Anti-corruption drive: Tough times ahead

Thursday December 5 2019


By Karoli Ssemogerere

Two superior courts, the Supreme Court and Court of Appeal, have pronounced themselves in two criminal appeals. A sharply divided Supreme Court 3-2 (Mwangusya, Tibatemwa, Mugamba Paul) –(Kisaakye, Tumwesigye dissenting) confirmed conviction and sentence on David Chandi Jamwa, a former managing director of NSSF on abuse of office and causing financial loss for breaching procedure and prematurely withdrawing term securities at a discount before maturity date.

Even though trading at discount before repo is normal, the court held that the balance lost at maturity met the ingredients of the offence. Another not so minor issue was the lack of coram in the appeal court, two judges were no longer at the court at the time judgment was read and delivered in open court. Writing a sharply worded dissent, Dr Esther Kisaakye, the presiding justice, wrote that coram should exist at all stages of the hearing until judgment, and that the right to a fair hearing extended similarly as well.

In the Court of Appeal, Musoke, Obura, Madrama, Justices of Appeal set free a freelancer procurement consultant Timothy Musherurwa and confirmed conviction and sentence on former PS John Kashaka Muhanguzi and other former officials at the Ministry of Local Government, for causing government financial loss in the procurement of bicycles for LCI officials. This is a strange case because it was Bank of Uganda who authorised payment against an incomplete/altered bill of lading in violation of conventions of international trade. These two cases stand out for a few reasons. First was the highly charged political tenor of their circumstances. Mr Jamwa transacted NSSF securities with Crane Bank now in liquidation after being closed and sold by Bank of Uganda in 2017. The Fund is now worth nearly Shs20 trillion or 10 times its size in 2007 when these transactions happened. The real story were its connection to the politics of the day, which involved two former heirs apparent, former vice president Gilbert Bukenya and former prime minister Amama Mbabazi.

Mr Mbabazi for one at the time was able with his business partners to liquidate a significant land parcel in Temangalo to NSSF raising significant eyebrows even though in the end, an audit nicknamed “value for money” found no financial loss even though this land remains vacant today, is still mired in litigation and attracted fresh claimants before the Bamugemereire Commission of Inquiry. In Mr Kashaka’s case, the two Indian suppliers both died in the ensuing fall out raising doubts that they existed in the first place. This was a political procurement, and government eventually had more priorities to deal with and paid retiring LCs a token of Shs20,000 after 20 years of service.

The rule of law imposes certain expectations on litigants before the courts. The exercise of judicial power, an essential ingredient requires utmost constraint, as it is a binding power of citizens over other citizens. Both of these cases fell short of standard on just one count, the inordinate delay in their appeals being heard and disposed of. Someone may say the appellants exposed themselves to jeopardy by applying for their constitutional right to bail pending appeal, but even when the files came up for hearing, there were obvious gaps in the court records.

This is a major blemish on the Judiciary and the rule of law, as justice must be done and “seen to be done”. The Chief Justice must come out clearly on limiting the powers of justices who have attained retirement and or otherwise vacated office from hearing new matters. There was a case of a retired justice who continued signing judgments until the matter was raised with the Law Council months after he had left office. Appeals languished for years at the Court of Appeal until new leadership came into office. The Chief Justice must also curb the use of omnibus hearings now that Justices have received some base pay recompense to encourage them to do their whole work rather than simple concurrence or blank dissent. This practice is alarming the public who are afraid their cases are cooked rather than heard.

Mr Ssemogerere is an Attorney-at-Lawand an Advocate.