Does our justice system catch small fish and let the big fish swim?

What you need to know:

  • Justice system. The NRM government boasts of having created many institutions to fight corruption, but it is also during its tenure that Uganda has witnessed some of the worst heists and abuses of public funds.

On Monday, former National Social Security Fund (NSSF) managing director David Chandi Jamwa lost an appeal he had filed in the Court of Appeal against the 12-year sentence that the Anti-Corruption Court had handed out to him in 2011 for causing NSSF a financial loss of Shs3 billion.
Jamwa has since lodged an appeal in the Supreme Court. That makes it difficult, at least for now, to tell whether the trial can be perceived as a mark of success in the NRM government’s fight against graft.
The NRM government boasts of having created many institutions to fight corruption, but it is also during its tenure that Uganda has witnessed some of the worst heists and abuses of public funds.
In 2005, the World Bank estimated that Uganda loses about $300 million (about Shs1 trillion) through corruption and procurement malpractice every year. That figure is believed to have more than doubled.
In 2015, a survey carried out by the Public Procurement and Disposal of Public Assets Authority (PPDA) unearthed theft of humongous amounts of money through inflated procurement deals. It was also found that 71.8 per cent of members of the public believed that there was massive corruption in public procurement and that 59.8 per cent of service providers had paid a bribe to win tenders or contracts.
A 2016 report of the Auditor General also revealed deals worth more than Shs200 billion were fraught with irregularities, yet amid all this mess successful prosecutions have been few and far in between. True that a Jamwa or Geoffrey Kazinda has been prosecuted here and there, but not the “big fish”.
A senior government minister was recently alleged to have taken a bribe of $500,000 (about Shs1.8 billion) from a Chinese firm to help it gain “business advantage”. A few voices that raised the matter in Parliament died out and there is no evidence that any investigative arm of government has taken up the matter. Why?
Prior to that, the May 11, 2010, report of the Public Accounts Committee (Pac) on the alleged misuse of Shs500 billion meant for the Commonwealth Heads of Government Meeting (Chogm) had named the former vice president, Prof Gilbert Bukenya, along with nine ministers including Sam Kutesa, Amama Mbabazi and John Nasasira, in the alleged misuse of the funds, but it was only against Prof Bukenya that charges were brought.
No other names were listed along with those of Chris Obey, Steven Kunsa Kiwanuka and Jimmy Lwamafa in the theft of pension funds or the Jamwa trial before it, but it was inconceivable, even to the trial judges, that the trio could have pulled off the theft of Shs88.2b in pension funds without the help of others or that Jamwa, could have made decisions without the board’s endorsement.
“This syndicate was crafted in the Ministry of Public Service, modified in the Ministry of Finance, smoothened in Bank of Uganda and perfected in Cairo Bank,” said Justice Lawrence Gidudu while reading out his ruling in the pension money theft case in 2016.
What does this say about the criminal justice system? Is it one that protects the rich and the politically connected?
The Principal Judge, Justice Yorokamu Bamwine, insists that it is an equitable system that dispenses justice to all Ugandans regardless of their stations in life. The Judiciary, he says, should not be blamed that the big fish are never caught.
“We deal with those who are before us. We don’t go for those who should have been, but are not in court,” he says.
If anyone is to blame, he says, it should be the investigators and prosecutors.
“You can perhaps blame it on the investigation mechanism… We don’t investigate cases. Cases are investigated by another (other) independent arm(s) of government,” he says.
However, the Inspector General of Government (IGG), Justice Irene Mulyagonja, insists that the big fish will only be prosecuted when enough evidence has been collected to have a successful prosecution.
“The burden of proof falls squarely on the prosecution. Prosecution must have the proof that will discharge the burden in the eyes of the courts to the standard of beyond reasonable doubt,” she says.
Prosecution of high profile people without ample evidence, she says, might result into accusations of malicious prosecution, which would in turn lead to civil suits against the prosecuting agencies and heavy costs in damages.
“Depending on how heavy the person’s office is and their reputation, if you take them to court when there isn’t a thread of evidence that can get you to the point of (the judge) saying that the accused has a case to answer there might be retribution,” she warns.
Justice Mulyagonja is right. Prosecution cannot be carried out on a whim, but there is a need for the prosecutors to up their game lest Uganda continues looking like a country with two sets of laws, one for the rich and politically connected and another for the unwashed of the land.