Singh Mandla v R, court made reference to the case of Bradford Election Petition (No. 2)
(1896), 19 L.T. 723 where Martin B stated
“Now what is the meaning of that word ‘corruptly’? It is difficult to tell; but I am satisfied
that it means a thing done with an evil mind or an evil intention; and except there be an evil
mind or an evil intention accompanying the act, it is no corruptly done.

In Sewa Singh Mandla v R, the meaning of the word ‘corrupt’ was discussed. The court said
‘……the appellant’s state of mind which in our view included motive and intention seems to
us to be an essential and material factor in determining whether in making the payment, he
was acting corruptly or not’.
In Kasam v R (1972) EA 551, corruption was discussed as to do an act with intent to corrupt.
In this case, the appellant had been convicted on a charge of corruption in that he gave
money to a police officer to obtain for him a certificate which was regularly issued by the
police. The appellant argued that no offence had been committed since in offering the
money to the police officer to do what he was duty bound to do, the appellant was not
actuated by any improper motive, ill will or dishonest intention. The court held that even if
it was to ensure preferential and expeditious processing of the certificate, this was a
payment which was designed to induce the officer to do something in relation to his
principal affairs and the payment was accordingly made corruptly.

The Prosecution has only to prove that the accused received the gift as an inducement to
show favour. It is not required to prove that the person did actually show favour in
consequence of having received the gift.

It is also not necessary to prove that the accused explicitly agreed to show favour. This can
be inferred from the surrounding circumstances. In the case of R v Alule (1961) EA 728, the
respondent, a police constable stopped the complainant who had failed to stop when the
traffic lights were showing red. At the Police Station, the Constable released the
complainant after asking for Shs 10 from the complainant who thinking it was bail asked for
a receipt but was told to go away. The respondent argued that he acquitted the
complainant in his own plea that as a country man, he was ignorant of the traffic lights. The
magistrate acquitted him on the ground that there was no evidence that the respondent
had agreed to permit his conduct to be influenced by a gift. It was held that although the
respondent did say that he agreed to drop the charge, this was in fact what he did.

Receiving money

Receiving money in order to entrap the giver or making a tape-recording does not amount
to acting corruptly where it is intended to provide evidence for the police. In Choda v R
(1957) EA 495, the appellant was charged with agreeing to conduct as a Muluka Chief to be
influenced by a gift of Shs 20. The appellant caused J to be arrested for non-payment of poll
tax. While in custody, the appellant counselled him to escape and that he would find means
of saving him for Shs 20. J escaped and went and reported the appellant to police. J was
given a marked 20 shillings note which he handed over to the appellant while two police
officers in plain clothes were watching. When approached by the police officers, the
appellant refused to be searched, put the note in the mouth and later threw it out through
the window. The note proved to be the marked note. In his defence, the appellant argued
that the case was a fabrication and denied all the allegations against him. He argued further
that the police in setting up a trap were on evidence counselling and procuring J to commit
an offence. It was held that the appellant was not persuaded by J or the police to commit an
offence since he had himself already solicited for the gift.
BRIBERY
Bribery is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of
any item of value to influence the actions of an official or other person in discharge of a
public or legal duty. The bribe is the gift bestowed to influence the recipient's conduct. It
may be any money, good, right in action, property, preferment, privilege, emolument,
object of value, advantage, or merely a promise or undertaking to induce or influence the
action, vote, or influence of a person in an official or public capacity.
Section 5 of the Anti-corruption defines bribery to mean giving or accepting to give a public
official anything to do with the following:
i) to vote or to abstain to vote at any meeting of that public body in favour of or against any
measure, resolution or question submitted to that public body
ii) performs or abstains from performing his or her duty in procuring, expediting delaying,
hindering or preventing the performance of any official act or
iii) aids in procuring or preventing the passing of any vote or the granting of any contract or
advantage in favour of any person

In the case of Uganda Vs Moses Ndifuna Anti-Corruption Division Session Case 6 of 2009
Justice JB Katutsi convicted the accused a Magistrate Grade 2 of Mbarara for having
accepted a bribe of 200,000 shillings to reverse an earlier order he had issued.

CORRUPT DEALINGS WITH AGENTS

Section 3 provides that the following actions with agents are regarded as corrupt by the Act:

a)Accepting or agreeing to accept by an agent anything in exchange for doing or not doing
something while doing the principal’s work whether the agent had or didn’t have the power,
right or chance to do the something or failing to do something whether or not in favour of
the principal’s work;

b)Giving or agreeing to give anything to an agent to act or not doing a thing in relation to
his/her principal’s work;

c) Giving or accepting by an agent any false records to mislead the principal;

d) Giving or allowing to give anything by an agent to do or not to do anything in relation to

his/her principal’s work;

e)Giving or accepting or agreeing to accept anything from an agent in exchange for an act or
not acting in relation to his/her principal’s work.
ABUSE OF OFFICE OR MISUSE OF OFFICE

Under Section 11 of the Anti-Corruption Act, it is an offence for a worker doing anything
which injures the interests of his boss in an organisation/company in which government has
shares. This offence is punishable by imprisonment not more than 7 years or a fine not
exceeding one hundred and sixty eight currency points which is equivalent to 3,360,000/= or
both.
The definition of a public body of public office has been considered in the case of Re Mirams
(1891) 1 QB 594 it was stated that ‘to make an office public, the pay must come out of the
national and not out of the local funds and the office must be public in the strict sense of
the term. It is not enough that the due discharge of the duties of the office should be for the
public benefit in a secondary and remote sense.’

Section 1 of the Anti-Corruption Act 2009 provides a definition of

Public body” to include:
a) The Government, any department, services or undertaking of the Government;

b) The East African Community, its institutions and corporations;

c) The Cabinet, Parliament, any court;

d) District administration, a district council and any committee of a district council local
council and any committee of any such council;

e) any corporation, committee, board, commission or similar body whether corporate or

incorporate established by an Act of Parliament for the purposes of any written law relating
to the public health or public undertakings of public utility, education or for promotion of
sports, literature, science, arts or any other purpose for the benefit of the public or any
section of the public to administer funds or property belonging to or granted by the
Government or the East African Community, its institutions or its corporations or money
raised by public subscription, rates, taxes, cess or charges in pursuance of any written law;

f) a political party, a trade union, a society registered under the Cooperative Societies Act
and any council, board, committee or society established by an Act of Parliament for the
benefit, regulation and control of any profession and non-governmental organisations;

An act is said to be prejudicial if it contrary to the established procedures and is also against
the interest of the public body. In Barungi v Uganda (1988-1990) HCB 68, the court held
that an essential ingredient for the offence of abuse of office was that the acts complained
of should be detrimental to the rights of another and further that the right was an interest
recognized and protected by law in respect of which he has a duty and disregard or which
was wrong. Abuse of authority is acting beyond ones powers. However, this is usually
difficult too because most organizations do not have operational manuals although in some
cases it can be proved by established procedure.

In Uganda V Atugonza Criminal Case 37 of 2010, Francis Atugonza is charged with Abuse of
Office, contrary to section 11(1) of the Anti-Corruption Act. The particulars of the charge are
laid out in the amended indictment and read as follows:
“Francis Atugonza between December 2007 and December 2008 in Hoima Town Council in
Hoima District while serving as Chairman L.C. III (Mayor) of the said Hoima Town Council did
an arbitrary act in abuse of the authority of his office and to the prejudice of Hoima Town
Council when he illegally sold an unsurveyed piece of land on Rwentuha Road in the said
Hoima Town Council, the ownership of which is vested in Hoima District Land Board”.
The Court considered that the burden is on the prosecution to prove the charge against the
accused person beyond reasonable doubt. The following ingredients of the offence must be
proved:
(a) That accused was employed in a public body or a company, in which the Government has
shares,
(b) That accused did or directed to be done an arbitrary act,
(c) That the act was done in abuse of the authority of his office,
(d) That the arbitrary act was prejudicial to the interests of his or her employer or any other
person.
Court held that accused held a public office in the according of section 11(1) of the Anti-
Corruption Act but acted as an individual but not in his official capacity and did not abuse of
Office or act arbitrary.

STEALING PUBLIC FUNDS (EMBEZZLEMENT)

Any worker who steals anything belonging to his/her employer or received on behalf of the
employer to which he/she gets by working there.
The offence of embezzlement refers to a situation where a person, who being an employee,
servant or officer of the government or public body; a director, officer or employee of a
company or corporation; a clerk or servant employed by any person, association or religious
or other organisation; a member of an association or religious organisation steals any
chattel, money or valuable security- being the property of his or her employer, association,
company, corporation, person or religious or other organisation; received or taken into
possession by him or her for or on account of his or her employer, association, company,
corporation, person or religious or other organisation; or to which he or she has access by
virtue of his or her office.

Embezzlement refers to the “misappropriation or misapplication of money or property

entrusted to one’s care, custody, or control.” Embezzlement is also defined under section 19
of the Anti-Corruption Act of 2009, to mean a situation where an employee, a director, a
clerk or servant, member of an association steals any property to which he or she has access
by virtue of his or her office.

Ingredients:

The ingredients of the offence of embezzlement with regard to government employment

were spelt out in the case of Abahikye Moses Versus Uganda High Court Appeal No 10 of
2009 to be the following:
(a) That the accused is employed by the government;
(b) That he stole employer’s property i.e. money or any other chattel capable of being
stolen;
(c) That the property came into his possession by virtue of his employment.

With regard to private employment, the ingredients of the offence of embezzlement were
discussed in the case of Nuuhu Kalyesubula & Ors Versus Uganda Court of Appeal No 70 of
2008 arising out of Section 268 of the Penal Code Act and currently Section 19 of the Anti
Corruption Act to be the following:
“Any person who being:-
(a) An employee, a servant or an officer of the Government or a public body
(b) A director, officer or employee of a company or corporation;
(c) A clerk, or servant employed by any person, association or religious or other
organisation,
(d) A member of an association or a religious organisation or other organisation steals a
chattel, money or valuable security- being the property of his or her employer, or received
or taken into possession by him or her for an account of his or her employer or which he or
she has access by virtue of his or her office, commits the offence of embezzlement.
The punishment is imprisonment not exceeding 14years or a fine not exceeding three
hundred and thirty six currency points equivalent to 6,720,000shs or both

Where a person is convicted of embezzlement, the court shall, in addition to the

punishment provided under section 268, order such person to pay by way of compensation
to the aggrieved party, such sum as in the opinion of the court is just, having regard to the
loss suffered by the aggrieved party as provided for in S.270 PCA.

In Eza Sebufu v Uganda (1995) V KALR 40 the appellant was charged with embezzlement,
convicted and sentenced to 12 months imprisonment. The prosecution led evidence alleging
that the accused was a cashier in a business of dry cleaners. At this business, no clothes
were ever given out to customers without having first been paid for. Upon auditing, it was
discovered that Shs. 437,000 was missing and yet the clothes indicated as having not been
paid for were already given to their owners. The appellant appealed on the ground that the
trial court failed to properly evaluate the evidence. He had also appealed against sentence
but this ground was abandoned.
It was held that as per section 275 (now 268) of the Penal Code Act, a conviction for
embezzlement carries a minimum sentence of 3 years and therefore the sentence of 12
months imprisonment would be set aside for being illegal. It was also held that section 259
(now 270) of the Penal code Act provides for a mandatory order for compensation against a
person convicted of embezzlement. Therefore, the learned magistrate erred when he failed
to impose the mandatory order.
The ways that an employee can steal from an organization depend on a number of factors,
including the type of money or properties that have been entrusted to the individual, and
the access to company funds that the individual might be allowed because of their position.
For example, a department store cashier might steal from a cash register, fail to ring up
purchases, or take merchandise from storage rooms or receiving areas. Other employees
with more access within the company might cheat on expense accounts, or misappropriate
funds through billing, inventory, or payroll schemes.

In Uganda v. Teddy Ssezi Cheeye High Court No.1254 of 2008, it was held by Justice Katutsi
that the offence of embezzlement is committed where a person being a Director, Officer or
Employee of a Company steals any chattel / money or valuable security, to which he or she
has access by virtue of his or her office. That the prosecution must prove the following
ingredients:
(a) that there was a Company.
(b) accused was a Director, Official or Employee of that Company.
(c) that he had access to the Company's property
(d) and that accessibility enabled him to steal money belonging to the Company.

CAUSING FINANCIAL LOSS

This offence is provided for in S.20 of the Anti-Corruption Act. The punishment is
imprisonment for a term not exceeding 14years of a fine not exceeding three hundred and
thirty six currency points (6,720,000shs) or both.

The term “loss’’ was also defined in the case of Kassim Mpanga vs Uganda Supreme Court
Criminal Session No 30 of 1994 to mean inter alia a detriment or disadvantage resulting
from deprivation. Put differently, to suffer loss is to cease to possess something, to be
deprived of or part with something of one’s possession. It was further held that “loss” is
generic and relative term. It signifies the act of losing or the thing lost; it is not a word of
limited, hard and fast meaning, and has been held to be synonymous with or equivalent to
“damage”, “damages”, :deprivation”, “detriment”, “injury” and “privation”.
Ingredients:
a)Public Body
It was also held in the case of Uganda Versus B.S Okello, Ocira George and Okot Jalo High
Court Appeal No 8 of 2009 by Hon. Justice Paul Mugamba that Causing Financial Loss is an
offence committed when any person employed by a public body, for instance in this case
the East Acholi Co-operative Union Ltd, in the performance of his duties does any act or
omits to do any act knowing or having reason to believe that such act or omission will cause
financial loss to the public body.

b) Knowingly or having reason to believe that the act or mission will cause financial loss

In 2006, Standard Chartered Bank realised that the bank had lost Uganda Shillings five
billion (shs 5,000,000,000) within a period of five years due to collusion and connivance of
bank employees in different sections. This resulted into the case of Uganda versus
Benjamin Mugume and five others CID Headquarters E/767/2006, in this case; the six
accused persons were all employees of Standard Chartered Bank Speke Road branch. Two
were working in the Central Cash office which keeps all the monies in the bank and
disburses it to other offices every morning. The other two were in charge of the Automated
Teller Machines (ATM) while the rest were in charge of Tellers. The reason why each
department had at least two people was for the purpose of checking on one another.
However, they all ended up on colluding and conniving thereby causing the bank a financial
loss of large sums of money. The officials in charge of Central cash would withdrawal money
purportedly for the tellers and the Automatic Teller Machines but the cash would not be
posted to their destinations. Instead, it would be diverted to the benefit of individuals’ with
the knowledge of all the six employees. This went on un detected for a period of five years
because there was no simultaneous checking. It was when the top officials of the bank
decided to check all departments simultaneously that this fraud was discovered. By this
time, the bank had lost about Five billion Uganda Shillings (5,000,000,000). The accused are
currently facing charges of Causing Financial loss before the Anti-Corruption Division of the
High Court.

Uganda versus Eng. Bagonza Samson Anti-Corruption Division High Court Criminal Session
No 9/2009, the accused was charged with Causing Financial loss contrary to Section 20 (1)
of the Anti-Corruption Act. The particulars of offence were that “Eng. SAMSON BAGONZA
while employed by the Ministry of Works and Transport as Engineer –in- Chief/ Director of
Engineering between 2007- 2009 in Kampala District and Entebbe Municipality, in the
performance of his duties did approve payment of additional Shs 1,645,145,325 ( One billion
six hundred forty five million, one hundred forty five thousand, three hundred and twenty
five) to M/S Energo Uganda Co. Ltd for the purported construction of additional works on
Entebbe- Zana- Kibuye High way knowing or having reason to believe that such an act would
cause loss to the Ministry of Works and Transport.
It was held that the ingredients to prove in the instant case were the following:
(a) That the accused person approved for payment of additional Shs 1,645,145,325 to M/S
Energo (U) Ltd;
(b) That he knew or had reason to believe that such an act would cause financial loss to the
ministry of Works and Transport;
(c) Loss was incurred.

In the case of Uganda Versus Dr. Sam Kamba Criminal Session No 41 of 2010, the accused
was charged with the offence of embezzlement contrary to Section 19 (a) (iii) of the Anti-
Corruption Act and in the alternative, Causing Financial Loss contrary to section 20(1) of the
Anti-Corruption Act. Hon Justice Paul Mugamba acquitted the accused of the offence of
embezzlement but convicted him of the offence of Causing Financial loss stating that “There
is undisputed evidence that the accused requested for and was advanced the money in
issue in performance of his duties. He was to make an account for that money and never
did. That money is now lost to the detriment of the government of Uganda. Needless to say,
the money that is Shs 37,074,400 was never returned. Thus, it has been lost to the
government of Uganda. Loss is the state of no longer having something after all.”

Companies formed for fraudulent purposes

Another new trend in the commission of the offences of embezzlement and causing
financial loss is that some companies/ organisations are formed specifically with the sole
aim of committing the offences.
In Uganda versus Balikoowa Nixon and Another Criminal Session No 64 of 2010, it was
established that before forming Dutch International, the accused and others who have not
been arraigned had earlier on formed another company in the names of Caring For Orphans,
Widows and the Elderly (COWE) which they used to defraud the members of public of
colossal sums of money which they had illegally collected from them promising to repay the
principal deposit and interest of 30% after thirty one (31) working days. This went on for
some time and later the accused closed business and disappeared having defrauded so
many people. Following complaints from the various victims of COWE, police instituted
investigations leading to case reference number Kabale CRB 539/2007 In March 2011,
Balikoowa Nixon was convicted of embezzlement of Uganda Shillings 225,195,000 (Two
hundred and twenty five million, one hundred and ninety five thousand shillings only). He
was sentenced to four years imprisonment and also ordered to compensate the various
victims’ money totalling the above sum. Balikoowa is currently serving that prison term of
sentence while facing charges under Dutch International discussed in the preceding
paragraph. It is however, worth noting that the accused was not working alone and some of
the people he was working with have not been arrested and the likelihood that they will re-
organise themselves and start a similar scheme again to defraud members of the public is
very high. However the accused in this case (Balikoowa) appealed his sentence and his
appeal was quashed in the Court of Appeal (February 2020) after it had been denied in the
High Court.