The Court of Appeal comprising of Justice, Elizabeth Musoke, Christopher Izama Madrama and Hellen Obura upheld the conviction and subsequent sentences which forced the convicts to appeal in the Supreme Court.
The Supreme Court has rejected an application by the former Permanent
Secretary in the Ministry of Local Government Ministry John Muhanguzi Kashaka
to file additional evidence in his appeal challenging a ten-year jail term.
The application filed by Kashaka on behalf of his lawyers led by Macdusman
Kabega was rejected by a panel of five Supreme Court Justices led by Chief
Justice Alfonse Owiny-Dollo on grounds that, Kashaka
should have raised his new evidence related to recusal earlier in the Court of
Appeal instead of bringing it now in the second appellate court which
according to them would be irregular and amounts to inordinate delay.
The other Justices on the panel were, Opio Aweri, Faith Mwondha,
Percy Night Tuhaise and Mike Chibita.
In 2014, Kashaka and three other former employees of the Local
Government Ministry were convicted by the then Anti-Corruption Court Judge
Catherine Bamugemereire for causing government financial loss of 4.2 billion
shillings.
The others included Former Principal Accountant Henry Bamutura who
is equally serving a ten-year jail term and Assistant Commissioner in Charge of
Policy and Planning Sam Emorut Erongot who is serving 13-years and Adam Aluma,
who had been sentenced to 1 year and nine months but has since served the
sentence.
They were found guilty for the different roles played in contracting a sham
company, Ammam Industrial Tools and Equipment Limited (AITEL) to purchase 70,
000 bicycles from India. The bicycles were to be used by parish and Local
Council chairpersons in the 2011 general elections. But to date, no single
bicycle has ever been delivered.
Bamugemereire sent them to jail, barred them from holding any government office
for ten years and ordered them to compensate the government for the
loss.
However, the convicts challenged their respective sentences and
conviction before the Court of Appeal, arguing that it was harsh and not valid
in law.
Among other grounds, they also argued that the lower court judge
erred in law and fact, when, she failed to apply provisions of the PPDA Act in
determining the ingredients of the offence of financial loss committed by the
appellants, as a result of the procurement transaction.
But the Court of Appeal comprising of Justice, Elizabeth Musoke, Christopher
Izama Madrama and Hellen Obura upheld the conviction and subsequent sentences
which forced the convicts to appeal in the Supreme Court.
However, in May 2021, Kashaka's lawyers led by Kabega asked the Supreme
Court to allow him to tender in evidence to show that Justice Madrama should
have recused himself from the case at the Court of Appeal.
Kabega argued that Madrama had presided over a matter at the Commercial
Court where 90 percent of the evidence that was used to pin Kashaka and the
group in the criminal case was adduced.
Court heard that before Kashaka was convicted, the Attorney General filed a
case against Niko Insurance Uganda Limited that offered the performance
guarantee of 470,000 dollars that the suppliers of the bicycles were required
to come up with.
And when AITEL failed to supply, the Attorney General had to sue
the Insurance Company that had offered the guarantee and documents like the
charge sheet with the names of the convicts, procurement and contracts were
brought in that case as exhibits.
Court further heard that Niko Insurance Company said in its Defense that it was
not liable to pay because the local government employees were involved in the
fraud.
However, after looking at the evidence in the case, Justice
Madrama held that the government employees were not criminally liable and
therefore it was the Insurance Company to pay.
Kabega noted that during the case at the Anti-Corruption
Court, Kashaka and others were found guilty and that 90 percent of the evidence
used was similar to that of the commercial court where Madrama said they were
not liable before upholding their conviction when he again sat in the appeal at
the Court of Appeal.
The judge also said that since the applicant failed to request for recusal from
Justice Madrama it would be wrong do the Supreme Court to make a declaration
that he (Madrama) ought to have recused himself from hearing the appeal.
However, the same Judges have allowed the request to introduce
a new ground in their appeal to the effect that the honourable Justices of
Appeal erred in law and fact when they upheld the order of compensation in
joint and equal proportions amongst the convicts.
As a result, they have given the convicts' lawyers 48 hours to make a
supplementary memorandum of appeal and frame the ground challenging
compensation but shouldn't introduce issues of Justice Madrama declining to
recuse himself from the case in the lower Court.
According to the Judges, after the supplementary memorandum of appeal has been
made, the parties will then put in written submissions and Judgement will be on
notice.
Evans Ochieng and Kabega, both Kashaka’s lawyers said that the government won
the case and the court directed that they recover their money from Niko
Insurance Company and that it would be unfair to condemn their clients also to
compensate the government.
But on his part, Kabega contends that the Bank of Uganda is responsible for the
losses of the money in question.
