GODFREY MAGEZI v. THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA

Case Number APPEAL NO. 3 OF 2015
Summary

In 2005, the Government of Uganda (GOU) and Quality Chemical Industries Ltd (QCIL) signed a Memorandum of Understanding (MOU) for the construction of a factory to manufacture drugs to treat HIV/ AIDS and malaria. The government guaranteed the purchase of anti-retro viral and anti- malaria drugs by until 2019. In 2007, the Appellant discovered that the GOU had procured drugs from QCIL from India through the National Medical Stores . These were imported and sold at a 15% mark-up above international prices agreed in the MOU causing financial loss of USD17,826,038.94 to the public.

The Appellant brought this malpractice to the attention of the Inspector General of Government of Uganda (IGG) as a whistle blower and investigations led to a confirmation of loss in a Report dated 20th December, 2011. The IGG recommended that GOU should recovery the payments made. However in a letter dated 8th July 2013, the IGG reviewed her conclusion relating to the recovery of the alleged loss stating that she was satisfied by the Report of the Attorney General of Uganda advising that the USD 17,826,038.94 could not be recovered. As a whistleblower, the Applicant had expected a reward of 5% of the recovered money in accordance with Section 19 of Whistle blowers Protection Act, 2010. Aggrieved by the change in the IGG’s letter, the Appellant filed the Reference in the Trial Court claiming inter alia that: the Government of Uganda’s failure to recover the money paid to QCIL was an aberration and fundamental departure from the principles of good governance,

accountability and a subversion of the principles of the rule of law contrary to Articles 6(d), 7 (2) and 8 (1) (c) of the Treaty.
While conceding that the alleged malpractices were investigated by the IGG and a report produced on 20th December 2011, the Respondent submitted that legal opinions given by the Attorney General on the matter were issued independently and within his constitutional mandate and did not contravene the principles of good governance, democracy and rule of law. The Trial Court dismissed the Appellant’s reference with costs after finding that the Respondent had not breached the Treaty.

On Appeal, the Appellant submitted inter alia that the Trial Court erred in law: by finding that the content and the implications of the IGGs’ letter of 8th July, 2013 did not breach the Treaty; and in finding that the Government of Uganda’s inaction and or failure to recover US $ 17,826,038.94 from QCIL infringed Articles 6(d), 7(2) and 8(1)(c) of the Treaty. He averred that that the IGG was estopped from going against her word in the 20th December 2011 Report because the Appellant had relied on the express representation therein that the USD 17,826,038.94 would be recovered and that the Appellant would as a result get a reward of 5% of the money recovered.

In reply, the Respondent submitted inter alia that: both the IGG and the Attorney General acted within their legal mandates under the law and final outcome was not a breach of the Treaty; the IGG’s Report did not create an unchallengeable entitlement to a 5% reward in favour of the Appellant.
RespondentThe Attorney General of the Republic of Uganda
ComplainantGodfrey Magezi
Date filed
CountriesUganda
KeywordDoctrine of promissory estoppel , Natural justice , Principle of functus officio , Rule of Law
Treaty ArticleArticle 223 , Article 225 , Article 226 , Article 227 , Article 230 , Article 35 A , Article 6 , Article 7 , Article 8 , Articles of EAC Treaty , Inspectorate of Government Act 2002 Uganda , Rule 111 , Rule 24 , Rule 77 , Rule 99 , Rules of Procedure 2013 , Section 10 , Section 12 , Section 14 , Section 2 , Section 21 , Section 25 , Section 29 , Section 3 , Section 30 , Section 34 , Section 36 , Section 8 , The Constitution of the Republic of Uganda 1995 , Whistleblower Act 2008 Uganda

First Instance Judgment

VerdictCONCLUSION For all the foregoing reasons, the Reference is hereby dismissed and as a result, we make the following final orders:- 1) Prayers 1, 2, 3 and 4 are disallowed; and 2) The Applicant shall bear costs of the Reference. It is so ordered.
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Date deliveredMay 14, 2015
Quorum

Appeal Judgment

Verdict
  1. This Court has no limitation on the nature of inquiry it may carry out in determining an appeal. Whereas the Court’s jurisdiction is limited to the interpretation and application of the Treaty, in respect of compliance by a Partner State, the Court will look at the domestic law of a Partner State, in the context of interpreting the Treaty. Both Article 230 of the Constitution of Uganda and Section 14 of the IGG Act give the IGG wide discretion to make such orders and give such directions as are necessary and appropriate in the circumstances of the case. Appropriate action means action that is befitting in the circumstances. This gives an authorised officer wide discretion to take such action as is befitting in the circumstances.
  2. The right to be heard is a cardinal principle of the rule of law. Since there was no legal relationship between the IGG and the Appellant, no representation was made to him in the letter of the 20th December, 2011 that any sum of money would be recovered and that the Appellant would get a reward of 5% of the money recovered. The letter only contained a recommendation to the Government to consider recovery. The IGG and Attorney General could not guarantee the success of the recovery proceedings. The Appellant was misapplying the doctrine of promissory estoppel as a sword when it only applies as a shield.
  3. There was no final order for the receipt of the 5% reward, so in effect there could be no turnabout on any such order. The 20th December 2011 Report did not create any finality in the investigation as the money was yet to be recovered thus the Appellant’s claim for payment was premature and misconceived. The application of the principle of functus officio was also misconceived.
  4. An investigation into an alleged impropriety may lead to a finding that there is no impropriety in fact. In this case, where there was a positive initial finding of an alleged impropriety, still further action may have been required to confirm or corroborate that initial finding before a recovery could be made. All this is part of the process of “taking appropriate” action. In this regard, the Whistleblowers Protection Act with regard to the powers of the IGG is in conformity with Article 230 (2) of the Constitution and in pari materia with Section 14 (6) of the IGG Act to “make such orders and give directions as are appropriate in the circumstances”. Thus the Trial Court did not err in finding that the IGG as an authorised officer is still subject to Article 230 (2) of the Constitution and Section 14 (6) of the IGG Act. The Whistleblowers Protection Act, therefore, did not bar the IGG from writing the impugned letter. The IGG had the legal right to do so and acted within the law, she did not violate Ugandan law nor the Treaty as alleged.
  5. Since none of the grounds of Appeal were successful, the Appellant was not entitled to any of the reliefs and remedies sought.
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Date deliveredMay 26, 2016
Quorum