[2024] UGHCACD 9

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

#### ANTI-CORRUPTION DIVISION AT NAKASERO

#### CRIMINAL SESSION CASE NO 004 OF 2023

**UGANDA (DPP)** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ **PROSECUTOR**

#### **VERSUS**

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AMOS LUGOLOBI .................................... **ACCUSED**

#### **BEFORE: Okuo Jane Kajuga, J**

#### **RULING ON A CASE TO ANSWER**

#### *Introduction:*

The accused is the Minister of State for Finance, Planning and Economic Development, in charge of Planning. He is also the Member of Parliament for Ntenjeru North Constituency in Kayunga District. He is indicted with two counts of **Dealing with Suspect Property c/s 21A** of the **Anti-Corruption Act**.

It is alleged in Count 1 that between the 14^th day of July 2022 and the 28^th of February 2023 at the OPM stores at Namanve in Mukono District and at different places in Matugga, Wakiso District and Ntenjeru North Constituency in Kayunga District, he dealt with Government property, to wit: 400 pre-painted iron sheets marked "Office of the Prime Minister," having reason to believe that the said iron sheets were acquired as a result of Loss of Public Property; an offense under Section 10 (1) of the Anti-Corruption Act.

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It is further alleged in Count two that the accused between the 1't of February 2023 and the 17rh of March 2023 at OPM stores Namanve in Wakiso District and at different places in Matugga, Wakiso District and in Ntenjeru Constituency, Kayunga District dealt with suspect property to wit: 300 pre-painted iron sheets marked" Office of the Prime Minister," having reason to believe that the said iron sheets were acquired as a result of Loss of Public Property; an offense under the Section 10(1) of the Anti-Corruption Act.

The accused pleaded not guilty to both counts hence necessitating a trial. The prosecution called eleven (11)witnesses and tendered several exhibits in a bid to prove its case. After the closure of the prosecution case, both parties made oral submissions on whether the evidence adduced met the standard required to place the accused on his defense.

#### Reoresentation:

Josephine Namatovu (Assistant DPP) from the Office of the DPP appeared for the prosecution while Advocates John Isabirye, Tony Tumukunde and Rita Asiimwe appeared for the Defense.

#### The Law:

Section 73(1) of the Trial on Indictments Act provides that:

"when the evidence for the witnesses for the prosecution has been concluded ond the stotement or evidence, if any, of the occused person before the committing court has been given in evidence, the court, if it considers thot there is no sufficient evidence (emphasis mine) thot the accused or any of the several accused committed the offense, shall, after heoring the odvocotes for the prosecution ond the defense, record ^a finding of not guilty"

Section 73 (2) provides that the accused is to be placed on his defense if there is sufficient evidence that he has committed the offense.

The "sufficiency of evidence" to be considered at this stage of the proceedings has been elaborated by case law. The court is not required to consider whether the evidence adduced by the prosecution proves the charges beyond a reasonable doubt (Uganda versus Mulwo Aromodhon; Mbale High Court Criminal Case 103/2@8).

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Rather, a prima facie case should have been established to warrant the accused to be placed on his defense.

A prima facie case has been defined in Ramanlal T Bhatt versus Republic (1957) EA 332 by the East African Court of Appeal as one where a reasonable tribunal, properly directing its mind to the law and the evidence would convict the accused person if no evidence or explanation is offered by the defense. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.

Lord Parker's practice notes in 1962 ALL ER 448 further elaborate on the standard as follows:

# "A submission thot there is no cose to answer may be mode ond upheld: (o) when there has been no evidence odduced by the prosecution to prove on essentiol element in the alleged offense and

(b) when the evidence adduced by the prosecution hos been so discredited or k so manifestly unrelioble thot no reosonoble tribunol could sofely convict on it."

The Court of Appeal in Semambo and another versus Ugondo, Criminal Appeal No. 76 of 1998 further elaborated that "a prima facie case" means a case sufficient to call for an answer from the accused person. At this stage, the prosecution's evidence may be sufficient to establish a fact in the absence of evidence to the contrary but is not conclusive. All the court has to decide at the close of the prosecution case is whether a case has been made out against the accused just sufficiently to require him to make his or her defence."

I will proceed to evaluate the evidence tendered in support of the charges by the prosecution and subject it to the standard elucidated above.

The elements of the offenses charged are set out in Section 21 A (1) of the Anti' Corruption Act which provides:

"Any person who deals with property that he or she believes or has reason to believe was acquired as a result of an offence under this Act commits an offence and is liable on conviction to a fine not exceeding one hundred and sixty currency points or to a term of imprisonment tor a term not exceeding seven Years"

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Sub section (2) provides that for the purpose of sub section (1), a person deals with property if that person:

#### a) Holds, receives or conceals the property

b) enters into a transaction in relation to the property or causes such transaction to be entered into; or

c) removes the property from the jurisdiction of court for the purpose of assisting any person to avoid confiscation of that property

It follows therefrom that the prosecution must prove that the accused;

- a) Dealt with property, within the meaning of S. 21 A (2) of the Act - b) The property was acquired as a result of an offense under the Act - c) The accused at the time of dealing with it, believed or had reason to believe that it had been acquired as a result of an offense under the Act

#### Backoround:

- Geoffrey Seremba, the Under-Secretary in the Office of the Prime Minister (OPM) And Accounting Officer from September 2021 to Mid- June 2023 testified as PW1 and provided the background to the offenses for which the accused is indicted.

He testified that the OPM is responsible for affirmative action under Luwero Triangle, Teso Affairs, Bunyoro Affairs, Karamoja Affairs and Northern Uganda.

The Ministry of Karamoja Affairs, under the political leadership of the Minister Hon. Dr. Goretti Kitutu formulated a work plan which was approved by Cabinet totaling Ushs 39.94 billion which was subsequently released as a supplementary Budget.

The work plan consisted of three components, including provision of iron sheets to reformed warriors called Karachunas, and to those widowed from the karachunas' activities. All the nine Districts in Karamoja were set to benefit from the same.

lron sheets were procured from MM lntegrated Steel Mills Ltd and Roofings Group

and received in the OPM Stores. They were Gauge 28, pre-painted for visibility and

marked "Office of the Prime Minister".

The charges against the accused emanated from the manner of distribution of the said iron sheets. Accused was one of the beneficiaries of the iron sheets.

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### Analysis of the evidence on the 1't element:

# Whether the accused dealt with properU within the meaning of Section 21

## A (21 of the Act

The defense did not in their submissions contest the prosecution's evidence that the accused received iron sheets. Counsel for the Prosecution rightly pointed this out during her submissions.

The evidence of several prosecution witnesses confirmed the delivery of iron sheets described in Counts I and 2 of the indictment, to the accused through his political Assistant. PWl (Seremba Geoffrey), PW 2 (Abaho Joshua), PW 3 (Mpakibi Stephen), PW 4 (Arinaitwe Osbert), PW 5 (Kalema Frederick) and PW 10 (Hawa Bawaya) testified to this effect. They also tendered records from the stores in Namanve to support the oral testimonies of the witnesses. Their evidence linking the Hon. Lugolobi to the receipt of the iron sheets in question was not controverted in cross-exam ination.

Evidence of the receipt is corroborated by the testimonies of witnesses who in turn received iron sheets from the accused as donations. PW 8 (Muwanguzi Daniel) ^a Priest of the Church of Uganda, testified that he received 300 iron sheets from the accused for roofing the church. These were collected after investigations into alleged misappropriation of the iron sheets started. PW 9 (Mayinja Fred) of New Hope Primary School received iron sheets from the accused and roofed the school.

There was evidence tendered to confirm the recovery of the iron sheets from the accused's farm in Misanga Village Baale subcounty. PW 6 (D/SSP Lumala Fred) testified to that effect. PW 7 D/C Sebyayi Emmanuel the SOCO, corroborated this, and so did the lnvestigating Officer PW 11 (DllP Mudabani Benon). lt was also accepted that when investigations began, the accused returned some of the iron sheets he had received to OPM. With the exception of 100 iron sheets said to have come from Luwero Affairs, there is no contention that the iron sheets received by the accused were for Karamoja, even though there were not specifically marked as such.

^Iam satisfied that the prosecution adduced evidence to support ingredient one of the offenses on both counts, specifically, that he dealt with property, to wit iron sheets by receiving them as prescribed in Section 21 A (2Xa) of the Act.

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#### lngredient 2:

### Whether the property was acquired as a result of an offense under the Act

Section 21 A (1) of the Anti-Corruption Act places an obligation on the prosecution to adduce evidence that a predicate offense was committed at the point of acquisition of the items. ln simple terms, the predicate offense must be an activity or omission that is an illegality under the Anti-Corruption Act, and is the foundation or the first crime in the chain, or the basis from which the second crime or other crimes flow.

Merriam Webster defines predicate as "occurring prior to and providing the basis for a conviction for another offense"

Before I resolve this issue, however, I will first address the criticism raised by the defense on the manner of framing of the particulars in counts 1 and 2 of the lndictment. lt was submitted that the particulars were ambiguous as they did not provide sufficient information on who had committed the offense from which the property had been acquired. lt was also contended that the particulars also failed to show how the same property had been acquired as a result of an offense.

ln reply, counsel for the prosecution submitted that the charge is not defective as it is clear from the particulars therein, what the exact nature of the offence against the accused is.

It is a cardinal principle of criminal law that any objections to charge sheets ought to be made at the start of the trial. This complaint has been made rather belatedly. I am not however estopped from interrogating the matter at this point. Where there is any defect, the determinant factor is whether such defect is tantamount to a miscarriage of justice, and whether the accused can be said to have been confused or unclear as to the nature of the case against him, as to be prejudiced in his defense.

Section 23 of the Trial on lndictments Act provides that:

"Every indictment shall contoin, and sholl be sufficient if it contoins, ^o statement of the specific offence or offences with which the accused is chorged, together with such particulors as moy be necessory for giving reasonable informotion os to the nature of the offence charged.

6lPage ln this case, the particulars specify the offense from which the iron sheets were acquired. lt is the offense of Loss of Public Property c/s 10(1) of the Anti-Corruption Act. Section 10(1) provides that where loss of public property results from an act or omission done by a person knowing or having reason to believe that the act or omission will cause loss of public property, that person commits an offence and is liable on conviction to a term of imprisonment not exceeding ten years or a fine not exceeding two hundred and forty currency points or both.

It is true, as stated by counsel that whereas the offense is cited in the particulars, it is not clear who is alleged to have committed the said offense. I agree that where this information is known to the prosecution, it ought to be indicated in the particulars.

I am unable however to conclude that failure to do so was prejudicial to the accused, in light of the summary of the case, which highlights in paragraphs 14 and 15 that some iron sheets were never delivered to Karamoja as intended. lnstead, the Hon. Minister for Karamoja Affairs unlawfully distributed the iron sheets to selected individuals including the accused. Further details of the unlawful transactions are contained in paragraphs 37-40 of the summary. Her actions were cited therein as being contrary to the intended purpose for which the iron sheets were procured.

The facts in the summary indicate where the wrongful acquisition lies. I am of the view, therefore, that the particulars and the summary of the case gave the accused all the reasonable information pertaining to the charge. I therefore disregard the objection raised, and proceed to consider the evidence adduced in support of this element, that is, proof of a predicate offense committed under the Act at the acquisition of the property.

The defense contended that Section 21 A of the Anti-Corruption Act, requires the prosecution to prove that there was a person charged in court for the predicate offense, or that a person had been convicted for it. They stated that it is a condition precedent that before a person is charged under Section 21 A, the property the person deals with must have been acquired by a person or entity from which the accused obtained them as a result of an offence under the Anti-Corruption Act. ln this case, the prosecution was obliged to adduce evidence to prove that the Office of the Prime Minister (OPM) from whom the accused received the iron sheets acquired them as ^a result of an offence.

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They contended that the said iron sheets were acquired lawfully by the OPM and thus the prosecution had failed to prove this element.

I am unable to agree with the defense that S 21 A (1) requires that there must first be a conviction or a charge for the predicate offense. lf that was the intention of the law, it would have been expressly stated as such. lnstead, the term used is "property wos ocquired as o result of an offense under the Act"

Whether the persons responsible for committing the predicate offense are charged or not; convicted or not, apprehended or not is irrelevant. All the prosecution has to prove is that a corruption offense was committed at the point of acquisition.

The evidence of the prosecution witnesses PW1, PW 2, and PW 3 is critical in resolving this question.

PW 2 testified that whereas 10,000 iron sheets were requisitioned specifically for the launch of the program by HE The President in Karamoja, only 1,000 iron sheets were taken to Karamoja for distribution. The balance was contrary to the request, left in Kampala, and subsequently distributed to many other beneficiaries who were not from Karamoja. Further, on 12/1/2023 the Minister for Karamoja Affairs wrote an internal memo for the release of 12,200 iron sheets for distribution during a planned official activity in Karamoja. These iron sheets also never reached Karamoja and were distributed in the same manner as the previous batch.

He testified that goods for a specified purpose are supposed to be delivered to the specific place and that any other actions running contrary to the same are unauthorized. He stated that the iron sheets were diverted, and the accused was not an intended beneficiary of these diverted iron sheets, neither was his constituency.

PW 3 testified that between June and December 2022 the Hon. Minister for Karamoja Affairs issued directives on distribution of the iron sheets which were in stores. She instructed him to liaise with the personal assistants of different ministers over the delivery of the same.

PW 3, 4 and 5 provide the details of the distributions and confirm the role of PW2 in coordinating the allocations.

It is the prosecution's case that the diversions by the Minister led to the Loss of public property. As stated during submissions by the prosecutor, their case is not that the OPM acquired the iron sheets through the commission of a crime.

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They have adduced evidence to support their case in this regard, and I do not find it to be worthless or manifestly discredited.

## !noredient 3:

## Whether the accused believed or had reason to believe that the property he received had been acquired as a result of an offense under the Act

- It was submitted for the accused that he had no reason to believe that he was dealing with suspect property at the point when he received the iron sheets. There were no markings to show that they were specifically for Karamoja. They were labeled "Office of the Prime Minister" and the accused's constituency falls within the Luwero Rwenzori region which qualifies for relief from the same office. The iron sheets came from established OPM stores so there was no reason to suspect any wrong. The dockets where the sheets were coming from were only known to the OPM staff. Furthermore, the accused does not work in OPM and has no idea of the processes that led to his receipt of the iron sheets in issue nor the internal workings of the office. No evidence has been led to connect him to the OPM. ln conclusion, it was inconceivable that the accused could know or believe he was dealing with suspect property. Belief is a point of fact.

I found the above representations by the defense relevant in determining whether the accused "knew or had reason to believe" lndeed, there's no evidence of direct communication between the minister for Karamoja and staff at the OPM with the accused. lt's true the iron sheets were not marked specifically for Karamoja, and no direct link between the accused and the OPM was established by the witnesses over the period in issue, yet there are some intriguing facts I will revert to later.

The state on the other hand submitted that the accused was a Member of Parliament and Cabinet Minister who should have been aware of the passing of the supplementary budget for Karamoja. She suggests that the court should use this to impute knowledge on the accused that the iron sheets he received were for Karamoja, and unlawfully allotted to him. I find this submission speculative at the very best, in the absence of proof that the accused was present at the cabinet meetings and parliamentary sessions when the matter of the Karamoja program and budget was passed.

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The decision on whether the accused knew or had reason to know must be based on objective facts. This is a standard higher than mere suspicion. The reference by the prosecution to his role as Minister and MP can only be a basis for suspicion and incapable of supporting the conclusion. I therefore disregard this submission

I note, however, that the prosecution is imputing knowledge from other facts. First is the evidence of PW 10 and other witnesses who testified that the accused never made a requisition to OPM for iron sheets at all. PW 10 has been his PA since 2021 This suggests that he had no reasonable expectation of receipt of any iron sheets since he had made no request for help or intervention in his area of Kayunga.

lnterestingly, the prosecution's evidence shows that when he was informed of iron sheets allotted to him, he shows no surprise whatsoever and makes no enquiry as to why and for what reason he is being allotted the iron sheets. What was he expected to implement? Where? How many iron sheets were allotted for which activities? PW 10 states that when she informed the minister he had been allotted 100 sheets he said "okay". He said he had a busy schedule and she should handle with Ddamulira, his political assistant.

This evidence seen against the uncontroverted testimony of PW2 to the effect that the distribution instructions were issued on Mondays and Tuesday after cabinet meetings and the casual, unsurprised manner in which the accused received the iron sheets justifies the conclusion by the state. As an experienced Government official, a safe presumption can be reached that he understands accountability, and lawful processes by which government aid can be accessed, handled and accounted for. PW 11, alludes to this in his evidence in chief.

I am satisfied that prima facie, the state has led evidence to show that the accused knew or had reason to believe that the iron sheets he had received were acquired through an offense.

## CONCLUSION

ln conclusion, I have not found major contradictions in the prosecution's evidence, nor the evidence tendered manifestly unreliable. lt cannot be discredited as worthless. The prosecution led evidence in support of each element of the offenses charged.

I am convinced that the prosecution has tendered sufficient evidence to call for an explanation from the accused.

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The accused is accordingly put on his defense

$\frac{1}{2}$

Jane Okuo Kajuga

Judge

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Delivered on 27/11/2024