REPUBLIC OF UGANDA
HIGH COURT OF UGANDA
ANTI CORRUPTION DIVISION HOLDEN AT KOLOLO
CRIMINAL SESSION CASE NO 4 OF 2017
MOSES PAPA (Al)
JOHN ALINAITWE (A2)
SAFINA NANONO (A3)
PATRICK AZIKU (A4)....................................................................ACCUSED
Moses Papa, John Alinaitwe, Safina Nanono, and Patrick Aziku hereinafter referred to as A1, A2, A3 and A4 respectively are charged with various offences as here under:-
A1 and A2 jointly are indicted with False Accounting by Public Officer C/S 22 of the ACA, 2009.
The two are accused of knowingly furnishing false accountability for UGX 498,886,000 which was money sent to them to use on acvities for resttling refugess in West Nile between February to September 2014.
The two are accused of abusing the authority of their offices by furnishing false accountability for UGX 498,886,000= purporting the same to be expenses incurred on resettling refugees whereas not.
A1 and A2 are jointly charged with causing financial loss C/S 20 of the AC A, 2009.
The two are accused of withdrawing UGX 360,000,000= from account number 9030008274281 Stanbic Bank Arua which was money for resettling refugees knowing that such an act would cause financial loss.
A1 is charged with embezzlement C/S 19 of the AC A, 2009. He is accused of stealing UGX 70,000,000= the property of the GOU which he had access to by virtue of his employment.
A3 is charged with causing financial loss C/S 20 of the ACA, 2009. She is accused of instigating the withdrawal and diversion to private use UGX 360,000,000= money meant for resettling refugees knowing that such an act would cause financial loss.
A1 and A2 are charged with corruption C/S 2(c) ACA, 2009. They are accused of diverting to themselves and to private individuals UGX 360,000,000= which was money received by virtue of their offices for resettlement of refugees.
BURDEN OF PROOF
All the four accused are charged with corruption C/S 2(g) of the ACA, 2009. They are accused of participating as accomplices to divert UGX 360,000,000= to themselves which was meant for resettlement of refugees.
Once the accused deny the charges, the prosecution assumes the burden to prove the charges
STANDARD OF PROOF
The prosecution has a duty to prove all the essential ingredients of the offence beyond reasonable doubt. Proof beyond reasonable means evidence that is strong enough to leave only a remote possibility of doubt (Miller V Minister of Pensions. (1947) 2 All E.R 372)
There was a refugee crisis in West Nile from end of 2013 through 2014. This followed an influx of refugees from South Sudan and the DRC formerly Zaire into Arua and Koboko districts. There was pressure on resources for fire wood, water, food and shelter.
For the first time GOU sent funds amounting to UGX 498,886,000= to Arua Refugee Desk office to cater for this influx. A new account was opened for that purpose since refugee funding was coming from UNHCR account. A total of UGX360,000,000= was returned to headquarters through the bank accounts A4 and cash to A3. The balance was spent by A1 and A2. A1 and A2 compiled a false accountability of the whole amount of UGX 498,886,000= as if it had been spent on activities relating to refugees whereas not. Fictitious supplies of firewood, water transport, poles, labour for plot demarcation etc constituted accountability.
A whistle blower informed the IGG office in Arua about the misuse of the money. Investigations lead to the discovery of the false accountability. Activities li ke firewood, water and food were covered by funding from UNHCR. The GOU funds were simply stolen by the accused. A3 was found with written notes showing how the money was received and shared. The prosecution contends that the four accused stole money amounting to UGX 360,000,000= and covered it with false accountability. The prosecution also accuses them of furnishing false accountability, causing financial loss and abusing the authority of their office.
Each accused person had his or her own version of defence. What is common is that they all denied the charges. A1 and A2 admit receiving this money on a new account in Arua but they claim to have returned a total of UGX360,000,000= to A3 who had demanded for it to take care of an emergency in Western Uganda where more refugees from DRC had arrived. The rest of the money was used for activities in Arua and Koboko.
It is their case that they were forced by Mr. Apollo kazungu, CW1, the Commissioner for Refugees through A3 to account for the whole sum yet they had returned 360 million to A3 with the approval of CW1. They claim to have acted under duress to compile the false accountability to cover money taken by A3
A3 denied receiving any money from A1 or A2. She claimed to have been harassed by Rashid sentongo, PW29, the investigating officer, to write things she did not know. It was her testimony that A4 was not happy that she had taken over his job that is why he claimed to have passed on money from his account to her. She further claimed A4 must have hacked into her emails to send mail to A2 showing how money should be used. She denied knowledge of A4’s bank statement and feigned ignorance of how it came to her desk.
A4 admitted sending his account details to A1 on instruction of A3 and whatever money was deposited there he passed it to A3. When A3 felt A4 could be under declaring the money, she asked him for his bank statement which he took to her office
- In regard to charges of False Accounting, the following ingredients must be proved. That the accused are public officers; that they charged with receipt, custody or management of public revenue or property; that they knowingly furnished any false statement or return of money or property received.
- In regard to charges of Abuse of office, the following elements of the offence must be proved. That the accused are employed by government; that they did an arbitrary act; that the act was prejudicial to the interests of their employer in abuse of the authority of their office.
- In regard to causing financial loss, the state has to prove the following. That the accused persons are employed with government; that in the course of their duties did an act or omission knowing or having reason to believe that the act would cause financial loss; that actual loss occurred.
- Embezzlement charges are proved by the following elements. That the accused are employees of Government; that they stole money; that they accessed this money by virtue of their employment.
- In regard to Corruption C/s 2(c) ACA, 2009, the following elements must be proved. That the accused diverted state funds for their benefit or that of third parties which had been received by virtue of their positions for purposes of public administration.
- For the offence of Corruption C/S 2(g) ACA, 2009, the state must prove that the accused participated as accomplices to divert money to themselves.
The employment status of the four accused in not disputed. They were all employees of government. Their employment letters from the Office of the Prime Minister were exhibited. See exhibits 1 to 10.
A1 and A2 are jointly charged with false accounting by public officer c/s 22 of the ACA, 2009.
The prosecution submitted that UGX 498,886,000= was disbursed to Arua Refugee Desk account operated by A1 and A2. See exhibit Pll. The money was disbursed on 28 Feb 2014 broken down as 216,000,000= for construction poles; 197,886,000= for hot meal preparation and 85,000,000= for plot demarcation. These figures are contained in a requisition by A2 signed per procuration by A3.See exhibit P.19 (a-c).
It was submitted that A1 and A2 compiled accountability for all this money contained in exhibits 45, 46 and 47. This accountability is said to be false because not all the money was spent for the intended purpose. Some witnesses denied ever supplying the items listed there in while others testified that they supplied less.
Further, it was submitted that items such as water tracking, fire wood, plot demarcation etc were provided by UNHCR which meant that accountability for those items under GOU funds could only be false.
In response, it was submitted for the accused that the issue of UGX 498,886,000= was originated from and remote controlled by the headquarters under Mr. Apollo kazungu, CW1.
For A1 it was submitted that he did not have the mens rea to commit the crime because this was money originated by headquarters. Fie was just brought on board to act as conduit for money originated by CW1 through A3.
Both A1 and A2 contend that the false accountability was imposed on them by CW1 through A3. They protested the demand by CW1 to compile false accountability but succumbed to pressure because he was their boss. They feared to lose jobs like a one Dhikusooka who had disobeyed similar demands. They compiled it under duress. The two contend that they had accounted for the money they used but CW1 and A3 forced them to account for the whole amount including 360,000,000= which was sent to A3 through A4 and Al. It was also submitted that A2 had requisitioned for 200,000,000= only but A3’s loose minute which was signed from Headquarters per procuration carried more money than was asked for.
Did Al and A2 knowingly furnish false accountability or not? Did they have a criminal intent or not? Was the bulk of accountability in exhibits P 45, 46 and 47 compiled under duress or not?
It is an admitted fact by both Al and A2 that the accountability contains falsehoods. They account for these falsehoods by stating in their defence that it was imposed on them by CW1 and A3. There is abundant evidence from witnesses who denied supplying some items or receiving money attributed to them. For example PW15, Adebo Samson denied signing a contract and receiving UGX 144,000,000=. He only supplied poles for 1.480,000=. Another witness PW16, Joel Lutwa, a sole proprietor of Lutux enterprises testified that he allowed Al to use his business invoices to make supplies to OPM and issued receipts but did not supply any goods.
PW17, king Bosco, supplied poles for 1,400,000=. He denied signing a contract or supplying poles for 14,456,000=. He admitted giving A1 blank but signed receipts. Another witness Guma Ronnie, PW18 denied transporting any firewood for the OPM. Other witnesses such as PW19, Abili David and Charles Ajidia, PW20 denied receiving money attributed to them from the OPM.
In short, the alleged suppliers either supplied far less goods or none at all yet there are payments attributed to them from the accountability documents. It is a fact that the accountability was false for the reason that it was a misrepresentation of what happened.
Both A1 and A2 admit that some of the accountability is false. They knew that what they were submitting was false. They, however, raise a defence of duress.
Both contended that they first made accountability for the money they spent. This was because they had sent back to A3 UGX 360,000,000=. They were called to Kampala by A3 and CW1 and told to account for the entire figure of UGX 498,886,000. They were asked to complete the gaps highlighted by yellow stickers. Since they were subordinate to CW1, they grudgingly went back to Arua and made false accountabilities.
The prosecution dismissed the board room protests as an afterthought. CW1 and A3 denied authorizing A1 and A2 to return UGX 360,000,000=. The defence contended that the two acted on directives of superiors.
Under Common law an accused may raise a defence of duress in criminal law except on a charge of murder. The court is however required to consider that defence by applying the subjective and objective test.
Under the subjective test the court considers whether the accused was compelled to act as he did as a result of what he reasonably believed were circumstances in which his or her life was in immediate danger or was at a risk of serious physical injury. It has to be shown that the accused’s belief was a reasonable one. The accused must have good cause to fear death or serious injury.
If the subjective test is satisfied then the court proceeds to apply the objective test which is, would a sober person of a reasonable firmness sharing the characteristics of the accused have responded the same way to such threats?
In this regard the court considers the following characteristics;
- The threat must have been sufficiently great and compelling as to over bear the ordinary powers of human resistance.
- Whether there was opportunity to seek police protection.
- Whether the accused voluntarily exposed himself or herself to the threat
- Whether the threat was not for the future event.
In other words the accused must be in immediate danger of death or physical injury with no time to exclude himself or herself from the scene in order to succeed under the defence of duress. But if an accused voluntarily exposed himself or herself to the threats or the threat related to a future event that was not immediate then the defence is not available. (See Criminal Law by Richard Card, Cross & Johns 19th Edition, 2010, pages 728-736).
A similar position is found in section 14 of the Uganda Penal Code Act which provides that a person is not criminally responsible for an offence if it is committed by two or more offenders and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or her or do him or her grievous bodily harm if he or she refuses. But threats of future injury do not excuse any offence.
Flowing from the above principles of law relating to duress in criminal cases it is clear that A1 and A2 cannot take benefit of that defence because according to their own evidence there was no threat to their lives in terms of death or physical bodily injury. It was their evidence that they were instructed to go back to Arua and fill in the gaps that existed in their accountability which related to the money that they never spent. They went back and only returned after 2 weeks. This means that they had sufficient time to report to authorities. They could have reported to the police or Inspectorate of Government or the Permanent Secretary about the Criminal instructions that had been given to them by A3 and CWl.They were not in any immediate danger nor were they so compelled as to lose their power of human resistance.
On the contrary the two had sufficient the time to reflect over this so called threat, consult over it and take appropriate action to ward off the alleged threat. It is my finding that the defence of duress does not apply. The defence of duress has failed the subjective test.
It is, therefore, my conclusion that A1 and A2 knowingly furnished false accountability for UGX 498,886,000/= which had been under their control. This money was part of public funds meant for facilitation and management of refugees in the districts of Arua and Koboko. Once you mix genuine and false accountability, the entire package becomes false because it tells a lie of the expenditure of the whole sum. In agreement with the lady assessor, I find each one guilty on Count 1 and convict each one of them accordingly.
A1 and A2 are jointly charged with Abuse of office c/s 11 of the ACA, 2009 for filing false accountability.
The prosecution submitted that by compiling accountability for UGX 498,886,000= yet they did not spend all that money at Arua or Koboko the two abused the authority of their offices. The act of compiling false accountability was said to be arbitrary and prejudicial to government in that the two lied about the use of the money. In other words government lost that money which did not do the job it was meant to do.
For the defence it was submitted that the two did not act on their own. They were constantly called by CW1 and A3 and directed to return the money through A4’s account and another 70,000,000= directly by cash to A3.
It was further submitted that the prosecution referred to the entire accountability as false yet some money was genuinely spent save for the money A3 received back. Finally I was asked to consider that the charges against A1 and A2 were wrong because whatever they did, they just carried out instructions of A3 and CW1. The two failed to open the bank account but CW1 took care of it. They had asked for less money but their loose minutes were rejected and replaced with one with more money done at Headquarters between CW1 and A3.
The facts on which the charges in count are preferred are exactly what constitutes the offence charged in count one. It would appear that because the two are accused of false accounting, they have by that allegation committed other approach in drafting charge sheets seems to offend the well known principle of double jeopardy.
Double jeopardy refers to a situation of being prosecuted or sentenced twice for substantially the same offence. Double jeopardy is prohibited in many jurisdictions.
Section 18 of the Penal Code Act provides that a person shall not be punished twice either under this code or under any other law for the same offence.
The import of this section is that where a set of facts constitute an offence against two or more sections, the practice is to prefer alternative charges in order to avoid offending the provisions of Section 18 of the Penal Code Act which prohibits punishing the person twice for the same offence.
Having found the two accused guilty of false accounting, I am precluded from using that conviction or finding to also punish the same accused persons under a different section of the law for facts constituting essentially the same offence. If the prosecution was not sure, if it could secure a conviction on the count of False Accounting, then it should have preferred the charge of Abuse of Office in the alternative. The practice is that a court finding a person guilty on the main count does not make a finding on the alternative count. I am precluded from making a finding on Count 2 on the basis of the clear and unambiguous provisions of Section 18 of the Penal Code Act Cap 180. What the prosecution complains of in Count 2 has been disposed of in Count No. 1.
A1 and A2 are jointly accused of causing financial loss to GOU whe n they withdrew 360,000,000= and deposited it into private individuals’ bank accounts.
The prosecution case is that the two knew that by depositing GOU funds on the bank accounts of A4, one Gulan and cash to A3, they were causing financial loss. This money has never been recovered. It is lost for good. It was the state case that the theory that the money was recalled to be used in Rwamwanja is false because government money could not be diverted verbally and even then it could not be deposited on private individual accounts.
For A1 court was asked to consider that whatever he did regarding the UGX 360,000,000= was upon instruction of A3 who was his boss in the organization. It is A3 who instructed where money should be deposited and in what amounts. I was asked to consider that A1 believed A3 when she said an emergency had occurred in Western Uganda that needed those funds. He had no knowledge that A3 was lying.
For A2 it was submitted that the people who should answer for any loss are A3 and CW1 and not A1 or A2 because they only acted on instructions. Both, A3 and CW1 denied instructing A1 and A2 to return any money.
The testimony of PW29, Sentongo in regard to the exit of UGX 360,000,000= from Arua to individual bank accounts of A4 a nd Gulani is corroborated by admissions of Al, A2 and A4. There is abundant evidence by both sides that money amounting to UGX 360,000,000= was withdrawn by Al and A2 and deposited on A4’s bank account (240,000,000=); Gulani’s bank account (50,000,000=) and cash amounting to 70,000,000= carried by hand of Al. The total is UGX 360,000,000=
A3 denied being the ultimate destination of these funds. PW 29 adduced evidence that he recovered A4’s bank statements on A3’s desk. These statements showed deposits made in Arua by Al to A4’s bank accounts. See exhibits P 12 to 17.
PW29 also recovered notes in A3’s hand writing which showed the manner in which money was shared. Exhibit P49 contains questioned document Q26 which is a spread sheet showing funds remittances for Adjumani and Arua. For Arua the total is UGX 360,000,000=. This figure is the subject of the charges in count three. The hand written notes refer to a figure of 240,000,000= as declared. UGX 240,000,000= is what is said to have been deposited on A4’s bank accounts. A4 admits this fact. The figure of 70,000,000= also exists in hand writing. This is the figure Al said he delivered to A3 in cash. This hand writing according to the hand writing expert, PW14, SP Sebuwufu, belongs to A3 (See Exhibit P37). In her testimony, A3 admits it is her hand writing. She claims it was PW29 who instructed her to write the words and figures.
There is unchallenged evidence from PW29 that Gulani is a dependant of A3. This fact was admitted by A3. She only claimed it was his money from trading.
I have evaluated the evidence of both the prosecution and defence on the movement of UGX 360,000,000= from Arua. It is my conclusion that it was not utilized in Arua or Koboko. It was wired to private accounts. The trail of that money ends with A3. There is strong circumstantial evidence to show that A3 was the destination of that money. The finding of A4’s bank statements with her; the fact that Gulani was her dependant and her hand writing on documents retrieved from her desk by PW29 lead to an inference that she masterminded the operation.
Did A1 and A2 know or have reason to believe that this money they were remitting to private individuals was going to be lost? The two advanced a theory that they disbursed this money on instructions by A3 with the consent of CW1. It was their defence that the money was required to attend to refugees who had crossed from DRC Congo to Western Uganda and were to be settled at Rwamwanja.
What is strange is for these two experienced officers to accept to send money for official duties to private individuals accounts some of whom such as Gulani who is a non employee of the OPM.
It is also strange that this money is remitted in installments and not in one lump sum. Some of it is even carried in cash. It would be naive for anyone to expect that this Court could believe that funds amounting to 360 million withdrawn by a senior settlement commandant in charge of Arua Refugee Desk office, and a finance officer at the same office in installments and deposited in private individual accounts was to be used to resettle refugees at another site in western Uganda.
A1 testified that he used a one Kenyi to deposit the 50 million on Gulani’s account because he wanted to conceal his own identity. The two of them also testified that they were uncomfortable with A3’s instructions and kept cross checking with CW1 who confirmed that they remit funds to A4’s account.
A3 and CW1 were based at Headquarters Kampala whilst A1 and A2 were based in Arua over 500 kilometers away. Is it believable that the two had no knowledge that the money they were sending back through unofficial channels was not going to be lost? I don’t think so. A1 and A2 are not stupid persons. They are experienced officers managing a semi autonomous station under the OPM. They must have had knowledge that whatever money they were sending back was not for official duties. It is no wonder that A1 tried to disguise the deposit of 50 million by using false names to deposit it. Unfortunately his hand writing betrayed him.
I also notice from the defence exhibit D8 which was tendered by A2 that A3 is communicating to A2 indicating that there was an agreed arrangement for sending money back. It appears from exhibit D8 that A2 was departing from that position. A3 is reminding A2 to release another 42.6 million which A3 seems to indicate is what was still remaining at Arua.
This communication taken together with the way the money was remitted in installments and to private individuals leaves me in no doubt that the two knew or had reason to believe that loss would occur. This money has never been recovered. A false accountability was submitted to cover the loss.
The submission from the defence that A1 and A2 were merely carrying out instructions does not absolve them of criminal liability because they were not robots to act without knowing or having reason to believe that they were committing a crime.
If it was necessary to return money the two would have simply done a reverse transfer of 360 million to the OPM account in Bank of Uganda, the rest would be history. They would not be here except as witnesses.
I am in agreement with the lady assessor that the two together with A3 and Apollo Kazungu (CW1) who was their head were part of the scheme to cause this loss.
I find that A1 and A2 are guilty of causing financial loss in Count 3.1 convict each one of them accordingly.
A1 is accused of stealing 70,000,000=. A1 admits withdrawing this money but on instruction of A3 and travelled to Kampala. He gave it to A3 in person. It was his evidence that A3 had been complaining of receiving less money due to bank charges so A2 advised A1 to deliver the money in cash.
This installment of 70 million constitutes part of the 360 million for which I have found A1 and A2 guilty of causing financial loss. There is unchallenged evidence by not only Al, but also by the investigating officer himself (PW29) That the 70 million reached A3’s desk. I am fully aware that in a case of embezzlement which is essentially theft by an employee, the way the money was used is irrelevant. What is important is taking away accompanied with a fraudulent intent.
However, if A1 is already a convict in Count 3 for causing financial loss of 360 million, which amount includes a component of 70 million, it is improper to split the money to create a different offence in count four. Is it not double jeopardy if A1 is to be punished first for the entire 360 million and then for stealing 70 million which is part of it?
The reasons I gave when disposing of Count 2 apply with equal force in Count 4. It is bad practice to fragment charges using the same facts but under different sections of the law to punish the same person. Count 4 could have been an alternative charge to count 3, or vice versa.
Under Section 18 of the penal Code Act and on the basis of my finding on Count 3, I am unable to make a finding on Count 4 for the simple reason that the prosecution offended the Rules of drafting by creating a multiplicity of counts using the same facts.
A3 is accused of causing financial loss of 360,000,000= by instigating its withdrawal and diversion for private use.
The prosecution contends that A3 was found with documents marked as Q26 in exhibit P49 which in her handwriting reveals the distribution of this money.
PW29 also recovered A4’s bank statement from A3. However A3 testified that she did not know how A4’s bank statement came to her desk. She denied receiving money from A1 or A4. She testified that document Q26 was authored by her on instructions of PW29.
For A3 it was submitted that there was no audit report which showed that
- 000= was lost. With respect the trail of the total of 360 million did not require an Audit Report. This was simple withdrawal of money and depositing it into another account. The component of 70 million was delivered in cash. Document Q26 in A3’s hand writing has this figure of 70 million. This corroborates Al’s testimony that he delivered it in cash to A3. The bank statements of A4 together with his testimony are clear about the amount of money he received totaling to 240 million. When you add 240 million to 50 million which was sent to Gulani, and 70 million which A1 delivered in hand, the total is 360 million. There V is no need for an Audit Report to explain this simple arithmetic.
I have already explained at length in Count 3 how the money trail from Arua ended at A3’s desk. There is unchallenged evidence by A1 and A2 which I believe that A3 gave them instructions on how to deal with the money whose total is 360 million. It is A3 that gave them the bank accounts and names on which to deposit this money. It is she that gave them instructions to carry the money in cash. From the evidence in exhibit P49, particularly questioned document Q26, it is clear to me that A3 was the master planner and distributor of the 360 million. In fact according to exhibit D8 she was asking for more 42.6 million which was not disbursed. The attempt by A3 to state that A4 hacked into her computer and sent electronic mails to A2 is not believable. She advanced the view that A4 did not like her since she took over his post and became his boss. But the charges were not brought by A4 nor was he a witness against her. He was a co accused. If A4 hated her, how could he offer his bank account for her benefit? I don’t believe that line of defence.
When I consider this evidence against the background that the requisitions of this money contained in exhibits 19(a)(b)(c ) were made from Kampala and signed for A2 by A3 , and further when I consider the fact that it is A3 that told A1 to go to the bank and check for money on an account A1 had failed to open, I find that A3 was the master planner and played a key role in the removal of 360 million from Arua to her desk in Kampala.
I would not hesitate to say that A3 was the commander of the operation and knew what she was doing. This money has never been recovered; it was shared out under her command. Her claim that PW29 forced her to write notes on Q26 is not believable. It was an afterthought. It was not even canvassed in cross examination when PW 29 testified.
In agreement with the advice of the lady assessor, I find that A3 is guilty of causing financial loss of 360 million by instigating its withdrawal. This money ended up on her desk. I find her guilty and convict her accordingly.
A1 and A2 are accused of diverting 360 million for themselves and others other than the purpose for which the money was sent to them.
The prosecution case is that the two signed the cheques for this money and sent it to A4, Gulani and A3.
A1 and A2 deny diverting this money for themselves. Their case which I will not repeat like the repeat charges is that it was sent to A3. The reason was that A3 instructed them to send it to clear an emergency in western Uganda.
This is another example of bad charge sheet drafting. I have already found A1 and A2 guilty of causing financial loss of 360 million in Count 3 by withdrawing it and depositing it to private individual accounts.
Now in Count 6 the Court is being asked to find guilty the same accused persons for diverting the same amount of money to private individual accounts. Frankly speaking, Count 6 is a direct affront on the express and clear provisions of Section 18 of the Penal Code Act. It is an abuse of the judicial process for the prosecution to use the same set of facts under different sections of the law to prefer charges against the same accused persons. It is not clear to me what the intention was because even if the prosecution was to achieve countless convictions, the sentences would still be ordered to run concurrently.
With respect, it is wrong to say that because one has committed a particular offence, that act has led to series of other offences. Once an offence has been proved then that is it. If the prosecution is in doubt it prefers alternative counts. This Count is so offensive that it could never be an alternative count. It is struck off for offending the rule against double jeopardy.
All the four are charged with participating as accomplices to divert 360 million to themselves. I notice that 360 million is creating several offences for the same act
done to it. I have already resolved the issue of preferring charges multiple times using different words under different sections of the law.
Except for A4, I have already found guilty A1 to A3 and convicted them of the offence of causing financial loss of 360 million in Counts 3 and 5 above. Among the key elements in counts 3 and 5 is instigation, withdrawal, and diversion.
These elements find their way in Count 7. The prosecution is asking me to find guilty A1 to A3 and punish them for what I have already done in count 3 and 5. The difference is not the facts but the sections of the law. I want to commend the prosecution for their industry in finding possible charges. Unfortunately having brain stormed about the several possible charges, the next and most important step would be to choose which charges to prefer on the basis of the available evidence.
If this was done, then we could have ended up with two or three counts with A4 being more of a witness than an accused person. For all the several prosecution witnesses adduced in court, no one has pointed a criminal intent or mens rea against A4. The circumstances under which his account was used were well explained in his testimony.
When money was put on his account he carried it to A3. When A3 doubted him, he produced his bank statements to her. Like the lady assessor advised me to acquit A4, in this whole saga I do not see the criminal participation of A4 to the standard one would call an accomplice. Since I have already found Al, A2, and A3 guilty of causing financial loss through instigation to withdraw and diversion of these funds to private bank accounts, I hold that Count 7 is bad in law for contravening the principle of double jeopardy found in section 18 of the Penal Code Act. I strike it off the indictment.
For reasons I have given above, I find that the prosecution has proved the case against Al and A2 on counts 1 and 3 beyond reasonable doubt. I find each of them guilty and convict each one accordingly.
I also find that the prosecution has proved the charges against A3 in count 5 beyond reasonable doubt. I find her guilty and convict her.
The only charge against A4 in count 7 was struck off for reasons I gave. There was no sufficient evidence against A4 on any other charge. He is set free since the
17th December 2018
4 accused present
Ojako Livingstone - A1
Kyobe William - A2
Mooli Albert - A3
Balpe Ali - A4
Hilda Talibba - for the State
Judgement read in open court
17th December 2018
REASONS AND SENTENCE
All the convicts are first offenders with no known record of previous convictions. They are aged 48, 46, and 41 respectively. They all have families that comprise children and dependants. They are all sole bread winners for their respective families. They each claim to have acted under pressure from the powerful influence of the commissioner for refugees Mr. Apollo Kazungu who for unknown reasons is not in the dock.
They each claim to have been conduits through which money went to the bosses. They have each asked to be spared of a custodial sentence and in the alternative be sentenced to a line or caution. They all claim to have been on interdiction for long which has reduced their financial resources, and that since they acted as conduits they have asked court not to order a refund upon the
All convicts claim to have acted out of a fear to offend their bosses particularly Mr. Apollo Kazungu . On the other hand the prosecution has asked court to impose maximum sentences on each of the convicts on grounds that 360 million is a colossal sum, and that a strong message has to be sent to all and sundry that theft of activity funds could be severely punished especially amongst officers charged with administration of refugees in the country.
I have already explained at great length in the judgment I have just delivered, that the existence of a refugee crisis in the country appears to have created a perfect condition for the department of refugees under the OPM to steal some money.
Once the deal was burst, by the IGG’s investigations, one would have expected the Investigating officer who was armed with document Q26, to escalate his investigations to officers including the Commissioner for Refugees to explain how he managed to have the account in Arua opened , and funds processed and deposited thereon. Why expenditure was triggered without a detailed activity plan.
Instead we have spent one year and nine months dealing with persons who are not decision or policy makers but implementers of decisions and policies taken by Management.
In other words I consider the convicts small fish because they had no capacity to appropriate, open a bank account, and to disburse funds from Headquarters into that account.
I have already discussed the issue of duress in this case, and found that although strictly speaking it docs not offer a defence against the charges, it is quite valid in mitigating sentence. faking the example of A1 and A2, although they failed to benefit from this defence because there was enough time for them to report, there is un controverted evidence that emails and several calls were being made to have this money withdrawn and sent to A3. A3 would make these calls while A1 and A2 would confirm from Mr. Kazungu that they should actually send the money.
There was therefore pressure from the department of refugees headed by Mr. Kazugu to have the money back. If A1 and A2 had stood their ground or reported the matter to the authorities, there would be no case against them.
However, failure to report did not diminish the fact that pressure was brought to bare to them to act the way they did. It is for that reason that they compiled a false accountability to cover for funds which court has found as a fact that they were returned to the department of refugees.
It is a principle that the punishment imposed by court must be appropriate to the offence that has been committed. But in doing so, the role of the convict in the commission of a crime is key in finding the appropriate sentence.
Whilst the prosecution has asked for a custodial sentence, the convicts have asked for payment of fines in lieu. A1 and A2 have essentially asked for fines because at all times they were simply being dragged along by Headquarters in a game of “do this and do that”.
On the other hand A3 has asked for a non custodial sentence for reasons that she is a single mother with four little children aged between one and a half years and 10 years. I was asked to consider that all these four little girls would suffer irrepealably if their biological mother was sent to prison.
Paragraph 51 of the Sentencing Guidelines 2013, re-echo what is permissible in the Principal Acts that a person liable to imprisonment may be sentenced to pay a fine in addition to or, instead of imprisonment.
No further guidance is however given on when the court should consider the non custodial sentence of a line instead of the custodial sentence of imprisonment.
Courts however would be inclined to impose a fine in offences of strict liability where mens rea is not a requirement for the offence ; or where a convict has pleaded guilty and the impact of the crime is minimal to the victim or to the community; or where the amount in cases of embezzlement or causing financial loss is not colossal as to warrant the keeping away in custody of the convict; or where the role played by the convict is either minor or was not deliberate.
The convicts contested these charges until they were found guilty by court. The amount involved is 360 million which in my view is not a colossal amount of money considering the cases that are handled by this court. The role played by the first and second convicts was dictated to them. They did not on their own initiative sit, plan, and requisition, receive, and spend the money independently. In fact there is no evidence there are beneficiaries of the 360 million. I would straight away find it fair and just to impose a non custodial sentence of a line against each one of them.
As regards the third convict, the unchallenged evidence on record is that she was pregnant at the time of arrest. During the trial of this case she nursed a baby of one and a half years. I have been asked to consider that she has three other children who she looks after as a single mother. It is also clear from document Q26 that she distributed this money to various persons above her rank.
I am persuaded by her submission that Mr. Apollo Kazungu was sly. She fell for his craftiness and ended up as the person putting pressure on convict No. 1 and 2 to act the way they did. While he (Kazungu) stayed in comfort zone. It would be an injustice to sacrifice her while the big fish continue to swim in the sea of corruption.
Considering the totality oilier condition as a single mother of very young children, and the fact that she was manipulated by more experienced persons , I am also inclined to impose a non custodial sentence upon her.
In conclusion, the circumstances of this case stand out uniquely as one of those isolated cases where I am inclined towards imposing non custodial sentence because I consider that it would be unfair and unjust to protect the big men and women just to hang these convicts before me.
I am also mindful that under section 46 of the Anti corruption Act, today’s conviction disqualifies the accused from holding public office for a period of 10 years. This is a statutory disqualification which this court can only re-echo. I am therefore sentencing Moses Papa and John Arinaitwe to a fine of 72 currency points each(l .440.000/=) on Count 1 or 3 years imprisonment in default.
I sentence Moses Papa and John Arinaitwe ot a fine of 366 currency points (7.320.000/=) each on Count 3, or 3 years imprisonment in default.
I sentence Safina Nanono to a fine of 366 currency points (7.320.000/=) each on Count 5, or 3 years imprisonment in default.
In addition, considering that Safina Nanono unlike Moses Papa and John Arinaitwe had a share on the 360 million booty, I order Safina Nanono to compensate the OPM with shillings 100 million .It would be unjust to Order her to refund even money eaten by her bosses.
Right of appeal to the Court of Appeal against conviction and sentence within 14 days explained.