L'Okucha Emoru v Attorney General (Constitutional Petition 5 of 98) [1999] UGCC 2 (30 March 1999)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGANDA

#### AT KAMPALA

CONSTITUTIONAL PETITION NO. 5/98

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CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A., HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A., HON. MR. JUSTICE J. P. BERKO, J. A., HON. MR. JUSTICE A. TWINOMUJUNI, J. A. & $\sqrt{}$ HON. LADY JUSTICE C. B. N. KITUMBA, J. A.

VINCENT L'OKUCHA EMORU....................................

#### **VERSUS**

THE ATTORNEY GENERAL................. RESPONDENT

# JUDGMENT OF HON. JUSTICE J. P. BERKO:

Mr. Vincent L'Okucha Emoru, the Petitioner, is an advocate of some standing. He represented Lira Municipal Council in Lira Miscellaneous Application No. 4 of 1997 between Lira Municipal Council and National Housing and Construction Corporation (the , Complainant). The Suit was a summary warrant taken by the Lira Municipal 30 Council to recover rates from the complainant. The Chief Magistrate found that the complainant was liable and entered judgment against it in the sum of Shs. $1,414,026/=$ with interest and costs which were taxed and allowed in the sum of Shs. $4,385,555/=$ .

The complainant's motor vehicle was attached and advertised for sale by Court Brokers. In the meantime the complainant, who were dissatisfied with the quantum of costs as assessed, instructed Ms. Ssawa, Mutaawe and Company Advocates to appeal against it. The appeal was filed on the 13th May, 1997 in the High Court and was registered as Misc. Appeal No. 51 of 1997.

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On the 21st day of May 1997, the complainant deposited in the High Court, Kampala, Shs. $4,500,000/=$ as Security for the appeal and paid the decretal amount separately. The Registrar of the High Court informed the Chief Magistrate by a letter dated 22/5/97 of the appeal against the cost awarded and the fact that the amount awarded had been deposited in the High Court. The letter further directed a stay of execution in respect of the cost awarded. It further directed the Court Bailiffs to release the vehicle that was attached and to file their bill of costs for The Court Bailiffs were paid Shs. taxation. $900,000/=$ and they released the vehicle. The same letter requested the Chief Magistrate to forward the original file to the High Court.

some delay in forwarding the There was original file from Lira. In the meantime, the $20$ Petitioner applied for the transfer of the order to Mengo Court for execution.

$14^{\rm th}$ day of August 1997, the the On Petitioner initiated Garnishee Proceedings in the Chief Magistrate's Court Mengo under Misc. Application No. 162 of 1997 to attach the complainants' Account at the Uganda Commercial Bank Ltd at Crested Towers Branch alleging that the complainant had failed to pay the costs awarded.

The complainants, through their advocates, complained to the Disciplinary Committee of the Law Council that the Petitioner committed professional misconduct when he deliberately misled the court in Mengo that the complainant owed his client money and that he had to resort to Garnishee proceedings to recover that amount.

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The Petitioner was informed of the complaint by the Secretary to the Law Council by a letter dated $9/9/97$ . The letter of complaint and annextures were sent to Petitioner and he was

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asked to comment on the several allegations of professional misconduct contained in the complaint within 14 days. The Petitioner's first re-action to the complaint is contained in his letter of $19/9/97$ to the Secretary of the Law Council. In that letter he complained about the involvement of Mr. Godfrey B. Mutaawe in the matter which, according to Petitioner, was contrary to regulation 8 of the Advocates $10$ (Professional Conduct) Regulations, as Mr. Mutaawe was a potential witness. On the 15/10/97 the Petitioner sent to the Secretary of the Law a detailed answer to allegations Council contained in the complaint.

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The Petitioner was eventually informed by the Law Council that a prima facie case of a professional misconduct has been established against him and was summoned to appear before the $2nd$ February, 1998 for the Committee on the $20$ of the complaint. Attached to the hearing charge sheet containing the Summons was $\overline{a}$ following four counts:

- Misleading Court, contrary to S. Count I: $73(1)(b)$ of the Advocates Act, - Count II: Acting fraudulently or improperly, contrary to S. $73(1)(K)$ of the Advocates Act, - Including in affidavit matters which Count III: are known by the Advocate to be false, and - Misleading Court by remaining silent Count IV: a matter within about Advocates knowledge, contrary to Regulation 16(1) of Advocates (Professional Conduct) Regulations, 1977.

the $1/4/98$ the Petitioner filed this $On$ Constitutional Petition No. 5 of 1998 for declaration under Article 137 of the Constitution

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and The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992: Legal Notice No. 4 of 1996, alleging:-

- (a) that the Advocates Act, Act 22 of 1. 1970 inconsistent with the is Constitution for: - In Section 18, 19, and $73(2)$ it $(i)$ the Disciplinary empowers Committee to act on Criminal charges against an advocate without prior determination of Criminal responsibility in proper Criminal proceedings and without the attendant due process quarantees in articles $28(1)$ , 28(3) 42, 43, 44 and 128(2) of the $28(3)$ Constitution, - $(ii)$ It permits, in S. 18 and S. 19, the Disciplinary Committee, in respect of complaints against the Advocates to investigate the complaint, decide whether there is a prima facie case, take $\overline{a}$ decision to prosecute and have the same committee hear and determine the complaint contrary to articles 28(1), 43 and article 44 of the Constitution, - (iii) creates in S. $73(2)$ the It undefined offence of improper conduct and fails in S. $19(4)$ and $S$ . $73(2)$ to provide exact penalties for defined offences contrary to article $28(12)$ of the Constitution, - $(iv)$ In S. $25(3)$ of the Advocates Act, the right of appeal from the decision of the Committee is only limited to the High Court contrary

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to articles $40(2)$ , 42, 43, 50(1), $50(3)$ and $21(I) \qquad \text{of}$ the Constitution,

- (b) That regulations 3, 4, 5, 6 and 7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 $S$ . 79 1 which carry into effect what is complained of in $a(ii)$ above are incompatible with articles 28 $(1)$ . $28(3)(a)$ . $42, \quad 43$ and 44 of the Constitution. - (c) That the Disciplinary Committee acting on authority of the Advocates Act and aforesaid regulations investigated a complaint against the petitioner which includes criminal charges, found a prima facie case against him, decided to have him prosecuted and has now summoned the petitioner to be tried before it on the same charges. - Your petitioner states that:-2. - $(a)$ To have him prosecuted for criminal charges before the Disciplinary Committee before the courts of law have determined his criminal responsibility and without the attendant due process quarantees for every person charged with a criminal offence will violate the petitioner's right to a fair hearing in a court of law enshrined in articles 28, 43 and 44 of the Constitution. It also constitutes unwarranted interference with courts of law contrary to article $128(2)$ . - (b) To have him tried by the same Committee which has investigated, found a prima facie case and taken a decision to prosecute him on the same charges will the contravene petitioner's

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constitutional right to a fair hearing before an independent and impartial tribunal or body envisaged in articles $28(1)$ , 42 and 44 of the Constitution.

- (c) To prosecute him of the offence $of$ "fraud or improper conduct" which is vague, unspecific and undefined, and for offences whose penalty is not defined will be in contravention of the Constitution; article 28(12). - (d) To have him tried under a law that denies him the right to appeal against a decision of a Court of first instance in defence of his right to practice and against criminal charges or findings is inconsistent with articles $42$ , $50(1)$ and 50(3) of the Constitution. - 3. Therefore your petitioner prays that the court may:- - (a) grant a declaration- - $(i)$ that sections $18$ , $19$ , $36$ and $73(2)$ the Advocates Act $of$ are inconsistent with articles $28(3)(a)$ , 42, 43, 44 and 128(2) of the Constitution, - $(i i)$ that S. 18 and S. 19 of the Advocates Act and Regulations 3, 4, 5, 6 and 7 of the Advocates $\frac{1}{2}$ (Disciplinary Committee) (Procedure) Regulations 1974 are inconsistent with articles 28, 43 and 44 of the Constitution, - (iii) that S. $25(3)$ of the Advocates Act is inconsistent with articles $40(2)$ , $42$ , $43$ , $(5)(1)$ , $50(3)$ and $22(1)$ of the Constitution,

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- $(iv)$ that S. $73(1)(k)$ is void for being vague and ambiguous and does not meet the requirements of articles $28(12)$ of the Constitution, - $(v)$ that S. $73(2)$ and $19(4)$ of the Advocates Act contravene article $28(12)$ of the Constitution in failing to provide exact penalties for defined offences, and - (b) grant an order of redress or refer the matter to High Court to investigate and determine an appropriate redress.

The petition was supported by an affidavit deponed to by the petitioner, the relevant parts of which are:

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- 2. On 18/9/1997 I received from the Secretary Law Council a letter of $9/9/1997$ a complaint National Housing & Construction by Corporation against myself, filed by $M/s$ . Ssawa Mutaawe & Co. Advocates. Photocopy of the forwarding letter and the annexed complaint are annexed hereto as "A". - On $3/12/1997$ I received a notification from 3. the Secretary Law Council to the effect that 30 the Disciplinary Committee had found a prima facie case against me and fixing a hearing date $27/2/1998$ for my prosecution before the same Disciplinary Committee Photocopy of the said notice is annexed hereto as "C". - 4. I believe that the Disciplinary Committee having investigated the case against me, having found a prima facie case on all counts and taken a decision to have me prosecuted has lost impartiality and it is not fair that I should be prosecuted before the same Committee. My prosecution before it would offend the rules of natural justice.

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- 5. I am being charged in count 1 of misleading contrary to $S$ . $73(1)(b)$ court of the Advocates Act and Count II with acting fraudulently or improperly contrary to $S$ . $73(i)(k)$ . The two counts constitute criminal offences for which I have not been prosecuted before a court of law and which have not been proved beyond reasonable doubt against me and a conviction found. - 6. The Disciplinary Committee is not a court of which reference law from $\overline{a}$ to $\overline{a}$ Constitutional court can be made when Constitutional questions arise in its proceedings. - 7. The effect of having me prosecuted before the Disciplinary Committee of criminal offences will be to deny me the rights of every person $20$ charged with a criminal offence e.g. the presumption of innocence until proved quilty. In my case the Disciplinary Committee has already found a prima facie case against me on criminal charges. - For the Disciplinary Committee to initiate 8. proceedings or make findings criminal entailing the commission of a crime it will be trampling on my rights which are inherent in criminal proceedings and it will prejudice my right to a fair trial before a court of law and amounts to unnecessary interference with courts of law. - The charge of "fraud or improper conduct" 9. brought against me contains two separate and distinct breaches. The former being criminal in nature and the latter being imprecise for entire penal code and professional the conduct regulations are about improper Improper conduct has not been conduct. defined and there is no fair notice on what kind of improper conduct is criminal.

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- 10. Based on my legal experience and research, I believe that once the professional conduct of a practitioner amounts to a crime it is a matter for the courts to deal with it and once the court has found the practitioner quilty of an offence, then the Disciplinary Committee may proceed to deal with him under For it is only then that the the Act. Committee will leave the rights of a person charged undisturbed, having already been exhausted. - 11. The Advocates Act under which I am being proceeded against denies me the right to appeal beyond the High Court in matters of criminal magnitude and which relate to the right to practice and my livelihood. In that way it denies me the right of access to courts of law. The Advocates Act also excludes the operation of the Evidence Act which has essential safequards for due process and are quaranteed under the Constitution.

In answer to the petition the Attorney General contended that:

- the Advocates Act of 1970 is neither $(i)$ inconsistent with nor contravenes any provision of the Constitution, - 18, 19 and $73(2)$ of the $(i i)$ Sections Advocates Act, merely make provision for the lodging of a complaint against advocate, the service of an the complaint upon the Advocate and the liability determination $of$ his according to law in judicial a proceedings. Sections The are therefore not inconsistent with Articles $28(c)$ $28(3)$ 42, 43, 44, and $128(2)$ of the Constitution,

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- (iii) The Discipline Committee does not investigate an Advocate as such, but receives complaint and gives an Advocate opportunity to study the complaint and reply. The Disciplinary Committee then determines whether proceedings should commence from the pleadings. Sections 18 and 19 of the Advocates Act are neither inconsistent with nor do they contravene Articles 28(1) 43, and 44 of the Constitution, - $(iv)$ Section $73(1)$ clearly defines the offences referred to in Sections 73(2) of the Advocates Acts and S. 19(4) of the Advocates Act prescribes, within the discretion of the Disciplinary Committee, the types of penalties. The provisions are therefore not in conflict with or in contravention of Article 28(2) of the Constitution. - $(v)$ Section of 25(3) of the Advocates Act creates appellate jurisdiction and appellate jurisdiction is a creature of Statute and may be limited by Statute. This Section does not infringe the petitioner's equality before the law, it does not limit him practising his profession from according to ethical and professional standard, it does not preclude him from appealing to the High Court against the decision of the Disciplinary Committee. The decision of the High Court is made final and conclusive. The Section is therefore consistent with and does not in any way contravene Articles No $(2)$ , 42, 43, $50(c)$ , $50(3)$ and 21 of the Constitution. - $(vi)$ The respondent maintains that regulations 3, 4, 5, 6 and 7 of the

Advocates (Disciplinary Committee) (Procedure) Regulations, 1974 are not incompatible with Articles $28(1)$ , $42,$ 43 $28(3)(a)$ and 44 of the Constitution.

- The Disciplinary Committee is $(vii)$ an authorised tribunal with judicial powers and is independent. That it has not interfered with courts of law and has neither violated the rights to a fair hearing of the petitioner under Articles 28, 43 and 44 of the Constitution nor has it contravened article 128(2) of the Constitution. - (viii) The respondent maintained the Disciplinary Committee is an independent and impartial body charged with the duty to regulate and up hold professional ethics and conduct of a special profession. - The respondent maintains the offence $(ix)$ of "fraud or improper conduct" is clear and unambiguous within the code of conduct of Advocates, and - $(x)$ The respondent maintains that the Disciplinary Committee exercises judicial powers from whose orders or decision, an appeal lies to the High Court only as prescribed by law. There is therefore no inconsistency with articles $42$ , $50(1)$ and $50(3)$ of the Constitution.

The respondent prays that the court:

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(a) holds that the Advocates Act and Regulations made thereunder are consistent with the Constitution and (b) dismiss the petition with costs.

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The answer is supported by an affidavit deponed by on Angella Karyabwire of the Attorney General chambers.

The petition is based on two grounds. Each ground contains a number of points. The first point in the argument of counsel on the first ground was that all the counts upon which the petitioner was called upon to defend himself before the Disciplinary Committee are offences $10$ chargeable under the Criminal Code and to have him prosecuted for criminal charges before the committee before the courts of law have determined his criminal responsibility and without the attendant due process guarantees for every person charged with a criminal offence, will violate the petitioners right to fair hearing in a court of law as enshrined in articles 28, 43 and 44 of the Constitution. It also constitutes unwarranted interference with 20 the courts of law contrary to article 128(2) of the Constitution.

parts of Articles 28 The of the Constitution relevant for the issues raised in the petition are: (1) "Article 28(1) in the determination of Civil rights and obligation or any criminal charge, a person shall be entitled to a fair, speedy and public haring before an independent and impartial court $or$ tribunal established by law.

- (2) Nothing in clause (1) of the Article shall prevent the court or tribunal from excluding the press or the public from all or any proceeding before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society. - (3) Every person who is charged with a Criminal offence shall:-

- (a) be presumed to be innocent until proved guilty and until that person pleaded quilty; - $(b)$ be informed immediately in $\overline{a}$ language that the person understands of the nature of the offence: - $(c)$ be given adequate time and facilities for the preparation of his or her defence; - (d) be permitted to appear before the court in person or at the person's own expense, $\boldsymbol{b}\boldsymbol{y}$ $\overline{a}$ lawyer of his or her choice; - (e) ................................. $(f)$ . . . . . . . . . . . . . . . . . . . - afforded $facilities$ $(q)$ be to examine witnesses and to obtain the attendance $of$ other witnesses before the court.

The only clause relevant in article 44 of the Constitution is "the right to fair hearing".

It was the contention of the petitioner that he should first be tried in an ordinary court of law where he would have the Constitutional guarantees enshrined in the above articles and also the right of appeal to the highest court of the land. The learned counsel for Attorney General has tried to demonstrate that the proceedings under the Advocates Act and Regulations made there under are civil proceedings and not criminal proceedings.

my view, the point is of little In importance, because S. $73$ (2) of the

Advocates gives concurrent jurisdiction to committee to deal with the the stated offences. The sub-section provides:

> "73(2) Any advocate who contravenes or fails to comply with any of the provisions of subsection (i) of this section shall quilty $of$ $\boldsymbol{be}$ anv offence and shall alternatively or in addition be liable to proceedings under Section 19 of this Act".

Under the English Medical Act 1956, charges of this nature which are covered by the criminal law are not dealt with under the Act in the first instance but are left to the courts. After convictions have been obtained in the courts disciplinary actions then follow: Thus in the case of Inre A Solicitor [1960] 3 WLR 138, $\overline{a}$ Solicitor was convicted on two charges of 20 The Disciplinary Committee of indecent assault. the Law Society found him guilty of conduct unbecoming of a solicitor and ordered his name to be struck off the Roll of Solicitors.

This was the intention of the Legislatures in Nigeria when they enacted S. 13 of the Medical and Dental Practitioners Act 1963. The Section envisages three types of cases under which the Tribunal can inflict penalties of unprofessional conduct on practitioners.

The Section reads:

$13-(1)$ Where:-

- (a) a registered person is judged by the tribunal to be quilty of infamous conduct in any professional respect; or - a registered person is convicted $(b)$ by any court in Nigeria or elsewhere having power to award

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punishment $\verb|of|$ an offence (whether or not offence an with punishable imprisonment) which in the opinion of the tribunal is incompatible with of medical the status a $or$ dental practitioner, as the case may be; or

> the tribunal may, if it thinks fit, give a direction reprimanding that person or ordering the registrar to strike name off the his relevant register and registers".

In the case of Dr. E. O. A. Denloye v Medical and Dental Practitioners Disciplinary Committee (1968) 1 All. MLR 306, Dr. Denloye was charged and tried before the Disciplinary Committee with offences which were criminal without having him first tried in an ordinary court, the Nigerian Supreme Court made the following observation:

where

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effect

conduct of the practitioner amounts to a Crime; it is a matter for the courts to deal with; and once the court has found the practitioner guilty of an offence, if it comes within the type of cases referred in section 13(1)(b), then the Tribunal may proceed to deal with him under the Act." and held "We have come to the conclusion that the Tribunal was wrong to have proceeded to $\mathop{\mathtt{trv}}\nolimits$ the offences punishable under Criminal Code and the proceedings in that respect are null and void."

the

unprofessional

The Nigerian Supreme Court came to that conclusion because there was no intention that charges that were of criminal nature should be tried at first instance under the Medical and Dental Practitioners Act 1963 by the Tribunal of the Disciplinary Committee. There is no such intention in this country under the Advocates Act. Here an advocates who commits any of the stated offences "shall alternatively or in addition be liable to proceedings under S. 19 of

10 the Act". It is not a condition precedent that there should be criminal prosecution before an ordinary court before an inquiry by the Disciplinary Committee. That would be placing too narrow a limit on that most salutory disciplinary power that the Law Council exercises over advocates under the Act. The object of the Act is to secure that the persons who practice law and are members of the legal fraternity of persons of good character and consist 20 position.

Further the contention of the petitioner has been rendered invalid by the provision of S. 78(2) of the Advocates Act which provides: $78(2)$

"78(2) Any person who commits an offence under this Act shall be liable, whether $or$ $\texttt{not}$ $\boldsymbol{he}$ has been charged with, convicted or acquitted of such offence, to proceedings under Part IV of this Act. $''$

I therefore do not find any merit in the. first point in ground one of the petition.

The next point in ground one is the allegation that the petitioner will be denied a fair and public hearing. Implicit in the concept of fair hearing is a right to be represented by 40 advocate of one's choice, presumption of innocence, and right to speedy trial.

Every advocate of Uganda is an officer of the court and subject to the jurisdiction of the court and that of the Disciplinary Committee of the Law council. (See S. 15 of the Advocates None of the provisions of the Act is $Act.)$ intended to supersede or lessen or interfere with jurisdiction of the courts to deal with the misconduct or offences committed by an advocate during $or$ in the course or relating to, proceedings before the court. (See S. 16 of the $Act)$ .

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Every Tribunal has a right to make rules whereby it will be guided. The rules guiding the committee are contained in the Advocates (Disciplinary Committee) (Procedure) Regulations, 1974 (herein after referred $simply$ as Regulations.

Article $28(3)$ provides that every person $20$ charged with a criminal offence is presumed to be innocent until proved guilty or that person has pleaded quilty. It has been contended on behalf of the petitioner that as he has not pleaded quilty, he is presumed to be innocent. The Advocates Act infringes the petitioner's right to the presumption of innocence in that the committee, acting on the authority of 19(3) of the Act has already found a prima facie case against him. This, according to the petitioner, 30 does not accord with the principle of natural justice.

In my view that complaint is not well founded. When a complaint is received by the committee, they do not just proceed to inflict punishment or impose penalties without giving an opportunity to the advocate against whom $\overline{a}$ complaint is made to attend the inquiry and give an explanation. Before finding whether a prima facie is made the committee furnishes the advocate with a copy of the complaint and any affidavit in support of the complaint and also gives him an opportunity to inspect relevant

documents at least seven days before hearing. Reg. 4 requires the advocate to re-act to the allegation made against him. It is after the receipt of his answer, if any, that the committee decides whether a prima facie is made or not.

I think it is a mistake to regard all these if they were prosecutions with matters as $\overline{a}$ prosecutor and a defendant. It is an inquiry in the course of which it might emerge that there 10 are matters for which the committee may hold the advocate responsible. This procedure does not in any way infringe the principle of presumption of The provisions of S. $19(3)$ of the innocence. Advocates Act are not different from S. 71 of Trial on Indictment Decree, and S. 125 of the Magistrates' Courts Act, 1970, whereby the court is obliged to find whether or not a prima facie case has been established against an accused person at the close of the prosecution evidence $20$ (See Hofni Topacho Ongientho and 2 others $\mathbf{v}$ Uganda Criminal Appeal No. 1 of 1993 (unreported) Supreme Court.

The petitioner also contends that it is not fair to prosecute him of criminal charges without the application of the Evidence Act which applies to all other persons charged with Criminal The offending provision is S. $18(7)$ of offences. the Act which provides that the Evidence Act shall not apply to proceedings before the A short answer can be found in the committee. following statement of the Nigerian case of Medical and Dental Practitioners Denloye $\boldsymbol{\mathrm{v}}$ Disciplinary committee cited (Supra) by the Petitioner himself:

"An inquiry cannot be looked upon as proceedings in court and unless there is a relaxation of the ordinary rules with which the courts are bound, it will be difficult $\verb"in"$ many cases to conduct The object of rule 19 is to inquiry. make it possible to hear in an inquiry

evidence of witnesses material to the issue who under the Evidence Act may not competent witnesses $\boldsymbol{be}$ $\quad\text{and}\quad$ also to admit, for instance, secondary evidence or hearsay evidence in some cases where such evidence is material and will help to arrive at the truth. To rule in favour $of$ Chief William's submission will in many cases destroy the object of **an inquiry".** If rule 19 is replaced by S. 18(7) of the Advocates Act and Chief Williams by Mr. Omoding, the observation is apt. It is interesting to note S. 1334 of the Nigerian Constitution of 1979 which provides:

> "334 Whenever any person is charged With a criminal offence, he shall, unless the charge is withdrawn, be entitled to fair hearing within $\overline{a}$ reasonable time by a Court or tribunal". The above provision is similar article $28(1)$ of our to Constitution.

It was contended that under S. $25(3)$ of the Advocates Act, the right of appeal from the decision of the committee is only limited to the High Court. This was said to be contrary to 30 Articles $40(2)$ 42, 43, $50(1)$ , $50(3)$ and 21 of the Constitution.

Appellate jurisdiction is a creature of Statute. The Disciplinary Committee is creature of statute and any power it has must be derived from statute. The appeal from its decision goes to the High Court consisting of three judges (S. $25(1)$ . The decision of the High Court is made final and conclusive and shall not be subject to appeal to any other court $(25(3)$ of the Advocates In my view this is a "self-contained Act. statute" (Regina v Pembrokeshire Justices, Exparte Bennell [1969] 1 Q B 386) regulating

appeals. Article $50(3)$ of the Constitution provides:

> "50(3) Any person aggrieved by any decision of the court may appeal to the appropriate court". The High Court is the "appropriate court" given by the Statute. As was said in the case of In Re the Solicitor [1934] 2 KB 467 "An appeal is never given except bv **Statute".** There is no inherent right to appeal to the highest court. I find nothing in the Advocates Act which is inconsistent with the Constitution.

the result I have found that In the provisions Sections 18, 19 and $173(2)$ of the Advocates Acts and the regulations made there under are not inconsistent with articles 21, $28(1)$ , $28(3)$ , $42$ , $43$ , $44$ , $50(1)$ , $5(3)$ , and $128(2)$ of the Constitution. Ground one of the petition therefore fails.

The substance of the second ground is that the Advocates Act Sections 18, and 19 permits the Disciplinary Committee in respect of complaints against an advocate to investigate the complaint, decide whether there is a prima facie case, take a decision to prosecute and have the same committee hear and determine the complaint. This 30 is said to be contrary to articles $28(1)$ , 43 and 44 of the Constitution. In other words, the Disciplinary Committee acts as a prosecutor, investigator and a judge at the same time. Bv performing all the above functions, it was

contended, the committee has lost impartiality and it is unconstitutional for the same committee to hear and determine the complaint.

Of course, the rule is very plain that no man 40 can be plaintiff, or prosecutor, in an action and at the same time sit in judgment to decide in $\mathbf{v}$ that particular case:- See Lesson General ### Council of Medical Regulation and Education (1890) 43 Ch. D. 366.

To my mind the Disciplinary Committee, in respect of the complaint, were acting judicially (S. 18(6) of the Advocates Act.) They were not however, in the ordinary sense judges, but they had to decide judicially as to whether or not the complaint against Mr. Vincent Emoru was well founded, and they could, if they found it well founded, make an order which would be of great importance to him and may order:

- (a) that he should be admonished, or - (b) be suspended from practice for a period not exceeding two years; or - (c) his name be struck off the Roll, or - $(d)$ impose a fine,

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(e) him to pay compensation to any person who has suffered loss as result of his misconduct: See S. 19(4).

These orders have serious consequences. But then we have to consider this. Ought the members of the Committee or any of them to be considered as complainants in this case?

This complaint was brought by the National Housing and Construction Corporation to which none of the members of the committee belong. 30 They did not exercise any control or gave any directions as to what should be done by the corporation in bringing forward this complaint. The corporation had their own advocates who presented the complaint. Then, are they, in any way, interested in the out come of the complaint? such suggestion has been made by the No petitioner and the evidence does not disclose any. Therefore the members of the committee, who have nothing to do and can have nothing to do 40 with bringing forward this complaint, cannot be treated as prosecutor or as persons who are bringing forward the complaint. Therefore it cannot be said that the members of the committee

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are incompetent to act because they are adjudicating upon a complaint brought forward by themselves, and I have already shown, there can be no pecuniary interest and no bias in that respect.

This case is clearly distinguishable from the v Gaisford [1892] 1 Q B 381 cited by the Queen learned counsel for the petitioner. The facts were that at vestry meeting summoned by the 10 District Surveyor to consider (inter alia) the obstruction of a highway, by the defendant, who had deposited and left a heap of earth and manure by the side of the highway, a justice of the peace moved a resolution calling upon the defendant to remove the heap. The defendant having failed to remove the heap, a summons was taken out against him by the District Surveyor for depositing the heap to the obstruction and annoyance of the highway, and for failing to $20$ remove it after notice. The justice who moved the resolution, and who was a ratepayer of the parish, sat and adjudicated with another justice upon the summons, and made an order directing that the heap to be removed and sold and the proceeds of sale to be applied to the repair of the highway.

defendant brought an application of The certiorari to bring up and quash the order made 30 by the Justices.

It was held that the justice was disqualified from adjudicating upon the summons, for the part taken by him in moving the resolution afforded ground for reasonable suspicion of bias on his part, though there might not have been bias in fact, and upon further ground that as a rate payer the Justice was pecuniarily interested in the result of the summons.

Finally, I would like to observe that no criminal trial can be carried out if the judge or magistrate that found a prima facie case against

an accused person were to disqualify himself or herself from further proceedings in the case. A judge who finds, when the evidence of the prosecution has been concluded, that there is sufficient evidence that the accused person committed the offence, does not disqualify himself from continuing with the hearing of the case. The suggestion that the committee that found a prima facie against the petitioner should 10 disqualify itself from further hearing of the complaint, with due respect, appears to me to be absurd.

In the result I find no merit in the second ground.

Accordingly I would dismiss the petition with costs in favour of the respondents.

<table><tbody>DatedatKampalathis........day</tbody> $20$ of....................................

### J. P. Berko Justice of Appeal.

# THE REPUBLIC OF T]GANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA HOLDEN AT KAMPALA

#### HON. MR. JUSTICE G. M. OKELLO, J. A.; HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A; HON. MR. JUSTICE J. P. BERKO, J. A.; HON. MR. JUSTICE A. TWINOMUJNT, J. A., AND; HON. LADY JUSTICE C. B. N. KITUMBA, J. A. CORANI:

## CONSTITUTIONAL PETITION NO. 5 OF 1998

#### BETWEEN

VINCENT L. OKUCHA EMORU::;:::::::::::::::::::;::::::::::::::PETITIONER

ANI)

THE ATTORNEY GEN ERAL: : : : : : :: : :: : : : : : : : : : : : : : : : : : : :: : :: : : : :: :RESONDENT

# JUDGMENT OF G. M. OKELLO J. A.

This petition was brought under article 137, presumably, under clauses I and 3 (a) of the Constitution seeking declaratory orders that certain provisions of the Advocates Act No. 22 of 1970 and certain provisions of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (S I No. 79 of 1974\ made under the Act are inconsistent with certain articles of the Constitution.

The facts, from which the petition arose, as are discernible from the supporting affidavit may be briefly stated as follows:- The petitioner is a practicing advocate of the Courts of Judicature of Uganda. A

complaint was made by National Housing and Construction Corporation to the Disciplinary Committee of the Law Council of Uganda, a body which disciplines Advocates in Uganda, in relation to the petitioner's handling of the case befween the complainant and Lira Municipal Council which was the petitioner's client in the Chief Magistrate's Court of Mengo. On the 9th of September 1997, the Secretary to the Law Council wrote notifying the petitioner of the complaint and seeking his answers. The petitioner responded to the letter on 29th September 1997 and on the I5th October 1997 contesting the complaint.

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By a letter dated 2nd December 1997 the Secretary to the Law Council notified the petitioner that the Disciplinary Committee had found a prima facie case against him and informed him of the hearing date of the complaint to be 27th February, 1998. A copy of the charge sheet showing the offences against him was served on the petitioner. On the appointed date, the hearing of the complaint did not commence. It was adjourned to another date.

The charge sheet served on the petitioner contained four counts as follows:

- (i) Misleading Court contrary to Section 73 (l) (b) ofthe Advocates Act. 22 of 1970. - (ii) Acting fraudulently or improperly contrary to Section 73 ( t ) (k) of the Advocates Act. 22 of 1970.

- (iii) Including in affidavit matters which are known by the advocate to be false. - (iv) Misleading Court by remaining silent about a matter within advocate's knowledge contrary to Regulation l6 (l) ofthe Advocates (Professional Conduct) Regulations 1977.

While the complaint was still pending before the Disciplinary Committee, the petitioner filed this petition on ll4l98. The complaint is still pending awaiting the completion of the hearing of this petition. In the petition, the petitioner prayed for the following declaratory reliefs:-

- (a) Iil That Sections 18, 19, and 73 (2) ofthe Advocates Act are inconsistent with articles 28 (3) (a),, 42, 43, 44 and 128 (2) of the Constitution; - (ii) That Sections l8 and 19 of the Advocates Act and Regulations 3, 4, 5,6, and 7 ofthe Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (Sl No.79 of 1974) are inconsistent with articles 28, 43 and 44 of the Constitution. - (iii) That Section 25 (3) of the Advocates Act is inconsistent with articles 40 (2),42,43, 50(l), 50(3), and 2l(l) ofthe Constitution.

- (iv) That Section 73 (l) (k) is void for being vague and ambiguous and does not meet the regulations of article 28 (2) of the Constitution. - (v) That Section 73 (2) and l9 (4) ofthe Advocates Act contravene articles 28 (12) of the Constitution in failing to provide exact penalties for defined offences. - (b) Grant an order of redress or refer the matter to the High Court to investigate and determine an appropriate redress.

The petition alleges in ground I that the charges brought against the petitioner in Counts I to 4 also constitute criminal offences under the Penal Code and that Sections 18, 19, and 73 (2) of the Advocates Act No.22 of 1970 and Regulations 3, 4, 5, 6, and 7 of the Advocates (Disciplinary Commiffee) (Procedure) Regulations 1974 (Sl No. 79 of 1974) which empower the Disciplinary Committee to act on the complaints amounting to criminal charges against an advocate before the criminal proceedings are first determined by a Court of competent jurisdiction are inconsistent with articles 28 (l), 28 (3),42,43, 44, and 128 (2) of the Constitution.

It was argued that by being tried for such criminal offences before the Disciplinary Committee, the petitioner would be deprived of the

protections guaranteed by those articles of the Constitution to anybody charged with a criminal offence and tried before a court of law of competent jurisdiction. In other words, that the petitioner would be denied a fair hearing guaranteed by article 28 of the Constitution.

The Attorney-General filed an answer to the petition. The answer was supported by an affidavit, which was sworn by Angella Kiryabwire, a State Attorney, on 8/4i98. In the answer, the Attorney-General denied that any of the mentioned provisions of the Advocates Act and the Regulations made under it is inconsistent with any of the mentioned articles of the Constitution or at all. He contended that the offences with which the petitioner has been charged are not criminal offences but civil offences created by the Advocates Act and that therefore the said provisions of the Constitution do not apply to them.

From the above, the imposing question is whether the offences with which the petitioner was charged are criminal or merely civil offences. The offences were set out earlier in this judgment. I deemed it appropriate to determine this issue first before I consider the unconstitutionalify or otherwise of the impugned provisions of the Advocates Act No.22 of 1970 and of the Regulations made under it.

Mr. Madrama, Senior State Attorney who appeared for the Attorney-General defined "crime" to mean an offence against the state/public and the prosecution of which is brought in the name of and at the instance of the state. For authority, he cited Stroud Ju cial Dictionarv t' Edn Vot, I A-C 0.592; Jowitt Dictionarv of E,nslish Law 2'd Edn. Bv John Burke

VoL I A-K o.512: Convbeare Vs The London School Board I189ll lOB lI8 at 120.

A general definition of "crime" as given by Stroud Judicisl Dictionsrv \$vry)-.is:-

> "an act committed or omitted in violation of public law either forbidding or commanding it."

ln Convbeare Vs the Londott School Bosrd (supra) Day J, defined ttcrimett as:

> "an offence against the crown for which an indictment will lie."

Jowitt Dictionaru of the Enslish Law (supra) defines "crime" in this way:-

> "the violation of a right when considered in reference to the evil tendency ofsuch violation as regards the communify at large; an act or default which tends to the prejudice of the community and is forbidden by law on pain of punishment."

The general principles that can be deduced from the above definitions are that "crime" is a violation of a public law to the detriment of the public and is punishable at the instance ofthe state.

Mr. Omoding, learned Counsel for the petitioner, argued that the offences with which the petitioner has been charged are crimes because

the general penalties provided for them under Section 78 of the Advocates act include fines and or imprisonment.

I am unable to agree with this argument. As learned Counsel himself conceded, the types of penalty which the Disciplinary Committee is empowered under Section 19 (4) of the act to impose on an advocate found guilty of a professional misconduct do not include imprisonment. In my view, the offences with which the petitioner has been charged do not fall within the above definition of 'crime'. They are not a violation of public law and the prosecution thereof are not at the instance of the state. I therefore, agree with Mr. Madrama that these offences are civil offences created by the Advocates Act to deal with professional disciplinary cases.

It was argued for the petitioner that the offences with which the petitioner was charged under the Advocates Act also constitute criminal offences under Secfions 89 A, 93, and 97 of the Penal Code Act. Further, that Sections 18, 19, and 73 (2) of the Advocates Act and Regulations 3, 4, 5, 6 and 7 of the Advocates Disciplinary Commiffee (Procedure) Regulations 1974 (S I No. 79174) which empower the Disciplinary Committee to hear and determine the complaints before the criminal liability of the advocate was determined by a court of competent jurisdiction are in consistent with articles 28 (3) (a), 42,43, 44, and 128 (2\ of the Constitution. It was the contention of the petitioner that trial of the advocate for such criminal offences by the

committee denies the advocate the protections guaranteed by those articles to ensure fair hearing to any body tried by an ordinary court of law.

In my view the above argument is untenable for two reasons. Firstly, Section 73 (2) refers to disciplinary offences set out in Section 73 (l). These are not offences against the public at large. They are special offences created by the Advocates Act to discipline Advocates. They are not criminal offences.

Secondly, even if the complaint which constitute those offences under the Advocates Act also constitute criminal offences under the Penal Code Act, Section 73 (2) empowers the Disciplinary Committee to deal with the disciplinary offences set out in Section 73 (l) in accordance with the procedure set out in Section 19 of the Act as an alternative or additiona! means. That means that the Disciplinary Committee has concurrent jurisdiction over those offences with other courts of competent jurisdiction. It follows that the Director of Public Prosecutions (DPP) who is responsible for criminal prosecutions in Uganda can prosecute the offending advocate for the criminal offences before or after the Disciplinary Committee has dealt with the advocate. The jurisdiction of court to deal with misconduct or offences committed by advocate is saved by Section l6 ofthe Advocates Act which reads:-

> "Nothing in this section shall supersede, lessen or interfere with the jurisdiction of any court, inherent or otherwise, to deal with misconduct offences by an advocate or any person entitled to act as such,

> > lt

committed during or in the course of or relating to proceeding before the court,"

Section 78 (2) wrapped up Disciplinary Committee over succinctly in this way: the question of offences under jurisdiction of the Advocates the Act

> "Any person who commits an offence under this Act shall be liable whether or not he has been charged with, convicted or acquitted of such offences, to proceedings under Part IV of this Act."

That gives the Disciplinary Committee concurrent jurisdiction over offences under the Advocates Act with ordinary court of competent jurisdiction.

In re-A Solicitor (l960) 3 WLR IJ 8. asolicitor had been convicted of two charges of Indecent Assault and the Disciplinary Committee having found him guilty of conduct unbefitting a solicitor, ordered his name to be struck off the roll. On appeal, the sentence was reduced to a suspension from practice for two years.

Subsequently the same Solicitor was again convicted, this time, of using insulting behaviour likely to cause a breach of the peace. The Disciplinary Committee again found him guilty of conduct unbefitting a solicitor.

On appeal, the findings of the Disciplinary Committee were upheld but the appellate court held that - mere conviction for any criminal offence was not today prima facie evidence of conduct unbefitting a solicitor.

Our legal position is ahead of that case since under our law an advocate does not have to be tried for a criminal offence before the Disciplinary Committee can deal with him for any Disciplinary offence or any offence under the Advocates Act.

Counsel for the petitioner referred us to the Niserian csse of Denlove Vs Medical und Dental Practitioners Disciplinarv Committee 119681 I ALL Niserian Ltw ReDorts 306 at 312 as authority for the proposition that where a complaint against a professional amounts to a criminal offence under penal law, the criminal proceedings must first be determined by a court of competent jurisdiction. That case is not relevant to our case because in that case the Nigerian Supreme Court was interpreting Section 13 of their Medical and Dental Practitioners Act 1963 which had the intention that criminal offences must first be determined by a court of competent jurisdiction before the Disciplinary Committee can deal with the disciplinary offence against the offending professional. Our Advocates Act 22 of 1970 does not have a similar provision.

The Disciplinary Committee therefore has concurrent jurisdiction with ordinary courts over any offence under the Advocates Act whether it amounts to criminal offence or not.

I now revert to the main issue in ground I which is whether Sections 18, 19, and 73 (2) of the Advocates Act and Regulations 3, 4, 5, 6, and 7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (S I No. 79 of 1974\ which empower the Disciplinary Committee to hear and determine the complaint before the criminal liability of the advocate was determined by an ordinary court of competent jurisdiction were inconsistent with Articles 28 (3) (a), 42, 43,44, and 128 (2) of the Constitution for denying the advocate the right to a fair hea ring.

Before I start considering the impugned provisions of the Advocates Act and of the Regulations made thereunder, it is instructive to point out that it is now settled that the rule of statutory interpretation also applies to Constitutional construction. See Republic Vs E. L. Mann lI969l EA J59. As was held by the Suoreme Court of Canada in the Oueen Vs Bie M. Drus Mort Ltd hther Intervenin'p) 1986 LRC Cortst J-i2 and was adopted by this Court in Solvatori AbuLi and Anor Vs The Attornev General, Constitrttional Case No, 2 of 1997, a Statuto ry provision can be declared unconstitutional where its purpose and or effect violates a right guaranteed by an article ofthe Constitution.

For ease of reference, I reproduce here below the relevant provisions of the Advocates Act:-

> "18(3) for the purpose of enabling the Disciplinary Committee to carry out duties imposed upon it by the provisions of this Act, the committee shall have power to interview and correspond

with such persons including the advocate to whom the complaint relates as it thinks fit. l9 (2), Upon receipt of a complaint, the Secretary to the Disciplinary Committee shall as soon as is practicable refer the same to the Committee and unless the Committee dismisses the complaint under the provisions of the proviso to subsection 3 ofthis Section, it shall fix a date for the hearing of the complaint.

(3) The Disciplinary Committee shall give the advocate against whom the complaint is made an opportunity to appear before it, and shall furnish him with a copy of the complaint and of any affidavit made in support thereof, and shall give him an opportunify of inspecting any other relevant document not less than seven days before the date fixed for the hearing;

Provided that where in the opinion of the Commiftee the complaint does not disclose any prima facie case of professional misconduct, the Committee may at any stage of the proceedings dismiss such complaint without requiring the advocate to whom the complaint relates to answer

any allegations made against him and without hearing the complaint."

It was argued for the petitioner that Sections 18, l9,and 73 (2) of the Advocates Act and Regulations 3, 4, 5, 6, and 7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (S I No. 79 of 1974) which empower the Disciplinary Committee to hear and determine the complaint before the criminal liability of the Advocate was determined by an ordinary court of competent jurisdiction are inconsistent with articles 28 (3) (a), 42, 43, 44, and 128 (2) of the Constitution. The petitioner's reason for the argument was that to be tried by the Disciplinary Committee, the advocate would be deprived of the protections like presumption of innocence, speedy and public hearing guaranteed by those articles to ensure a fair hearing to those tried by an ordinary court.

That argument is untenable because the impugned provisions of the Advocates Act (S.18 (3) and 19 (3) ) and of Regulations 3, 4, 5, 6, and 7 of the regulations made under the Act all show features of a fair hearing. The features of a fair hearing guaranteed by the articles generally are, inter alia, the provision of the accusation, adequate time and facilities to prepare one's defence, right to appear before the court or tribunal, speedy and public hearing and a right to legal representation. These can be found in article 28 ofthe Constitution.

Section 18 (3) empowers the Committee to correspond with such persons including the advocate to whom the complaint relates as it

thinks fit. This is necessary to enable the committee to inform itself to understand the complaint to be able to deal with it. Section 19 (3) enjoins the committee to give the suspect advocate, a copy of the complaint, and all other related documents, opportunity to inspect any other relevant document, and opportunity to appear before it to defend himself. This is necessary to inform the advocate of the complaint against him and to give him opportunity to prepare his defence.

Section l9 (2) entitles the advocate to a legal representation. The above are features of a fair hearing,

The petitioner complained that a ban on the application of the Evidence Act to the trial before the Committee imposed by Section 18 (7) of the Advocates Act was a denial of a fair hearing. With respect' I am unable to agree with that view. Application of Evidence Act to a trial is not necessarily a guarantee of a fair trial. In my view, this ban is necessary to simplify the proceedings in order to reduce technicalities which themselves may be sources of unfair trial.

On the whole, I find that none of the impugned provisions of the Advocates Act and of the Regulations made under it contravene a right to a fair hearing guaranteed by articles 28 and 44 of the Constitution. Articles 42,43 and 128 (2) were wrongly cited as they are not relevant to the petition.

In the result, ground I would fail.

Turning to ground 2, the petitioner complained that Sections l8 and 19 of the Advocates Act permit the Disciplinary Committee in respect of complaint against an Advocate to investigate the complaint, decides whether there is a prima facie case, takes decision to prosecute and to have the same committee to hear and determine the complaint. He contended that the committee having performed the above tasks has lost impartiality in the matter. He argued that for the same Committee to hear and determine the complaint would be contrary to Article 28 (l), 42, and 44 of the Constitution as it would deny the advocate a fair hearing guaranteed by those articles.

For the Attorney General, it was denied that the Committee investigates and takes decision to prosecute such complaint.

Sections 18 (3) and 19 (2) and (3) above are clear. They do not give to the Disciplinary Commiftee such powers as to make it lose impartiality in the complaint brought before it. Section 18 (3) as shown above, enables the committee to communicate or correspond with such persons including the advocate to whom the complaint relates as it thinks fit. This is necessary to enable the committee gets the information it requires to understand the complaint to decide on whether it discloses a prima facie case. Section 19 (2) meanwhile enjoins the Secretary to the Committee to place the complaint before the Committee as soon as it is practicable when he/she receives it. When the complaint is placed before it, the Committee considers it, like a trial judge or Magistrate considers the evidence at the close of the prosecution case, in accordance with Section 7l of the Trial on Indictment Decree (TID) or 125 of the

Magistrates Court Act (MCA) to decide whether there is a prima facie case.

It was argued that this consideration of the complaint by the Committee to decide on whether or not the complaint discloses a prima facie case of a professional misconduct makes the Committee partial and should not hear the complaint. I am unable to agree with that argument. The consideration of whether the complaint discloses a prima facie case is made after the advocate will have been asked to submit his answer to the complaint. This is similar to a trial Judge or Magistrate who considers the evidence at the close of the prosecution evidence to determine whether a prima facie case had been made out against the accused. He does not thereby become partial in the case. I see no reason why the Committee, which does the same, should become partial. I find no merits in that argument.

It was further argued for the petitioner that the committee also takes decision to prosecute the complaint thus making it partial and should not hear and determine the complaint. With respect, I do not agree with that argument. The committee fixes the complaint for hearing when it finds under Section l9 (3) of the Act that the complaint discloses a prima facie case of a professional misconduct, As pointed out earlier, this is done after considering the answer of the advocate together with the complaint and other documents if any present. This is not taking decision to prosecute. Prosecution of the complaint before the committee is a matter for the complaint or his/her advocate (S.18 (2) ).

The petitioner further complained that there is a breach of the Rule ol Natural Justice in the proceedings before the Disciplinary Committee. His argument was that the Secretary to the Committee investigates the complaint and prosecutes it before the Committee. In the petitioner's view, this makes the Committee a judge in its own cause thus denying the advocate a fair hearing. A number of authorities were cited in attempt to support that view.

I do not agree with this argument. Firstly, though it was conceded at the hearing that in practice the Secretary to the Disciplinary Committee prosecutes complaints brought before the Committee, it was also conceded that the Secretary does not have to prosecute the complaints because the parties are enfitled to legal representation. The legal position is therefore that the complainant either personally or through hisiher advocate prosecutes hisiher complaint. (S.18 (2) ).

Secondly, complaint in this case was brought by the complainant but not by the Committee. Thirdly, the Secretary to the Committee is not a member of the Disciplinary Committee. The Secretary is a public officer.

Finally, the petitioner further complained against Section 25 (3) ofthe Advocates Act, which limits the right of appeal from the decision of the Disciplinary Committee to only the High Court. According to the petitioner, this is inconsistent with articles 40 (2\,42,43, 50 (l), 50 (3) and 2l (1) of the Constitution because it prevents the petitioner from appealing to the highest Court in the land.

l1 The Attorney General responded that Section 25 (3) of the Advocates Act is not inconsistent with any of those mentioned articles of the Constitution. His argument was that appellate jurisdiction is a statutory matter. That there is no inherent appellate jurisdiction.

I agree with Counsel for the Attorney General that appellate jurisdiction is a creature of statute. That is the law.

Itr Attornev General Vs Shah I197IL EA 50, the High Court of Uganda made an order of mandamus against two officers of the government. On appeat try the Attorney General, the respondent raised an objection arguing that the Court ofAppeal had no jurisdiction to hear the appeal. The Court of Appeal in a unanimous decision upheld the objection reasoning that appellate jurisdiction was solely created by statute and that there was no inherent appellate jurisdiction. The appeal was accordingly struck out.

In the instant case, parliament in its wisdom prescribed the appellate jurisdiction from the decision of the Disciplinary Committee to stop at the High Court sitting in a coram of three Judges. This is not contrary to any provision of the Constitution' Even Article 50 (3) of the Constitution does not provide that any person aggrieved by any decision of the Court may appeal to the highest court in the land. It provides that "may appeal to appropriate court." In the instant case, High Court sitting in a coram of three judges is the appropriate court.

Section 25 (3) of the Advocates Act 1970 is therefore, in my view, not inconsistent with articles 40 (2), 42, 43,50(l)' 50 (3) and 2l (l) of the Constitution. This ground would also fail.

For the reasons given herein above I would dismiss prayers (i), (ii)' and (iii) above.

At the hearing, the petitioner did not pursue prayers No. (iv) and (v). I would this dismiss them too. Following the dismissal of prayers (i)' to (v) above, I would consequently dismiss prayer (b).

In the result, I would dismiss the petition with costs in favour of the respondent. As all the other four Justices also concur in their conclusions, the petition is dismissed on that term.

Dated at Kampala this day of 1999.

G. M. OKELLO JUSTICE OF APPEAL.

## IN THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

HON. MR. JUSTICE G. M. OKELLO, JA CORAM: HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE J. P. BERKO, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

### CONSTITUTIONAL PETITION NO.5 OF 1998

#### BETWEEN

$\ldots$ PETITIONER VINCENT L'OKUCHA EMORU ...............

AND

ATTORNEY GENERAL ............................ RESPONDENT

## JUDGMENT OF JUSTICE C. N. B. KITUMBA, JA

Vincent L'Okucha Emoru, an advocate of the Courts of Judicature filed this Constitutional Petition in this Court under Article 137 of the Constitution, and the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992: Legal Notice 4/96, seeking for a declaration that some provisions of the Advocates Act 1970 and some of the Regulations of the Advocates (Disciplinary Committee) Procedure Regulations 1974 made under the Advocate Act are inconsistent with certain provisions of the Constitution.

The facts which led to filing of this petition are briefly as follows: A complaint was made to the Disciplinary Committee of the Law Council by Ms Ssawa Mutaawe and Company Advocates, on behalf of

$\mathbf{1}$

their client, National Housing and Construction Corporation, about the way the petitioner handled Miscellaneous Application No.162/97 in the Chief Magistrates Court of Mengo. On the 9th of September 1997 the Secretary Law Council, wrote to the petitioner informing him of the complaint against him and seeking for his explanation. The petitioner contested the complaint made against him in two letters to the Secretary of the Law Council, one dated 29/9/1997, and another dated $15/10/1997$ . The petitioner in a letter dated 2/12/1997 was informed by the Secretary Law Council, that a prima facie case had been found against him by the Disciplinary Committee and that the complaint against him would be heard on 27/2/1998. However, the hearing was adjourned to $3/4/1998$ . The petitioner was served with a charge sheet containing four counts.

$\mathbf{L}$

- Misleading Court contrary to S.73(1)(b) of the Advocates Act. $\frac{1}{2}$ 1. - Acting fraudulently or improperly contrary to $S.73(1)(k)$ of $2.$ the Advocates Act. - Including in affidavit matters which are known by the advocate 3. to be false. - Misleading Court by remaining silent contrary to Reg. 16(1) of 4. the Advocates (Professional Conduct) Regulations 1977.

The petitioner filed this petition to this Court alleging the following:

- that the Advocates Act, Act 22 of 1970 is inconsistent $(a)$ $"1.$ with the Constitution for:- - In sections 18, 19, 31 and 73(2) it empowers the $(i)$ Disciplinary Committee to act on criminal charges against an Advocate without prior determination of criminal in responsibility proper criminal proceedings and without the attendant due process guarantees in articles 28(1), 28(3), 42, 43, 44 and 128(2) of the Constitution.

- (ii) It permits, in S.18 and S.19, the Disciplinary Committee, in respect of complaints against the Advocates to investigate the complaint, decide whether there is a prima facie case, take a decision to prosecute and have the same committee hear and determine the complaint contrary to articles $(28(1), 43$ and article 44 of the Constitution. - iii) It creates in $S.73(2)$ the undefined offence of improper conduct and fails in S.19(4) and S.73(2) $\frac{1}{2}$ to provide exact penalties for defined offences contrary to article $28(12)$ of the Constitution. - (iv) In S.25(3) of the Advocate Act, the right of appeal $($ from the decision of the Committee is only limited to the High Court contrary to articles $40(2)$ , 42 43, 50(1), (50(3) and 22 (i) of the Constitution. - That regulations $3,4,5,6$ and 7 of the Advocates $(b)$ (Disciplinary Committee) (Procedure) Regulations 1974 S. I. 79 which carry into effect what is complained of in (a) (ii) above are incompatible with the Constitution articles $28(1)$ , $28(3)(a)$ , $42$ , $43$ and $44$ . - That the Disciplinary Committee acting on authority of $(c)$ the Advocates Act and aforesaid regulations investigated complaint against the petitioner which includes $\overline{a}$ criminal charges, found a prima facie case against him decided to have him prosecuted and has now summoned the petitioner to be tried before it on the same charges. - Your petitioner states that:-2.

$\sim$

- To have him prosecuted for criminal charges before the $(a)$ Disciplinary Committee before courts of law have determined his criminal responsibility and without the attendant due process guarantees for every person charged with a criminal offence will violate the petitioner's right to a fair hearing in a court of law enshrined in articles 28, 43 and 44 of the Constitution. It also constitutes unwarranted interference with courts of law contrary to article 128(2). - (b) To have him tried by the same Committee which has investigated, found a prima facie case and taken a decision to prosecute him on the same charges will contravene the petitioner's constitutional right to a fair hearing before an independent and impartial tribunal or body envisaged in articles $28(1)$ , $4\overline{2}$ and $44$ of the Constitution.

- To prosecute him of the offence of "fraud or improper $(c)$ conduct" which is vague, unspecific and undefined, and for offences whose penalty is not defined will be in contravention of the Constitution; article 28(12). - To have him tried under a law that denies him the right $(d)$ to appeal against a decision of a Court of first instance in defence of his right to practice and against criminal charges or findings is inconsistent with articles 42, $50(1)$ and $50(3)$ of the Constitution. - $3.$ Therefore your petitioner prays that the court may:- - $(a)$ grant a declaration -

$\mathbf{1}$

- That sections 18, 19, 36 and 73(2) of the Advocates $(i)$ Act are inconsistent with articles $28(3)(a)$ , $42$ , 43, 44 and 128(2) of the Constitution. - (ii) That S.18 and S.19 of the Advocates Act and Regulations 3,4,5,6 and 7 of the Advocates (Disciplinary Committee) Regulations 1974 are inconsistent with articles 28, 43 and 44 of the Constitution. - iii) That S.25(3) of the Advocates Act is inconsistent with articles $40(2)$ , $42,43$ , $50(1)$ , $50(3)$ and $22(1)$ of the Constitution. - (iv) That $S.73(1)(k)$ is void for being vague and ambiguous and does not meet the requirements of articles 28(12) of the Constitution. - (v) That $S.73(2)$ and $19(4)$ of the Advocates Act contravene article $28(12)$ of the Constitution in failing to provide exact penalties for defined offences. - grant an order of redress or refer the matter to High $(b)$ Court to investigate and determine an appropriate redress."

The petitioner swore an affidavit in support of his petition. In the affidavit, he deponed to on 31st March 1998, he repeated the history of the whole case and in paragraph 9 of the affidavit stated that the Disciplinary Committee is not a court of law from which a reference to the Constitutional Court could be made when a

$\overline{4}$

constitutional question arises in the proceedings. This explains why he filed this petition in this Court before the Disciplinary Committee commenced trial.

The respondent made an answer to the petition as follows:-

$\mathcal{A}^{\mathcal{A}}$

- in reply to paragraph (a) of the petition, the 1. "That Respondent shall maintain that, the Advocates Act, Act 22 of 1970 is not inconsistent with, neither does it contravene any provision of the Constitution. - In reply to paragraph $1(a)$ (i) of the petition, the Respondent 2. maintains that sections 18,19,31 and $73(2)$ of the Advocates Act, merely make provision for the lodging of a complaint against an Advocate, the service of the complaint upon the Advocate and the determination of his liability according to The above sections the law in a judicial proceeding. therefore are not inconsistent with Articles 28(1), 28(3), 42, 43, 44 and 128(2) of the Constitution. - In reply to paragraph 1(a) of the petition, the Respondent 3. maintains that the Disciplinary Committee does not investigate an Advocate as such, but receives a complaint and gives an Advocate opportunity to study the complaint and reply. The Disciplinary Committee then determines whether proceedings should commence from the pleadings. Sections 18 and 19 of the Advocates Act are not inconsistent with or do not contravene Articles 28(1), 43 and 44 of the Constitution. - reply to paragraph $1(a)(iii)$ of the petition, the 4. In Respondent avers that section 73(1) clearly defines the offences referred to in sections 73(2) of the Advocates Act and section 19(4) of the Advocates Act prescribes, within the discretion of the Disciplinary Committee, the types of penalties. The provisions are therefore not in conflict with or in contravention of, Article $28(12)$ of the Constitution. - In reply to paragraph $1(a)$ (iv) of the petition, the Respondent 5. maintains that sections 25(3) creates appellate jurisdiction and appellate jurisdiction is a creature of statute and may be limited by Parliament. Section 25(3) of the Advocates Act does not infringe the petitioner's equality before the law, it does not limit him from practising his profession according to ethical and professional standard, it does not preclude him from applying on appeal to the High Court from a judicial proceeding neither does it limit him from appealing to the High Court which is the appropriate Court. It is therefore

consistent with and does not in anyway contravene Articles, $40(2)$ , 42, 43, 50(1), 50(3) and 22(1) of the Constitution.

In reply to paragraph $1(b)$ of the petition, the respondent $6.$ maintains that the regulations $3, 4, 5, 6$ and 7 of the Advocates (Disciplinary Committee) (Procedure) 1974 are not incompatible with articles $28(1)$ , $28(3)(a)$ , $42,43$ and $44$ of the Constitution.

$\cdot$

- In reply to paragraph $2(a)$ of the Petition, the Respondent shall maintain that the Disciplinary Committee is an authorised tribunal with judicial powers and is independent. 7. That it has not interfered with Courts of Law and has neither violated the right to a fair hearing of the petitioner, under articles 28,43 and 44 of the Constitution nor has the Disciplinary Committee contravened article 128(2) of the Constitution. - In reply to paragraph $2(b)$ of the Petition, the Respondent 8. maintains that the Disciplinary Committee is an independent and impartial body charged with the regulation and upholding of professional ethics and conduct of a special profession. - In reply to paragraph $2(c)$ of the Petition, the Respondent 9. maintains that the offence of "fraud or improper conduct" is clear and unambiguous within the code of conduct of Advocates. - In reply to paragraph $2(d)$ of the Petition, the respondent 10. maintains that the Disciplinary Committee exercises judicial powers from whose orders or decisions, an appeal lies to the High Court only as prescribed by laws. There is therefore no inconsistency with articles $42,50(1)$ and $50(3)$ of the Constitution."

The answer to the petition was supported by the affidavit of State Attorney, Angela Kiryabwire. In her affidavit, she repeated the history of the petition as contained in the answer and maintained that the petitioner had the opportunity to reply to charges against him which charges were defined and penalties stipulated by the written law. She emphasised the impartiality and independence of the Disciplinary Committee. She maintained that regulations of professional and ethical standards refer to only those members of the profession and article 22 of the Constitution which refers to equal treaEment. before Ehe law must be understood in such terms. She further maintained EhaE t.he proceedj-ngs againsE the practj. Eioner according to the provisions of Advocates Act, AcL 22 of 1970 and Ehe (Disciplinary committsee) (Procedure) , Regulations were noE in contravention of ArEicles 28,42,43,50(1) ,50(3\, 22(l) and l-28 of Ehe Consti,Eution.

AE the hearing of Ehis petiE.ion boch counsel presented written submissions. However, because of the .imporEance of Lhe maEtser, this Court directed Ehem Eo make oral submissions.

Mr. omoding, learned counseL for Ehe peEiEioner, submitted that t.he charges against the practitioner were crimj-naI offences and the proceedings before Ehe Disciplinary committee are deemed to be judicialproceedingsforthepurposesofChapterxlofE'hePenal code. In view of Ehat he contented Ehat it was unconsE iEuE ional for Ehe Di.sciplinary Committee of Ehe l-,aw council Eo hear and deEermine lhose charges before the cIi.minal courts had done so. Mr. omoding argued Ehat ArEicle 28 of the consEitution provides guaranEees for a faj-r hearing for a person who is charged wit'h a criminal offence. Besides, hearing the charges by the Disciplinary commitEee was undue interference wj,th courts which is contrary t.o Artsicle :.28 (2) of the ConstituEion. Mr. Omoding further contended that., section L8(7) of the Advocates Act provides Ehat Ehe Evidence Acts does not apply to Ehe proceedings before the Disciplinary CommiEtee, which in his view was a bar to a fair hearing'

Mr. Madrama, learned Counsel for Ehe respondent, mainEained the position which was sEat.ed in the answer to the petition that none of provisions contained in the Advocat.es AcE and in tshe Regulations made t.hereunder were inconsistent or contravened any arEicle of the Constitution. He submitted thaE Ehe proceedings againsE the petitioner were noL criminaf. The offences were of a civil nature and were " disciPTinary offences by Advocates. "

I agree with Ehe submission of Mr. Madrama that the offences which the peEiEioner was charged with were civil offences. Besides, section 7? of the Advocates AcE gives jurisdicEj'on to the Chief MagisErates CourE. and Magistrate Grade I to t.ry offending Advocates for criminal offences and there are a number of such offences created in ParE IV of Ehe AdvocaEes AcE. For Ehose offences or any other crime which are deemed Eo amount Lo unprofessional conduct, an advocaEe may be Eried by Ehe Disciplinary Commi[tee before commencement. of t.he criminal t.rial in the ordinary court ' SecE'ion 78(2) of the Advocates AcE provides:

"Any person who commiE.s any offence under this AcE sha11 be liable, wheEher or not he has been charged with, convicted or acquit.ted of such offence Eo proceedings under ParE IV of this

Section 7312) of tshe Advocates Act too gj-ves concurrent jurisdiction to t.he Disciplinary Committee and as well as the criminal courts when discipl-inary offences are commj-EEed by

I Advocates.

$\cdot$

Section 73(2) provides -

"Any advocate who contravenes or fails to comply with any of the provisions of subsection (1) of this section shall be guilty of an offence and shall alternatively or in addition be

liable to proceedings under S.19 of this Act." Clearly sections 78(2) and 73(2) give concurrent jurisdiction to the Disciplinary Committee and to the ordinary criminal courts and do not specify that the criminal trial must precede the trial by the Disciplinary Committee.

The authority of Denloye v. Medical and Dental Practitioners Disciplinary Committee 1968 1 All p.306 relied on by Mr. Omoding is not applicable to this case. The Advocates Act gives concurrent jurisdiction to the Disciplinary Committee and to the criminal In the Nigerian case, criminal offences had to be court. prosecuted in the ordinary courts before the Disciplinary Committee could take action against the offending medical practitioner. Mr. Omoding submitted that section 59 of the Police Statute, Statute 13/94 is in sharp contrast with the Advocates Act. In the Statute criminal proceeding proceed disciplinary proceedings. That was the intention of Parliament when enacting section 59 of the Police Act which provides the following:

"If criminal proceedings of a nature likely to warrant disciplinary proceedings are instituted against a person subject to the code, no such disciplinary proceedings shall be taken until the conclusion of the criminal proceedings and the

determination of an appeal from t.hese proceedings. "

I find that Article 42 this petit.ion as in Domestic Tribunal for tribunal provided for of the ConsEiEution has no application to my view Ehe Discj-plinary CommitE.ee is a t.he Advocates and not. an administ.rative by article 42 of the Constitut.ion.

The peEiEioner has eomplained thaE ArEic1e 43 of contravened. However I find that Article 43 as the pet j.ti,on is concerned. E.he ConstituEion is i-s irrelevant as far

AII Ehe provisions in che Advocat.es Act and Regulations made t.hereunder supporE Ehe principle of fair hearj-ng. The complaint lhat the Evidence AcE is not applicable Eo proceedings before the Disciplinary CommiElee is unEanable as an applicat.ion of Ehat Act is not an assurance to a fair and a speedy trial . The rules contained j.n Ehe Evidence AcE might even slow the trial .

The complaint in para 1(a) (ii) of the petition is EhaE sect.ions 18 and l-9 allow t.he Disciplinary Committee to investigace an offending advocaEe in his/her absence and when the CommiEEee finds thaE Ehere is a prima facj-e case against Ehe advocate he is tried by the same committee.

I find that the procedure laid down in sect.ions 18(3) and 19 of the Advocates Act is preliminary procedure to ensure fair hearing' When a complai.nt. against an advocaEe is received, it. is screened by Ehe

CommiEtee Eo deEermine wheEher there is a prima facie case. This preliminary procedure is necessary especially taking inEo account !.he fow education and understanding of legal procedures of the public who form t.he bulk of the advocat.es' clienEs. This does not only save time of the Disciplinary CommlEEee but also saves Ehe advocaEes' Ehe embarrassment of having t,o defend ones-self in a case which may have been filed in good faith buE due to ignorance of Ehe legal procedures. The advocate is gj,ven a chance Eo make a reply to Ehe accusaEion and examine available documenEs. When t.he Disciplinary Committee finds a prima facie case agaj.nst Ehe advocate, that finding does not make such a commj.t.tee partial . If a finding of a prima facie case by the ordinary courEs was Eo be held Eo be part.iaI, no criminal court would be able to Ery any case to conclusion in view of section L25 of the Magistrates Courts Act and section 7l- of the Trial on IndictmenE Decree'

The complaint of the peEiEion in 1(a) (iv) is t.hat section 25(3) of Ehe Advocates Act Iimits appeals by the advocates to only the Hlgh Court and this conEravenes arEicles 40(2),42,43, 50(1), 50(3) and 22 of Lh.e Constit.ut.ion.

I agree with Ehe submission of Counsel for Ehe respondents thats the appellate jurisdiction is a creature of statute as held in AG v. Shah (19 71) EA 50. In many cases appellate jurisdiction may be limiEed and in some oEhers Ehere may be no appeal aE all. For example: according to arEicle 104 of the Constitution the election of Ehe PresidenE can only be challenged in Ehe Supreme CourE from

which there can be no further appeal .

The ArEicles 50 (1) ,50 (2) of Lhe Constsitution are also not applicable as t.hey give power to apply for redress to a competent court where Ehere has been a violation of human rights and a party who is aggrieved by a decision of Ehat court may appeal to an appropriat.e court. For our purpose Ehe appropriate court is a High Court consisEing of a panel of Ehree ,Iudges. The Arlicle does noE give an automatic power Eo appeal Eo the highest. court i.n the count ry ,

In view of Ehe reasons fai1. given above, ground 1 of the peEition should

The second ground in Ehis peEiEion j,s EhaE Ehe Disciplinary Committee having found a prima faci.e case plays the role of E.he prosecuEor, judge and jury in its own cause which is contrary to t.he cardinal, rule of naEural just.ice. Mr. omoding submit.ted thaE t.he secret.ary of Ehe Law Council investigated t.he petiE.ioner and Ehereafter a prima facie case hras found by tshe DiscipJ-inary Committee. Counsel for Ehe respondent stuck to hi.s answer t.o the peEiEion and explained furE.her t.hat. the Secretary Eo the L,aw Council- is a public officer and noE. a member of the Council.

I find thaE the complainE againsE Ehe peti.tioner was noE filed by t.he Law Council National Housing and Construction Corporat.ion was the complainants. The Disciplinary Committee just carried out an

exercise of finding out whether there was a prima facie case against the petitioner before framing charges against him and summoning him for trial. I agree with the submission of counsel for the respondent that the Disciplinary Committee is an independent and impartial body by its very composition.

The complaint raised in ground 2(b) of the petition in respect of regulations 3,4,5,6 and 7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 that it is incompatible with Articles $28(1)$ , $28(3)(a)$ and $42$ , $43$ and $44$ of the Constitution has already been answered. I hold that these regulations like sections 18 and 19 of the Advocates Act 19970 simply ensure preliminary investigation of a complaint and give an advocate a chance to answer before a decision to try him/her is taken. They do not contravene any provisions of the Constitution. Section 18(4) of the Advocates Act allows the Disciplinary Committee to make regulations governing its procedure and the Committee has made rules which I hold not to be in contravention with any provisions of the Constitution.

I would accordingly dismiss this petition with costs to the respondent.

Dated at Kampala this $\frac{1}{2}$ . day of $\frac{1}{2}$ . Maych. 1999.

OF APPEAL $15/03/99$

# THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA

# AT KAMPALA

HON. MR. JUSTICE G. M. OKELLO, JA. CORAM: HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE J. P. BERKO, JA. HON. MR. JUSTICE A. TWIMOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

## CONSTITUTIONAL PETITION NO. 5 OF 1998

#### **BETWEEN**

VINCENT L'OKUCHA EMORU ::::::::::::::::::::::::: PETITIONER

#### AND

THE ATTORNEY GENERAL ::::::::::::::::::::::::::::: RESPONDENT

## JUDGMENT OF TWINOMUJUNI, J. A.

I have had the benefit of reading the judgments in draft of my learned brothers Justice G. M. Okello, JA. and Justice J. P. Berko, JA. I agree with most of their reasoning and the conclusion they arrived at. I wish only to add a few observations by way of emphasis and supplement.

Hon. Justices Okello and Berko have in their judgments ably stated the facts of this case and the arguments of counsel before this court. I do not intend to repeat them here and I shall deal straight away with the issue for determination.

The main issue is whether there is anything in sections 18,19,25 and 73 (2) of the Advocates Act, 1970, that is inconsistent with Articles 28 $(3)(a)$ , 42, 43 and 128 $(2)$ of the 1995 Uganda Constitution. If indeed any provision of the

$\mathbf{1}$

Advocates Act is found to be inconsistent with any provision of the Constitution, it is the duty of this court to declare such a provision of the Act null and void in accordance with Art. 2 of the Constitution which provides that:-

$\mathbf{r} \leftarrow \mathbf{r} \mathbf{r}$

"This constitution is the Supreme Law of Uganda................................ If any other law or any custom is inconsistent with any of the provisions of this Constitution shall Constitution, the prevail, and that other law or custom shall, to the extent of the inconsistency, be void."

It is I think pertinent at this point to discuss the provisions of sections 18, 19 and 73 of the Advocates Act. First a word about the Advocates Act in general. This Act was enacted in 1970 for the purpose of amending and consolidating "the law relating to advocates and to make general provisions for purposes connected with the legal profession." It established the Law Council which among other functions has the duty to "exercise, through the medium of the Disciplinary Committee, disciplinary control over advocates and their clerks." Section 15 of the Act subjects every advocate to the jurisdiction of the Disciplinary committee. Section 17 of the Act establishes the Disciplinary Committee and the disputed sections 18 and 19 of the Act outline the procedure to be followed by the Disciplinary Committee. The procedure outlined therein is re-enforced by the provisions of The Advocates (Disciplinary Committee) (Procedure) Regulations 1994 made under the authority of Section 18 (4) of the Act.

$\mathsf{2}$

The procedure is that any person or the Law Council may file a compl-aint with the Disciplinary CommiEEee againsE any advocale. The advocate concerned must be served wiEh a copy of Ehe complainE wit.h a request to make a defence in reply to the complainE.. The Committee may receive any documents, correspondences or representations relating to Ehe complaint all of which the concerned advocate musE have access to for purposes of making his reply. After his reply, the Committee must decide \^rhether a prima facie case has been made out. If no case is made ouE, Ehe complaint may be dismissed summarily. If a prima facie case is found, Ehe complaint goes to Erial before the Committee. Both parties are entiEled to 1egal. representation with the righE to call wit.nesses, to examine and cross examine them on oat.h as usually happens in our courEs of Iaw.

SecEion 19 of t.he AcE provides a range of measures Ehat Ehe Commit.t.ee can Eake Eo punish an advocate found guilEy of any offence under the Act.. Any advocate aggrieved by any decision of the Committee can appeal to the High Court siEEing a panel of t.hree judges of thaE court whose decision j-s finaf. Section 18 (7) of the AcE provides Ehat "The Evidence Act sha1l not appfy to proceedings before the CommiEtee: @ ghatl be entitled to all rlqhte and privileqeg to which a wlEneee iB entitled under that Act. r' (Emphasis mine)

Part VI of the Advocates Act creates two types of offences:

ceneraf offences Eriable by t.he courts of the Chief Magistrate and tshe Magistrat.e Grade I which generally attract a punishment. of a fine, imprisonment or both. (a)

$\mathbf{r}^{(1)},\cdots,\mathbf{r}^{(n)}$

Section 78 (2) of the Act however provides that :-

who commits "any person an offence under this Act shall be liable, whether or not he has been charged with, convicted or acquitted of such offence, to proceedings under Part IV of this Act."

Part IV referred to includes the disputed provisions of sections 18 and 19 of the Act which give jurisdiction to the Disciplinary Committee and the procedure to be followed.

Section 73 $(1)$ of the Act creates what are called $(b)$ disciplinary offences which are only triable by the Disciplinary Committee. S. 73 (2) thereof states:-

> "Any advocate who contravenes or fails to comply with any of the provisions of subsection (1) of this section shall be guilty of offence and shall an alternatively or in addition be liable to proceedings under section 19 of this Act."

Against these provisions, the petitioner complains that these provisions of the Act are inconsistent with Articles 28 (3)(a), 42, 43, 44 and 128 of the Constitution because:-

The Act gives the Disciplinary Committee powers to try $(a)$ criminal offences without requiring it to observe the principles of natural justice and due process.

$\overline{4}$

- (b) The r.he Evidence Act is not. applicable to proceedings of Discipl inary Commitstee . - (c) The AcE pre serve usurps t.he jurisdiction which is solely the of ordinary courts under the constitution. - (d) The Act consti.tsuEes the Disciplinary CommiEEee into investigator, prosecuEor, judge and jury contrary t.o Article 28 (1) , 42 and 44 of the Const.iEution. - (e) The Act. aIlows only Ehe right t.o appeal t.o the High Court whose decision is final which violat.es an advocates consE. it.ut ional ri.ght. to appeal to a t.he highest coure in the land.

In a nuts-shel1 this petit.ion is about r^rhetsher Ehe Advocates Act. provides for triaLs of an advocaEes or thei.r clerks without. E.he guarantee of due process and t.he observation of principles of natural j ustice.

An advocate, like anyone else on Uganda soil, is entitled to a fair trial guarantseed under Article 28 of tshe ConstituEion. Article 28 (1) provides that:-

> " In deEermination of civil rights and obligations or any criminal charge, a person shalf be enti.tled to a fair, speedy and before an inde end n ibunal est.abl ished bv law (Emphasis mine) imDartial court or tr

In the instant case, Ehe petitioner does noE seek to challenge the independence of the disciplinary commit.t.ee or it.s abilit.y to dispense justice speedily in a public heari,ng. AIl that he challenges is Ehe impartiality of the Commj.ltee and t.he fairness of the procedure it follows.

$\cdots,$

Article 28 (3) of the Constitution sets out in detail the elements of a fair trial in criminal cases:-

- The presumption of innocence until proved guilty or $(a)$ one pleads guilty. - $(b)$ The right to be informed of the nature of offence at the earliest opportunity. - $(c)$ The right to be given adequate time and facilities to prepare a defence. - $(d)$ The right to appear in person or by advocate. - $(e)$ The right to examine witnesses and to obtain attendance of any witness in court.

In my humble judgment, all these rights are preserved in sections 18 and 19 of the Advocates Act and the rules made thereunder. There is for instance nothing in Article 28 or any other article that makes use of the Evidence Act mandatory in any proceedings before any court or tribunal. In the instant case however, section 18 (1) of the Act provides that a witness is entitled to all rights and privileges he would be entitled to under the Evidence Act.

As regards the impartiality of the Disciplinary Committee, S.18 and 19 of the Act provide a complainant with the right to appear before the Committee in person or by an advocate of his choice to prosecute the complaint. The Committee can through its secretary write to the complainant or the accused advocate for

$\mathsf{6}$

responses or clarificaEions. The Commit.tee cannoE take a decision on a prima facie case until- it has carefuLLy studied representatsion from boEh sides. It. is therefore not Erue EhaE Ehe AcE a1Iows Ehe Disciplinary Committee to acts as prosecutor, judge and jury in its own cause.

The provisions of secEion l-9 (1) of Ehe Act however give me cause for concern. ft provides: -

> "withouc prejudice to Ehe other provisions of t.his Acts, a complaint against an advocate of professional misconduct may be made Eo t.he Disciplinary Committee by Ehe Law Council or by any person. " (tuphaeLe mine)

where a complainE againsts an advocaE.e is made by Ehe Law Council, it. would under the Ac! be enEitled to prosecute Ehe complaint. in person or by counsel . AIL the members of Ehe Disciplinary Commj-ttee, who wiLL be the "judge and the jury" are also members of Ehe l-,aw Council . In my humble judgement. t.he Committ.ee in this case would be acting as complainant, prosecutor, judge and jury in their own cause. If Ehe complaint by the Law Council could be a basis for a "criminal charge" wiEhin the meaning of Article 28 of tshe ConstituEion, the advocate could not by any stretch of imagination be said to have received a fair trial as guaranteed under thaE Article.

I hasEen t.o add however that the L,aw Council was not the complainant in the insE.anE case and t.he poj.nE was neit.her canvassed nor argued before us. It is probable that if the maEter had been argued, a different opinion could be formed.

As to whether the jurisdiction conferred on the Disciplinary Committee to try offences of a criminal nature amounts to usurpation of the jurisdiction of ordinary courts and inconsistent with article 128 (2) of the Constitution, I do not agree. That Article provides that:-

$\cdots$

"No person or authority shall interfere with the courts or judicial officers in exercise of their judicial function."

It does not say that ordinary courts of law have exclusive jurisdiction over criminal matters. It does not provide that Parliament cannot create any special court or tribunal to try criminal cases. However, whichever tribunal or court is established with jurisdiction over criminal matters, it must conform to the provisions of Article 28 which gives the right of fair hearing to every one.

The Nigerian cases, which were cited to support $\overline{a}$ proposition that the Disciplinary Committee cannot try a case of criminal nature unless ordinary courts have already dealt with the matter, are not applicable to Uganda. Sections 73 (2) and 78 (2) permit the Disciplinary Committee to try any offence under the Act "whether or not he has been charged with, convicted or acquitted of such offence." (Emphasis mine). It looks to me highly probable that the Nigerians do not have such provisions in their law.

Finally it was contended that the provisions of section 25 (3) which limits appeal from the decisions of the Disciplinary Committee to only the High Court are inconsistent with Articles

40 (2), 42, 43, 50 and 21 of the Constitution. In my humble view, none of these articles has anything to do with the right of appeal to courts. I agree with the submission by the Attorney General and the decision of the Court of Appeal for East Africa in Attorney General -vs- Shah [1971] EA 50 that appellate jurisdiction is a creature of statute and that there is no inherent appellate jurisdiction. In other words if Parliament says that in this type of litigation you must stop at this court, that is precisely where you must stop.

$\overline{a}$

۸.

With exception of the caution I would give to the Disciplinary Committee that where the Law Council is the complainant, the Committee could very easily contravene the provisions of Art 28 of the Constitution, I find no merits in this petition and I would dismiss it with costs to the respondent.

Dated at Kampala this ... day of March 1999. AMOS WIN ØF

## THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGADA AT KAMPALA

CORAM: HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE J. P. BERKO, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. B. N. KITUMBA, JA

### CONSTITUTIONAL PETITION NO.5/98

VINCENT L'OKUCHA EMORU ....................................

**VERSUS**

ATTORNEY GENERAL ........... $\ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ld$

### JUDGMENT OF JUSTICE MPAGI-BAHIGEINE

The petitioner herein, Mr. Vincent L'Okucha Emoru, an advocate of the Courts of Judicature, being aggrieved, filed this petition under Article 137(3)(a) of the Constitution, and the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 challenging the constitutionality of certain provisions of the Advocates Act No.22 of 1970 and Regulations thereunder on two grounds.

- That the Advocates Act No.22/1970 Sections 18, 19 and $(i)$ 73(2) empowers the Disciplinary Committee to act on criminal charges against an Advocate without prior determination of criminal responsibility in a criminal court with the attendant due process guaranteed by Articles 28, 42, 43, 44 and 128(2) of the Constitution, and - (ii) That the Advocates Act Sections 18 and 19 permits the Disciplinary Committee in respect of complaints against Advocates to investigate the complaint, decide on whether there is a prima facie case, take a decision to prosecute, and the same Committee hears and determines

the complaint in contravention of Articles 28, 43, 44 of the Constitution, 1995.

The petitioner seeks an order of redress from this Court, and alternatively, prays that the matter be referred to the High Court to investigate and determine an appropriate redress.

$\mathbf{1}$

The facts which are amply set down in the judgment of my Lord Okello, JA are briefly as follows. A complaint by National Housing and Construction Corporation was made to the Disciplinary Committee of the Law Council in relation to the Petitioner's handling of Misc. Application No.162/97, between the complainant and Lira Municipal Council, in the Chief Magistrate's Court of Mengo.

On 9-9-97, the Secretary to the Law Council wrote to the Petitioner notifying him of the complaint and seeking his response. The Petitioner replied disputing the complaint on 29-9-97 and on 15-10-The Petitioner was consequently notified that a prima facie 97. case had been made out against him by the Disciplinary Committee and informed him of the hearing date on 27-2-98. He was served with a charge sheet containing the following four counts:

- Misleading Court $c/s$ 73(1)(b) of the Advocates Act No.22/1970; $(i)$ - (ii) Acting fraudulently or improperly $c/s$ 73(1)(k) of the Advocates Act No.22/1970; - iii) Including in an affidavit matters which are known by the Advocate to be false; and - (iv) Misleading Court by remaining silent $c/s$ to Regulation 16(1) of the Advocates (Professional Conduct) Regulations 1977.

On 27-2-98 the hearing did not take place and was adjourned till 3-4-98. To-date the petitioner has not pleaded to the charges and

$\mathcal{L}$

the hearing has not taken off.

Mr. Kenneth Omoding represented the petitioner while Mr. Christopher Madrama, Senior State Attorney appeared for the respondent.

I think I will refer at once to the relevant principles of interpretation or construction of Statutes and Constitutions. It is the petitioner must present clear and well settled that unmistakable evidence that the impugned provisions of the Act are unconstitutional, failing which the presumption of constitutionality prevails and all facts will be presumed in favour of constitutional validity.

"It is clear that the burden is on those who seek to establish that the legislature intended to take away the private rights of individuals to show that by express words or by necessary implication such an intention appears". Metropolitan Asylum District v. Hill (1881) 6 App. Cas 193 H. L. at p.208.

Courts would not invalidate a law on conjecture or speculative grounds. Most importantly an Act of Parliament should be construed according to the intent and purpose of Parliament which passed it. See Viscountess Rhodda's Claim (1922) A. C. It is therefore very proper to consider the particular evils at which the legislature is aimed or the mischief sought to be avoided. Also see - The Queen

# vs. Big M. Drug Mart Ltd (1986) LRL (Const) 332.

With the above in mind I turn to consider Ground I of the Petition. Mr. Omoding contended that the petitioner was likely to be deprived of the protection of due process of law by being tried of criminal

$\mathfrak{Z}$

charges under SS.18 and 19 of the Advocat.es Act before the Disciplinary Commi,ttee, insE.ead of first. being E.ried and convict.ed before a Criminal Court under the Penal Code Act, with the aEtendant due process of 1aw guaranteed under Art. j-c1e 28. He also pointed out thaE he was being charged with undefined offences in cont.ravention of Article 28 (12) and furt.her EhaE the Evidence Act (Cap.43) was excluded by S.18(7) of Ehe AcE from applicaEion to che proceedings before the Disciplinary CommitEee, which is a denial of and derogation from the protection of due process of 1aw. He further claimed that sections 24 and 25 of the AcE were unconst ituE j.onal in as far as Ehey Iimit. his right of appeal Eo Ehe High CourE, in contravenEion of ArE.icles 50,40(2) , 42,43 and 21.

Mr. Madrama, Iearned Counsef for t.he respondent, conEended Ehat proceedings under the Advocat.es Ac! and Ehe ReguLations E.hereunder were Civil Proceedings wit.h respect Eo civil offences and for t.he discipline of Ehe Profession, as opposed t.o Crimi-naI Proceedings. He wenE Eo great. length trying Eo differentiate between civil and criminal proceedings and submlEEed EhaE the Articles of the ConsEitution ciEed were not applicable to the Petitioner's allegaEions.

The Advocates Act specifies various offences which can be Eaken against the Advocates before t.he DiscipJ-inary Committee and the ordinary courts, See Sections 15 and ??. It is imporEant to noEe E.he though ordinary court.s do have concurrenE disciplinary pohrers

with the Disciplinary Committee, for present purposes the offences against the petitioner are created and defined by section 73(1). These are disciplinary offences triable by the Disciplinary Committee. They are neither criminal nor civil, but sui generis. They are in a class of their own.

Section 82 defines "disciplinary proceedings" to mean any proceedings before the Disciplinary Committee or the High Court on appeal in which consideration is being given to the question whether an advocate should be punished for professional misconduct. "Professional misconduct" is defined as and includes disgraceful or dishonourable conduct not befitting an advocate.

As to whether the petitioner should be proceeded against first before the ordinary courts, Section 78(2) has the answer. It states:

"S.78(2) Any person who commits an offence under this Act shall be liable, whether or not he has been charged with, convicted or acquitted of such offence, to proceedings under Part IV of this Act."

Part IV is entitled and covers "Discipline of Advocates and clerks", which includes the offences under Section 73(1). It is quite clear therefore that it is not mandatory that the petitioner should first be proceeded against before the ordinary courts before appearing before the Disciplinary Committee. The jurisdiction of the Disciplinary Committee can come into play any time a complaint is made to it by anybody.

$\mathsf{S}$

Mr. Omoding argued thaE by trying the petitioner befqre the oisciplinary Committee before esEablishing his criminal responsibility first before ii. otait"ty courtss, the petsitsioner would be deprj.ved of the protsection of due process of law oEherwise guaranEeed under secEions 28,42,43,44 and L28(2\.

The procedure before Ehe Disciplinary Committee is prescribed or governed by secEions LB and 19 and the Statutory InsEruments 1974 No.79 RegulaEions. The expression "due process" in its broadest significance encom asses and comp re hends all tshe act.s of the court or tribunal from the beginning of the proceeding to its end. IE means fairness and protection of the 1aw, and incfudes fair notice of the charges, right to counsel, rj-ght to cross-examine witnesses, righE t.o presenE argumenEs to Ehe CommitEee and Ehe right of appeal . These are all duly preserved by sections 18,19 and the Statutory Instruments t974 No.?9 ReguLat.ions. In short the dj.sciplinary proceedings are subject Eo all applicable consEiEutional, stat.utory and common law privileges.

Mr. Omoding also complained thats Section 18(7) excludes Ehe application of the Evidence Acts to proceedings before the Committee. In view of what I have stated above, Mr. Omoding's apprehension is unwarranted. The explanation for this exclusion is thaE as a general rule, due process of law is noE denied by Ehe fact Ehat administraEive tribunaLs are not bound by Ehe sEricE technical rules of evidence or formal rules of procedure during

trials, provided substantial rights of the parties are not infringed, especially as the administrative order has only the effect of prima facie evidence - see Regulations 3 and 4 and the Proviso to Section 19(3) which reads:

"Provided that, where in the opinion of the Committee the complaint does not disclose any prima facie case of professional misconduct, the Committee may, at any stage of the proceedings, dismiss such complaint without requiring the advocate to whom the complaint relates to answer any allegations made against him and without hearing the complainant."

Sections 18,19 and the Regulations ensure that there is no derogation from the principles of natural justice and the constitutional, fundamental rights and freedoms.

Mr. Omoding further contended that the petitioner's right of appeal is limited under Section 25(3) to the High Court in contravention of Article $50(3)$ . This provides:

"Art 50(3) Any person aggrieved by any decision of the Court may appeal to the appropriate Court."

I consider the expression "decision of the court" can safely be used interchangeably with "decision of the tribunal". However the position is this. The jurisdiction of the Disciplinary Committee is dependent entirely upon the provisions of the Advocates Act reposing power in it. An appeal is never given except by Statute see In re a Solicitor (1934) 2 K. B. 467. This was reiterated in Attorney-General vs Shah (No.4) 1970 EA 50 where it was held that appellate jurisdiction is solely created by Statute and there is no inherent appellate jurisdiction. That being the case Section 25

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limits the petitioner's right of appeal to the High Court (bench of three). This is the appropriate Court stipulated by the Act. It has been observed by the American Bar Association Standing Committee on Professional Discipline Rules - 1996 Edn. that without a limited right of appeal complainants may feel that their grievances were not given sufficient consideration by the Disciplinary system as a whole, and sentiments of "lawyers protecting their own" can stem from this misunderstanding. I would tend to agree with this proposition. A prolonged appellate system can be a source of frustration.

Apart from reciting the impugned provisions of the Act and the Constitution, the allegations in this ground of the petition have not been substantiated. I would therefore without hesitation dismiss it.

Regarding ground II, it was averred that the Advocates Act by $SS$ . 18 and 19 permits the Disciplinary Committee in respect of complaints against Advocates to investigate the complaint, decide whether there is a prima facie case, take a decision to prosecute and have the same committee hear and determine the complaint, which is in contravention of Articles 28, 42, 43 and 44 of the Constitution 1995. Mr. Omoding submitted that the Committee would therefore not be impartial as it would be the prosecutor, judge and jury in the same cause.

Mr. Madrama conEended that. the Dlsciplinary Committ.ee was imparEial on ground of j,Es compositsion. He submiEEed that its duties were contained in ss. 18 and 19 which would ensure proEecEion of due process of taw and that therefore Ehere would be no derogation from Ehe principles of natural j ustice and the Advocates' constitutional , fundamental righEs and freedoms.

It i,s clear thats Ehe Disciplinary CommiEtsee is a "specialised tribunal," created by S.17 of the AcE to deal wiEh questsions of professional dut.y, peculiarly wit.hin the knowledge of the profession itself, and for that reason it is constituted of members appointed from Ehe Law Councj-I whose membership is itself specially selecEed for Eheir knowledge, experience and posiEion in the profession - section L7 (21 . This is to make members of the profession as far as possible masEers in tsheir own house. This is where the petiEioner's fears for parEialiEy come in. However, the CommiEtee is established for investigating and finding the facEs in cases of Ehe alleged misconduct reported Eo E.he Disciplinary CommiEtee by the L,aw Council or by any person. This does not however mean that every complainE reporEed requires imposit.ion of a sanctsion by the Discj,plinary Committee, but merely EhaE the CommitEee can investigate and Eake wha! act.ion is deemed necessary. This is due process. It. is the inexorable safeguard so Ehat the advocate is not condemned arbitrarily. The procedural sections 18 and 19 and the Regulatsions permit or al1ow and invariably do encourage Iegal represenEation for all parties concerned including

the Committee itself - see Section $18(2)$ , in which case prosecution may be by independent Counsel. Most importantly the Law Council is rarely the complainant before the Committee, but just in case it happens to be the complainant, then under S.18(2) the Committee can appoint Counsel to assist it prosecute in addition to or instead of the Secretary.

Furthermore at the hearing, the standard of proof before the Disciplinary Committee is higher than "preponderance of weight of credible evidence which is sufficient in civil proceedings, yet not as stringent as "beyond a reasonable doubt". As was held in -Bhandari v Advocate Committee (1956) 3 AER 742 PC -

"In every allegation of professional misconduct involving an element of deceit or moral turpitude, it is the duty of the professional domestic tribunal investigating the allegations to apply a high standard of proof and not to condemn on a mere balance of probabilities".

All in all, the provisions of both SS.18 and 19 and the Regulations, 1974 seem to me to constitute the safeguard which the due process clause assures in the exercise of judicial or quasi judicial power, that the trial be impartial and the tribunal legally constituted to determine the rights involved.

There is therefore no justification for the unsubstantiated assertions that the purpose of the impugned sections of the Act contemplated a violation of rules of natural justice or a law having an unjust result, or was directed to the infringement of the Petitioner's rights. With respect these assertions in the petition

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appear to me to involve speculation and conjecture as to the intention of the legislature. The impugned provisions of the Act and Regulations, 1974 are legitimate measures by the legislature to maintain an effective control over the profession and members.

In the result and in the absence of evidence to the contrary the petition would fail with costs to the respondent.

day

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1999.

Dated at Kampala this

Mpagi Bahigein . B. JUSTICE OF APPEAL $05/03/99$