Introduction
The principle of legality, a foundational tenet of criminal law, mandates that criminal liability be predicated on a pre-existing prohibition of conduct widely recognized as carrying criminal consequences. This fundamental principle ensures that laws are adequately publicized, empowering individuals to discern whether their actions are lawful or not.
The recent case of Uganda v Namuddu (HCT-00-ICD-CR-SC 20 of 2022) [2024] UGHCICD https://ulii.org/akn/ug/judgment/ughcicd/2024/1/eng@2024-04-16, presided over by Justice Bashaija Andrew and handed down on April 16, 2024, serves as a poignant reminder of the significance of this principle in upholding the rule of law and protecting individual rights. Facts Between January - April 2021, it was alleged that the accused operated a recruitment agency with Freedom Herbal Products and Services Ltd without a permit contrary to section 38 (1) (a) of the Employment (Recruitment of Ugandan Migrant Workers Abroad) Regulations, 2021. Accused of 8 counts 7 of which were related to Aggravated trafficking contrary to section 3 (1) (a) and (5) (a) of the Prevention of Trafficking Persons Act, 2009. Primary Issue
Whether the accused operated a recruitment agency without a permit.
Prosecution case
The prosecution produced evidence from the Ministry of Gender and Labour which stated that the company was not a licensed recruitment agency and had never had a permit.
The Decision
The High Court held that charging the accused with the said offence contradicts the principle of legality
The learned Judge stated,
While the prosecution indicted the accused in count 8 under the Employment (Recruitment of Ugandan Migrant Workers) Regulations 2021, the same were enacted in August 2021 revoking the Regulations of 2005, under Regulation 40. The accused was said to have committed the offence of operating a recruitment agency without a license/permit between April-May 2021. Thus, charging the accused with the said offence contradicts the principle of legality, often referred to as 'Nullum Crimen Sine Lege,' which means 'no crime without a law'. Constitutional and International Law Principles:
The learned judge averred that charging the accused with the said offence contradicts the principle of legality, which is fundamental in criminal law. The 1995 Constitution of the Republic of Uganda, Article 28(7), provides that no person shall be charged with or convicted of a criminal offence founded on an act or omission that did not, at the time it took place, constitute a criminal offence.
Article 28(12) states that, except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law. This principle has two aspects: non-retroactivity and clarity of the law, both seeking to ensure that a law is reasonably publicized so that people can know whether their course of action is acceptable or not.
Application of International Law Principles.
The learned Judge referenced international law principles, including Article 15 of the International Covenant on Civil and Political Rights (ICCPR), which states that no one shall be held guilty of any criminal offence on account of any act or omission that did not constitute a criminal offence under national or international law at the time it was committed.
Conclusion:
Owing to the principle of legality on retrospectivity of law, the accused could not have committed an offence under regulations that were nonexistent at the time the alleged offence was said to have been committed. The prosecution's evidence did not establish substantial grounds to believe that the accused person committed any of the offences she was charged with. Therefore, the court was reluctant to confirm any of the charges against her, and all charges in the indictment were dismissed. The accused was accordingly discharged.
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This brief was prepared by Waguma Mukisa James a second year student at Uganda Christian University pursuing LLB.
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