How former employees stole Shs3b from MTN

Kampala. Forty prosecution witnesses (PWs) testified. They are named as PW1-PW40.
Count 2, Theft: It ought to be proved also that the person charged participated in the offence. The charge has been preferred against all accused persons save Segujja.
It is prosecution evidence that on January 25, 2013 money left the MTN Mobile Money Dispute Account in seven fraudulent transactions and proceeded to agent lines.
There were seven agent lines involved. The agent lines are said to have in turn transferred the money to 138 subscriber lines. It is the prosecution case that in the process a portation happened.

Exhibit P.21 shows that Ari Telecom and Phone Accessories Ltd did receive Shs450 million on four separate occasions during the transaction in issue. Three other transactions took place then and each of them involved the sum of Shs450 million.
Involved in the heist was Tyra Enterprises Limited Rubaga, Wesley Investments Ltd, Rhino Camp Arua, and Rukungiri District Employees Co-operative SACCO.
In his charge and caution statement Serunkuma confesses he and others participated in planning and later stealing the money in question. I should state at this stage that Serunkuma contested the charge and caution statement.

It was the evidence of PW4 that he linked Serunkuma to Ayebare and that following that linkage Ayebare carried out an errand on a computer as directed by Serunkuma. PW4, however, does not state what it is that transpired besides narrating his role in linking Serunkuma to Ayebare.
There are extra judicial statements of Magombe, Segujja, Matovu, Kauma and Ayebare where Serunkuma is mentioned.
All those five persons are accused together with Serunkuma and it is gainful to note that a statement is not a confession unless it is sufficient to justify the conviction of the person making it of the offence with which he or she is being tried.

Evidence of a co –accused is of the weakest kind. Though it could be taken into consideration against a co-accused it could be used as lending assurance to other evidence. It could not be used as the basis of the case against a fellow accused. Such evidence is hearsay given that its worth is not subject to testing by cross-examination of the maker by the co-accused against whom the allegation is made.
However, the confessions of Serunkuma, Magombe and Kauma reveal that Serunkuma did participate in meetings preparatory to the insertion in computers of the device alluded to which led to the theft of MTN mobile money.

Section 19 of the Penal Code Act relating to aiding and abetting would see him included amongst the participants in the theft. I agree with the verdict of the assessors and convict Serunkuma on count 2 (theft).
Concerning the part played by Magombe in the offence under count 2, it is admitted in his confession that he took part in the theft. However, given that he contested his charge and caution statement in court there is need to look for other evidence to rely on. PW17 testified that he received money from the brother of Magombe but I find that the witness said he received that money in December 2012 before the offence happened.

Evidence was given by PW20 that Magombe was not the person behind Magombe company. However, Serunkuma and Kauma, in their respective charge and caution statements, stated that Magombe planned with them how to go about the execution of the plan to steal money from MTN. The plan eventually led to the fraud under review. The assessors advised me to find Magombe guilty on count 2. I agree with their opinion and convict Magombe on count 2.
Regarding Matovu, he admitted to the charge of theft in his confession but adding that he could not identify the agents from whom he withdrew the money.

It was his statement that from various places he was able to withdraw over Shs55 million and gave Shs5 million to Kauma. As regards the confession there is obvious need for caution for the reasons given earlier.
The fact that he chose to give cash money to his girlfriend on January 26, 2013 in the wake of the heist and some more to another, also in cash and that it was he who led police to recover that money leads one to the conclusion that there is evidence besides the extra judicial statements he himself Serunkuma, Magombe and Kauma made that he participated in the theft. I agree with the assessors and convict Matovu on count 2.

Prosecution evidence against A5 was given by PW3 who reversed the CCTV camera recordings at MTN Towers.
The video evidence in this respect was not contested. I am satisfied Kauma was the person who was captured on the CCTV footage at the time in issue. There was evidence also of PW9 who stated that Kauma earlier on had communicated to him that she planned to hack into the MTN system.

I have considered the fact that Kauma was at the Recreation Centre where she was not authorised to be and that she was working on computers.
The time she was in the Recreation Centre was the time money was dissipated from the Mobile Money Dispute Account of MTN. The evidence of PW9 regarding Kauma’s intention to hack into the system and the fact that Kauma produced Shs8.6 million which she gave to PW12 to keep for her lead to suspicion.

I agree with the opinion of the assessors that Kauma was involved in the theft. I find her guilty on count 2 and convict her.
Evidence against Oketcho given by PW3 is that he reversed the CCTV recordings at MTN Towers. It was his evidence that on camera he saw Oketcho in the company of a lady and that they moved to different computers. It was his evidence the recording was captured at 10:30am on January 25, 2013.
There was evidence also of PW32 who recognised A6 in the footage. He does not say Oketcho gave the woman in the footage access to the room on 4th floor. Others who testified to seeing Oketcho in the footage were PW34 and PW35. In the charge and caution statement attributed to him Oketcho does not admit to having participated in the theft in any way.

The charge and caution statement attributed to him in any case refers to a ‘Jackson Oketcho’. Oketcho denied ever making a statement. I have earlier related to video evidence as presented to court.
A6 was recognised in the footage by PW3, PW20,PW32,PW34 and PW35. I am satisfied he was the person identified on the occasion. No evidence has been adduced to show that Oketcho participated in the theft.
It is true he was at the location but whether he participated called for proof. On the other hand to be guilty of aiding and abetting, a person should be proved to have been consciously participating in what was being done and there should be present facts that constitute the offence.

I agree with the gentlemen assessors that the prosecution has not proved the charge of theft against Oketcho. I acquit him on count 2 accordingly.
Concerning the charge of theft, A7 in his charge and caution statement admitted that he inserted a flash in a computer because someone wanted information to open a mobile money kiosk. This extra judicial statement was contested by the accused. It is the evidence of PW3 that he saw a cleaner on the CCTV footage. That was on the 9th floor and the cleaner involved in other transactions not connected with the computer alluded to.
PW4 testified that he introduced A7 to A1 in January 2013, adding that A7 did the job he was requested to do and was paid for it. It was the evidence of PW32 that the password material to this case was stolen using a keylogger and that A7 was instrumental in this.
PW 39 testified that he interrogated A7 and that A7 had admitted to having inserted the flash device in the computer. There is no evidence connecting A7 to theft.

What evidence there is besides A7’s retracted confession is the similarly retracted confession of A1 which is contested by the maker and the evidence of PW4 who is for all intents and purposes an accomplice. It is his admission he secured the services of A7 for A1. He is an accomplice for all intents and purposes and his word cannot be easily trusted.
While the evidence of A4 can be taken into account no evidence is on record to show A7 is involved in the alleged theft or that he knew about the theft. The gentlemen assessors advise me that A7 did not commit the alleged offence. I agree and acquit him on the charge in Count 2.

Also charged on Count 2 is A8. It is the evidence of PW20 that A8 was a mobile money agent for MTN and his agency was known as Extra Link. No evidence was adduced to this effect besides the verbal assertion. It was the evidence of PW32 that A1 sent money to A8 using mobile money agent account 077220317 in the name of Ari Telecom and Phone Accessories Limited as well as Mobile Money tokens.
To this effect no evidence was produced. It was the testimony of PW34 that A8 received Shs54 million but that A8 had withdrawn Shs5 million.
Earlier in his testimony PW34 had alleged that A8 told him he had withdrawn Shs4 million.
From the evidence assembled nothing implicates A8 in the theft alleged. The prosecution has not proved theft against A8 in Count 2. He is acquitted on that count.

Against A9 in Count 2 is the evidence of PW10 who stated that on January 14, 2013 A9 went to MTN offices at Ntinda to pick lines for Ari Telecom and Phone Accessories Ltd. She collected the kit. Records initially show that on that occasion she received lines 0772101316, 0772101317 and 0772101318. It is not disputed the lines she signed for were involved in the fraud. It was never established who ultimately took the lines she signed for.
Names like Nakyole, Opiyo and Kasaja were mentioned. It is the evidence of A9 that Nakyole Ruth was her sister, on whose behalf she had signed for the lines. Later Nakyole asked A9 to sell the lines to someone. After the sale she did not know what happened to the lines or who took them.

There was no evidence linking A9 to the theft let alone to any of the persons with whom she stands charged. I find A9 not guilty on Count 2. She is accordingly acquitted.
Count 3 Conspiracy, contrary to section 390 of the Penal Code: The offence is committed when there is an agreement between two or more persons to prosecute an unlawful purpose. In this case theft is the offence.
The charge involves all the accused persons. The charge and caution statement of A1 mentions that there were meetings held and he mentions attendants to these meetings besides himself, as A2,A3,A4 and A5. In the same regard A2 mentions meeting with A1,A3,A4 and A5 in his charge and caution statement.

The charge and caution statement of A5 mentions her meeting with A1, A2, A3 and A4. It is not easy to capture details of meetings, especially at meetings where no recording is made of the proceedings.
However, I am satisfied that the charge and caution statements of A1,A2 and A5 are corroborative of each other and that evidence of meeting to conspire to commit a felony emerges from them. The three confessions implicate the makers as well as other co-accused in the offence of conspiracy.

The gentlemen assessors advised me to find A6 and A7 guilty in addition to the five and to acquit A8 and A9. While I partially agree with the verdict of the assessors, I respectfully find that not only A8 and A9 should be acquitted in Count 3 but A6 and A7.
There is no evidence of conspiracy against them on record. I convict A1,A2,A3,A4 and 5 in Count 3.
Count 4, Unauthorised Access: This charge is preferred against A5, A6 and A7.

It means gaining entry to any electronic system. No evidence was adduced to show that A6 accessed or intercepted any programme or data, let alone intentionally. Regarding A7 evidence was given that he was on Floor 9 but no evidence was given of him entering Christine Alenyo’s office.
Prosecution did not prove the intention required for A7 to commit the offence either. As regards A5 she made a confession in her charge and caution statement that she was on a mission to gain access to the MTN mobile money electronic system and that she did.
The assessors advised me to find all the accused guilty. For the reasons I have given I do not agree with that opinion. I find A6 and A7 not guilty and acquit them in Count 4. I find A5 guilty and convict her accordingly.

Count 5, Unauthorised Access contrary to section 12(3) and 20(1) of the Computer Misuse Act: The charge is preferred against A1,A2,A3,A4 and A7.
The State case is that computers in the MTN Recreation Centre were operated by A5 who used stolen logon credentials of Christine Alenyo and that the five charged in this Count committed the offence herein charged.
In his confession A7 admits that he was paid for his efforts. Obviously if he had done something that was in the course of his employment he would most likely not be paid for it.

A7 was not taking instructions from his employer. He took instructions from a stranger. A7’s confession is corroborated by that of A1 and by the testimony of PW4. What he did was an unlawful act and this is what Section 12(3) of the Computer Misuse Act is about.
I find him guilty of the offence. A1,A2,A3 and A4 connived and agreed to send someone to insert a device in an MTN mobile money computer. The computer belonged to Christine Alenyo. In the process Alenyo’s financial administrator access rights were captured on the device.
There is evidence also payment was made to A7 through their intermediary. Consequently A1,A2,A3 and A4 admitted the offence in Count 5 and are guilty as A7.

I find A1,A2,A3,A4 and A7 all guilty of the offence in Count 5.
Count 6, Electoral Fraud: All the accused persons save for A9 are charged under this Count.
Ultimately A6,A8 and A9 stand acquitted. A1 is convicted in Counts 2,3,5 and 6. A2 is convicted on Counts 2,3,5 and 6. A3 is convicted on Counts ,3,5 and 6. A4 is convicted on Counts 2,3,5 and 6. A5 is convicted on Counts 2,3,4, and 6. A7 is convicted on Count 5.

This is a continuation of the highlights of the second segment of judgment by the Anti-Corruption Court on the MTN Mobile Money fraud case.