The The Director of Public Prosecution’s power to delegate prosecutorial functions in Uganda: Understanding Article 120(4)(a) of the Constitution of Uganda (1995)

Abstract

Article 120(3) of the Constitution of Uganda provides for the functions of the Director of Public Prosecutions (DPP). Article 120(4) states that most of the functions under Article 120(3) may “be exercised by him or her [DPP] in person or by officers authorised by him or her in accordance with general or specified instructions.” Article 120(4) does not define “officers.” The drafting history of Article 120(4) shows that it was adopted without debate. Thus, the meaning of “officer” was not discussed. It is argued that “officer” under Article 120(4) should be interpreted to mean public prosecutors in the DPP’s office and prosecutors to whom the DPP has delegated powers although they are not employed in the DPP’s office. From an interdisciplinary perspective, this ensures that the administrative powers of the DPP, which are governed by administrative law, are not used to appoint people who do not qualify to be appointed and the right of the accused to a fair trial, which is governed by human right law, is strengthened since public prosecutors are more likely to be independent. The interdisciplinary perspective of the article is also reflected in the discussion of the differences between private prosecutions and public prosecutions.  The author demonstrates the several approaches that Parliament has followed to give effect to Article 120(4). In many cases, legislation does not require the DPP to delegate public officers as prosecutors. Legislation “designates” them as prosecutors. In those instances, such officers are public prosecutors and must follow policies akin to those developed by the DPP. It is also argued that the DPP can only delegate prosecutorial powers to officers in institutions that are empowered by their establishing legislation to prosecute.