By Joseph Kwesiga.
As usual Political undertones and diversionaries are quickly brought in as easy scapegoats to try and deny the reading Public genuine facts about any controversial matter by those seeking to hide the truths. At the end of it everything becomes Political. Death becomes political, corruption becomes political and so logic is gravely stifled at the end. We must however not allow this. As a lawyer and a great admirer of the Uganda’s highly independent judicial system, I find it nauseating for anybody who fails to account for his or her transgressions in courts of law to resort to heaping blame at the judiciary with all sorts of bogus innuendos. The recent outburst of Hon mukula the man himself after his conviction and other commentators are very unfortunate. Its my humble prayer that members of the judiciary take note of all that political blackmail, and stand firm to resist it all through.
Anybody who followed the case UGANDA VS A1 JIM MUHWEZI, A2 MIKE MUKULA, A3 DR. ALEX KAMUGISHA, A4 ALICE KABOYO, or bothers to find out the facts on the record of court will appreciate why those judgments came out the way they did. The following account can help all to understand the differences between the judgments of all the four accused.
The 4 accused persons were jointly and severally charged on various Counts. The case was registered at Buganda Road Chief Magistrates Court on 22nd May 2007 with regard to mismanagement of the GAVI fund.
On 22nd May 2012 A2 (Mike Mukula) and A3 (Dr. Kamugisha) who had been arrested the day before were arraigned in Court and pleaded not guilty. Since the offenses were not bailable at that time before magistrates’ courts, the accused were remanded to prison and were subsequently released on bail by the High Court.
A4 Alice Kaboyo took plea the following day (23.05.2007) and also pleaded not guilty and was remanded but also later released on bail by the High Court.
A1 Muhwezi took plea on 28th May 2007 and also pleaded not guilty, was remanded and subsequently released on bail.
Thereafter the accused persons filed a multitude of Constitutional Petitions to the Constitutional Court, and asked for a stay of the criminal proceedings in the trial Court, pending the disposal of the petitions. The trial Court declined to stay the proceedings because the Magistrate was of the view that the accused persons did not have legitimate grounds to petition against their trial and were only doing so to delay the trial. The lawyers for the accused person then abandoned them in Court (on 29th October 2007) but the Court ordered prosecution to lead the witnesses who were present in Court that day. Accordingly, Mr. GustavioBwoch, (Accountant General), Mr. Richard Muhinda (then State House Comptroller) and later Dr. Issa Makumbi (Director, UNEPI, which was in charge of the relevant GAVI Project) testified. However, they were not cross-examined. The accused’s lawyers made a Revision Application against the decision of the Magistrate not to stay the proceedings to the High Court, which granted their application and the trial was stayed pending the Constitutional Petitions.
The Constitutional Court made its decision in 2010, dismissing the accused persons’ petitions and ordering resumption of the trial.
By this time, the Anti-Corruption Court had been established so the trial was transferred from Buganda Road to ACD, Kololo. The case was assigned to Chief Magistrate Irene Akankwasa before the trial could resume, the accused persons lodged an appeal to the Supreme Court against the decision of the Constitutional Court. The trial was again stayed until March 2012 when the accused persons withdrew their appeal. The trial then resumed in June 2012. The trial was set to run for 2 (two) weeks from 11th June 2012 to 22nd June 2012. On 11th June 2012 the trial resumed with the cross examination of the first 3 prosecution witnesses who had testified in 2007.
On 12th June 2012, A4 Alice changed her mind and decided to plead guilty. Ms. Alice Kaboyo, formerly working in State House as Private Secretary to HE the President, was charged with theft of Ug. Shs. 250 million (250,000,000/=) C/S 254, Penal Code in Count 10, Abuse of office C/S 87, Penal Code (Counts 11,12),making a document without lawful authority c/s 355(a) of the Penal Code(counts 13,14), Forgery C/S 342 of the Penal Code (Count 15), Uttering false documents C/S 351 as an alternative to Count 15 and Uttering false documents C/S in Count 16.
She was convicted and sentenced to a total fine of Ug.shs. 20,000,000/= or 2 years imprisonment in default of payment of the fine. The reason the Magistrate gave for the leniency is that the accused had readily pleaded guilty and thereby saving everybody’s time including that of the Court, that the accused had already refunded the money in issue,( as soon as the investigations had started). Kaboyo opted to pay the fine rather than serve the two year default imprisonment. Suffice to point out that although under the offenses, there is no provision for fines, the Magistrate exercised her powers under S.178 (2) and 180 of the Magistrates Court Act which empowers her to punish a person liable to imprisonment with a fine instead of or in addition to imprisonment.
Although Prosecution was unhappy with the leniency, it could not appeal because prosecution has no right of appeal on sentence except when it is illegal which wasn’t the case here.
JIM MUHWEZI AND DR. KAMUGISHA
After the proceedings against Kaboyo were concluded Prosecution proceeded against the 3 remaining accused. Other witnesses were called (8 in total). One of the witnesses was Mohammed Kezaala the Permanent Secretary, the Ministry of Health during the period of the commission of the offenses. At the closure of the prosecution case, the defence lawyers made submissions for a no case to answer, and the prosecution team made a reply and thereafter the Court made its ruling, acquitting Muhwezi and Dr. Kamugisha on all the Counts they were facing. Mukula was also acquitted on all other counts he was facing except count V for which he was put to his defence. I will return to count V later. The ruling of the Magistrate summarizing the counts each accused was facing and the reasons for her decision is hereto attached.
The main reason for acquitting Dr. Kamugisha, Muhwezi and Mukula (on all other Counts except Count V) was the testimony of Mohammed Kezaala. The charges that the 3 (three) Ministers were facing were primarily hinged on their involvement in the fund (money) requisition process where as political heads, they ought not to have done so, as this was a technical function of the P/S (Accounting Office) and his agents.
However, in his testimony, Kezaala absolved the Ministers of any wrong doing in the requisition process. Instead, he testified that blame should be placed on those who after receiving money for activities, did not either carry out these activities or failed to account for the same. Given this testimony all Counts, except Count V had to collapse, this is so because it is the only Count whose particulars were related to directly taking money and not accounting for it. The other Counts were related to the requisition process for which Kezaala took personal responsibility. Although the Prosecution was unhappy with Kezaala’s testimony, it could not in turn prosecute him because the nature of his testimony was such that he also absolved himself of any criminal culpability.
With regard to Count V, Muhwezi and Mukula were jointly charged but the evidence on record pointed only at Mukula. Therefore whereas Muhwezi was acquitted on this Count, Mukula was put to his defence in light of the overwhelming evidence against them. Again, although prosecution could have been disappointed with the acquittals, it must have understood the reason the Court gave especially in light of Kezaala’s testimony.
The case against Mukula is one of the most clear cut embezzlement cases that shocks every legal person in his or her prosecutorial career. It would have been truly shocking if he had been acquitted. Conviction was the only rationale result. Below are some key pieces of evidence against him.
(i) He signed for the 263 Million indicated on the relevant vouchers as receiver of the money.
(ii) The Cashier who withdrew the money from the bank testified to the effect (no.1) above and prosecution also tendered in the documents.
(iii) Evidence on record shows that only Ug.shs. 54 million was passed over to Lalam Margaret, Personal Assistant to the first lady. Mukula kept the Ug.shs. 210 million according to him in a “safe place somewhere.” He couldn’t explain why he kept the 210 million and what ‘’safe place’’ meant and also why he kept returning it in bits over some period. And also why he didn’t pass it on for the activities it was intended or the purpose he had received it for. It is also surprising to recently learn in the media that the office of the first lady didn’t know of any other money beyond the 54million that was requisitioned on its behalf. So what was the intention of requisitioning money that had no specific activity, and only to return it months later, after investigations have commenced?
(iv) He returned the money in installments. If he had kept the money in a safe place, he could have returned the same in a lump sum. And the first installment was paid after the IG investigations had commenced. The refund was therefore made due to the commencement of the investigations not voluntarily. The refund was therefore made after the fact of thought. Why not therefore convict him? A contrary ruling in fact, would have been unprecedented.
(v) Mukula was sentenced to 4 years imprisonment. Under S.268 of the Penal Code (embezzlement) the section under which he was convicted, sets a minimum sentence of 3 years and a maximum sentence of 14 years.The Magistrate has no option to sentence to a fine and therefore section 178 of the MCA does not apply unlike in Kaboyo’s case. Therefore the minimum sentence that the magistrate could legally impose was 3 years. She was lenient and sentenced him to only 4 years. One of the reasons for the leniency was the fact that he had refunded the embezzled money any away; otherwise it could have been ten or so like Cheeye is serving. However, unlike Kaboyo who readily pleaded guilty, Mukula dragged the court and prosecution through a full trial, starting from 22nd MAY 2007 when he took plea to 18TH January 2013, when judgment was passed,a period spanning almost 6 years.Given this,the court was actually very lenient. We must understand all this before we politique and charge ignorant people. Otherwise, the whole hullabaloo about fighting corruption will remain a tool to only facilitate political arguments and rhetoric as opposed to walking the real talk.
The writer is a city lawyer