Unanswered questions about the Shs165b pension scam case

Mr Jimmy Lwamafa (2nd L) and Mr Christopher Obey (R) at the Anti-Corruption Court in 2013. The case was dismissed by Chief Magistrate Sarah Langa on grounds that the State had in the last two years failed to bring even a single witness to testify against the nine suspects. FILE Photos

By the time High Court judge Benjamin Kabiito issued a temporary injunction against joining Cairo International Bank and its managing director, Mr Nabil Ghanem, on the charge sheet of pension scam suspects on September 22, 2014, he was already uneasy over the delay in prosecuting the earlier suspects.
Justice Kabiito wrote: “As we await the determination of the main application by this court, I am constrained to question why the trial and prosecution of the nine accused persons on the basis of the first charge sheet ... has not proceeded before the trial court and in public interest, given the nature of this case and the colossal amounts involved.”

He added: “The consideration of this (Cairo Bank) application by this court, and the fact that this application is being hotly contested by the parties suggests that this matter may be in this court for a while before it is finally determined, and the trial magistrate of the criminal case should not use these proceedings ... as an excuse to stay and not to proceed with the conduct of the trial of the other accused persons as the application is sorted out.”
Mr Kabiito further advised that there was no requirement that all persons or entities that may be found to be involved whether as “principal offenders, aiders or abettors ... or as joint offenders” must be prosecuted at the same time.
“Separate trials for different categories of offenders can be and should be embraced as a prosecution strategy that is pragmatic to deal with a situation such as this,” he said.

Case dismissed
This advice was directed at Ms Sarah Langa, the Chief Magistrate of the Anti-Corruption Court, before which nine suspects in the pension case had been charged eight months earlier, on January 29, 2014.
The nine suspects are former Public Service permanent secretary Jimmy Lwamafa, former ministry chief accountant Christopher Obey, Mr Steven Kunsa Kiwanuka (former director for research and development), Mr David Japiens Oloka (former senior accounts assistant) and Mr Francis Lubega (former information system analyst).
Others are Mr Steven Lwanga (former accounts assistant at the Ministry of Public Service), Mr Peter Ssajjabi (secretary of the East African Community Beneficiaries Association), Mr Ishaka Sentongo (assistant manager operations Cairo Bank) and Ms Rahmah Nakigozi Mugeere (compliance officer, Cairo Bank).

Ms Langa waited in vain for the prosecution to produce witnesses for the case to proceed, until she lost patience and dismissed it for want of prosecution on April 14. The Director of Public Prosecutions, Mr Mike Chibita, police boss Kale Kayihura and Criminal Investigations and Intelligence Directorate boss Grace Akullo have since vowed to have the case reinstated.
“The police investigation of the case was thorough and comprehensive,” Gen Kayihura wrote in a statement on Wednesday following revelations by Ms Grace Akullo in a Daily Monitor story that the police was offered bribes to derail the investigations.
“Strong evidence in form of witnesses and exhibits is available. In fact, the office of the Director of Public Prosecutions and the police are working together to ensure that the case is reinstituted.”

Judge punctures Komurubuga’s report
The revelations in the Daily Monitor story, which ran on Wednesday April 22 under the headline “Police bribed to kill pension scam case”, caused a stir in different circles. Gen Kayihura has now placed stricter controls on officers speaking to the media.
In Parliament, different officials were questioned, with the DPP, Mr Chibita, telling a committee that “strange things” happened in the pensions case.
Mr Chibita, however, declined to speak to Sunday Monitor for this story. In reply to our email inquiring about the directorate’s role in the investigations and a detective’s claim that the DPP had sought him out to exclusively work on the case, Mr Chibita wrote that he will speak to us “when I am ready”.

Internal Affairs minister Aronda Nyakairima, in whose docket the police falls, promised in Parliament that the two detectives Ms Akullo named as having authored a separate investigation report to the DPP would be arrested. We could not verify whether this had taken place by the time of filing this report.
The detectives in question are Mr George Komurubuga and Mr Moses Kato. Ms Akullo said in the interview for the Wednesday story that the two had “deserted office”, but Mr Komurubuga maintained that he and Mr Kato had got authorisation to pitch camp at the Anti-Corruption Court, on the request of the DPP, to help work on the case.

Mr Komurubuga is no stranger to controversy. In May 2006, he was dropped from a team investigating the Global Fund scam after being reported to the Global Fund Commission of enquiry headed by Justice James Ogoola that he had taken a bribe of Shs4m “to tamper with evidence in support of the MP-elect for Rubabo County, Paula Turyahikayo,” a report filed on May 13, 2006, by the news agency Uganda Radio Network shows.
Speaking to us earlier in the week, Mr Komurubuga waved a copy of a letter by Mr Chibita, dated March 13 in which the DPP writes: “The investigators who are required are D/S George Komurubuga and D/AIP Moses Kato who were involved in this case from the beginning and are considered critical at this stage. They should be available as and when required by the prosecution team.”

Former senior accounts assistant in the Ministry of Public Service David Japiens Oloka at the Anti-Corruption Court in Kampala. Mr Oloka together with eight other officials accused in the multi-billion shillings pension scam case were freed recently

He pointed out to us a note on the letter by Mr William Kototyo, the deputy director CIID in charge of anti-corruption and economic crimes, entered on March 16, in which Mr Kotyotyo directs that two detectives “comply”.
In yet another letter, written last month, Mr Chibita directs the Bank of Uganda to avail Mr Komurubuga with information needed in the investigations of the pension case.
Mr Komurubuga maintained, therefore, that contrary to Ms Akullo’s assertions that they had deserted office, they were actually duly working on the pensions case with the blessing of the chief prosecutor and the authorisation of Mr Kotyotyo, their superior.
If what Mr Komurubuga says is true and the letters he waves are authentic, it raises serious questions about the running of investigations and prosecutions.

Why would the DPP insist on deploying a detective who the CIID boss does not approve of? Did Mr Kotyotyo inform his boss, Ms Akullo, of his decision to clear the two detectives to follow the DPP’s orders?
Was the Internal Affairs minister, Gen Aronda, duly briefed before vowing to arrest detectives who say they are diligently doing the job to which they were duly assigned and who seem to have the DPP’s backing? And, above all, what explains Ms Akullo’s decision to speak out in the media about apparent insubordination in her directorate?

The two reports again
In another pointer to how deep the fallout with the investigations directorate could be, Mr Komurubuga told Sunday Monitor that he and Mr Kato did not sign or approve of the investigation report that Ms Akullo forwarded to the DPP on 0ctober 31, 2014.
In the Cairo Bank case referred to at the beginning, Mr Komurubuga swore an affidavit supporting the addition of the bank and its managing director to the charge sheet of the pensions scam case.
Ms Akullo’s stance was against prosecuting the bank as an entity but to instead focus on prosecuting individuals within the bank who were suspected of having participated in criminal activities. Mr Komurubuga, however, argued in his affidavit that the bank and its managing director should be tried.

“... As the person in charge of the investigations against the applicant (Cairo Bank), I am not aware of the pension funds being shared out (among eight of the suspects). I also know that there is overwhelming evidence to incriminate the applicant for theft and conspiracy to defraud the government of Uganda of Shs165b,” Mr Komurubuga’s affidavit reads in part.
The judge, Mr Kabiito, however, disagreed with Mr Komurubuga’s statement, choosing instead to believe an affidavit by Mr Dickson Tumukunde.

Mr Tumukunde wrote in part: “From 2000 to 2001, I worked closely as an aide to Christopher Obey, principal accountant, David Oloka Japiens, senior accounts assistant, Steven Lwanga, accounts assistant, Kunsa Kiwanuka, director research and development, all of Public Service, Gustav Bwoch, Accountant General, of the ministry of Finance, and a contact in Bank of Uganda, whose names I don’t recall, all of whom were involved in sharing the proceeds from the pension scam monies...”
Contrasting what Mr Komurubuga and Mr Tumukunde had written in their affidavits, the judge issued a stern indictment of Mr Komurubuga’s report.

He wrote in the judgement: “The fact that a senior police detective has categorically averred in a sworn disposition that he believes that the said persons (accused 1 to 9) did not share in the proceeds of the pensions scam, and yet the said Tumukunde, a whistle blower, who was a confessed aide to most of the accused persons and the one who first reported the case to the authorities, emphatically avers that the said accused persons did share and acquire properties with details provided, raises a serious issue over the integrity, scope and thrust of the police investigations in this case as a whole and the propriety of the preliminary report of the CIID as rendered, that forms the basis upon which the DPP’s decision to prosecute any person on the proposed charges including the applicant, was made.”

The report in question is dated December 30, 2013, and addressed to the director, CIID. It is titled “Preliminary investigation report into allegations of causing financial loss to government to the tune of Shs63b, abuse of office and conspiracy to defraud by officials of the Ministry of Public Service and Cairo International Bank Ltd vide CID Hqtrs E/003/2013.”
The report was signed by Komurubuga and Mr Kato. It has no letter forwarding it to the DPP and, Ms Akullo said in the earlier interview, the only official way is for CIID reports to be forwarded by a letter signed by herself or her deputy. Mr Komurubuga would not explain how this report was sent to the DPP.

Ms Akullo said the report she forwarded to the DPP was dated October 31, 2014, a copy of which we have seen, with a forwarding letter signed by herself. At the end of the report are the names of the 18 people who she says authored the report, including herself as the supervisor.
The others who contributed to the report were her deputy, Geoffrey Musana as deputy supervisor, Venus Tumuhiimbise (investigator general), Beata Chelimo (team leader illicit enrichment), Alfred Ojinga (investigator general), George Komurubuga (investigator general, Wathum (illicit enrichment investigator), Stephen Kanalo (investigator general).

Dickson Ndyamuhaki (IT investigator), Osuna Opendi (investigator general), Etom (illicit enrichment), Frank China (investigator general), Charles Ogwal (investigator general), Moses Kato (investigator general), Julius Okello (investigator general), Ronald Kizito (IT investigator) and Brian Magoola (IT investigator), complete the list.

Mr Komurubuga, however, said he and Mr Kato do not identify with the report Ms Akullo forwarded to the DPP. Ms Akullo said the investigation was so wide that it could only be done by a varied team that handled different aspects and that Mr Komurubuga and Mr Kato handled certain aspects of the investigation but not all of it.
Because some of what Mr Komurubuga wrote in his affidavit in the Cairo Bank case contradicts some of the things in Ms Akullo’s report, he says identifying with both would cause him to be charged with perjury (lying under oath).

REACTION
‘The fact that a senior police detective has categorically averred in a sworn disposition that he believes that the said persons (accused 1 to 9) did not share in the proceeds of the pensions scam, and yet the said Tumukunde, a whistle blower, who was a confessed aide to most of the accused persons and the one who first reported the case to the authorities, emphatically avers that the said accused persons did share and acquire properties with details provided, raises a serious issue over the integrity, scope and thrust of the police investigations in this case as a whole and the propriety of the preliminary report of the CIID as rendered, that forms the basis upon which the DPP’s decision to prosecute any person on the proposed charges including the applicant, was made’
High Court judge Benjamin Kabiito
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