Kezaala v The Inspector General of Government & 2 Others (Miscellaneous Application 28 of 2009) [2009] UGHC 250 (8 September 2009)

Full Case Text

#### THE REPUBLIC OF UGANDA

Judical Reviel Linderstor Code tot

# IN THE HIGH COURT OF UGANDA AT JINJA

## MISC. APPLICATION NO. 28 OF 2009

HAJJI MOHAMMED BASWARI KEZAALA:::::::::::::::::APPLICANT

#### **VERSUS**

- 1. THE INSPECTOR GENERAL OF GOVERNMENT - 2. JINJA MUNICIPAL COUNCIL - 3. THE ELECTORAL COMMISSION:::::::::::::::::::::RESPONDENTS BEFORE: THE HONOURABLE MR. JUSTICE V. T. ZEHURIKIZE

## R U L I N G

This Application was brought by way of Notice of Motion under Articles 28 $(1)$ , 42 and 225 $(1)$ $(a)$ of the Constitution of Uganda as amended, ss. 36 and 38 of the Judicature Act, Order XLIIA, Rules 2 (1) (a), 2 (2) (a) (b) (c), 6 (2) (a) (b), 7 (1), (2) and (3) of the Civil Procedure (Amendments) (Judicial Review) rules SI No. 75 of 2003.

The reliefs sought are:

- (a) by way of certiorari, to remove to the High Court and quash the 1st Respondents' Report and recommendations on investigation into the alleged mismanagement of Jinja Municipal council affairs, abuse of office, and breach of the Leadership Code Act by some Public/Political heads of the Municipal Council of 17h December 2008 which implicated the Applicant. - that by way of certiorari and prohibition to quash $(b)$ Jinja Municipal Council's resolution of 19th January

2009 adopting the IGG's report and recommendations and the consequential interdiction/suspension of the Applicant by the $1^{st}$ Respondent.

- that by way of an injunction to restrain the $3^{rd}$ $(c)$ Respondent from conducting elections for the position of the Mayor Jinja Municipal Council. - (d) General damages for inconvenience suffered by the Applicant as a result of the $1^{\rm st}$ and $2^{\rm nd}$ Respondent's proceedings against him.

The grounds upon which this application is based are mainly that:

- Applicant is the Mayor of Jinja Municipal $(a)$ The council - On $17^{th}$ December 2008 the $1^{st}$ Respondent made a $(b)$ investigation into alleged report on an mismanagement of Jinja Municipal Council affairs, abuse of office and breach of the Leadership Code Act by some Public/Political heads of the Municipal Council. - The report recommended inter alia that the Applicant $(c)$ is liable to be prosecuted for abuse of office and causing financial loss of shs. 16,670,000/- unless he refunds the money through the $1^{st}$ Respondent within 60 days from the date of issue of the report. - $(d)$ The report further recommended that the Applicant vacates the office of Mayor for breach of the Leadership Code and prohibited from holding Public office whether appointive or elective for a period of five years. - The 1st Respondent made her report and reached its $(e)$ findings and recommendations with bad faith, bias,

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in blatant disregard of the principles of natural justice and without fairness.

It appears to me that paragraph (e) above is actually the gist or summary of the grounds of this application. While paragraphs (a) to (d) above is a mere back ground story. On the other had the subsequent paragraphs from (f) to (r) are really arguments to support the grounds contained in paragraph $(e)$ .

For instance it is emphasised in the subsequent paragraphs that the applicant was by a resolution of the $2nd$ respondent, removed from his office as a Mayor despite the existence of two Court orders restraining them from effecting the recommendations of the 1st Respondent to remove him from office until the disposal of the main application for Temporary injunction.

It is also complained that the $\textbf{1}^{\text{st}}$ . Respondent decided to prosecute the Applicant and yet pardoned other people such as the chairman of the District Land Board, one Muwumba Samuel and another Mercy Wakibi after finding that they had also breached the same section of the Leadership Code Act.

There is also a complaint that the $1^{\rm st}$ Respondent hurried to prosecute the applicant in Buganda Road where he was charged with abuse of office and causing financial loss vide criminal case No. 18 of 2009 before the lapse of the 60 days which the she had set in her own report. To me all the above are just arguments in support of the grounds raised in paragraph (e) as already pointed out.

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A brief background to this application as far as I can discern from the pleadings and arguments by counsel is as follows.

The applicant was the elected Mayor of Jinja Municipal Upon a complaint, the IGG $(1^{st}$ Respondent) council. carried out an investigation into alleged mismanagement of Jinja Municipal council affairs, abuse of office and breach of the leadership Code Act by some Public/Political heads of the Municipal council.

Quite a big number of people were interviewed and a reasonable number of documents were studied. After investigations the applicant was confronted with at least six allegations, that arose from the investigation, for him to respond.

responded to the allegations as He "Record per of interview" dated $24/1/08$ which is annexture "B" to the affidavit in reply of Mr. Baku Raphael Obudra, the Acting IGG.

Consequently on $17^{\rm th}$ December 2008 the IGG issued her report addressed to the Speaker Jinja Municipal council and copied to the applicant, among others, in which she recommended that the applicant should vacate his office as a Mayor and that as a result thereof he would be prohibited from holding any Public Office whether appointive or elective for a period of five years.

In the said report the IGG made it clear that, the Speaker to Council as the authorized person was directed to relay the decision of the IGG to the Council for implementation

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and report back to the IGG within 14 days of implementation. She reminded the Speaker that under s. 19 of the leadership Code Act her decision to remove the Mayor had to be effected within 60 days after the receipt of the report.

On receipt of the Report the applicant reacted by filing H. C. C. S. No. 72 of 2008. As the IGG mounted pressure on the Council to implement her decision to remove the applicant from his position as a Mayor, the applicant applied for temporary injunction to restrain the Council from effecting her decision.

He hurriedly obtained an interim order but to no avail. The IGG insisted that her decision must be implemented.

Eventually on $19/1/09$ by resolution of the 2nd Respondent, the Applicant was removed from his said elective office.

It appears, on realising that the above suit could no longer be useful to him the applicant decided to file this application for Judicial Review. Later he withdrew Civil suit No. 72 of 2008.

When the matter came up for hearing Mr. Caleb Alaka and Samuel Muyizzi Mulindwa appeared for the Applicant. Mr. Kasuja Vincent and Lwanga Hosea appeared for the $1$ st Respondent while Mr. Paul Byaruhanga was for $2nd$ the Respondent. Mr. Wettaka Patrick was for the $3^{rd}$ Respondent.

Before the hearing of the Application commenced Mr. Alaka Caleb successfully applied to have the $3^{rd}$ Respondent struck out under 0.1 r. 10 (2) of CPR. $\frac{10}{2}$

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On the other hand Mr. Paul Byaruhanga counsel for the $2^{nd}$ Respondent prayed that the suit be struck out as against the $2^{nd}$ Respondent on grounds that his clients merely executed the orders of the IGG thus acted in good faith in which case they enjoyed immunity from Civil proceedings by virtue of the provisions of s. 22 $(1)$ of the Inspectorate of Government Act.

In reply Mr. Alaka Caleb contended that the $2^{nd}$ Respondent did not act in good faith since they proceeded in defiance of two court orders and legal advice of the Solicitor General.

I promised to make a ruling on this issue, which I now proceed to do.

Section 22(1) of the Inspectorate of Government Act provides:

"(1) No proceedings, whether civil or criminal, shall lie against the Inspector General, Deputy Inspector-General, an officer or any other person employed or authorized to execute the orders or warrants of the inspectorate for anything done in good faith and in the course of the performance of his or her duties under this Act."

Evidence on record shows that the $2^{nd}$ Respondent was served with the court order issued under Misc. Application No. 226 of 2008. On receipt of the order the Town Clerk sought advice from the Solicitor General.

The legal advice from the Solicitor General as per his letter of $9/1/09$ is that the order had to be respected.

Further evidence on record reveals that the $2^{\rm nd}$ Respondent made it difficult to be served with another order of 19/1/09 under Misc. application No. 11 of 2009 until after they had effected the decision of the IGG that afternoon of the same date.

From the pleadings on record it is clear that the IGG exerted a lot of pressure on the Council to execute her decision, but still they were obliged to obey the orders of court which restrained them from going ahead with the removal of the applicant from his office. It is not sustainable to argue that the Council feared being punished under s. 35 (c) of the said Act.

But most importantly, since this application seeks to nullify the decision of the $\textbf{1}^{\text{st}}$ Respondent, the outcome, if positive, would have an effect on resolution of the $2^{nd}$ respondent of $19/1/09$ .

Thus it is convenient that the two bodies were joined in one suit since the finding on the acts of the $1^{\rm st}$ Respondent has a bearing on the acts of the $2^{nd}$ Respondent.

For the above reasons the objection raised by Mr. Paul Byaruhanga is overruled. The $2^{nd}$ Respondent was properly joined in these proceedings.

I would now proceed to consider counsel's submissions on the substantive application.

In support of his case Mr. Alaka Caleb clarified that the application seeks for reliefs of judicial review to remove to the High Court and quash by way of Certiorari the 1st

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Respondent's report and recommendation dated 17/12/08 implicating the applicant.

Further they seek a remedy of Judicial review by way of certiorari and prohibition to quash the $2^{\rm nd}$ respondent's $19/1/09$ by which they adopted the $1st$ resolution of respondent's report and recommendations.

Counsel argued that the issue at hand is whether the decisions of the Respondents against the applicant were arrived at fairly, without bias, arbitrariness or devoid of malafides and whether they did not breach the principles of natural justice.

MR. Caleb Alaka was of the view that the $1st$ Respondent was unfair and violated the principles of natural justice and acted in bad faith when she commenced prosecution against the applicant for abuse of office and causing financial loss before the lapse of 60 days set out in her report.

That the IGG was biased and acted in bad faith against the applicant when she recommended the removal of the applicant and commenced prosecution against him and yet did not prosecute the $2^{\rm nd}$ respondent's other officials who confessed to the allegations. That this was selective justice.

Counsel further illustrated the IGG's bias on the ground that she invoked s. 8 (1) (2) (a) and (3) of the Leadership Code Act against the applicant but did not do so in the case of others.

That the IGG was biased because when the applicant was on remand on charges of abuse of office and causing financial loss she directed the $2^{nd}$ Respondent to adopt her report despite the interim court orders.

Then counsel's argument descended into the merits of the findings of the IGG. And lastly argued that the applicant was denied the right to be heard on specific allegations against him.

In reply Mr. Vincent Kasuja for the $\textbf{1}^{\text{st}}$ Respondent contended that the ground advanced by the applicant do not justify the grant of reliefs sought. He explained that the IGG is a creature of the 1995 Constitution and the enabling laws which include the Inspectorate of Government Act, and the leadership Code Act.

He then went ahead to cite the various provisions of the Inspectorate of Government Act under which the $\textbf{1}^{\text{st}}$ Respondent acted and which are relevant to the matter before court.

Counsel refuted the allegations/arguments by counsel for the applicant in respect of issues of bias, unfairness and breach of the principles of natural justice arguing that the IGG followed the law.

He contended that by prosecuting the applicant before the expiry of the 60 days set out in the report did not amount to bias because the law does not provide for time frame within which to prosecute. He cited Article 23 (1) of the Constitution to fortify his point.

Further Mr. Kasuja argued that the IGG had power and discretion not to prosecute other people mentioned in the report and this was not a sign of bias or unfairness.

On the issue of non-observance of the principle of natural justice counsel, contented that the applicant was given the

right of hearing. He stated that after collecting all the evidence, the IGG evaluated it.

Then the applicant was presented with the allegations that arose from the investigations and he responded to them in his statement (annexture "B" to Mr. Baku's affidavit).

Mr. Kasuja concluded saying that the applicant had failed to satisfy the principles that would be the basis upon which court can grant the reliefs sought. He prayed that the application be dismissed with costs.

Mr. Paul Byaruhanga counsel for the $2^{nd}$ respondent contended that the applicant's prayer for a declaration, that the declaration by the $2^{nd}$ respondent that the position of the Mayor Jinja Municipality is vacant is null and void, was merely for academic purposes on grounds that the counsel has not declared the post of a Mayor vacant. That what appeared to be such declaration was in fact withdrawn. That the IGG directed that the Mayor be suspended or interdicted, and now a Deputy Mayor is acting in his place.

Counsel argued that the resolution of the Council passed on $19/1/09$ cannot attract an order of prohibition since it is in the past nor order of certiorari since it is no more.

Mr. Paul Byaruhanga argued that the counsel did not have to obey the orders of injunction because they emanated from an illegal and incompetent suit as it was barred by s. 34 (2) (b) of the Leadership Code Act. That any suit should have been by way of Judicial Review as opposed to an ordinary suit. He was referring to H. C. C. S. NO. 72 OF 2008.

He stressed that it is not alleged by the applicant that the Council had no jurisdiction to implement the IGG's That theirs was not a trial but just an execution order. of the order.

Counsel pointed out the allegations labeled against his client such as bias had not been proved. He submitted that the applicant had no case against the $2^{nd}$ respondent. He prayed that the application be dismissed with costs.

I have considered submissions by all the counsel in this matter. I have also perused the pleadings filed by the parties in presentation of their respective cases. The following are my findings and conclusions.

Judicial review is a process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of the interior courts, tribunals and other bodies or persons who carry out judicial functions or who are charged with the performance of public acts and duties (see Pius Niwagaba V. Law Development Centre Civil Appeal No. 18 of 2005 - CA). unreported.

In the instant case the applicant, by way of judicial review, seeks orders of certiorari, prohibition and injunction.

The prerogative order of certiorari is designed to prevent the excess of, or the outright abuse of power $or$ jurisdiction by public authorities.

Prohibition issues to forbid the happening of some acts or decisions which would be ultra vires. See Mwesigye Enock V. Electoral Commission H. C Misc. application No. 62/98 of H/C at Mbarara.

The above orders are discretionary. The court in deciding whether to grant an order of judicial review, has to bear in mind that on a judicial review application the court will not act as a court of appeal from the body concerned, nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it had been exercised in a way which is not within the body's jurisdiction, or the decision is The function of the court is to see that unreasonable. the lawful authority is not abused by unfair treatment. See Lex Uganda Advocates and Solicitors v. Attorney General; Misc. application No. 322 of 2008 of the $H/C$ Kampala.

In the instant case it is not disputed that the prerogative orders of court can issue against the Respondents. The provisions of the Constitution, the Inspectorate of Government Act, and the Leadership Code Act are clear in respect of the 1st Respondent. The Constitution and the Local Government Act are also clear in respect of the $2^{\rm nd}$ Respondent.

Both Respondents have a legal authority to determine the rights of citizens and as such have a duty to act judicially.

As already stated above, the gist of the Applicant's case is that the 1st respondent acted unfairly and with bias, and that he was denied a fair hearing.

I will consider the issues of bias and unfairness together and then consider the allegation of denial to a fair hearing separately.

## BIAS AND UNFAIRNESS:

The applicant complained that the $1^{\rm st}$ Respondent was biased and acted in bad faith against him when she recommended and commenced prosecution against him for abuse of office and causing financial loss vide Buganda Road Chief Magistrate's Court; Criminal case no. 18/09 and did not charge other persons implicated in the report and even chose to forgive the $2^{\rm nd}$ Respondent's other officials who confessed to the allegations.

also complained that the $1^{st}$ Respondent hurriedly He commenced the prosecution before the 60 days she set out in her report had expired.

It appears to me that, after carrying out investigations or inquiries, the IGG had discretion to decide which action to take against the leader in breach of the leadership Code Act.

Section 29 of the Leadership Code Act provides:

"The Inspectorate shall when enforcing this Act, have all the powers conferred on it by Chapter thirteen of the Constitution or any other law."

13 of the Constitution, Article 230 In chapter $(2)$ provides:

"The Inspector General of Government may, during the course of his or her duties as a consequence of his or her findings, make orders and give such directions as are necessary and appropriate in the circumstances."

This power is re-stated in s. 14 (6) of the Inspectorate of Government Act.

Further from the evidence on record it appears that the IGG did not use her discretion arbitrarily nor selectively as the Applicant would want this court to believe.

As brought out in Mr. Baku's affidavit in reply one Samuel Muwumba apologized for his wrong actions in his letter of 15/12/08 to the IGG. He even tendered his resignation as chairperson Jinja District Land Board.

I believe that for this humility the IGG declined not to prosecute him.

She could have had other reasons for not prosecuting the other officials implicated in the report. I do not see any element of bias when the 1st Respondent exercised her discretion to decide the way she did.

Further since in her report she had recommended prosecution of the applicant, she was not legally bound to observe the 60 days set out in the report before proceeding with the prosecution. She could have been over zealous in hurrying with the prosecution, but that per se is not a sign or act of bias.

allegation of bias or unfairness can only be The legitimately argued or raised in the context of the process This is so because leading to the making of the report. it is the report and the commendations made therein that are in issue.

What the 1st respondent did to ensure the implementation of the report is a matter outside the ambit of these proceedings.

Having made the report which included the decision to prosecute the Applicant it was immaterial that she decided

to pardon other people implicated in the investigations or that she even hastened to prosecute the applicant.

In the premises I find that the allegation of bias is not sustainable. Even the allegation of unfairness in the context in which it was brought would not be suspenable.

Related to this is the allegations that the IGG lacked jurisdiction when she reprimanded or forgave some of the $2^{\rm nd}$ Respondent's officials who confessed having engaged in the unlawful practice which she had investigated.

The provisions of the Constitution the Inspectorate of Government Act and the Leadership Code Act set out above are sufficient to dispose of this complaint. She had the discretion to act the way she did.

There was also another complaint that the $1^{\rm st}$ Respondent lacked the jurisdiction or exercised jurisdiction not vested in her when she conclusively decided that the applicant is prohibited from holding any Public office whether appointive or elective for 5 years which was the preserve of the authorized authority under the Leadership Code Act.

I do not find any merit in this argument either. The IGG was simply informing the Speaker of the $2^{nd}$ Respondent that upon his removal from the office of a Mayor the applicant would suffer such prohibitions or disqualifications by virtue of the provisions of s. 20 $(3)$ of the leadership Code Act which provides:

"A person dismissed, removed from office, or convicted for a breach of this Code shall not hold any other public

office whether appointive or elective for five years effective from the date of dismissal or removal."

The above prohibition was neither the decision of the IGG nor of the $2^{nd}$ Respondent but a legal consequence that would befall the Applicant upon removal from office.

What I find inappropriate, illegal and oppressive was the actions of the IGG to pressurise the $2^{nd}$ Respondent to implement her decision to remove the applicant from office in defiance of interim court order of $29^{\rm th}$ December 2008 which restrained and prohibited the Respondents from removing the applicant from office.

The interim order was issued pending the hearing of the Application for temporary injunction slated for $13/2/09$ . The hurry to remove the Applicant was uncalled for. It was in bad faith in as far as the implementant of the report was concerned.

The IGG showed blatant disrespect of court decisions while covetedly safequarding her powers under the Constitution and other laws. Such an attitude was unfortunate to say the least.

I will now proceed to consider the issue of fair hearing. In other words whether the IGG accorded the applicant a fair hearing in observance of the principles of natural justice.

## A FAIR HEARING:

must be emphasised that Judicial review in which It prerogative orders are sought is different from the ordinary judicial review when court sits to review its own decision, or in revision or appeal.

Rather court is concerned with the process by which the decision was reached - whether the decision making authority exceeded its powers, committed an error of law, committed a breach of natural justice etc. The test is whether something went wrong in the process or the decision is of such a nature and degree which requires intervention of the court on account of arbitrariness - See Lex Uganda Advocates and Solicitors (supra).

The right to a fair hearing is so highly cherished that it was provided for in the Constitution. Article 44 (c) provides that there shall be no derogation from the enjoyment of the right to a fair hearing.

The leadership Code Act under s. 26 specifically provides that when inquiring into an allegation under the Code, the Inspectorate shall observe the rules of natural justice.

The question that arises is what form of inquiry is expected under the Code that will ensure that a Public officer is accorded a fair hearing or that the Inspectorate shall observe the rules of natural justice.

The above issue is crucial when one bears in mind the fact that the inquiry under the leadership Code Act may culminate into a report in which the IGG may decide, that the officer under inquiry be dismissed or removed from office - a decision the authorized person has only to implement and then report to the IGG within a given time frame how the decision was effected.

The answer is to be found in part $V$ of the Leadership Code Act and in particular sections 18, 19, 23 and of course 26 of the Act.

It is clear to me that when making an inquiry after receiving a complaint under s. 18 of the Act, the IGG is vested with legal authority to determine the rights of the citizen and for that matter he or she has a duty to act judicially if he or she is to observe the rules of natural justice as dictated by s. 26 of the Leadership Code Act.

It follows therefore that in order to achieve this cardinal objective the inquiry has to take the form of judicial or quasi judicial proceedings.

A careful perusal of ss. 18, 19 and 23 clearly shows that the contents of these provisions were designed to ensure that the inquiry takes the form of at last quasi judicial process.

Section 23 of the leadership Code Act (LCA) gives the Inspectorate power and rights vested in the High Court as regards attendance, swearing and examination of witnesses, the production and inspection of documents enforcement of its orders etc.

Further paragraph (b) of that section provides that the Inspectorate has the power to administer oaths and examine any person on oath, affirmation or otherwise".

Then section 19 $(2)$ of the same Act states that the report arising from the inquiry shall set out, inter alia, a brief summary of the evidence adduced during the inquiry into the breach and the findings and decisions. I do believe that "a brief summary of the evidence adduced during the inquiry into the breach is indeed a summary of the evidence adduced by way of swearing and examination of <pre>witness" and or after administering oaths and examining any</pre> person on oath, affirmation or otherwise as provided for in s. 23 of the Leadership Code Act.

That being the case it becomes clear to me that the inquiry provided for under the act has to take the form of judicial or quasi judicial nature.

It follows therefore that that the witnesses examined by the Inspectorate must be so examined in the presence of the officer under inquiry so that he is afforded an opportunity to hear the evidence being adduced which is prejudicial to Then further be afforded an opportunity to his interest. cross examine such witnesses.

He should be allowed to have access to the documents being inspected by the Inspectorate so that he can give his side of the explanation if such documents are prejudicial to his defence. And I believe it is for this purpose that section 25 (3) of the Inspectorate of Government Act provides as follows.

"(3) 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 a prior hearing."

Needless to say that after the Inspectorate has examined its witnesses, produced and inspected documents in the manner stated above, the person or office which is the

subject of the inquiry is given an opportunity to present his or its side of the case in defence.

It's only after the above process that it can be said that the Inspectorate observed the rules of natural justice under s. 26 of the Act or that the citizen of this country was granted a fair hearing envisaged under Article 44 (c) of the Constitution.

It must be noted that I am not saying and I do not in any way imply that in a bid to observe the rule of natural justice the Inspectorate has to follow the formal proceedings followed in ordinary courts. Not at all.

In fact under s. 25 of the Leadership Code Act the Inspectorate may, after consultation with the Minister (i.e. Minister responsible for Ethics and Integrity) and the Attorney General, make rules regulating the procedure under the Leadership Code.

I was not informed whether such rules have been made. But again as s. 25 states the rules, if any, would have to be made subject to the provisions of the Act, one of which is s. 26 which imposes on the Inspectorate the duty to observe the rules of natural justice.

am also alive to the provisions of s. 21 of the I Inspectorate of Government Act which provides: "proceedings, findings, recommendations, investigations or inquiries by the office of the Inspector General shall not be held null and void by reason only of informality or irregularity in the procedure and shall not be liable to be

challenged, reviewed, quashed or called in question in any court of law."

In my view proceedings may be informal and there may be irregularity in the procedure. Nevertheless, the general rule would remain that a party must be given an opportunity to be heard before its rights are prejudiced or affected by a decision.

In my view s. 21 above echoes the provisions of Article 126 $\,$ (2) (e) of the Constitution which is to the effect that $(2)$ substantive justice must be administered without undue regard to technicalities. But this principle is **subject** to the law. The law in the instant case is section 26 of the Leadership Code Act which emphasises substantive justice - the observance of the principles of natural justice.

The proceedings conducted by the Inspectorate may be informal and irregular in as far as technicalities in procedure are concerned, but must nevertheless observe the principles of natural justice. And the most important aspect of the doctrine of natural justice is the right to a fair hearing.

In a nutshell once the IGG embarks on an inquiry into the breach of the leadership Code Act, which may end up in dismissal or removal of a person from office the provisions of s. 19, 23 and 26 of the Act come into play. The process cannot merely be an investigation. It has to be an inquiry which inevitably has to be judicial or quasi judicial in nature so that the provisions of Article 44 (c) of the Constitution can be complied with.

In other words the rules of natural justice have to be observed in which the person under inquiry is given a fair hearing. This can only be achieved if a party is given an opportunity to hear witnesses giving evidence prejudicial interests and is afforded an opportunity to his to controvert such evidence by way of cross-examination and to present his defence.

In the instant case Mr. Vincent Kasuja counsel for the $\textbf{1}^{\text{st}}$ Respondent contended that the applicant was afforded a He stated that the allegations against the hearing. Applicant were brought to his attention and that his response to the allegations are contained in the statement he made as per Annexture "B" to Baku's affidavit.

Counsel then went on to explain the procedure that was followed which I will set out in full as follows. Counsel $\textbf{1}^{\texttt{st}}$ told court that allegations were lodged with the IGG carried out investigations Respondent. The bv interviewing several people who knew about the allegations and they recorded their statements. They accessed various documents through the people interviewed. Most of the people interviewed were from the $2^{nd}$ respondent. Different documents were accessed including those in the company Registry.

After collecting all this evidence the IGG evaluated it. Then the Applicant was interviewed by the investigating officers on the allegations made against him. He was presented with the allegations that from arose the investigations and he responded to them in his statement (Annexture "B"). Thereafter the investigating officer

wrote a brief to the IGG. Finally the IGG made the report containing the recommendations.

He further clarified to court that the IGG determines the procedure to be followed during investigations and depending on the facts of each case.

That in this case some statements were made on oath but not in the presence of the applicant.

I have no difficulty in finding that what happened in this case was not an inquiry envisaged under the leadership Code Act as discussed above.

Here the IGG carried out investigations from which certain allegations against the applicant were disclosed. The Applicant was requested to respond to them. He did so by way of an interview conducted by officers of the $1$ st Respondent - see Annexture "B" to Baku's affidavit. He opened his statement by saying "That I have been presented with five questions..." Then he went on to make his statement.

In other words what happened in this case is that the $1^{\rm st}$ carried Respondent out investigations by recording statements from various people. Thereafter took $\overline{a}$ statement from the Applicant in light of what the statements had disclosed.

In my view this is the normal and usual method of carrying out investigations whereby statements are recorded from intended witnesses and thereafter the investigator obtains a statement from the person being investigated.

In the instant case the said formal investigations could have formed good raw material for a subsequent inquiry under the Leadership Code Act in the manner disclosed above.

I must hasten to state that an inquiry under the Leadership be preceeded by any formal not Code Act need investigations. The procedure being informal, witnesses can be examined and cross examined as they came without the equivalent of prior police statements.

Further the investigations which the $1^{\rm st}$ Respondent carried out could also have been useful raw materials for a decision to institute criminal proceedings as was the case, when the applicant was charged with abuse of office and causing financial loss in the Chief Magistrate's Court at Buganda Road Court.

Further still with such investigations the IGG could even have recommended to the authorized person, in this case, the Jinja Municipal council to decide on whether to remove their Mayor. In that case the council would have debated the allegations revealed by the investigations and arrived at a decision one way or the other.

In all the above decisions the applicant would have had no reasons to challenge the IGG's report on grounds of bias, lack of fair hearing or otherwise.

is because his right to a fair hearing would be This accorded to him during an inquiry if the IGG chose to

proceed that way or during court if the inspectorate decided to institute criminal proceedings.

If on the other hand the IGG recommended the authorized person to take action, the applicant would have had an opportunity to present his case before the Council.

Unfortunately, in the instant case, the IGG treated completion of her investigation as if it were completion of an inquiry under the leadership Code Act as provided for under ss. 18, 19 and 23.

But upon completion of the investigations the IGG could not proceed under s. 19 (1) and direct the Jinja Municipal Council to remove the applicant from office no matter how thorough and inculpating the investigations could have been.

Such recommendation is only possible after completion of an inquiry. Section 19 (1) provides that upon completion of an inquiry the Inspector General shall communicate his or her decision to the authorized person to implement. The authorised person must implement the decision within 60 days of receipt of the report.

In treating her investigations as completion of an inquiry the IGG made a serious error with the results that the applicant was unfairly treated.

The function of the court in Judicial Review is to see that lawful authority is not abused by unfair treatment and that the rules of natural justice are observed.

Again quoting from Lex Uganda Advocates & Solicitors (supra):

"Article 42 of the 1995 Constitution ........... made the right to a just and fair hearing constitutional by ensuring that any person appearing before an administrative official or body had a right to be treated fairly and justly, and to apply to a court of law in respect of any administrative decision taken against him. Further Article 44 states that there shall be no derogation from the enjoyment of the right to fair hearing."

In the instant case the applicant was not fairly and justly treated. The process followed by the 1st Respondent denied him a fair hearing, which he was entitled to under the Leadership Code Act. His response to the allegations raised against him (annexture "B" to Baku's affidavit) did not constitute a fair hearing. It was merely a statement solicited by the Inspectorate in an interview conducted by its officers. It part and parcel of was its investigations. It cannot be regarded as evidence in his defence.

For the above reasons I allow this application. An order of certiorari shall issue quashing the IGG's report of $17/12/08$ and the recommendations made therein.

The $2^{nd}$ Respondent's resolution of 19/1/09 removing the Applicant from his office as Mayor of Jinja Municipal had no legal basis. It was null and void. The Applicant is still the Mayor of the $2^{nd}$ Respondent.

During the hearing of this application counsel for the $2^{nd}$ Respondent indicated that the Applicant was suspended or

interdicted. If that be the case, such suspension or interdiction was null and void. It was of no legal effect for the reasons already given above.

There was a prayer for general damages. The damages awarded to him shall be the equivalent of the loss of his remuneration as a Mayor, which he was entitled to, but was denied during the time he has been out of office.

I decline to issue an order of prohibition. This prerogative order of court looks into and operates in the future. But the acts complained of in the application are matters of the past.

This is not an appropriate case in which the hands of the Respondents should be tied by an order prohibiting its future actions in respect of the Applicant.

On the issue of costs I find that the whole mess was caused by the $1^{st}$ Respondent. The $2^{nd}$ respondent merely succumbed to the intense pressure exerted on them by the $1$ st Respondent.

Consequently the applicant's costs of this Application shall solely be met by the 1st Respondent. Order accordingly.

V. T. ZĚHURIKÍ **JUDGE** $8/9/09$