Functions and Powers of the IGG

Article 225 of the Constitution prescribes the functions of the IGG. They include promotion of
the rule of law and principles of natural justice in administration; elimination of corruption and
abuse of public office, supervision of the enforcement of the Leadership Code of conduct and
promotion of good governance in public offices.
Article 225(1)(e) gives the IGG a general power of investigation. Article 230(1) gives the IGG
“power to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in
respect of cases involving corruption, abuse of authority or of public office”.
Article 230(3) gives the IGG power to enter and inspect premises of any government
department or person and to call for any document in connection with the case being
investigated.
Article 230(4) provides that the IGG, when enforcing the Leadership Code of Conduct shall
have all the powers conferred on it in Chapter 13 of the Constitution or any other law.
Section 14 of the Inspectorate of Government Act gives the IGG power to investigate bank
accounts. Section 13 of the same Act gives the IGG power to use reasonable force in the
exercise of his or her powers.
Section 30 of the Leadership Code Act gives the IGG power to inspect any bank account and
other accounts such as share account, purchase account, expense account or any safe or deposit
account or any safe or deposit book in a bank.
Usually written procedures of a public institution may indicate whether the institution has
Judicial functions and powers or not in performing its functions. The only procedures written in
the Inspectorate of Government Act under Part IV of the Act are procedures for conducting
investigations although the IGG is given power to prescribe rules of procedures generally.
Section 25(3) of the Inspectorate of Government Act provides that “no matter that is adverse to
any person, or public office shall be included in a report of the Inspectorate unless the person or
head of that office has been given prior hearing”.
Section 23 of the Leadership Code Act gives the IGG power of the High Court with regard to
attendance, swearing and examination of witnesses, the production and inspection of documents
and enforcement of its orders. Section 26 of the same Act provides that when inquiring into an
allegation, the IGG shall observe rules of natural justice. The above-mentioned powers are,
however, common to bodies which conduct public inquiries. See, for example, Section 9 of the
Commissions of Inquiry Act. On their own, therefore, these powers do not turn the IGG into a
court or a tribunal.
Section 25 of the Leadership Code Act provides that the Inspectorate may, after consultation
with the Minister of Ethics and Integrity and the Attorney General, make rules regulating the
procedure under this Code. It should be noted that this provision is discretionary. Furthermore,
there is no evidence on record that such rules of procedure have been made.
Where the law gives an authority power to exercise judicial junctions, it is usually a requirement
that such an authority should have written rules prescribing the rights and obligations of persons
that appear before it or fall under its jurisdiction to avoid prejudicial and unequal treatment.
Examining the constitutional provisions and the provisions of related laws indicated above, it is
clear that the IGG was established as an institution for carrying out investigations and
prosecutions, and conducting inquiries but not to be a court or a tribunal. There are no provisions
in the Constitution or any law indicating that the IGG is, in addition, a judicial institution apart
from perhaps Sections 19, 20 and 25(3) of the Leadership Code Act mentioned earlier which
only make the IGG’s decisions binding on authorized persons”. However, there is no judicial
procedure shown that leads to such binding decisions.
These same Sections were declared null and void in the case of Fox Odoi Oywelowo (supra)
although that decision did not go into the consideration of whether the said Sections conferred
judicial powers on the IGG or not. In my view, if the makers of the Constitution had intended to
make the IGG a tribunal, by giving him or her power to make judicial decisions, they would
have expressly stated it in plain words.
In their judgment the Justices of the Constitutional Court seem to say that since power to enforce
the Leadership Code is given to the IGG, the IGG must be the tribunal under Article 83(1)(e) of
the Constitution. Counsel for the respondents said the same thing in their submissions to this
court. However, enforcement of a law or laws alone cannot transform the enforcement authority
of that law or laws into a tribunal, otherwise authorities such as the police, the Director of Public
Prosecutions, the Uganda Revenue Authorities and the Board of National citizenship and
Immigration which enforce laws in their respective fields would be tribunals. Clearly, more than
mere enforcement of laws is needed to make an authority a tribunal.
The Constitutional Court further says in its judgment that “the IGG has power to investigate,
prosecute and make judgments but these powers are not necessarily exercised simultaneously”.
There is no provision in the Constitution or in the Acts of Parliament mentioned above which
says that the powers of the IGG shall not be exercised simultaneously. Rather what we see is
Article 230(4) of the Constitution which provides that when the IGG is enforcing the
Leadership Code he or she shall have all the powers conferred on the IGG by the Constitution in
addition to any other powers conferred by law.
Therefore, in my view, when the IGG is conducting an investigation or any inquiry concerning
suspected breach of the Leadership Code, and he or she discovers evidence of corruption or
abuse of office, there is nothing to stop him or her from conducting a prosecution in respect of
the case being investigated if he or she chooses to do so.
I would go further to say that even if the holding of the Constitutional Court that the IGG
exercises powers of investigation, prosecution and judgment but does not do so simultaneously
were to be true, which it is not, I would still say that it would not be in the interest of promoting
proper administration of justice in this country to allow a situation where power of investigation,
prosecution and adjudication are combined in one institution. If an institution such as the IGG is
big enough, it can have divisions within it, one among them for carrying out the function of
investigation and another for carrying out the function of prosecution. However, in my view, it
would not be proper to have a division conducting adjudication in respect of the cases
investigated by the same institution. For proper administration of justice, a court or tribunal
should be independent of agencies which investigate
or prosecute cases before it. This is necessary to give persons brought before such a court or
tribunal confidence that they will get a fair hearing and justice in the end. This, as I understand it,
is the context in which counsel for the appellant used the term “independence” and “impartiality”
in the adjudication of disputes or trial of cases and it is consistent with Article 28 of the
Constitution which provides: “In the determination of civil rights and obligations or any criminal
charge, a person shall be entitled to a fair, speedy and public hearing before an independent and
impartial tribunal established by law.”
I respectfully agree with learned counsel for the appellant that the operational set up of the IGG
as an institution makes breach of the principle of nemo judex in causa sua (no person shall be a
judge in his or her own cause) unavoidable. For example, in the appellant’s case if you read the
report or “judgment” of the IGG to the Speaker of Parliament, the IGG is the complainant, the
investigator and the judge, all rolled into one. Learned counsel for the respondents submitted that
the appellant stubbornly refused to submit his declaration forms in time. This may well be true.
But this was not an issue for determination by the Constitutional Court, although attempts were
made to make it one, and so it is not relevant to this appeal. This notwithstanding, the
information relating to the appellant’s alleged failure to declare his income, assets and liabilities
was gathered by the IGG as an investigator. She subsequently incorporated it in her report to the
Speaker of Parliament. In my view, whereas the IGG may have properly found during her
investigations that the appellant had violated the Leadership Code Act contrary to its provisions
she was not the tribunal provided under Article 8391)(e) of the Constitution. I reach this
conclusion with regret and much sympathy with the IGG given the irrefutable evidence
contained in the affidavit of Justice Faith Mwondha, the then IGG that the appellant defied the
order of the IGG and refused
to co-operate with her in the course of her investigations. Such behavior should be censured
especially in a member of Parliament, as the appellant was at that time, who is expected to be a
good example to the citizens of this country by showing respect to the law. Be that as it may, I
respectfully agree with counsel for the appellant that for a body or a person to be called a tribunal
there must be an accuser and an accused person or parties with a dispute to resolve. The tribunal
will then conduct a hearing and come to a decision which will then be binding on the parties.
This in my view, is what the Leadership Code Tribunal under Article 235A was established in
the Constitution to do. I do not, with respect, agree that the constitutional amendment referred to
above does not affect the subject matter of this petition. It does. Breaches of the Leadership Code
are punished with severe penalties. These include confiscation and forfeiture of property;
payment of compensation for loss suffered by the Government on account of a leader’s breach of
the Leadership Code Act; dismissal from or vacation of office, and imposition of other severe
penalties provided under Section 35 of the Leadership Code. In my view such penalties should
be imposed by a court of law or a tribunal established by law which observes due process. The
right to a fair hearing guaranteed by Articles 28(1) and 44(c) of the Constitution is about due
process which must be observed by all courts of law or tribunals for justice not only to be done
but also to be seen to be done.
The Constitutional Court says that the IGG will remain the enforcement authority of the
Leadership Code until another authority, perhaps the Leadership Code Tribunal mentioned in
Article 235A, is appointed by Parliament. The Justices of the Court of Appeal are apparently
implying here that both authorities cannot enforce the Leadership Code together. I think both
authorities can enforce the Leadership Code at the same time, the IGG bringing cases of
violations of the Leadership Code as the accuser and the other authority trying the cases and
pronouncing a verdict on it as a tribunal. The fact that those who amended the Constitution put
the Leadership Code Tribunal in Chapter 14 together with the IGG shows, in my view, that the
two institutions were intended to be complementary to each other and not to be alternatives.