Disclosure, Privilege and ‘Orders from Above’

BY ATUHAIRWE AGRACE

I’ve been glued to the NCIS series for the past fortnight. This series focuses on criminal investigations into the US Navy and yes, it is fun to watch. In most episodes, the cast refers to words like ‘disclosure’, ‘classified’, ‘eyes only’, ‘top secret’, ‘privileged information’, etc. As I enjoyed the drama between the characters, I wondered what excuse we would give in our context at home.

The word ‘Orders from above’ resounded in my head. The thought of sharing little about disclosure, privilege and ‘orders from above’ also popped up. Perhaps it’ll shed some light on the meaning and context of these phrases to court attendees with zeal to learn some defense terms in law.

Disclosure means revelation of all material facts. Privilege means a special legal right or exemption a person has to do or not to do something. In both instances, the claimant of the legal right is exempt from doing or refrains from doing something they ordinarily would or would not do.

Disclosure

Disclosure is revealing something that is previously unknown. It is full disclosure if all material facts are revealed: or public disclosure of private facts relating to a feature of a person’s private life not part of public knowledge. It can also be voluntarily made or under any legal or illegal duress.

An example is where court orders a party to disclose the source of some information. As a rule, advocates do not disclose their clients’ information unless ordered by a competent court or compelled by law or given consent by the client. Where the advocate does not have instructions from a party to act on their behalf, he/she is not in position to disclose any information. This position relates much to the Income Tax Authorities.

The advocate is obligated to seek permission from the client before he/she discloses any information in their reach or request that may jeopardize the client. The advocate may also advise the client to waive privilege and disclose the information upon consent.

In litigious matters where spousal relations exist, a spouse cannot be compelled to disclose any information made to him/her during the marriage unless;
a) In an offence of bigamy;
b) Tortuous offences involving persons or property or a child/minor in the marriage. However, only the spouse is protected, not the third party who acquires it.
c) Offences against morality, especially where a spouse or both are charged.

Privilege

Information that is privileged can only be disclosed by the person with authority to make, disclose or give it; not their representative. Its object is to ensure utmost confidence in the persons involved and maintain unreserved exchange of information, acts and entitlements.

In litigation, privilege is prerogative for the client, not the lawyer.

It can be challenged when the hidden information relates to furtherance of a crime or fraud except for the information revealed to an advocate for purposes of affording a defence in a criminal proceeding.
As a matter of public policy, any information held ought not to be disclosed. It may be official between persons of official status.

Advocates are advised to claim that certain information is privileged when in any dilemma as to whether or not the information is privileged. The opponent is therefore advised to prove that such information is not privileged for them to have access to it.

Privilege is a tricky term and defence. If it is against public policy, it is personal to the conferee and can be waived. It is personal property therefore the person is protected, not the information. If the privileged information falls in the hands of a third party, it is no longer privileged. Only the person is privileged. In a marriage, if the wife commits armed robbery and confides in the husband, the communication is privileged. But if their shamba boy hears of it, he can disclose it.

‘Orders from Above’

‘Orders from Above’ is like a medicinal herb for perpetrators of questionable acts. It is coined with an elevated twitch to it. It is a chain of command common among military and political affiliations. This term exposes some form of an unknown authority giving orders to a subordinate to carry out, usually without caution or query from whomever the act affects.

Just like its anonymity eerie, ‘Orders from Above’ wields power and protection from the highest chain of command to the lowest ranking official. Instructions descent whilst accountability ascends.

With the modest examination above, perhaps court enthusiasts will follow court processes without much difficulty when court deploys weighty terminology.

And as the fervent cast in my series enjoys throwing the terms ‘privilege’, ‘non-disclosure clause’ and ‘orders from above’ to the great Agent Leroy Jethro Gibbs, the frightened civilians and court enthusiasts in Kenya and Uganda who await accountability in #JusticeforWillie and #DPPKayihura cases now understand what the defensive terms mean.

This article appears in our weekly law newsletter, The Deuteronomy Volume 5, Issue 3, of August 19th, 2016

The law permits sharing.
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