17/12/2019
Writing on currency may be wrong but not Illegal Under the current legal regime
In the recent days, social media, Television and Newspapers have been awash with paper notes with political messages “vote Bobi Wine” and “vote Museveni”. On 10th December, 2019, Bank of Uganda issued a statement asking the general public to reject currency with such political messages. Other political leaders like Honourable Betty Nambooze (spokesperson ‘people’s government’) and prominent media personalities were seen on Television communicating that it is illegal to write on currency and that vendors and service providers should refrain from accepting currencies with political messages. Neither Bank of Uganda nor aggrieved politicians cite any law making the practice illegal.
The legality of an action is a question of law. Something may be wrong but not illegal. For instance, abusing a person face to face in absence of a third party may be wrong but not illegal. Throwing food, extravagance, extreme intoxication, fornication, atheism, being a miser, lying, refraining from bathing, to mention but a few may all be wrong acts but not illegal acts according to our laws. The question therefore is, what is illegal?
What is illegal simply is what the law defines as illegal. Under governance of the rule of law, the burden is on a person alleging that an act or omission is illegal to bring a provision of law to that effect. An illegality should offend a provision of the law. For instance, if I refuse to greet a person in the morning, it is wrong but legal since there is no provision of law imposing and obligation to greet and prescribing a punishment for non-compliance. Article 28(12) of the 1995 Constitution states that no person shall be convicted of an offense unless the same is defined by the law and punishment prescribed. According to the provision, the offense should not only be defined but there should be a punishment prescribed for non- compliance.
Therefore, a person who alleges that writing on the currency is illegal should not just allege as if he is on a beer drinking party in the village. This is because it is the role of parliament and not any person to legislate what is illegal and impose sanctions for breach. Whatever parliament does not make illegal is legal under our laws. Why isn’t bank of Uganda and all those opposed to writing on paper notes cite any provision infringed upon?
The truth is that there is no such provision infringed upon. The only provision in the Penal Code Act which talks about defacing of currency is Section 367 and it restricts itself to coins and cannot be extended to paper notes. Crime cannot be implied. The wording of Part 35 of the penal code Act reads “Offenses relating to coins, bank and currency notes”. The framers of the law were aware of the existence of paper currency but chose to criminalize coins for reasons I present in my conclusion. This can only be overturned by the legislature and not the governor, police, or media or politicians. For avoidance of doubt, the provision being erroneously relied upon by anyone who wishes to make the practice illegal reads;
367. Melting down of currency.
(1) Any person who melts down, breaks up, defaces by stamping thereon any name, word or mark or uses otherwise than as currency any silver coin current for the time being in Uganda commits a misdemeanour and is liable to imprisonment for six months or to a fine not exceeding two thousand shillings or to both such imprisonment and fine; except that any officer of the Government or the manager of any bank who receives during the performance of his or her duties any coin which he or she has reasonable ground for believing to be counterfeit coin shall impound such coin and transmit it to the treasury officer of accounts, who may cut, deface or destroy it with or without compensation, as he or she thinks fit, if in his or her opinion it is counterfeit. (emphasis supplied.)
Even if paper notes had been included in the section, the punishment is not rejecting the currency as they put it. Rejecting the currency creates an offense of being in possession of a defaced currency note which is no where in our laws. Where the legislature wants to create an offense of being in possession of something illegal, they do so expressly like in the being in possession of narcotics under the Narcotic drugs and Psychotropic substances Act, being in possession of a fire arm under the fire arms Act, being in possession of stolen items under the Penal code Act to mention but a few. Such offenses are of strict liability and a matter of “of course” which would be wrong to apply to currency notes. So Bank of Uganda not only created a punishment but also an offense whichis deplorable.
Honourale Betty Namboze in the TV Interview generally cites the Bank of Uganda Act making the paper notes with political messages un acceptable and adds that Bank of Uganda has mandate to determine what a currency should look like. The Honourable with respect should have misunderstood s.21 of the Bank of Uganda Act that provides;
21. Design of bank notes.
The bank shall determine the design of the bank notes issued by it, but no bank note shall bear in its design a portrait of a living person or any political symbol or word.
The provision is directive on bank of Uganda that while coming up with designs of currency, it should not put political symbols. It is applicable at the time of designing the currency. This is in reaction of our political history where past leaders used to put their portraits on currency. Since power has always changed hands by the barrel of the gun, the incoming government has always blamed the predecessor government for all the problems affecting the country. Incoming governments have always printed new currency and at times devalued the currency. This has been done to destroy the legacy of the out going leader. Getting the money out of circulation is expensive and has always made many people poor. Accordingly, Section 21 introduces a neutral currency that the incoming government will be comfortable to continue using since it has no political symbols or words by the hated predecessor government. As a result, those who stored their money under the bed (which is by the way is not illegal) will not be inconvenienced even after change of government.
S.23 of the Bank of Uganda Act talks about legal tender and says that notes issued by bank of Uganda shall be legal tender on their face value. The section just like s.367 restricts its self to tampering of coins and not paper currency.
This is not the 1st time this matter is appearing in our jurisprudence. On 29th May, 2019, during the burial of a city tycoon socialite Semwanga, people threw money in the grave and he was buried with both Ugandan and foreign currency. A concerned Ugandan Advocate Senfuka Robert instituted High Court Civil Case No.252 of 2017 against a one David Bahati, Attorney General and Bank of Uganda alleging that the actions of burying Semwanga with money are illegal and abuse of Legal tender for which the government (Attorney General) and Bank of Uganda are mandated to guard and protect.
In paragraph 6 of the Written Statement of Defense prepared by the Legal Department of Bank of Uganda, bank of Uganda denied liability and emphasized that the law criminalizes silver coins and makes no reference to paper notes.in paragraph 7, Bank of Uganda said that they are in the process of amending the law to criminalize misuse of currency notes and coins and the Bill is before Parliament. The same argument was presented by the Attorney General in paragraph 6 of her defense. To the best of my knowledge, there has not been any amendment in the Bank of Uganda and Penal Code Acts. Where then do the banks derive their argument?
In my view, the Bank of Uganda statement may be politically motivated. The framers of the law put emphasis on coins since by that time, there was no threat to paper notes and that is still the position of the law. The law should be read, interpreted and applied as is until parliament puts something else on the menu. New crimes are managed by putting in place new laws but not reading old laws to apply to new crimes. That’s why, new legislations like the Computer Misuse act have been enacted to address changing crimes.
I however warn that if any writing on paper notes is to be criminalized, it will mean that if ink pours on the money, it will cease to be legal tender. I doubt that the law even if amended will specify the nature of writing that invalidates currency. What will be then done to writings on the money that does not bear political messages like numbers? Are they equally criminalized? How is such money going to leave to system without creating deflation? It circulation is stifled, wont it affect movement of capital? These are hard economic questions we should ask before taking quick decisions.
I am personally opposed to writing political messages on currency. However as I have argued, law is not determined by what one likes or dislikes but what the legislature has called illegal. If as a country, we are opposed to writing on our currency, then Parliament should fast track passing of the Bill that introduced the amendment. This is matter of national urgency since it affects every Ugandan who uses currency. The bill can be debated and passed in fewer days than the Amendment to the Constitution removing term limits given the fact that this is a mere amendment to the Act of Parliament and not the constitution.
Nyanzi Umar.
Senior Consultant at lawbert consult & Agencies Ltd,
Advocate.
Nakachwa and partners
