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Justice Kenneth Kakuru led the Panel of the five Justices. File Photo.The Constitutional Court has dismissed a petition challenging the actions of the Directorate of Public Prosecutions to withdraw tax evasion charges against 12 Senior Executives of MTN Uganda Limited.
In a majority decision of four Justices against one, In a majority decision written by Justice Ezekiel Muhanguzi, the Justices dismissed the petition filed by Were Naphtal the former Logistics Officer at MTN Uganda on grounds that there was nothing constitutional for them to interpret. The other Justices are Geoffrey Kiryabwire, Cheborion Barishaki, Stephen Musota and Kenneth Kakuru who disagrees with the rest of his colleagues.
In 2012, Naphtal instituted a private prosecution at Buganda Road Chief Magistrates Court against a group of 12 Senior Executives of MTN Uganda Limited for alleged tax evasion, false declaration and conspiracy to commit the same which he said they contrary to the East African Customs Management Act 2004.
The officials are Charles Mbire, Mazem Mroue, Khumo Sheunyane, Mosipho Molope, Sifiso Dabengwa, Christian De Faria, Ignasius Sehoole, Mosipho January Bardil, Anthony Mutyaba Katamba, Francois Terffoute, Meryvin Immelman, Mike Blackburn and Nigel Williams.
Were who was also facing criminal charges of defrauding MTN Uganda 5 million dollars and attempted fraud of 600 million shillings from MTN Uganda among others accused the directors of having failed to pay tax worth USD 4, 027,820 (14.7 billion shillings) for a period between 2009 and 2012.
Naphtal accordingly instituted private criminal proceedings to that effect. However, on November 16 2012, the court ruled that the case disclosed serious allegations that required the accused persons to defend themselves. As such, court presided over by the then Chief Magistrate Olive Kazaarwe issued and extended criminal summons for them to appear and answer the charges in question.
Court also ruled that the DPP was at liberty to take over and continue with the Prosecution of the case.
However, the accused persons applied for revision in the high court challenging the decision to issue and extend the criminal summons to them.
The High Court set aside the decision to issue and extended criminal summons to them. But the same court upheld the order directing the DPP to conduct the prosecution of the case.
However, on March 12 2013, the DPP then Richard Buteera withdrew charges against them and the case was dismissed a day later.
Were petitioned by the Constitutional Court seeking a declaration that his acts were inconsistent with several Constitutional articles on the right to a fair hearing. He argued that the DPP’s actions were unconstitutional because the actions of the DPP to withdraw the charges were done in bad faith. After all, it was not done in Constitutional limits it was done under the influence of others.
Were also faulted the then Chief Magistrate for endorsing the withdrawal of the charges saying that her actions contravened the Constitutional articles on protection and promotion of fundamental and other human rights freedoms among others.
The State Attorney Geoffrey Madete argued that the DPP has powers to take over and continue criminal proceedings instituted by any person or authority and to discontinue such proceedings at any stage of an inquiry before a court before delivery of Judgement.
But in their decision dated February 9 2021, the majority of the Justices dismissed the petition on grounds that there was nothing constitutional for them to interpret.
According to the Justices, when a matter involves the violation of Constitutional provisions and the petitioner needs redress, he or she one can file such before a High Court.
“I am aware that the Constitutional Court is also a competent court under article 50 but this court has already held that the Constitutional Court has no jurisdiction in any matter which does not involve the interpretation of a provision of the Constitution” reads the lead judgement in part.
However, Justice Kenneth Kakuru disagreed with the findings and reasoning of his colleagues says that the DPP’s actions contravened the constitution because he didn’t act independently and neither did he act in the public interest as the law stipulates. According to Kakuru, the evidence before him indicates that the DPP withdrew the charges following a letter from MTN Uganda lawyers led by Peter Kabatsi dated September 26 2012.
Kakuru who has reproduced the letter in question contends that the DPP then wrote to his then Senior State Attorney Frances Abodo who was at the Anti-Corruption Court on the same letter using his hands asking her to lift the court order that had frozen the MTN Uganda bank accounts and avail the file to enable them to consider other issues in the proceedings.
To Kakuru this was very disturbing since it appears the withdraw of the charges followed a letter from MTN Uganda which was tendered before the court.
“Take over and continue” in my view means the Director of Public Prosecutions when he /she decides to take over any criminal proceedings not instituted by him/her must continue with the Prosecution of the case until it’s the logical conclusion”, said Kakuru. He, therefore, allowed the petition in part and said that he will not order for the reinstatement of charges because the petitioner was not a complainant but an accomplice and therefore it would amount to an abuse of court process.
