Kazinda facing illegal charges - court rules

Seven years after he was paraded at the Anti-Corruption Court where he has been charged with a plethora of graft related charges in different sessions, the Constitutional Court has come to the rescue of Geoffrey Kazinda, the former principal accountant in the Office of the Prime Minister (OPM).

Kazinda’s relief came on Friday after four justices out of the five ruled that all the charges he is currently facing are unlawful since they are related to the initial case he was convicted of by the Anti- Corruption Court in 2013 but later acquitted by the Court of Appeal in March 2019, long after he had served the five-year sentence had been given by Justice David Wangutusi.

“These offences, in my view, fall well within the definition of offences of the same character and could adequately have been joined in one trial. The numerous trial for offences similar in character amount to a deprivation of the right to a fair hearing and contravenes Articles 28 (1) and (9) of the Constitution,” Justice Stephen Musota, who wrote the lead judgment, ruled.

He was supported by Justices Geoffrey Kiryabwire, Cheborion Barishaki and Ezekiel Muhanguzi.
Justice Musota ruled that the acts of the Director of Public Prosecutions in splitting and sequentially initiating charges of offences founded on the same facts within different cases against the petitioner prior to his conviction contravened Articles 28 (1), 28 (3), (c) and 120 (5) of the Constitution.

By the time Kazinda dashed to the Constitutional Court in 2014, he had been slumped with 18 charges which included abuse of office, embezzlement, causing financial loss of more than Shs316m and diversion of public resources.
Separately, before Justice Margaret Tibulya, Kazinda had been slapped with 69 charges related to the misappropriation of more than Shs5.4b meant for post-war reconstruction in northern Uganda and Karamoja sub-region.

In the intervening years, the DPP has kept slapping Kazinda with more charges which have seen the number accumulate to about seven separate cases in total.
Kazinda who has been personally representing himself since 2015 having ran out of money to hire lawyers, took exception to the charges and contended in his petition that during these trials he hadnot been given time to prepare his defence.

The judges noted that Kazinda has been facing on average of one completed case per year or three concurrent trials per year. “Under the circumstances, the petitioner [ Kazinda] has been exposed to inadequate time to effectively prepare for his defence owing to the fact that two or more matters are litigated at the same time,” Justice Musota noted in his judgment that was dissented to by Justice Kenneth Kakuru.

“From October 2018, the petitioner has been required to prepare defence witnesses for the third and sixth trials as well as the seventh trial. As a result, the petitioner lacks time to prepare his defence in the various trials. In addition, the petitioner has been denied the right to speedy trial due to the lengthy trials, some of which have been withdrawn along the way.”

The court took advantage of Kazinda’s petition to strike down sections 29 and 30 of the Trial on indictments Act which permits a person to be tried again for separate offences saying they are unconstitutional since they offend article 298 (9) of the
Constitution.

Section 29 of the Trial on Indictment Act says, “A person convicted or acquitted of any offence may afterwards be tried for any offence with which he or she might have been charged on the former trial under section 23 (1).”

Section 20 of the same Act says, “A person convicted or acquitted of any act causing consequences which together with that act constitute a different offence from that for which that person was convicted or acquitted may be afterwards tried for that last mentioned offence if the consequences had not happened or were not known to the court to have happened at the time when he or she was acquitted or convicted.”

Though the two sections have been giving the Director of Public Prosecutions (DPP) some level of flexibility in charging people, Justice Musota had different ideas.
“After considering the submissions of the parties and the evidence, it is my finding that the impugned sections of the Magistrates Act and the trial on indictments Act under sections 90 and 91, and 29 and 30 of the respective statutes are inconsistent with and contravene Article 28 (9) of the constitution and are thus declared null and void,” Justice Musota ruled.

Fair hearing
Kazinda had also claimed that before he could be charged in 2013, he was never given an opportunity to defend himself by his then workplace, the OPM, the Auditor General or even the Public Accounts Committee of Parliament which was examining the Auditor General’s report.
Kazinda insisted that he was on sick leave by the time of arrest in early 2013 and that to date he is still in jail battling charge after charge.

“I reiterate my earlier finding while resolving issue [number] one of the petition that the successive trials against the petitioner deny him a right to a speedy trial and consequently, he cannot have adequate time to prepare his defence. This has caused irreparable prejudice to the petitioner in that he was not accorded a hearing at his work place nor was he heard by either the Auditor General of the Public Accounts Committee,” Justice Musota ruled.

By press time it was unclear whether the Attorney General, the only respondent in the case, would appeal the judgment at the Supreme Court.

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