THE UNLAWFUL PROSECUTION OF A HUMAN RIGHTS DEFENDER COUNSEL NICKOLAS OPIO
The arrest of Counsel Nickolas Opio is so sad but a reflection of the state’s lack of tolerance to all those defending against human rights violations.
Was this arrest legal? No it wasn’t. it is alleged that Chapter Four received $340,000 from one of it's donors. Chapter four is a duly registered Company and Mr. Opio is its executive director,
Can you arrest and charge a director personally for an offence allegedly committed by a company before the corporate veil has been lifted?
A similar scenario in Uganda’s jurisprudence was witnessed in the case of Uganda vs. Prof, Dr. Gilbert Bukeya Hct-Oo-Acd_Oo_Csc-94/2011 the former Vice President Gilbert Bukenya was once involved in a similar saga with a Chinese company registered in Uganda. Police simply summoned the directors of the company for statement recording and other investigations. None of the directors was even arrested or even granted police bond, they just went back free.
I have failed to appreciate the spirit behind the DPP’s prosecution/persecution of Mr. Opio for the offence allegedly committed by Chapter Four a duly registered organisation under our laws and whose activities have never been questioned by the state.
Nevertheless, a company acting through its directing mind may be convicted of a criminal offence irrespective of whether the offence is of a regulatory nature (often an offence of strict liability) or one which involves proof of a guilty mind (mens rea). As Lord Reid said in Tesco Supermarkets Ltd v Nattrass  AC 153:
‘If the guilty man was in law identiﬁable with the company then whether his offence was serious or venial his act was the act of the company.’ (at p 164) However, an ability to attribute the mental state of an individual to the directing mind of a company, to establish criminal liability, is marred by uncertainty in relation to the degree and extent by which a delegation of authority emanating from the ‘directing mind’ is sufﬁcient to create the necessary level of proximity between the company and the individual responsible for the commission of the criminal act. How can a company be identiﬁed with the mental state of an employee when that mental state is attached to the performance of criminal activity that is outside the authority of the employee and contrary to corporate policy? But for corporate liability to ensue the act of the employee must be seen and identiﬁed as the act of the Company..”
I had the benefit of looking at the charge sheet sanctioned by the DPP against Mr. Opio, for money laundering stating that he withdrew USD 340,000 from chapter Four’s bank account knowing it to be proceeds of a crime.
Needless to reiterate, that Nickolas is a directing mind of chapter four and therefore he cannot personally be found to be culpable for money laundering as alleged. If the charges were indeed brought in good faith, the DPP would have sanctioned the same against Chapter Four and not Mr. Opio