Computer misuse case puts GIZ in a tight spot

Mr Ndyabagye’s trouble stems from a dossier—now part of court records—titled Who oversees checks and balances at GIZ Uganda and other donor partners.  The former security risk management advisor said on August 4, 2021, he was told by James Macbeth Forbes, GIZ’s country director that “the position I held for seven years has been offered to the spouse of one of the development workers from Austria.”

“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 reasoned in a document uploaded onto the Internet, adding, “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.”

Up in arms

In August 2021, Mr Ndyabagye said five of his colleagues were given notice for termination. None, he added, “was given an exit interview in line with the national staff employment handbook.” He found it odd that “two of my colleagues will soon be replaced by Pakistani nationals who are also sisters.”

A driver, Mr Ndyabagye further wrote, “was terminated for giving feedback to a consultant that the country director should separate private from duty-related tasks.”

Mr Ndyabagye revealed that the country director had instructed the retrenched driver to “transport [his] alcohol” at a time that conflicted with other appointments. Elsewhere, a communications and public relations (PR) advisor in Band 4 was laid off “due to budget constraints” but GIZ went on to hire “a Band 3 and outsourc[ed] part of the role to a PR company.” All this didn’t add up, Mr Ndyabagye opined.

On August 11, 2021, GIZ responded by reporting the issue to the police. Mr Ndyabagye promptly had an offensive communication slapped on him. The Directorate of Public Prosecutions eventually sanctioned the file, revealing that Mr Ndyabagye disturbed the peace of Mr Forbes with no purpose of legitimate communication between August 6 and 10 in Kampala District.

Mr Ndyabagye was also accused of wilfully and repeatedly using electronic communication to disturb the peace of Carsten Blaich 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 is gathering dust before Justice Emmanuel Baguma—the deputy of head civil division—GIZ accused Mr Ndyabagye of using his Twitter handle to spread his dossier, which they find “defamatory”.

“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, adding, “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.”

Anonymous letters

It’s the criminal case at Buganda Road Court that has made inroads. Mr Forbes stated that Mr Ndyabagye used his dossier to accuse him of nepotism, racism, laying off people without reason; targeting single mothers, financing international terrorism; 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 Finance and Internal Affairs ministries.

Mr Forbes also revealed that he was questioned by his supervisors at the GIZ head office, in Bonn Germany thanks to the email attachment. The police was 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.

Sunday Monitor understands that 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.

Though he said charges were pressed after he received four anonymous letters, Mr Blaich said the letters only threatened Mr Forbes.

“There was no single email from Victor Ndyabagye that threatened me or any of my family members, but the charges were instituted because of the threats in the anonymous letters,” he said.

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.

Mr Baluku further noted that he could not verify the veracity of Mr Ndyabagye’s open dossier since “I never interviewed most of the GIZ staff about what Victor complained about.”

There are five ingredients under section 25 of the Computer Misuse Act that 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 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.”

Enter Kamasanyu

The track record of the Buganda Road Court Chief Magistrate handling the matter doesn’t portend well for Mr Ndyabagye.

When deciding cases involving the Computer Misuse Act, Ms Gladys Kamasanyu, in 2018, summarily convicted and sentenced Brian Isiko—then a student of YMCA Jinja Branch—to two years in prison. This was after he was arraigned before her court on charges of offensive communication and cyberbullying.

Mr Isiko was accused of sending a volley of love messages by telephone to Sylvia Rwabwogo, then a Kabarole Woman lawmaker.

When Mr Isiko appealed, the High Court ordered for retrial having found that Kamasanyu failed to follow the laid-out procedures when the accused was taking his plea. The retrial suffered a stillbirth.

In 2019, Ms Kamasanyu sentenced Stella Nyanzi—an acerbic critic of President Museveni— to 18 months in prison. Nyanzi was deemed to have offended the President’s deceased mother, Esteri Kokundeka in a Facebook post that went viral.

A few months later, the High Court quashed Ms Kamasanyu’s findings, accusing her of sidestepping Nyanzi’s rights.

“I have carefully perused the proceedings of the lower court and I note with disquiet that while it is clear that the learned trial magistrate was alive to all legal requirements that ought to be followed in a criminal trial, the lower trial court adopted such bizarre proceedings in total disregard [of] … the standard required for the proper conduct of judicial powers as elucidated by Article 126 (1) of the Constitution of the Republic of Uganda which entails the exercise of judicial powers by the courts to be in conformity with the law,” Justice Henry Peter Adonyo ruled.

Nyanzi has since fled to exile in Germany. On November 14, Ms Kamasanyu will yet again render her ruling in a Computer Misuse Act case when she determines Mr Ndyabagye’s case.