[2025] UGHCACD 4

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA

### ANTI-CORRUPTION DIVISION

### CRIMINAL SESSION CASE NO 006OF 2022

UGANDA (DPP) PROSECUTOR

#### VERSUS

LUBINGA EDWARD FREDRICK ACCUSED

### BEFORE: Okuo jane Kajuga, ^J

### JUDGEMENT

#### Introduction:

The accused person, Lubinga Fredrick Edward was emPloyed as an Architectural Assistant by the Ministry of Education and Sports (MOES) with effect from the 9,h of August 2011. He was indicted, together with four others from the same Ministry, with various Anti-Corruption Offences. The co-accused were acquitted at the closure of the prosecution case on grounds that the prosecution had not established a case to answer against them- The accused was then required to defend himself on counts 2 and 3 of the Indictment

The particulars of the offenses in these two counts are as follows:

#### Count 2:

Between August 2019 and March 2020,beinga public servant employed by the Ministry of Education and sports as Architectural Assistant and being

1l W^a]9'- ^U

Chairperson of the Evaluation Committee, in performance of his duty directly solicited for a gratification of Ushs 50,000,000 (fifty million shillings) from Nsimbe Zizinga Robert in exchange for conducting due diligence on Zizingds company, Synergy Enterprises Ltd, and recommend it for ^a contract award

### Count 3:

Between August 2019 and March 2020, being a public servant employed by the Ministry of Education and Sports as Architectural Assistant and being Chairperson of the Evaluation Committee, in performance of his duty directly accepted a gratification of Ushs 25,000,000 (twenty-five million shillings) for himself from Nsimbe Zizinga Robert in exchange for conducting due diligence on Zizinga's comPany, Synergy Enterprises Ltd, for consideration for a contract award

# Summa o the rosecution case:

The prosecution called five witnesses; PW 1 Nsimbe Zizinga Robert CEO of Syrrergy Enterprises Ltd, PW 2 D/SP Amuko Prisca Flavia of the State House Anti-Corruption Unit (SHACU), PW 3 Ketty Lamaro Permanent Secretary of Ministry of Education and Sports, PW 4 Medard Etisa Sentanda from Makerere University Centre for languages and PW 5 No 46691 D/CPL Joseph Akorio from the Cybercrime Department of the Uganda Police Force. They tendered into evidence reports from the Cybercrime Department of the Uganda Police Force and the Institute of Languages at Makerere University'

PW 1, a Director in Synergy Enterprises Ltd, a private limited liability company testified that between May and December 2019,he came across a Ministry of Education and Sports advertisement inviting bids for the construction of facilities in specified Institutions. He submitted two bids for

2l' ,1,,, al"\*ai^-

Nyamitanga Technical Institute and for Kaleera Technical Instifute which were described as Lots 3 and 4 respectively.

A few days after the bid opening, he received a phone call from the accused requesting a meeting with him. He stated that he and others in the Ministry would ensure that he got the contract if he was willing to Pay them 10% of the contract sum. He claims that whereas he did not commit himself, the accused started calling him and demanding payments at various points of the contract process.

Towards the end of December 2019,he received notice of the best evaluated bidder. In fanuary 2020, the accused called him demanding that he part with some money because they needed to "calm people". He wanted Ushs 50,000,000/= and wamed that "things could even change"' Threatened by this, he paid Ushs 25,000,000/= in two instalments to the accused at Haandi Restaurant and at Golden Tulip Restaurant.

ln the 2nd week of January 2020 he received an email inviting him for precontract negotiations, and this was followed by incessant demands for money. He stated that after the signing of the contract for the construction of facilities in Nyamitanga Technical Institute, the calls for money continued unabated. He attributed subsequent challenges in the company's contract performance to frustration by MoES staff owing to his non-compliance with the demands. This investigations. forced him to rePort the case to the police for

He testified that when police asked him for evidence of the claims' he installed a recording application on his Samsung Galaxy 510 phone and recorded his conversation with the accused. This recording, along with the

3l ( (

evidence of WhatsApp messages formed the bulk of the evidence supporting his claims

PW 2, the Investigating Officer testified that she was allocated PW 1's complaint for investigation. She and her co-investigator D/Sgt. Alunyo Patrick secured consent from the complainant to have his phone examined by the Forensics Department. They subsequently retrieved and exhibited the phone, filled Police Form 17 requesting examination of the phone's content' These together with the phone were submitted to the Directorate of Forensics. Upon receipt of the Forensic report and the extract of the conversation on a compact Disc (CD), they submitted the recording to the Makerere Institute for Languages for translation since some of the conversation between the accused and PW 1 were in Luganda.

PW 3, the Permanent Secretary of the Ministry of Education and Sports mainly tendered certified documents including the contract between the complainant's company and the Ministry of Education and Sports, the structural drawings for Nyamitanga Technical Institute and the employment documents of the accused.

PW 4 from the Makerere Institute of Languages tendered the Institute's transcription and translation report of the audio that was extracted from the complainant's phone.

Lastly, PW 5, a police officer attached to the Forensics and Cybercrime Directorate of the Police Force, also a certified Digital Forensics examiner, certified network security specialist and certified e-evidence investigator, testified about the process of data extraction from the complainant's phone, the security protocols used to maintain the integrity of the data and the

4lPagr f(1"'o

systematic receipt and transmission of exhibits and reports between the Lab and the Investigators.

In his defense, the accused opted to make an unsworn statement in which he denied the claims that he solicited for and received a gratification. He called one witness.

### Representation:

Safina Bireke (Chief State Attorney) and Nicholas Kawooya (Senior State Attorney) from the office of the Director of Public Prosecutions appeared for the prosecution. A1 was initially represented by various Advocates who dropped off along the way. He finally represented himself.

# The Law on the ^s tandard and burden ^o ^o in criminal matterc:

The law on this is well settled. The burden to prove the charge against an accused person lies on the prosecuti on. see woolmington aersus DPP [7935] AC 462. This stems from the principle of the presumption of innocence enshrined in Article 28 (3) (a) of llganda's 7995 Constitutionwhich requires that a person charged with a criminal offense is presumed innocent until he or she is proved guilty or pleads guilty.

Any conviction must be based on the strength of the prosecution case and not the weaknesses of the defence case (Ssekitoleko versus Uganda [1967] EA 531). In the Woolmington Case, Viscount Sankey stated as follows;

"... If,attheendofandonthewholeofthecase,thereisareasonable doubt, createil by the eoidence gioen by either the prosecution or the prisoner... the prosecution has not maile out the case and the ptisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecutiotr must prozte the gtilt of the prisoner is part

5l LC\_-a-a

# of the common law of England and no attempt to uthittle it doutn can be entertained."

The accused does not bear any burden to prove his innocence excePt in cases where there is statutory exception and the law imposes on that person the burden of proving particular facts. See Article 4(a) of the Constitution.

The standard of proof required to secure a conviction is elaborated in Millet aersus Minister of Pensions [1947]2 All ER 372 asbeing satisfied once all the evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent.

# The cha s

The charges against the accused cited in Counts 2 and 3 are based on Section 2 (a) of the Anti-Cotuption Act, Cap 776 which provides as follows:

> A person commits the offence of corruption if he or she does any of the follouting acts-

> (a) the solicitation or acceptarrce, directly or indirectly, by a public official, of any goods of monetary aalue, or benefits, such as a gift, faztour, promise, adaantage or any other form of gratification for himself or herself or for another person or entity, in exchange for any act or offiission in the performance of his or her public functions

The charge of Corruption under Section 2(a) above therefore requires the prosecution to prove the following elements;

> a) The accused is a public officer or employee of a public bodY

> b) The accused solicited for or, and received goods of promises, monetary value, or benefits like gifts, favours, advantages or other gratification

6l LILU!-- ' L

c) The solicitation or receipt was either for the benefit of the accused or for another entity or Person.

d) It should be in exchange for any act or omission in the performance of his or her public functions.

For expedience, I will consider the evidence of both counts together, as they are related.

# Inwedient 1: Etttolovment in a Public bodrt

There is no contention regarding the employment of the accused as a public officer or employee of a public body.

A "public boily" is defined by the same Act to include- (a) the Govemment, any department, services or undertaking of the Government.

The employer in this case is a Government Ministry. Proof of employment was tendered in Court as exhibit PEX 7(a) and PEX 7(b) through the testimony of PW 3, the Permanent Secretary of the Ministry of Education and Sports. This was supported by the testimonies of PW 1 and PW 2. This evidence was uncontroverted, conceded by the advocate for the accused in his submissions on no case to answer, and by the accused himself in his defense. He confirmed that he was a public servant, an architectural Assistant co-opted to provide services for the World Bank Project' He testified that he was one of the evaluators approved by the contracts committee and later became Chairman of the Evaluation committee. This is also confirmed by DW 2,Muiutizi Elias who was one of the evaluators.

I find therefore that the first element was proved beyond reasonable doubt.

# Ineredients 2:

Solicitation for and Acceptance of a gratification

', I

It should be noted that the only eyewitness to the alleged solicitation for Ushs 50,000,000/: and receipt of Ushs 25,000,000/= is the complainant himself. His testimony is that there was solicitation for gratification on many occasions by the accused.

solicitation is generally defined as "the act of asking for or trying to obtain something from someone" The Oxford Aduanced Learners Dictionary, New 9th Edition defines the root word "solicit" as "to ask for something such as support, money or information, to try and get something or persuade somebody to do something"

section 2 of the Anti-Corruption Act recognizes that solicitation may be done directly or indirectly. This means the suspect or accused may ask for the gratification in person through any communication medium, or request or demand through a third party. Indirect solicitation also includes situations where the asking may not be direct, but is hidden in figurative language, or where suggestions are made that money or other gratification must be given before something is done.

PW 1 testified that he got to know the accused after submitting his bid for two advertised lots, specifically Lots 3 and 4. He testified that he received ^a call from the accused who introduced himself as the Chairperson of the Evaluation Committee promising that he and others in the Ministry could help him to secure a contract. Subsequently, there were several communications between them, and at various points in their relationship, the accused demanded money to help him secure the contract.

He stated that in December 2019:

"l got the notice of best eaaluateil bidder. I then got a call after hoo days from Lubinga telling me that the job had been done ... He kept asking for money and I kept postponing. Around early January ²⁰²⁰ he called and said things were not okay, and that we needed to calm

8l 1V the people. He asked for llshs 50,000,000. He said things could change. I mobilized and paid him Llshs 25,000,0001= in tzuo bits. The first uas at Haandi Restaurant on Commercial Plaza and the second qt Golden Tulip. I paid in intentals of about one week. He was alone.

During cross examination, PW 1 confirmed that he did not have any proof of the solicitation or the payments he made to the accused, as the latter did not acknowledge receipt anywhere, and that there were no witness to these transactions

I observe that the prosecution could have explored the use of call records to confirm the communication patterns between the accused and PW 1 when the alleged payments were made. With the advancement in technology, it would have been possible for experts to detect the dates, times and durations of their communications and whether the telephone lines of the two ever used the same mast or call tower around the times in issue, which could have corroborated the evidence of PW1 on the physical meetings.

I further observe that the witness testimony was vague on the specific times or dates when either demands or payments were made, posing difficulty when trying to follow the sequence of events and linking the evidence to the specific allegations in counts 2 and 3 of the Indictment.

Be that as it may, the evidence of PW 1 is that of a single witness. section ¹³³of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. A court faced with such evidence needs to properly evaluate the testimony of that witness, and carefully assess and weigh it, considering the probabilities and improbabilities contained therein.

In the south African Case of s versus weber 1971 (3) sA 754 at758, the Court held,; "A conoiction is possible on the eoidence of a single witness' such witnessmustbectedible,aniltheeaidenceshouldbeapproachedzaith

9lPage E "r-r-r^

cautiot. Due consideration shoulil be giaen to @ factors which detract ftom the credibility of the witness. The probatiae oalue of the eaidence of a single witness shoulil also not be equated zoith that of seaeral witnesses. (Emphasis mine)

Cenerally, there is no rule of thumb test or formula when it comes to ^a consideration of the credibility of a single witness. The trialJudge will weigh the evidence, will consider its merits and demerits and having done so will determine whether it is trustworthy and whether although there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told" See also S Versus Saul and others 1981 (3) SA 772 (Al at 180. I find these authorities instructive and appropriate.

In the instant case, it is imperative that I interrogate the communications between the two to determine the nature of the relationship between them, and then to establish if they make the complainant's allegations of solicitation and receipt of money more likely than not.

PW1 testified that he had many conversations with the accused from the time he put in his bid, through the contract award and up till the time he reported the matter to police. Further, that it was during these communications that the demand for money was made. The accused in his defense confirms that they communicated often, although he denies ever asking for any money for himself or others. He stated as follows:

"...we coflrtflunicated with the bidilers. We had to knozo the physical sites, e.g. Rzoamanja and Ggaba. Without sotneofle telling you where they are, you cannot handle. Ggaba had ten houses with tenants. We sought permissiot to access, measure the beams, and the reinforcements. It is not true I abused my office, I was doing my work. One of the jounteys Toas to Moyo and another to Kabale so we uould

10 ^I RL^O{JL .

# haoe nezter located them. These communications did not inaoloe solicitations for money"

The WhatsApp communications between the two are contained in PEX 14, ^a report of the Directorate of Forensics tendered by PW5 and dated 25th February 2022. They were extracts taken from the complainant's Telephone, Samsung Galaxl'S 10 which had been retrieved from the complainant and submitted to the Directorate of Forensic Services for extraction and analysis, vide PF 17A dated 211512021', under court order dated 31'l5l202f issued by the Magistrate's Court of Makindye. I found the evidence contained therein to be authentic because the chain of custody of the phone and the accompanying documentation was never broken. Furthermore, the technical capacity of PW5 to perform the processes of extraction was not challenged successfully. Lastly there was a court order authorizing the inspection.

The analysis revealed WhatsApp communications between PW1, the owner of registered Sim Number +256773346497 and number +256782904'174 saved as "Frederick Lubinga cmu" from the dates of i5th August 2079 at 11:59 am until 21st May 2027 at 8:19 am.

It is noted that the messages are in English and Luganda, unfortunately, the portions in Luganda were never transcribed for the court to understand. I will therefore consider the conversations in English, and the portions which the witness drew our attention to in his testimony'

on 20th september 201.9,Pw1, sent a message to the accused at7:29 a.m. and stated, "Gooil n on in,, Kozzi which Paddock ate we testocking 3 or 4?" The accused replied at7:38 a.m. "The paddock is for phase satu"

This conversation was explained by PW 1 in his court testimony as follows:

,,WithLubingawehailuoicecallsandWhatsAppffiessasesandsms. ThecommunicationsulereaboutmybidzohichlsubmittedtoMoES,

¹¹lP.tBe l\*rg-

Lubinga called me about the bid I had submitted and he wanted to meet me. The messages were sent on ilifferent dates betu.teen September 2079 and January 2020. The messages wete in English and Luganda and some taere sent in a form that was coded but can be uncodeil.... On 20th September 2019 thete's a tnessage sent from me to Lubinga "zohich Paddock are u)e restocking 3 or 4?" I had submitted bids for lots 3 and 4. On the same day, I got the teply "The paddock is for phase stttt" ..' Paddock 3 was referring to Lot 3...restocking meant "uthich lot are you going to giae me"

There is another interesting conversation between the two on 30th September 2019 which goes as follows:

PW7: Hello. Finished going through BOQs. The letters will be droppeil tomorrow. I hope we are clear for 3?

### Accused: Okay; all is clear, I kept my word

These conversations were not disowned by the accused nor discredited during cross examination. They establish a level of ease and comfort between the two in their communications. It also establishes that there was an arrangement between the two where the accused was committed to promoting the complainant's interest in securing the contract for Lot 3. This is something he ought not to have been doing as a neutral evaluator. It therefore lends credence to the complainant's claims that he was doing it for a benefit, as there was no other justifiable reason for the accused's commitment. At no point during cross-examination by the defense was the case made that the complainant was the one who offered to Pay money in exchange for a contract. It is also not the defense case throughout the proceedings that the complainant initiated the conversations on what to give to secure the contract. If this had been the case, it would have arisen. I am

lzl mL.lrao-

convinced the complainant's version of events that he was approached truthful.

I will now focus my attention on another piece of communication. [t's an audio recording which the complainant made when he rePorted the case to the police and was asked for evidence. He testified that he installed ^a recording Application on his phone and recorded the conversation. This is the same phone from which the WhatsApP messages were extracted. In PEX 14 at page 13, the expert PW 5 reports that the analysis of the phone revealed call recordings on 241212021. This was extracted on 2 DVDs which were returned to the police who subsequently submitted it to Makerere University College of Humanities to transcribe and translate the same.

By their letter of 30th May 2023, they submitted their report which was received in evidence as PEX 12 (b)

The translated conversation, which starts with PW1, went as follows:

By the uay, uhat was the balance on the Mbarara lob? You still owe me moreooer a lot How much was it? It was thirtY Only thirty million? Yes Mhmmm By the war1, what utas the dozon payment? ^You p aid tut enty (p ause) tut enU -fia e. Hmmmlll By the way, it wasfl't thirty (Pause) Actually you oTDe me ftftv

¹³lt'a s ^e rxL a\_9. L

| Pardon? | |------------------------------------| | Yes, you paid me twenty-fiae | | Hmtnm | | Eeeeee | | This means I owe you fifty million | | Yes |

I have analysed the recorded conversation. The complainant's testimony shows that a total of Ushs 75,000,0001= was demanded by the accused. The first was the Ushs 50,000,000/= out of which he paid Ushs 25,000,000/= and the second was Ushs 25,OOO,0O01= which went unpaid. This is reflected at page 55 of PEX L4, where there is a communication in Luganda which the witness explained to the court. He stated:

In his response ifl Luganila he said I haae been asked fot a certain monetary allocation to deliaer a task "Omutemwa." I asked uhat it takes and he said 25 each for 3, 4 and 5. This was on 25th October 2079. I responiled that I zoould see what I can anange on Monday before he goes back on Tuesilay. He was going back to the contracts comrnittee.

The accused in his defense stated that this Ushs 25,000,000/= was security and not a bribe. I find this unbelievable. First, it was never put to the witness during cross-examination that this was required as security and not ^a demand for money. The evidence of the witness captioned above went unchallenged. I therefore dismiss the accused's explanation during his defense as an afterthought. Secondly, security was covered as part of the contract Item 50.1 in the General Terms of the Contract in PEX 4. Performance security was to be provided to the employer no later than the date specified in the letter of acceptance, to be issued in the manner specified in the particular conditions of contract (PCC). At this stage, PW1 was still

¹⁴t l-;1 ^r

()'r' \* '--t -

waiting for the award of the contract there was no need to demand for it. Lastly, PW 1 had been promised Lot 3 and that's what they were working towards, though he had submitted bids for two lots, including Lot 4. At this point there was no guarantee that the complainant had been awarded either of the contracts, so there was no need to ask for security. I dismiss the accused's defense as untruthful.

I take note of the fact that the audio recording was a free conversation between two persons well acquainted and comfortable with each other. I have no reason to disbelieve that the communication was between the accused and PW 1. The accused did not deny his voice in the audio when it was played in court, neither did he contest that the conversation between him and PW 1 took place. I am satisfied that he confirmed therein that he had received Ushs 25,000,000/= just as the witness had testified. Further, his assertion that there was an outstanding Ushs 50,000,000/= tallies with the complainant's explanation that he had made a demand of Ushs 50,000,000 then another Ushs 25,000,000/=, totaling Ushs 75,000,000/= No wonder therefore that the accused in the audio clarifies that there was an outstanding fifty million.

In light of the foregoing, I am satisfied that the complainant's allegations of solicitation and acceptance of gratification against the accused are truthful, even though the prosecution omitted to charge the accused on the demand for Ushs 25,000,000/= made on $25^{th}$ October 2019.

I find therefore that the prosecution proved the solicitation for Ushs 50,000,000/= in Count 2 and the acceptance or receipt of Ushs 25,000,000/= in Count 3 to the requisite standard.

## **Ingredient 3:**

The solicitation or acceptance was either for the benefit of the accused or for another entity or person

15 | Page Thele.

The evidence in satisfaction of the above is from the testimony of the complainant. He testified that the demand for Ushs 50,000,000/= was made for himself and allegedly for others involved in ensuring that he got the contract for Lot 3.

The acceptance of the Ushs 25,000,0001= by the accused, confirmed in the audio recording, also proves that the money was meant for his benefit. He states, "you still owe me" and "you gave me" PW 1 testified that "Around early January 2020, he called anil said things wele not okay, anil that we needed to calm the people".

The above confirm that the accused solicited and accepted the gratification for himself and therefore this element was also proved.

### Ingredient 4:

## The money solicited and accepted was in exchange for any act or omission in the performance of his or her public functions

Under the Public Procurement and Disposal Act No 7/2003, an evaluation committee is approved by the contracts committee with the sole purpose of evaluating the bids and preparing a report. They also have the duty to make a recommendation as to which bidder should be awarded the contract. Evaluating bids means reviewing and comparing bids submitted by different bidders against the established criteria, ultimately selecting the most suitable bidder on the basis of technical capabilities, price and compliance with the specifications.

In Counts 2 and 3, it is alleged that the solicitation and acceptance of gratification was in exchange for conducting due diligence on Synergy Enterprises Ltd's projects and recommending it for a contract award.

The evidence of PW1 is that after bid submission, the accused called and introduced himself as Chair of the Evaluation committee, promising that he

16 ^I 1X\* -/ a\_ 9-t and others could get him the contract if he was willing to part with ^a percentage of the contract sum.

From PEX 14, there is proof that due diligence was being carried out by the Evaluation committee, and specifically by the accused. Many conversations took place about the projects that the complainant comPany had done. The accused asked if PW 1's school project in Rwamanja was along the way' He also enquired about the Finn Aid Proiect, and asked which project he used steel russes on, the RAM project in Buziga and directions thereto, questions on the external dimensions on the houses and storeyed classroom blocks, pictures of the storeyed block, the dimensions of the structures in Bugema University and Munyonyo, pictures of Buziga on completion.

The accused in his defense stated that the due diligence he was carrying out was just part of his ordinary duty. I do not find any merit in that claim since the conversation trail demonstrated the fact that he was guiding PW 1 and committed to influencing an award to him of the contract for Lot 3. He also provided him with updates on the process. Indeed, the complainant received notice of best evaluated bidder. This notice comes from the exercise of the functions of the evaluation committee which the accused chaired.

Contrary to his assertions, the communications between the accused and the complainant were not those of an innocent diligent evaluator just carrying out due diligence. They show that behind the scenes he was working to get the complainant the contract for Lot 3 using his position.

PW1 explained that he asked the accused which paddock they were restocking, to which the accused replied the third paddock. He explained that by this he wanted to know which Lot the accused was going to award him. This conversation was captured at page 12 of the extracts on PEX ¹⁴ and the time stamps show the conversation took place on201912019'

¹⁷le age ) c-q-q-a-^\_

PWl: Hello. Finished going through the BOQs. The letters will be dropped tomorrow. I hope we are clear for Lot 3?

Accused: Okay, all is clear, I kept my word

PW 1: That's wonderful

The accused stated that he had no ability to influence the contract award, which was the final decision of the World Bank. If this were so, there would have been no need for the evaluation committee to work. The fact that there was an evaluation committee established to evaluate bids and recommend the best bidders, places the accused in a position to influence the contract award.

This ingredient was proved.

# CONCLUSION

I am satisfied that the prosecution tendered sufficient evidence to prove each of the elements of the offenses charged to the requisite standard.

I was advised by the assessors to acquit on count 2 and convict on count 3. I have considered their opinion, but respectfully disagree with them in respect of Count 2.

I hereby convict the accused for the following offenses:

- 1) Corruptly Soliciting for a gratification C/s 2 (a) of the Anti-Corruption Act - 2) Corruptly Accepting a gratification cls 2 (a) of the Anti-Corruption Act.

-aar-- 7J A- lv

Okuo Jane Kajuga JUDGE OF THE HIGH COURT 3.3.2025

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

## ANTI-CORRUPTION DIVISION

#### H CT-00- A C- S C-00 06 -2022

## UGANDA (DPP) :::::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR

#### VERSUS

#### LUBINGA EDWARD FREDRICK::::::::::::::::::::::::::::ACCUSED

## BEFORE HON. LADYIUSTICE IANE OKUO KAIUGA

#### SENTENCE

I have carefully considered the aggravating factors which have been raised by the prosecution. I have also considered all the pleas for pardon made by the convict and the justification he has presented for a lenient sentence.

The convict has been found guilty of the 2 offences of corrupt solicitation and corrupt acceptance of a gratification 48(2a) of the Anti-Corruption Act.

The value of the subject matter in count II is Uganda shillings 50,000,0001=, though the acceptance in Count III is of Uganda Shillings 25,000,000/=.

These offences were committed by the accused who not only was employed as a civil servant but was the Chairperson of the evaluation committee

The latter assignment calls for high levels of integri\$, and more so, as the leader of the entire evaluation. The integrity of the Government's procurement systems is very much dependant on the work of the evaluation committee. The integrity is even more critical in govemment projects

rlg\r^;

T

funded by donors - in this case the skills development project in the Ministry of Education and Sports was funded by the World Bank.

)

The actions of the accused negatively impacted on his employer, but also on the people who submitted various bids for lots 1-5 which had been advertised. Because of corruption in evaluation process, befitting bidders can lose out; the complainant in the case had to lose Uganda shillings 25,000,000/= and deal with the frustration and stress of satisfying the corrupt demands.

The Constitution (Sentencing Guidelines for Courts of fudicature)(Practice) Directions,2013 provide the principles and guidelines to be applied in sentencing.

It highlights the purpose of sentencing as denunciation of lawful conduct, deterrence, reparation to victims, amongst others.

Paragraph 9 guides on when custodial sentences maybe considered by court and I find these two relevant here.

- I. When the purpose of sentencing cannot be achieved by another sentence. - II. When the circumstances and nature of the crime connected demand so.

The offence in this case is not a minor one. I have already spelt out factors that demonstrate its gravity. Section 26 of the Anti-Corruption Act sets out the punishment for offences under Section 2.

Section 26(2\ prescribes the sentence where a person is convicted under Section 2 of the Act, and the transaction/matter over which the offence was committed is a contract or proposal for a contract with any public body, as a fine not exceeding 288 currency points or to imprisonment for a term not exceeding 12years, or both.

288 currency points translates to Uganda Shillings 5,760,0001=

a

In light of the foregoing I do not find the option of the fine only, suitable punishment as imposing it alone cannot meet the purpose of sentencing i.e. deterrence and denunciation of the unlawful conduct in issue.

I have noted the factors raised by the accused in mitigation, but do not find the same sufficient to justify the sentence of a fine alone.

I will therefore consider a custodial sentence, and will be guided by previous decisions of this court.

In Uganda Vs Robert Baryamwesiga & another, ACD session case No. '/.,12020, the accused were convicted of corruption contrary to section 2(a) &26 of the Act, for solicitation of gratification of 235,500,001= and 29,1.40,0001= from Jinako Engineering Limited and Atlas Engineering Limited Respectively

,A,2 was convicted of accepting Uganda Shillings 129,000,000/=. ,A.2 was sentenced to 2 years and A1 was sentenced to 3 years imprisonment. (A1 had received more)

{

L

These sentences were confirmed by the Court of Appeal.

In Ouma Adea V Uganda (ACA L09120141, the appellant was sentenced to Uganda Shillings 2,000,0001= or imprisonment of L year in default. The appellant had received 4000 dollars as inducement to enable a mining company to survey land.

In Uganda Vs |ohn Ogol Charles & another High Court Session case 612O17\_the convicts were sentenced to 2 years for receiving a gratification of 50,000 dollars for expediting documents for financing construction of ^a power substation in Osukuru mines, Tororo District.

In Kyeptokei Kaye David Vs Uganda; (ACn 2%l2070l the appellant's sentence of 1 year imprisonment, and refund of 100,000 which he had solicited was upheld. The appellant was a judicial officer.

a

In Uganda Vs Hon. Kabafunzaki & 2 others, he was asked to pay a fine of 5 million or serve 3 years in default for solicitation of Uganda Shillings 15,000,0001: and receipt of 5,000,000/=

In the instant case, the amount solicited was 50,000,000/= out of which 25,000,000 f= was received.

The convict, as chair of the evaluation committee was expected to act diligently and in a trustworthy manner which he did not.

I have considered these factors, together with the method used in commission of the offence (demand), the abuse of office for personal gain, the prejudice to the complainant and to the employer. I consider a sentence of both fine and imprisonment suitable in the circumstances.

I sentence the convict as follows;

- I. A fine of Uganda Shillings 2,000,0001: on each count. - II. In addition, a custodial sentence of 1 year's imprisonment on each count, running concurrently, less the period spent on remand of 2 weeks. - ru. An order for compensation of Uganda shillings 25 million to Synergy Enterprises Limited I Zizinga Robert. - IV. The bail deposited in court should be refunded to the convict. - V The convict is barred from holding public office for a period of 10 years from today.

The convict has a right of App"al within 1,4 days

ille: $\mathbf{L}$

Jane Okuo Kajuga Judge $\overline{04/03/2025}$

$\overline{a}$

$\mathbf{x}^{\prime}$