How IGG bungled Mukono-Katosi road scam case
In acquitting four key suspects, Justice Lawrence Gidudu, of the Anti-Corruption Court, poked holes in IGG Irene Mulyagonja's files in a manner that left no doubt that the Ombudsman had created gaps that facilitated easy escape for them. Indeed, they walked out of the court with their heads high
CORRUPTION | Three years of a protracted legal battle ended Wednesday with the Inspectorate of Government, Justice Irene Mulyagonja, securing three convictions out of the seven individuals she had accused of having a hand in the botched Mukono-Katosi road contract in which taxpayers lost Shs24 billion.
Those who couldn’t go past Mulyagonja’s net are Joe Ssemugooma, Uganda National Roads Authority (UNRA) former acting director for finance and administration, Apolo Senkeeto, alias Mark Kalyesubula, who introduced himself as Eutaw construction company’s country representative, and Wilberforce Senjako, the former UNRA regional accountant.
But Abraham Byandala, the former minister of works and transport, Berunado Ssebbugga Kimeze, a former acting executive director of UNRA, Isaac Mugote, a former Housing Finance bank employee, and Marvin Baryaruha, the former UNRA legal counsel are free men .
In quitting the four, Justice Lawrence Gidudu took digs at the IGG, which ranged from failing to produce relevant wittiness, misconceiving the law and thus ending up with slumped up charges that can’t be sustained, or drafting the charge sheet in defective way, which apparently couldn’t help the Ombudsman secure a conviction.
Take for instance Byandala, the Katikamu North legislator was accused of abuse office when he directed Kimeze to sign a contract with Eutaw, a company whose identity was subject to a due diligence report.
But Justice Gidudu, the head of the Anti-Corruption Court, agreed with Byandala’s lawyer, Nsubuga Mubiru, who had insisted in his final submission that there was no case to answer since under Section 7 of the UNRA Act 2006, the minister is mandated to give directions.
“The minister was simply following the law since under the Act he has the mandate to supervise UNRA,” Justice Gidudu ruled, “The act of writing wasn’t arbitrary or unreasonable because it’s his obligation to supervise.”
'In the charge sheet, it’s claimed the accused caused financial loss of Shs24 billion, yet evidence has been tabled showing that the road had been partially constructed by the time IGG stopped the works. So it’s not just a matter of saying that there was financial loss, the IGG ought to have carried out audits.'
The IGG’s misunderstanding of the law as per the judgment was exhibited when she accused the trio of Byandala, Kimeze and Baryaruha of okaying the signing of the contract with Eutaw yet it‘s identity was still in doubt, thus leading to loss of money.
The judge agreed with lawyers Mubiru, David Mpanga (Baryaruha’s lawyer) and Ivan Engoru (Kimeze ‘s lawyer) submissions that the regulation 31 of the procurement rules permits signing of contracts as due diligence is going on. According to judge the IGG had failed to prove that
Byandala, Kimeze and Baryaruha had Knowledge before agreeing to sign the contract that payment guarantees and securities issued by Senkeeto on behalf of Eutaw were fake or bogus.
“Payment guarantees would have insulted Unra from financial loss,” Gidudu said in his analysis, “and the above accused had no idea or it hasn’t been proved that they there were forged.”
Actually, later the judge found Senkeeto guilty of stealing Shs24 billion, forging and uttering payment guarantee bonds and securities, among others.
‘No ground for ignoring IGG directive’
Accusing Byandala of disobeying the IGG’s directive issued on July 2017 stopping all transactions relating to the said road, Judge Gidudu said, couldn’t stand because the prosecution failed to bring relevant witness to pin him and probably obtaining a conviction.
Take for example, the IGG claimed that Byandala had written to John Byabagambi, the then junior minister of works, informing him in mandatory terms to let the works go on, which ordinarily would have been construed as defying the the Ombudsman’s orders and thus illegal.
But the judge wondered why the IGG didn’t produce Byabagambi to testify if at all he acted on Byandala’s letter or not.
“Byabagambi is sill minister in cabinet but he didn’t come to court to confirm receipt of the letter,” Justice Gidudu ruled, “in absence of his evidence [Byabagambi’s] the communication just remains an internal memo.”
The humorous judge further poked holes in the way the IGG handled the case, saying failing to produce Byandala’s secretary proved to be stumbling block in proving the charge of disobeying the IGG’s orders.
This was so because in his defence, Byandala feigned ignorance saying that he never received the IGG’s letter stopping the works on the road. The bespectacled legislator claimed that that perhaps the letter “stayed at the desk of his secretary.”
With that, the judge said the prosecution should have sought out that secretary to prove to court
that indeed she submitted the letter to Byandala.
Another charge that crumbled like a cocky and actually this time it affected all the accused was the charge of causing financial loss. In his analysis, the judge said the charge was nonstarter since the IGG didn’t establish “actual loss”.
“In the charge sheet, it’s claimed the accused caused financial loss of Shs24 billion,” the judge said, “yet evidence has been tabled showing that the road had been partially constructed by the time IGG stopped the works. So it’s not just a matter of saying that there was financial loss, the IGG ought to have carried out audits.”
He added: “Actual loss must be quantified and stated–loss is not about speculations –evidence must be stated to quantify loss so financial loss hasn’t been proven.” According to judge when the IGG chased away whoever she found at the site without first doing an audit of the works that had been done, it showed lack of smartness.
“You can’t just do things out of emotions,” the judge went on, “you have to be smart.”
Today [Thursday] at 2pm, Justice Gidudu will handout sentences to Senkeeto, Ssemugooma and Senjako , who were today taken to Luzira prison since their bail programme ended upon conviction.