Why Judge Gidudu did not order Mukono-Katosi road scam convicts to refund lost money
The public has been cynical, questioning why Judge Lawrence Gidudu did not order the refund, but in his judgment, Gidudu made it clear that once IGG’s charge of causing financial loss to government had crumbled like a cocky, it became legally impossible to him to ask the convicts to refund the money.
CORRUPTION | One of the most intriguing issues about Justice Lawrence Gidudu’s judgment in respect to the botched Mukono-Katosi road was the fact that businessman Apolo Senkeeto was sentenced to 10 years in prison for stealing Shs24 billion but the court refrained from ordering him to refund the money.
In order to pocket this money, Senkeeto, alias Mark Kalyesubula, presented himself as the country representative of Eutaw, which purported to be American-based.
The public has been asking why the judge spent more time in writing a humorous judgement than making the order for the refund of the lost money.
In fact, none of Senkeeto’s co-convicts in Joe Ssemugooma (UNRA’s former acting director for finance and administration) and Wilberforce Senjako (former UNRA regional accountant) were ordered to refund even a cent.
The ruling of the Anti-Corruption Court prompted veteran journalist Joachim Buwembo, who was irked to claim via social media that “the stolen money remains safe somewhere with whoever has it.”
But in his judgment, Justice Gidudu made it clear that once IGG’s charge of causing financial loss to government crumbled like a cocky, it became legally impossible to him to ask the convicts to refund the money.
‘Prosecution bungles it’
Refunding the money became problematic when Lisa Mwagale, the IGG’s investigating officer — who was prosecution witness number 22 — told the court that some works had been done on the road before they were stopped by the Ombudsman , Irene Mulyagonja.
Mwagale was alluding to the work done by Chongqing International Construction Corporation (CICCO), which took over the construction of the road when it was discovered that the Eutaw incorporated in Florida — which had got the contract — had no capacity to construct an inch of a road.
Ironically, Mwagale’s evidence created loopholes within the case, which the defence lawyers pounced on and dutifully exploited by telling Justice Gidudu in their final submissions that, actuall,y there was no evidence to prove actual loss.
Indeed, in his judgment, Justice Gidudu pointed out that evidence adduced by the IGG indicated that there was no audit of the road works to determine the value of the work done. Though three key state witnesses had put the value of the works between Shs5.8 billion to Shs6.1 billion out of the Shs24 billion which was the advance payment, Gidudu wasn’t convinced.
“What, therefore, was the actual loss?” Justice Gidudu rhetorically asked. “There is no definite answer in absence of engineering audit report.”
In the grand scheme of things, Justice Gidudu said that though the IGG seemed to suggest that the whole Shs24 billion was lost, evidence tabled indicating that road works to the value between Shs5.8 billion and Shs6.1 billion was done.
In dealing with this sticky issue, Justice Gidudu, among other things, evoked the authority of Godfrey Walubi and another Vs Uganda by the Court of Appeal. Therein, it was emphasised that exact loss must be proved and shouldn’t be assumed.
“It should not just be assumed that the accused’s actions would cause loss,” Justice Gidudu said, “The actual loss has to be proved. In other words actual loss must be quantified and stated. Loss is not speculative.”
Applying the standards set in the forgoing cases, Justice Gidudu said that it is clear that evidence must be adduced to quantify the loss and prove that the loss is not recoverable. “Financial loss has, therefore, not been proved in this and other counts drafted in similar fashion as I will indicate later in this judgment,” he said.
IGG ‘created loopholes’
It is the judge’s opinion that the IGG should have commissioned an engineering audit of the road works or obtained and led evidence from the contract supervising consultant to establish the actual value of work done.
“It is the actual value of work done plus assets if any, minus the advance payment that would establish the actual loss,” the judge further expounded in his 73-page judgment. “Loss is that value that is not recoverable by any measures considering that fake securities were used.”
Though Sarah Birungi, the IGG’s lead prosecutor, had asserted that as long as there is evidence then loss is proved, but the judge was having none of it.
“With due respect to learned counsel, I’m unable to accept that argument for two reasons,” Justice Gidudu said referring to Birungi, “The first is that the charges speak of loss of Shs24.7 billion yet evidence adduced is less than that. If evidence adduced is contrary to the charges in court then the case is not proved beyond reasonable doubt.”
The judge said that such a variance creates doubt, “which is resolved in the favour of the accused.”
Indeed, though Birungi had asked Gidudu during Wednesday’s mitigation session to order the three convicts: Senkeeto, Ssemugooma and Senjako to refund the money, the judge in his 10 paged sentencing ruling on Thursday rebuffed the request.
“With the greatest respect, after finding that there was no road engineering audit to quantify the loss, it would be a question of guess work for the court to fix a value that is not scientifically established. I therefore make no order of compensation despite the need for one,” the judge concluded