Development worker in the dock over computer misuse

A former employee at Germany’s main development agency’s office in Kampala has been sued over computer misuse.

The case involves Victor Ndyabagye, a former security risk management advisor at the Deutsche Gesellschaft für Internationale Zusammenarbeit, better known by its acronym, GIZ. He is accused of offensive communication under section 25 of the Computer Misuse Act. If found guilty, Mr Ndyabagye could be punished with “a fine not exceeding 24 currency points or imprisonment not exceeding one year or both.”

Mr Ndyabagye’s trouble stems from a dossier—now part of court records—in which he claimed that he had been unfairly removed from his position at the development agency by James Macbeth Forbes, GIZ’s country director, and the position given to the spouse of an expatriate at the agency.

“It’s very unfair for the unemployed Ugandans when an intern from Austria or Germany is hired as a consultant in nine months and given an expat contract in one year. One thing should be clear, this was retaliation for my standing up for the rights and benefits of national staff,” Mr Ndyabagye claimed. “It doesn’t add up laying off a local security risk management advisor in Band 4 due to budget constraints while hiring another local and International security risk management advisor and outsourcing part of their work to a local security company.”

GIZ officials say Mr Ndyabagye’s contract expired and wasn’t renewed, and that all hires at the agency were properly done and in accordance with internal policies and local labour laws.

Up in arms

Mr Ndyabagye said five of his colleagues were given notice for termination in August 2021. None, he said, “was given an exit interview in line with the national staff employment handbook.” He claimed that “two of my colleagues will soon be replaced by Pakistani nationals who are also sisters.” GIZ officials said the hires were done above board.

On August 11, 2021, Mr Ndyabagye was charged with offensive communication under the Computer Misuse Act on claims that he disturbed the peace of Mr Forbes with no purpose of legitimate communication between August 6 and 10, 2021.

Mr Ndyabagye was also accused of wilfully and repeatedly using electronic communication to disturb the peace of Carsten Blaich, also of GIZ, with no purpose of legitimate communication.

GIZ also opened civil proceedings against Mr Ndyabagye at the High Court’s Civil Division, accusing him of defamation.  On December 12, 2021, Mr Jamson Karemani—the civil division’s deputy registrar— issued an injunction restraining Mr Ndyabagye from further publishing or causing to be published the matters, statements and words that are subject of the main suit.

In the main case that was allocated to Justice Emmanuel Baguma—the deputy of head civil division—GIZ accused Mr Ndyabagye of using his Twitter/X handle to spread his allegedly defamatory dossier.

“The defendant published the defamatory letter with the knowledge that it was false and malicious or with recklessness as to its truth or falsity,” GIZ said in its plaint. “The defendant chose to publish the defamatory letter as a retribution for the plaintiff’s decision not to renew his contract and yet the plaintiff has discretion to determine whether or not to renew a contract of employment.”

Mr Forbes stated that Mr Ndyabagye used his dossier to unfairly and maliciously accuse him of nepotism and racism, laying off people without reason; targeting single mothers, financing international terrorism, and collaborating with corrupt immigration officials.

Mr Ndyabayge’s dossier, Mr Forbes added, was sent electronically as an email attachment to all GIZ staff. The same email attachment was dispatched to government officials such as the President as well as the Finance and Internal Affairs ministries.

As part of the regular audit, Mr Forbes also revealed that he was questioned by his supervisors at the GIZ head office, in Bonn Germany. However, police were asked to pick interest in the issue after Mr Forbes received an anonymous letter in which he was warned there were plans to ambush him by soldiers at the airport and cause harm to his family.

During cross-examination, Mr Forbes said he wasn’t sure whether Mr Ndyabagye was the author of the anonymous letters.

On his part, Mr Blaich said he suspects Mr Ndyabagye sent an email to the Directorate of Citizenship and Immigration Control to revoke his work permit. He said that Mr Ndyabagye had sent out emails accusing him of making payments that finance terrorism and also release payments to briefcase companies. He denied the allegations.

Mr Moses Baluku, the detective who investigated the cases, said whilst Mr Ndyabagye’s open dossier had no threatening content; the email the suspect wrote on August 6, 2021, accusing Mr Forbes of nepotism and abuse of office had disturbed his peace of mind.

The detective added that another letter sent to the Directorate of Citizenship and Immigration Control on October 10, 2021, accusing Mr Blaich of financing terrorism disturbed his peace of mind.

Five ingredients under section 25 of the Computer Misuse Act must be proved before establishing a prima facie case on the materials presented to the court. They include establishing that the accused wilfully and repeatedly used an electronic communication; the electronic communication was sent to the complainant(s); the communication disturbed or attempted to disturb the peace, quiet or privacy of the complainant(s); the accused had no purpose of legitimate communication with the complainants; and the accused is liable for electronic communication.

Mr Ndyabagye’s lawyers asked the court to dismiss the case on the grounds that prosecution evidence didn’t reveal all the above ingredients.

“It is also clear from this section that, there is no requirement for the materials published to be false or cause harm to a person’s reputation, contrary to the evidence presented in court,” the lawyers say. “From the evidence of prosecution witness one [Forbes] and prosecution witness two [Blaich] as well as the exhibits tendered in court, it’s clear that the consequence of offensive communication was not sought—that’s disturbing the peace, quiet or privacy of the complainants even though the communication may have caused an angry reaction.”

Mr Ndyabagye’s prosecution under the Computer Misuse Act was vacated after the Constitutional Court ruled in January 2023 that section 25 of the law was unconstitutional.

Editor’s note: This article has been updated to reflect developments in the case and provide proper balance and context.