By Isaac K Ssemakadde
Let us enhance the role of civil society in corruption related litigation
As the public grapples with the recent collapse of the Shs165 billion pension scam case in the Anti-Corruption Court, I find it appropriate to advocate for enhancement of the role of civil society in corruption related litigation.
At Legal Brains Trust, we see no merit in pointing fingers at Ms. Sarah Langa, the chief magistrate of the Anti-Corruption Court, who dismissed the pension case on April 14, 2015 on grounds that the State had in the last two years failed to bring even a single witness to testify against the nine suspects.
Unlike Tamale Mirundi, the pugnacious presidential spokesperson who berated the whole judiciary for failing pensioners and “spoiling the president’s votes”, we will not castigate High Court judge Benjamin Kabiito for removing Cairo International Bank and its managing director, Mr Nabil Ghanem, from the charge sheet of pension scam suspects on January 16, 2015.
Whereas the Director of Public Prosecutions (DPP), Mike Chibita, police boss Gen. Kale Kayihura and Criminal Investigations and Intelligence Directorate (CIID) boss, Grace Akullo, have vowed to have the case reinstated, we do not share in their enthusiasm for a second stab at the justice tree.
We know that the obstacles which prevented this gigantic case from progressing in the last two years have not been resolved.
For instance, the absence of independent counsel to present the views and concerns of the victims of the pension scam to the Court cannot be gainsaid. His or her input could have prevented the dismissal of the charges in the first place. We should not rely on the DPP and the police to represent the best interests of victims of crimes at all times.
Secondly, the State should have hired private investigators and private lawyers to investigate and prosecute pension scam suspects, including Cairo International Bank and its managing director. Due to the high stakes involved, it was imprudent to entrust vulnerable civil servants with this case.
Thirdly, there are many ways civil society could have helped this case stay alive; either by pressuring prosecutors to conduct separate trials for different categories of offenders in the pension case in accordance with Justice Kabiito’s directions of September 22, 2014 or by bringing their own civil actions for damages on behalf of the affected pensioners.
There will always be illegal conduct that is not zealously pursued by state actors, such as the CIID, DPP, Inspectorate of Government or Public Procurement and Disposal of Public Assets Authority, for a host of reasons, including scarce resources, shifting priorities, personality conflicts, and most troublesome, the political sensitivity of high-level investigations.
Uganda ratified the United Nations Convention against Corruption which encourages countries to make laws to allow the victims of corruption – the citizens, that is – to hold violators accountable. Some of these laws already exist, but they are either untested or ambiguous or half-heartedly invoked by the State, leaving victims little recourse against corrupt officials or those who collude with them.
The ability of victims to initiate civil claims and to participate in criminal proceedings is a crucial counterpart to enforcement by state actors. This is most profoundly true for victims in countries like Uganda where corruption is systemic and meaningful prosecution is fiction.
Given that the average Ugandan citizen finds himself or herself legally inarticulate, underprivileged and thus prevented from engaging in the legal endgames that determine whether or not he or she will live in a just and corruption-free society, the principle is clear: civil society organisations should have a role in corruption-related litigation.
The NGO community already has a voice under our Constitution to represent victims of human rights violations. This community has access to independent funds, expert knowledge and competent lawyers of a calibre comparable to those used by the alleged violators of our right to freedom from corruption.
Unless civil society organisations and their grantmakers stop shying away from filing or supporting public interest anti-corruption lawsuits that force the government to investigate and prosecute corruption seriously, I see no end to the impunity with which public funds are misappropriated.
Isaac Ssemakadde is an Advocate of the High Court of Uganda and the CEO Legal Brains Trust, a Kampala based human rights watchdog.