Wednesday, January 12, 2011

Summary of AC policy in Uganda Part 3

0 Frameworks
3.1The institutional framework

Ugandans are presented with an eminent opportunity as they go into a national general election of national and local council leaders to elect the next government. There is an opportunity to renew the citizens’ demand for government commitment and action to combat corruption.

There has been institutionalization of the framework with a coordinating function from the Directorate of Ethics and Integrity (DEI) given the mandate to handle corruption cases and these include, Inspectorate of Government (IG), Director of Public Prosecution (DPP), Criminal Investigation Department (CID), and Public Procurement and Disposal of Assets (PPDA) and these have actively taken center stage in investigating and leading to the prosecution of corruption cases in the country.

3.3 Analysis of key AC institutions
1. The office of the Auditor General (OAG)

Vision:
“To be an effective and efficient Supreme Audit Institution (SAI) in promoting effective public accountability.”

Mission:
“To audit and report to Parliament and thereby making an effective contribution to improving public accountability and value for money spent” and is a practical demonstration of our role in promoting accountability in the public sector.

Objectives
 To secure the financial and operational independence of the Auditor- General
 To improve the quality of both the OAG’s budget preparation and monitoring processes and management information systems.
 To create an environment that enables the OAG to operate efficiently and recruit, retain and motivate suitable staff.
 To improve internal and external communications to raise the profile of the OAG with staff and key stakeholders
 To improve the quality of audit work by improving financial and value for money audits and developing and implementing effective quality assurance arrangements
 To promote increased accountability, probity and transparency in the management of public funds and resources by producing reports
Functions
The AG, as an external auditor, has the responsibility of expressing an opinion on the financial statements produced at the end of the financial year and reporting to Parliament. In discharging its statutory responsibilities, the main functions of the Office include the following:
 Undertaking financial audit of all public accounts in respect of all public offices in accordance with laws which govern them out value for money audits in respect of any projects involving public funds; o Preparing and submitting to Parliament through the Public Accounts Committee (PAC), Local Government Accounts Committee (LGAC), Committee on Statutory Authorities and State Enterprises (COSASE), an annual report for the financial year immediately preceding;
 Assisting the committees (PAC, LGAC, COSASE) in carrying out their functions effectively, and assessing the adequacy of responses from the auditees to the Committees’ recommendations;
 Controlling the release of funds from the Consolidated Fund;
 Auditing Uganda Missions abroad;
 Carrying out local inspections related to revenue and expenditure; and
 Reporting fraud and corruption identified during audits to the appropriate authorities.
Under Section 33 of the Public Finance and Accountability Act, 2003 the Auditor General is also required to satisfy himself that:
 The accounts conform to the requirements of the Act and regulations that govern them;
 Expenditures and receipts shown in the accounts have been dealt with in accordance with proper authority;
 The financial affairs of the entity audited and all revenues received and public moneys under its control have been handled and conducted with regularity and propriety by the accounting officer or any other responsible public officer; and o All reasonable precaution have been taken to safeguard the receipt, custody, issue and proper use of government resources and property, and that any regulations, directives and instructions relating to them have been duly observed.
2. Inspectorate of Government (IG)
Vision: Good governance with an ethical and corruption free society.
Mission: To promote good governance through enhancing accountability and transparency and enforcement of the rule of law and administrative justice in public offices.
Mandate
To eliminate corruption and foster the rule of law and principles of natural justice in public offices and enforce the leadership code of conduct.
Functions
• To promote and foster strict adherence to the rule of law and principles of natural justice in administration;
• To eliminate and foster the elimination of corruption, abuse of authority and public office;
• To promote fair, efficient and good governance in public offices; subject to the provision of the Constitution, to supervise the enforcement of the Leadership Code of Conduct;
• To enforce the Leadership Code of Conduct;
• To investigate any act, omission, advice, decision or recommendation by a public officer or any other authority to which this article applies, taken, made, given or done in exercise for administrative functions; and
• To stimulate public awareness about the values of constitutionalism in general and the activities of the office, in particular, through any media and other means it considers appropriate.
Strategic Objectives
• To strengthen and build the capacity of the IG to meet its legislative mandate;
• To investigate and prosecute corruption related cases and enforce the Leadership Code of Conduct.
• To enhance and promote the rule of law and justice in public offices.
• To monitor the utilization of public funds in all Central and Local Government Departments/Institutions;
• To sensitize, educate and enlist public support against corruption; strengthen weak systems and policies in Government Institutions and to monitor levels of corruption through periodic integrity surveys;
• To promote and foster strategic partnerships to fight corruption, abuse of office and administrative malpractices; and
• To represent IG in courts of judicature in matters of civil suits in which the IG is a party
3. Directorate of Ethics and Integrity (DEI)

DEI was established in 1998 as a Government Agency under the Office of the President of Uganda. The Directorate is responsible for the formulation and coordination of the implementation of national anti-corruption policy.
The DEI undertakes a number of functions:
a) Policy and Advocacy: To ensure that effective anti-corruption policies and preventive measures are formulated and promoted.
b) Coordination: To develop and coordinate the implementation of national anti-corruption policy.
c) Representation: To provide a political voice for the anti-corruption agenda.
d) Monitoring and Evaluation: To monitor the implementation of anti-corruption policy; to identify the need for remedial and preventative actions and respond accordingly; collection and analysis of data relating to anti-corruption activities.

The mandate of the Directorate includes:
 Creating awareness on the need for ethical behaviour and integrity in public office.
 Enhancing ethical standards in public service organisations and in the wider society.
 Building coalitions with civil society to promote and enhance ethics and integrity.
 Working with government anticorruption agencies to promote an anti-corruption agenda.

4. Public Procurement and Disposal of Assets Authority (PPDA)

Vision

A transparent, accountable and efficient public procurement and disposal system that delivers value for money

Mission

To regulate the public procurement and disposal system in Uganda by setting standards, building capacity and monitoring compliance, in order to achieve value for money.

This is the body that has been established to:
a) Ensure the application of fair, competitive, transparent, non-discriminatory and value for money procurement and disposal standards and practices;
b) Harmonize the procurement and disposal policies, systems and practices of the Central Government, Local Governments and statutory bodies;
c) Set standards for the public procurement and disposal systems in Uganda;
d) Monitor compliance of procuring and disposing entities; and
e) Build procurement and disposal capacity in Uganda.

Functions

b) Advisory - advising and reporting on public procurement and disposal processes.
c) Data management – developing a system of managing data on all public procurement and disposal.
d) Regulatory – Issuing the various tools for conducting public procurement and disposal and compliance with the law.
e) Capacity Building – developing public procurement and disposal capacity through training and line support.
f) Audit and investigative – auditing the bid preparation process and award and completion of contract and investigating alleged malpractices and breaches of the law


3.3 Legislative framework
Uganda boasts of several anti-corruption legislations, which criminalize the offering or receipt of bribes, and other forms of corruption with penalties of up to 10 years in prison. In a bid to ensuring combating of corruption cases is effective, and bringing the general public on board to actively participate in the investigation and prosecution of Corruption cases, a number of policies/ laws and reviews have been passed which include:
1. Constitution
2. Penal Code Act
3. Leadership Code Act 2002
4. Public Service Act
5. Access to Information Act 2005
6. Whistleblowers’ protection Act 2010
7. The Inspectorate of Government Act 2002
8. Local Government Act (As amended)
9. Public Procurement and Disposal of Public Assets Act (2003)
10. Access to Information Act 2005, (ATIA)
11. Budget Act 2001
12. Public Finance and Accountability Act 2003 (PFAA)
13. Public Service Standing Orders
14. National Audit Act, 2008
15. Electronic Transactions Act 2010
16. Regulation of Interception of communication Act 2010
17. Computer Misuse Act 2010 etc

3.4 Analysis of key and current legal framework
1.1. Constitution of Uganda 1995.
The 1995 Constitution provides for Accountability in its National Objectives and Directive Principles of State Policy, under Part XXVI. It provides inter-alia that:
‘all public offices shall be held in trust for the people, all persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people, and all lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political or other public offices’.
2. The Leadership Code Act 2002
The Leadership Code Act 2002 provides for, among others, the declaration by leaders of their assets, liabilities and those of their spouses and children below the age of 18 years. In 2005, the Constitution was amended by the inclusion of Article 235A that provides for the establishment of a Leadership Code Tribunal. The enabling law will be put in place within the term of the Eighth Parliament.
3. The Inspectorate of Government Act 2002
The office of the Inspector General of Government was established in accordance with the Inspector General of Government Statute of 1988. However, following the promulgation of the 1995 Constitution, a number of changes were made which necessitated the enactment of a new law; the Inspectorate of Government Act of 2002.
The Act provides the Inspector General of Government with special powers to investigate and prosecute corruption and abuse of office and authority.
4. Access to Information Act 2005
A freedom of Access to information legislation was enacted to enable the public demand for information from government to enhance transparency and accountability.
5. The Anti Corruption Act 2009
The Prevention of Corruption Act 1970 was the principle anti–corruption legislation. The law had to be reviewed however to bring it in line with current international instruments and new and emerging issues in the fight against corruption. The law has now been reviewed the law to be more deterrent and better enforceable.
All laws on the criminalization of corruption were consolidated into the new law, the Anti Corruption Act 2009. The Anti-corruption Act, 2009 is a fundamental reform of Prevention of Corruption Act (POCA) Cap 121, and not a mere amendment. It presents a big shift and strengthening of the anti-corruption penal laws. It provides for effectual prevention of corruption in both the public and the private sector. It repeals and replaces the POCA and consequentially amends the penal code Act, the Leadership Act and provides for other related matters. This partly explains the new title with the following key salient features:

 The Act broadens the definition of corruption. It provides for acts of corruption to include solicitation or acceptance, offering or granting of a bribe, diversion by public officials, fraudulent acquisition of property, corruption between principal and agent.
 The Act creates new corruption offences in line with UN and AU Conventions. Such offences include; diversion of public funds, influence peddling, conflict of interest, sectarianism, etc.
 The Act consolidates anti-corruption penal laws which were hitherto scattered into POCA and the penal code. Such include; loss of public property, abuse of office, embezzlement, causing financial loss, fraudulent false accounting, etc.
 The Act expands or enhances the powers of the IGG and the DPP in cases of search, inspection and general investigations of a corruption matters.
 The Act provides for restraining orders which will ensure that the property under contention is not disposed of until investigations and prosecution of a case is completed.
 Another important feature is the confiscation order whereby in addition to any penalty imposed on a convicted person, court may order confiscation of the property that is subject of or derived directly or indirectly from the act of corruption.
6. The Whistleblowers Protection Act, 2010
The Whistleblowers Protection act is legislation designed to encourage and facilitate disclosure of improper conduct by officials of public and private bodies. It provides protection for persons making such disclosure and persons who may suffer detrimental action in relation to those disclosures and provides for the matters disclosed to be properly investigated and dealt with. The Act gives confidence to people to report the corrupt without fear of retribution. The objectives of this Act include:
 To provide for procedures by which individuals in private and public sector may in public interest disclose information that relates to irregular, illegal or corrupt practices
 To provide for the protection against victimization of persons who make disclosures
 To provide for other related matters
On disclosures the Act specifies:
 Disclosure of impropriety (corruption, criminal and other unlawful acts, maladministration, miscarriage of justice)
 Disclosures in good faith
 Reasonable belief that it is substantially true
 Disclosures made to authorized officials
 Confidentiality of identity
 Confidentiality of information
 Anonymous disclosures not protected
 Persons and employees to disclose
 Internal disclosures
 External disclosures.
 Against victimization
 Against court action
 Provision of State protection

7. Computer Misuse Act 2010
This new law provides for:
 Safety and security of electronic transactions and security systems
 Prevention of unlawful access, abuse and misuse of information systems and computers
 Securing the conduct of electronic transactions in a secure electronic environment
The law makes and specifies:
 general provisions for Securing access and computer program usage
 general provisions for Computer misuse offences and their respective penalties
 Establishment of Financial Intelligence Authority
 Searches and Seizure of premises and computer hard/software respectively
 Admissibility and evidential weight of data messages and electronic records
 Jurisdiction over all persons irrespective of nationality

8. Regulation of interception of Communications Act 2010
Provides for
 Lawful interception and monitoring of certain communications in the course of the transmission through a telecommunication; postal or related service or system
 Establishment of a monitoring center
The law makes and provides for
 The details of the monitoring centre
 Authority and methodology of interception
 Protected information
 Rights and Obligations of telecom service providers
 Appeals
The Government has signed and ratified the United Nations Convention against Corruption (UNCAC) and the African Union Convention for Preventing and Combating Corruption. The combined effect of the provisions of these treaties is to oblige the Government to introduce into its domestic legislative framework laws pertaining to the recovery of the proceeds of corruption and other crime and indeed has in process the following pending legislations related to corruption:
1. Anti Money Laundering Bill
2. Qui Tam Legislation
3. The Proceeds of Crime Bill

9. Overview of the money laundering bill 2009
 Money laundering: process of turning illegitimately obtained property into seemingly legitimate property (concealing/disguising the nature, source, location, disposition or movement of the proceeds of crime)
 Criminalizes money laundering and provide for detection, deterrence, investigation and prosecution of money laundering offences
 Responds to the threat posed by organized crimes (terrorism, piracy, etc) to deprive them of proceeds from their criminal activity
 Fights against trans-boundary crimes
 Bill provides for prevention measures
 Establishment of Financial Intelligence Authority
 Seizure, freezing and forfeiture and confiscation of assets
 International cooperation
 Offences and penalties
10. Proceeds of Crime Bill
The provisions of this proposed law would empower the Government to seize and confiscate the profits of those found to be engaging in corrupt activities and so raise the risk threshold of corrupt activities and thus operate as a deterrent of further criminal tendency.

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