Inspectorate of Government v Balondemu David (LCT No. 47 of 2024) [2025] UGLCT 1 (27 March 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE LEADERSHIP CODE TRIBUNAL OF UGANDA

## IN THE MATTER OF THE LEADERSHIP CODE ACT CAP 33

#### LCT No. 047 OF 2024

INSPECTORATE OF GOVERNMENT ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# <table> BALONDEMU DAVID ::::::::::::::::::::::::::::::::::::

**CORAM:**

- 1. Hon. Dr. Roselyn Karugonjo-Segawa, Chairperson - 2. Hon. Asuman Kiyingi, Deputy Chairperson - 3. Hon Jane Okelowange, Member - 4. Hon. Didas Bakunzi Mufasha, Member - 5. Hon. Dr. Joyce Nalunga Birimumaaso, Member

### DECISION

#### **Brief Facts**

- $\mathbf{1}$ . This Application was filed by the Applicant under Rule 9(1) of the Leadership Code Tribunal (Practice and Procedure) Rules (2021) against the Respondent alleging breach of Section 4(2)(b) and 4(11) of the Leadership Code Act Cap 33 (LCA) for failure to submit a declaration of income, assets and liabilities for the year 2023. The Applicant is the Inspectorate of Government (IG) a constitutional body with the mandate to enforce the Leadership Code through investigation of breaches of the LCA and prosecuting offenders before the Leadership Code Tribunal. The Respondent is Mr. David Balondemu the Chairperson of Kampala District Land Board. - The Applicant alleged that the Respondent was appointed by the Lord Mayor of Kampala $\overline{2}$ . City as Chairperson Kampala District Land Board on 16th September 2020 and was holding the said position by March 2023 when all leaders were required to declare their respective incomes, assets and liabilities to the IG. The Respondent did not file his declaration and according to the IG, no reasonable excuse was given hence this Application. - The Applicant invited the Tribunal to declare that the Respondent breached S.4 (2) 3. (b) and S.4 (11) of the LCA when he failed to declare his income, assets and liabilities to the IG. The Applicant also prayed for the following:

$\mathbf{1}$

- That the Respondent be ordered to pay a fine of UGX $1,200,000/$ = (Twenty $i.$ currency points per month) for failure to submit his declaration from 1st April 2023 to $30^{th}$ June 2023 in line with S. 63 (1) (b)(i) of the LCA; - That the Respondent be ordered to pay a fine of UGX 1,600,000 (Forty currency ii. points per month) for the month of July and August 2023 as per S.63 (1) (b) (ii) of the LCA: - That the Respondent be ordered to submit his declaration of income, assets and iii. liabilities to the IG as per S.40 (1) (d) of the LCA; - That the Respondent's allowances be withheld until he submits a declaration to iv. the IG as per S.63 (1) (b) (iii)) of the LCA; and - Costs to follow the cause as per S.40 (5) of the LCA. $V$ . - The Respondent argued that he is a political appointee, having been appointed by the $4.$ Kampala Lord Mayor on part-time basis and does not receive any salary or income from Government as Chairperson of the Kampala District Land Board. He contended that he only receives a sitting allowance ranging between UGX 100,000/- to UGX 350,000/=. He further contended that as such his position is excluded from the category of people required to submit such a declaration to the IG. He alleged that there was an orchestrated plan by some individuals using the office of the Applicant to malice him since he has declared his intention to stand for a political office as parliamentary representative of Luuka constituency. The Respondent claimed that this Application by the IG is not founded in law, was brought in bad faith and that the Applicant was not entitled to any of the reliefs sought. He invited the Tribunal to dismiss the application with costs to the Respondent.

### Representation

The Applicant was represented by Mr. William Moses Ntumwa from the IG holding brief $5.$ for Mr. Jason Arinda, who originally handled the matter. The Respondent was represented by Mr. Robert Bautu of M/S Arcadia Advocates. The Respondent was present at the hearing.

#### Issues

- At the scheduling conference held on 23rd January 2025 three issues were agreed by the 6. parties for determination by the Tribunal, namely: - $(i)$ Whether the Respondent is a leader? - Whether the Respondent's position is excluded from submitting a declaration of $(ii)$ income, assets and liabilities to the IG? - (iii) What remedies are available to the parties?

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### **Applicable Law**

- $7.$ The applicable law includes the following: - $i)$ The Constitution of the Republic of Uganda 1995 - The Leadership Code Act Cap 33 and the Leadership Code Tribunal (Practice and ii) Procedure) Rules S1 NO.53 of 2021 - The Land Act Cap 23 iii) - Case Law $iv)$

### **Submissions**

### Arguments for the Applicant

Counsel for the Applicant addressed the Tribunal on all issues as agreed by parties. On 8. the first issue, he reiterated the earlier agreed position by both parties that the Respondent is a leader - being a Chairperson of a legally constituted Kampala District Land Board. He averred that this status placed the Respondent under paragraph 31 of the Second Schedule to the LCA which specifies the offices of:

> ...a chairperson, member and secretary of any commission, board or tribunal established by the Constitution or any other law.

$9.$ He stated that the Respondent is the Chairperson of Kampala District Land Board which is established pursuant to Article 240 (1) of the Constitution which provides that:

> There shall be a district land board for each district, (2) Parliament shall prescribe the membership, procedure and terms of service of a district land board.

- He emphasized that Parliament under S.57 of the Land Act Cap 236 made provisions for $10.$ district land boards as follows: - (1) There shall be for each district a district land board - $(2)$ The board shall be a body corporate with perpetual succession and a common seal and may be sued in its corporate name. - He concluded on this issue by stating that these provisions demonstrate that a District $11.$ Land Board is a board that is established by the Constitution and the Land Act and therefore the chairperson of Kampala District Land Board falls squarely within the ambit of paragraph 31 of the Second Schedule to the LCA as a leader. - On the issue of exemption to file a declaration to the Inspectorate of Government as $12.$ raised by the Respondent, the Applicant argued that the only office holders exempted from declaration of their incomes, assets and liabilities are those not specified under

the Second Schedule to the LCA. He cited S.4(2) and S. 4(11) of the LCA which provides that:

### A person shall-

- (a) Within three months of becoming a leader and: - (b) Thereafter every after two years during the month of March submit to the Inspectorate of Government a written declaration of his or her income, assets and liabilities in the prescribed form"

A leader who fails without reasonable cause to submit a declaration under this section commits a breach of this Code.

- $13.$ He argued that this section makes it mandatory for a leader to make a declaration by using the word "shall" not "may" which would leave a leader with the option to either declare or not declare his or her income, assets and liabilities to the IG. He also cited the case of Asiimwe Francis Vs Twongyeirwe Aflod (Miscellaneous Application No. 103 of 2011) to buttress his point adding that the requirement for the Respondent to make a declaration to the IG is mandatory. - $14.$ He added that the time periods within which leaders are expected to declare their incomes, assets and liabilities are different from those for public officers as provided under S.5 of the LCA. He said members of boards that are established by law bear a duty of care to the public in how they conduct themselves and therefore must be held to a high standard. He cited the case of Hudson Jackson Andrua & Angol Micheal Vs Uganda (Supreme Court Criminal Appeal No.17 of 2016) in which the court upheld conviction of the second appellant on the charge of abuse of office even though he was a member of the National Forestry Authority board of directors and not a civil servant. He reiterated his prayers for remedies mentioned earlier in this decision.

### **Arguments for the Respondent**

- 15. In rebuttal, counsel for the Respondent submitted that his client is not among the category of leaders envisaged under the Leadership Code Act. In his analysis of all specified officers under the Second Schedule to the Act, the officers referred to are those officers who earn a specified salary stipulated by the appointing authorities such as the Judicial Service Commission for judges and the Public Service Commission for public officers. Although he admitted that his client is a Chairperson of the Kampala District Land Board which is an institution established under the Constitution, he asserted that he does not earn a salary or income from government. That he was a political appointee appointed on a part-time basis and is only entitled to a sitting allowance of UGX 100,000/= to UGX 350,000/= which he unfortunately has never received. This, according to counsel, exempted his client from the requirement to file a declaration of income, assets and liabilities to the IG. - Counsel in his submission wondered how and why a person who has never received any 16. payment from government would have to declare his assets, income and liabilities to

the IG. He further submitted that the LCA read together with other relevant laws were intended to impose checks and balances on leaders against the monies received from government and not persons such as the Respondent that has never received any payment from the government. He cited the ejusdem generis rule of statutory interpretation saying that considering the list of specified officers under the Second Schedule to the Act, the law intended to cover leaders who earn a salary under their terms of service and holding public offices. Had the Act intended to widen the scope to cover all chairpersons, even LC1 chairpersons, municipal and town council councillors who earn sitting allowances would all be required to declare their income, assets and liabilities to the IG.

- 17. He further argued that just like LC1 chairpersons, municipal and town council councillors are leaders but not required to declare their income, assets and liabilities, the Respondent is equally a leader falling in that category excluded from those required to file declarations to the IG. Counsel cited Article 257(4) which in effect provides that a person shall not be considered as holding a public office by reason of only the fact that the person is in receipt of a pension or similar allowance in respect of service under the government. Counsel cited the case of Mike Mukula Vs Uganda (HCT-00-AC-CN 1 of 2013) in which Court held that a minister is a political appointee, not an employee of government and not a public officer. He submitted that leaders referred to under the Leadership Code Act are public officers (employees of government) holding a public office and receiving a salary that are required to declare their income, assets and liabilities to the IG. - Counsel relied on Article 175(a) and (b) to define public officer and public service 18. respectively and submitted that the Respondent is not a person holding an office in the public service. Should the Tribunal be inclined to hold that Paragraph 31 of the Second Schedule to the Act covers the office of the Respondent, he invited the Tribunal to hold the said paragraph inconsistent with Article 257(4) of the Constitution. In the alternative, he invited the Tribunal to refer the matter to the Constitutional Court for interpretation. Counsel also invited the Tribunal to note that the application against his client was brought in bad faith and that it was sponsored by what he called illminded people targeting to sabotage his client's operations using officers of the Applicant. He said that when officials of the Applicant wrote to the Respondent, he duly replied and sought for clarity on whether he is among the category of people/leaders required to make a declaration of income, assets and liabilities to the IG but to his dismay, his letter was only responded to with the instant Application. In an effort to prove the malicious intentions of the Applicant, counsel said the IG only sought for a declaration of income, assets and liabilities from the Respondent ignoring other members of his board. In his conclusion, Counsel submitted that the instant Application is not founded in law, was brought in bad faith and the Applicant is not entitled to any of the reliefs sought. He invited the Tribunal to dismiss the application with costs to the Respondent.

$\left( \begin{array}{c} \cdot \\ \cdot \end{array} \right)$

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### **Resolution of issues**

- 19. The Tribunal has carefully perused the trial bundles submitted by both parties. reviewed oral and written submissions by counsel and took time to analyze the law applicable and precedents with regards to questions in issue. But before delving into resolution of the issues as framed, we find it necessary to highlight the background and importance of declarations. - 20. In order to enhance transparency in public administration, the United Nations Convention against Corruption (UNCAC) and the African Union Convention Against Corruption, which Uganda ratified, require State Parties to establish measures and systems requiring public officials to make declarations of their outside activities. employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.1 The UNCAC defines public officials in Article 2 (a) as:

... (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, **whether paid or unpaid**, irrespective of that person's seniority: (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a "public official" in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, "public official" may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party...

- $21.$ Declaration of wealth in terms of assets, income and liabilities is crucial in the prevention of corruption, promotion of public accountability and transparency, building public trust in government, detection of illicit enrichment and conflicts of interest and is useful for deterrence of corruption and as an investigative tool of maladministration in the public sector.2 Both the UN and AU Conventions, mentioned above, also require State Parties to take disciplinary or other measures against public officials who violate the codes or standards relating to declarations of wealth.3 - 22. The spirit and letter of the UN and AU Conventions cited above is also captured in the Constitution and the LCA. The Constitution in the National Objectives and Directive Principles of State Policy on Accountability XXVI provides as follows:

$\mathbf{1}$ Article 8(5) of the UNCAC. Uganda ratified the UNCAC on 9/09/04. Article 7(1) AU Convention against Corruption. Uganda ratified the AU Convention on 5/08/2006.

$\overline{2}$ See Transparency International, 'Asset Declarations: An effective tool to fight corruption?' Working Paper No. 01/2014. Also see World Bank, R Burdescu et al 'Income and Asset Declarations : Tools and Trade Offs' (2009).

$\overline{3}$ See Article 8 (6) of the UN CAC and Article 7 (3) of the AU Convention against Corruption.

- $i.$ All public offices shall be held in trust for the people. - All persons placed in positions of leadership and responsibility shall, ii. in their work, be answerable to the people. - iii. All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices. - Chapter Fourteen of the Constitution on the Leadership Code of Conduct provides in 23. Article 233(2) (a) that the Leadership Code of Conduct should require specified officers to declare their income, assets and liabilities from time to time and how they acquired or incurred them as the case may be. The Constitution defines specified officers as holders of offices to which the Leadership Code of Conduct applies in Article 236. Additionally, the Leadership Code of Conduct should prohibit behavior likely to compromise honesty, probity, impartiality and integrity of public officers in management of public affairs, public funds and other public property. The Leadership Code of Conduct also prohibits conduct that is likely to lead to corruption in public affairs through non-adherence to the rule of law, abuse of office and abuse of authority. Furthermore, the Code is meant to curb behavior detrimental to public good or welfare and good governance and requires prescription of penalties to be imposed for breach of the Code and for ensuring effective enforcement of the Code. - $24.$ In Hub for Investigative Media & Another Vs AG Constitutional Petition No.3 of 2020 where the issue of declarations being open to the public was discussed, the Court stated that Article 233 (2) was included by the framers of our Constitution to protect public interest. As the Judge pointed out:

... It is my considered view that Article 233 (2) which demands that there be passed a law that requires specified officers to declare their incomes, assets and liabilities from time to time and how they acquired or incurred them, was included by the framers of our Constitution so as to protect the public interest.

- Furthermore, the case of Hub for Investigative Media pointed out that the purpose of $25.$ requiring persons in a leadership position to make such declarations of wealth from time to time was to ensure that leaders at all times act with honesty, probity, impartiality and integrity in public affairs as is required in Article 233 (2) of the Constitution. - 26. The LCA enacted by Parliament pursuant to the Constitutional requirement in Article 233 has explicit and elaborate provisions that require specified leaders and public officers to declare their income, assets and liabilities which are relevant in resolving the issues at hand: - S.1 of the LCA, which defines a leader as a person holding or acting in any of the offices specified in Schedule 2 to the Act. - S.4 (1) and (2) which requires a leader to submit a written declaration of income, assets and liabilities to the IG every two years during the month of March.

$\overline{7}$

- $S.4(2)$ (a), which provides that a person shall, within three months after becoming a leader submit to the IG a written declaration of his or her income, assets and liabilities in the prescribed form - S. $4(11)$ , to the effect that a leader who fails without reasonable cause to submit a declaration under this section commits a breach of this Code. - Schedule 2 of the LCA, which lists all officers required to declare their income, assets and liabilities to the IG.

The Tribunal considered and resolved the following issues:

- Whether the Respondent is a leader? $(i)$ - Whether the Respondent's position is excluded from submitting a declaration $(ii)$ of income, assets and liabilities to the IG? - Whether the matter should be referred to the Constitutional Court for $(iii)$ interpretation? - **Remedies** $(iv)$

#### $(i)$ Whether the Respondent is a leader?

- $27.$ On the question of who is a leader, the LCA under the interpretation section, defines a leader to be a person holding or acting in any of the offices specified in Schedule 2 of the Act. Going by the oral and written submissions of both parties there is agreement that the Respondent, David Balondemu, became a leader following his appointment by the Lord Mayor of Kampala City as chairperson Kampala District Land Board. - 28. The Kampala District Land Board like other district land boards was established pursuant to Article 240 of the Constitution which was operationalized by Section 57 of the Land Act. Therefore, on being appointed by the Lord Mayor as chairperson of the said board. he was placed in a position of leadership which is provided for under paragraph 31 of the Second Schedule to the LCA. The Tribunal finds that the Respondent was placed in a position of leadership by law and is therefore a leader. - (ii) Whether the Respondent's position is excluded from submitting a declaration of income, assets and liabilities to the IG? - 29. In resolving this issue, we reiterate what we said earlier that declaration of assets, income and liabilities by leaders and public officers is one way of adherence to principles and values of ethics, integrity, transparency and accountability. A leader occupies a public office in trust for the people.4 Requiring leaders to declare their wealth i.e. assets, income and liabilities is regarded as an effective way to prevent corruption and to increase public confidence that the leaders work in the best interest of the people they serve.5 Leaders have a social contract with the people whom they

$\Delta$ Objective XXVI of the National Objectives and Directive Principles of State Policy in the Constitution. $\varsigma$

R Mukherjee et al 'Officials' Asset Declaration Laws: Do they prevent Corruption?' (2007) P 1. are answerable to.6 The standards of conduct which are expected of leaders at all levels are, therefore, a matter for legitimate and continuing concern and scrutiny. It should be put into consideration that through public declaration of income, assets and liabilities by leaders and public officials, they are enhancing transparency and accountability which is crucial in the fight against corruption. In this way, leaders are subjecting themselves to public scrutiny in the way they handle official matters and will be required to account for the wealth they have acquired.7

- $30.$ In Uganda, district land boards are responsible for managing and allocating land within their districts, facilitating land registration and transfer, and resolving land disputes. all while ensuring compliance with the Land Act. It is therefore important that a person who assumes the critical position of a chairperson district land board whose duty it is to preside over such important functions should adhere to principles of transparency, accountability and good governance provided in the constitution and the LCA, among other laws. In fact, the Respondent's letter of appointment dated 16th September 2020 requires the office holder, in performance of his duties, to exhibit a high level of integrity, accountability and proper attitude while taking into account all the relevant laws. - 31. Counsel for the Respondent submitted that because his client only earns a sitting allowance which has never been paid, he is excluded from the requirements of filing $\tilde{a}$ declaration to the IG. But a careful interrogation of the provisions of the LCA, particularly as indicated above, points to the fact that this legal requirement is blind to the type of remuneration or compensation accorded to the office holder. It should also be noted that an allowance is income which is taxable and therefore subject to declaration under the law. S.19 of the Income Tax Act lists allowances to be part of taxable income. A perusal of the second schedule of the LCA indicates several categories of leaders whose salary earning quotas are different. It also includes categories of leaders who are not paid any salary from the consolidated fund. Despite the variance in earning, they are all required by the LCA to file declarations to the IG. - 32. A navigation of all laws regarding declaration of income, assets and liabilities by listed leaders leads to the conclusion that there is no express provision excluding any of the leaders enumerated under the Second Schedule to the LCA. The position of the Chairperson of Kampala District Land Board falls squarely within the ambit of Paragraph 31 of the Second Schedule to the LCA. It is unfortunate that the Respondent claims that he has never been paid any allowance, and if so he should indeed be paid what is due to him, but this does not exonerate him from the obligation to submit his declaration of wealth to the IG as a leader. He voluntarily allowed to take up this position to serve as a leader in the form of Chairperson Kampala District Land Board which comes with both privileges and responsibilities including the requirement to declare his wealth in line with the law.

$6$ Objective XXVI (ii) above in 4.

S.4 LCA.

- Before leaving this issue, mention should be made of the allegations of malice and bad 33. faith raised by the Respondent's counsel against officers of the Applicant. It was alleged that the current Application was part of an orchestrated plan by some individuals, who were not identified, using the office of the Applicant to malice the Respondent after he declared intention to vie for political office in Luuka constituency. The Tribunal considered this allegation but the only evidence adduced to support the claim was that the other members of Kampala District Land Board had not been brought before the Tribunal for breach of the Code. The Respondent claimed that this was an indication of selective prosecution and witch-hunt of the Respondent by the Applicant. To rebut this allegation, the Applicant cited the alleged breach of the Leadership Code of Conduct under the LCA of non-declaration of assets, income and liabilities by the Respondent which the IG has the mandate to enforce under the law. The Applicant indicated that investigations in the Respondents case had been concluded and that is why the matter was brought to the Tribunal for determination and denied the alleged malice and bad faith. The Tribunal found that there was no evidence of malice or bad faith adduced by the Respondent. - We disagree with the Respondent's argument that the Application is not founded in $34.$ law. The Application raised triable issues which have been determined. The requirement for declaration of wealth is an international best practice and has been affirmed as legitimate and necessary for a democratic society as a measure to enhance transparency, prevent corruption and maintain trust in government.8 In the Ugandan context, non-declaration by a leader or public officer defeats the lifestyle audit as a tool meant to check illicit accumulation of wealth and corruption. Uganda was ranked as the 140th least corrupt nation out of 180 countries in the 2024 Corruption Perception Index by Transparency International.9 All efforts are being made to eliminate corruption including implementing requirements for declarations of wealth by leaders and public officers. Leaders and public officers should be ready to declare their wealth. As was stated by President Truman of the US to the congress in 1951 when there were numerous corruption scandals:

With all the questions that are being raised today about the probity and honesty of public officials, I think all of us should be prepared to place facts about our income to the public record.10

The Constitution and the LCA require political leaders ranging from His Excellency the 35. President, Vice President, Speaker and Deputy Speaker, Prime Minister and Deputy Prime Minister, ministers, members of Parliament, leaders of political parties, judges. magistrates, registrars, permanent secretary to heads of government agencies, among

$\overline{9}$ Transparency International, 'Corruption Perception Index 2024' available at: https://www.transparence.org/en/cpi/2024 last accessed on 18 March 2025.

President Harry S. Truman's Message to Congress, 27 September 1951. Here quoted from OECD, 'Asset $10$ Declarations for Public Officials: A tool to prevent corruption' (2011) P 22 which quoted G. C. Mackenzie and M. Hafken, 'Scandal Proof: Do Ethics Laws Make Government Ethical?' (2002) P 19.

See Andrzej Wypch Vs. Poland, Application No.2428/05 European Court of Human Rights.

many others, to declare their wealth.11 How can the Respondent who is serving as a leader in the position of Chairperson of the Kampala District Land Board not be required to declare his wealth?

- Whether the matter should be referred to the Constitutional Court for $(iii)$ interpretation? - $36.$ Counsel for the Respondent cited Articles 175(a) and 257(4) of the Constitution and the case of *Mike Mukula cited earlier*, to put up an argument that his client is not a person holding an office in the public service and should not be required to declare. Further, that in the event that the Tribunal was inclined to hold that paragraph 31 of the second schedule to the Code covers the office of the Respondent, the said paragraph should be found inconsistent with Article 257(4) of the Constitution and should be declared so otherwise the matter should be referred to the Constitutional Court. - This Tribunal has no mandate to interprete the Constitution and make pronouncements 37. on the constitutionality or inconsistency with the Constitution of certain provisions of the LCA. That is the mandate of the Constitutional Court.12 The Tribunal's mandate is to read the Constitution and apply it as it is to resolve issues arising in the cases brought before the Tribunal. Article 137 (1) of the Constitution states:

Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.

## Article 135(5) further provides that:

Where any question as to the interpretation of this Constitution arises in any proceedings in a court of law... the court may, if it is of the opinion that the question involves a substantial question of law; and shall, if any party to the proceedings requests it to do so, refer the question to the constitutional court for decision...

The Supreme Court and the Constitutional Court have explained the full import and 38. meaning of these constitutional provisions in various decisions to guide petitions and references to the Constitutional Court. Where a party wants court to refer an issue to the constitutional court for determination it must satisfy the Court that there is a prima facie constitutional question for determination. As was held in Sam Kutesa & Others (Constitutional Petition No. 54 of 2011 [2012], Article 137(5) does not destroy or remove the independence and discretion of the Court asked to make a reference to evaluate the merits of the request and decide as appropriate. According to the Court:

$\overline{11}$ $12$

$\langle K_S$

Schedule 2 List of Political Leaders and Specified Officers.

Article 137 (1) of the Constitutional; Akurut Violet Adome Vs Emurut Simon Peter, Election petition Appeal No. 40 of 2016.

... in Article 137(5) (a) and (b) the court deciding to make a reference, must first be satisfied that a prima facie case exists or has been made out by the requesting party, that an interpretation of a provision of the constitution is required. If the court comes to the conclusion that this is not established prima facie, then no reference should be made to the Constitutional Court whether under Article 137(5) (a) or(b).

In light of the above, therefore, the Tribunal has to satisfy itself that *prima facie* there 39. is a constitutional question that must be determined by the Constitutional Court before making any reference. The Constitutional Court has also held that a court being asked to refer can in the course of applying the Constitution, make its own findings on the constitutionality of the provisions in issue. In *Mbabali Jude V Edward Kiwanuka* **Sekandi** (Constitutional Petition No. 28 of 2012) [2014] Justice Remmy Kasule stated:

> A competent court determining a cause is at liberty to find and pronounce itself as to whether or not, in its findings, a particular set of facts of the case, are contrary to or are in compliance with the Constitution. By doing so, such a court is not interpreting the Constitution. The said court is just applying the Constitution to the facts of the case before the court (emphasis added).

- The legal and constitutional principles articulated above guided the Tribunal in 40. addressing the Respondent's submissions on the question of alleged inconsistencies between LCA provisions and some articles in the Constitution. The Tribunal applied the constitution to the facts of the case before us. The Tribunal wishes to observe that the question of elected government officers or political appointees not being public officers/civil servants has long been settled by courts.13 We note that Respondent's Counsel laboured the question at length and still believes this is a matter for the Constitutional Court to determine. The Mukula case cited by the Respondent is distinct from the case at hand of non-declaration of income, assets and liabilities by the Respondent. *Mukula* had appealed against a guilty verdict of embezzlement of GAVI funds and sentence of four years' imprisonment. The case highlighted the fact that political appointees such as ministers are not employees of government in a civil capacity and that in general, regulations for civil servants and public officers do not apply to them. Nonetheless, they were referred to as political leaders, government officials or officers of the government. The Leadership Code of Conduct applies to all leaders and public officers including ministers, elected officials, political appointees and public officers in the civil service. The key requirement for one to be categorized as a leader is to be specified as so under the LCA. One is only exempted if he is not specified as a leader under the Act. - $13$

See Darlington Sakwa Vs. Athanasius Rutaroh V Electoral Commission & 44 others (Constitutional Petition No. 8 of 2006 (2006), & Akurut Violet Adome Vs Emorut Simon Peter (Supra), which overturned Justice Wangutusi's High Court decision on the same matter; Emorut Simon Peter Vs Akurut Adome & Others (HCT – 09 – CV – EP -002 $-2016$ ).

- Articles 175 (a) and 257 (4) cited by the Respondent define a public officer as a person $41.$ holding or acting in any office in the public service and clarify that a person shall not be considered as holding a public office by reason only of the fact that they receive a pension or similar allowance in respect of service under the government respectively. This is for purposes of making clear categories who enjoy fully, the benefits and entitlements of civil servants such as security of tenure, and permanent and pensionable employment. That is to say, merely by earning any salary or allowance like civil servants do, one should not claim all the other attendant rights enjoyed by civil servants. Articles 257 (4) and 175 (a) do not prohibit or exempt any one from declaration of assets by leaders or public officers, but only clarify who a public officer is or is not. The requirement for leaders such as the Respondent and public officers to declare income assets and liabilities is therefore not affected by either Article 175 (a) or 257 $(4)$ of the Constitution. - In adjudicating breaches of the Code and enforcing its provisions the Tribunal is 42. expected to be expeditious in the execution of this mandate. As was noted by Justice of Appeal Rosalia Abella in Rasanen Vs Rosemount Instruments Ltd (1994) 17 O. R. (3d) 267 C. A, tribunals like the LCT are:

... expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expressive, less formal and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly.14

The Leadership Code Tribunal is established under Articles 234 and 235A of the $43.$ Constitution and S.23 of the LCA to enforce the Leadership Code of Conduct and determine breaches under the LCA.15 In enforcing the LCA the Tribunal also enforces requirements of the Constitution. In this regard the Tribunal is very much alive to Justice Kenneth Kakaru's dictum in Jude Mbabaali Vs E. K Sekandi (Supra) where he stated that:

> All laws in this country emanate from the Constitution. Violation of any law by any act or omission directly or by implication is also a violation of the constitution. The violation of any laws must be addressed to and settled by an appropriate court or tribunal and not by this court (Constitutional Court), unless there is an issue for constitutional interpretation.

It is our finding that there is no constitutional question raised by the Respondent 44. meriting a reference to the Constitutional Court for determination. We therefore decline the Respondent's request to state a case for reference to the Constitutional

$14$ As cited by the Constitutional Court in Asuman Kiyingi and Anor Vs Attorney General (Constitutional Petition 16 of 2022) (2024) UGCC (6th November 2024) at pp; 15 & 16.

15 S.2, S.24, S.42 (3) and S.49(1) of the LCA

Court. The Respondent as chairperson of Kampala District Land Board, clearly falls within the category of specified officers referred to under the Constitution and schedule 2 of the LCA, paragraph 31. He is a leader who is subject to the Leadership Code of Conduct and breached the Code when he failed to declare his incomes, assets and liabilities to the IG. He should do so.

## (iv) Remedies

- 45. The Leadership Code Tribunal accordingly declares that the Respondent breached S.4 $(2)$ (b) and S.4 (11) of the LCA. - 46. Section $63(1)$ (b) of the LCA provides that:

A leader or public officer who commits a breach of this Code shall:

(b) in the case of a breach under Section ...4(11)...

- $(i)$ be liable to pay a fine not exceeding twenty currency points per month for the initial three months of non-submission of the declaration: - after three months referred to in sub-paragraph $(i)$ , be liable to pay a $(ii)$ fine not exceeding forty currency points per month for two months: - $(iii)$ after the period of failure to submit the declaration referred to in paragraph (ii), have his or her emoluments withheld until he or she submits a declaration; - in addition to the penalties in subparagraphs (i) and (ii) and (iii) be $(iv)$ eligible to a warning, demotion, dismissal or to vacate office;

## **Orders**

- 47. The Leadership Code Tribunal hereby makes the following orders: - L The Respondent pays a fine of UGX 1,200,000/= (twenty currency points per month) for non-submission of his declaration from 1st April 2023 to 30th June 2023 as per Section 63(1) (b)(i) of the LCA; - The Respondent pays a fine of UGX $1,600,000/$ = (forty currency points for П. each of the two months of July and August 2023) as per Section $63(1)(b)(ii)$ of the LCA; - The Respondent submits his declaration of income, assets and liabilities to $\mathbb{H}$ . the IG as per Section $40(1)(d)$ of the LCA;

- IV. The Respondent's allowance be withheld until he submits his declaration to the IG in accordance with Section $63(1)(b)(iii)$ of LCA; and - $V$ . Each party shall bear its costs.

Dated and delivered at Kampala this ........day of March 2025.

HON. DR. ROSELYN KARUGONJO-SEGAWA **CHAIRPERSON**

HON. ASUMAN KIYINGI **DEPUTY CHAIRPERSON**

$27/03/2025$

$\sqrt{ }$

HON. JANE OKELOWANGE **MEMBER**

$\overbrace{\vdots}$ **.......**

HON. DIDAS BAKUNZI MUFASHA **MEMBER**

HON. DR. JOYCE NALUNGA BIRIMUMAASO

**MEMBER**