The three member panel of the Appellant Court comprising Justices Elizabeth Musoke, Stephen Musota and Night Percy Tuhaise, unanimously concurred with the appellants noting that they were wrongly convicted and therefore set aside their sentences.
Kazinda talking with his lawyer (1)
The Appellant Court has
quashed the conviction of Geoffrey Kazinda, the former Principal Accountant in
the Office of the Prime Minister-OPM for embezzlement and conspiracy to defraud
government Shillings 316.8 million.
The decision stems from
an appeal filed by Kazinda, Shamim Masembe and Hussein Katumwa, the proprietor
and Manager Total Ntinda Service Station respectively in 2017 challenging their
conviction for defrauding government Shillings 316.8 million worth of fuel
drawn by non-existent OPM vehicles that were meant to deliver relief to disaster victims.
Masembe and Katumwa were sentenced to a fine of Shillings
One Million and one year imprisonment while Kazinda whom the trial judge, Lawrence
Gidudu called the architect of the conspiracy was sentenced to five year’s
imprisonment on two charges of embezzlement and conspiracy to defraud.
in the appeal the convicts among other things
argued that the trial judge erred in law and fact by convicting them on
embezzlement whereas the facts of prosecution were incompatible with the case,
according to the indictment and summary of the case.
three member panel of the Appellant
Court comprising Justices Elizabeth Musoke, Stephen Musota and Night
Percy Tuhaise, unanimously concurred with the appellants noting that they were wrongly
convicted and therefore set aside their sentences.
“The conviction of the first appellant (Kazinda) of offences
of embezzlement and conspiracy to defraud is quashed and the sentence is set
aside,” the justices ordered. They ordered the appellants be set free forthwith
unless they have other lawful charges.
The panel re-examined and questioned the merits of the submissions
of the then OPM Permanent Secretary, Puis Bigirimana, who as a witness denied
having approved fuel payments in the Integrated Finance Management System and pinned
Kazinda for fraudulently approving the payments.
“We disagree with the learned trial judge, PW7 (Bigirmana)
could not have responded to the query of the Auditor General regarding fuel,
which he didn’t authorize...from evidence on record, it is quite clear that the
fuel station was supplying fuel on credit and the queried payment is said to
have accumulated over time,” the judgment reads in part.
The justices further noted that the said fuel cash had 167
orders and invoices signed by six drivers but prosecution only presented one
driver who accounted for 21 orders and invoices.
"Out of the six drivers only PW3 testified and his testimony
was for only 21 orders and invoices which is only 13 percent of the total
accountability...We are of the considered view that this ingredient of the
offence of embezzlement was not proved beyond reasonable doubt,” the justices argued.
Similarly, they noted that prosecution failed to prove beyond
reasonable doubt that Masembe and Katumwa had conspired to defraud the OPM.
From the evidence on record, the justice found that the said Shillings 316.8
million had been received as payment for a debt that had accumulated over time.
The judgment comes handy for Kazinda who is still locked up
in Luzira prisons. This is his third victory from various appeals challenging
his conviction. Last year, the Court of Appeal acquitted Kazinda on charges of
abuse of office and forgery, which had earned him 5 years and 2 years respectively
in jail. But the acquittal came long after he had completed serving the
Kazinda landed into problems in 2012 when he was charged on
the several offenses including but not limited to constructive possession of
financial instruments, forging receipts and invoices, false accounting, making
fraudulent payments, conspiracy to secure money outside authorized disbursement
procedures and living a standard of life beyond his known source of income.
trial started in 2012. He has since been indicted in various courts. On Friday, the Constitutional
court delivered another judgment permanently staying all proceedings in pending
criminal cases against Kazinda at the anti-corruption court.
The same court
also prohibited the state from using any process of any court to initiate and
prosecute him for any offences similar in character with those found on the
same facts in connection with his former employment at the OPM.