[2025] UGHCACD 13

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA

# ANTI-CORRUPTION DIVISION AT NAKASERO

### HCT-00-AC-SC-0017-2023

UGANDA (DPP)::::::::::::::::::::::::::::::::::: **VERSUS** A1. MATSIKO MUTUNGWIRE

A2. NUWAGIRA TOM :::::::::::::::::::::::::::::::::::

Before: Okuo Jane Kajuga, J

Judgement

1.0: Introduction:

Matsiko Mutungwire (A1) and Nuwagira Tom (A2) were indicted for the offence of Abuse of Office, C/S 11(1) of the Anti-Corruption Act 2009 (as amended), now Cap 116 of the Laws of Uganda. This charge carries significant legal and ethical implications.

The prosecution alleged that the two, being employees of Ibanda District Local Government (IDLG) as Chief Administrative Officer (A1) and Natural Resource Officer (A2) respectively, in abuse of the authority of their respective Offices, did an arbitrary act prejudicial to the interests of their employer, to wit, entered into a Memorandum of Understanding with Rukokoma Mixed Farmers' Cooperative Society exchanging part of Ibanda Local Forest Reserve for an alternative piece of land without following the established procedure. Their roles in this act were crucial, as A1 was responsible for the administrative process and A₂ for the natural resource aspect.

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The Memorandum of Understanding, a key document in this case, was said to have been entered at Bwatota Bashonga and Company Advocates in Mbarara District in 2009. This document outlined the terms of the land exchange, which the prosecution argued was arbitrary and prejudicial to Ibanda District Local Government.

The two accused pleaded not guilty, hence necessitating a criminal trial. The prosecution, called ten (10) witnesses. These were PW1, James Bashonga Bwatota (an Advocate), PW 2 Sheila Nakiwala (from the Public Procurement and Display Authority-PPDA), PW 3 Charles Byaruhanga (a Forestry Officer with the Ministry of Water and Environment), PW 4 Fred Kwetegyereza (Chairman of Rukokoma Mixed Farmers' Cooperative Society), PW 5 Kirya Elly (Natural Resources Officer, Ibanda District Local Government - IDLG), PW 6 Turamye Ambrose (Assistant Forestry Officer, Ibanda District Local Government-IDLG), PW7 Kweyamba Ruhemba (Chief Administrative Officer, Ibanda District Local Government-IDLG), PW 8 Karungi Betty Gafabusa (Principal State Attorney from the Ministry of Justice and Constitutional Affairs) D/AIP Mugerwa Charles (Investigating Officer) and PW 10 **Sebuwufu Erisa** (a handwriting expert). Several pieces of documentary evidence were also tendered as exhibits.

The court, satisfied that a prima facie case had been established against them and in line with Section 73 (2) of the Trial on Indictments Act's requirements, placed both accused on their defense. Each elected to give sworn evidence and exercised their right not to call any witnesses.

### 2.0 Burden and Standard of Proof:

The law on this is well settled. The burden of proving the charge against an accused person lies with the prosecution. Article 28 (3) (a) of **Uganda's Constitution 1995** states that a person charged with a criminal offense is presumed innocent until proven guilty. In the classic English case of **Woolmington versus DPP [1935] AC 462, Viscount Sankey stated as follows;**

> "Throughout the web of the English Criminal Law one golden thread is always to be seen that the prosecution must prove the prisoner's guilt subject to... the defense of insanity and any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by

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either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the prisoner's quilt is part of the common law of England and no attempt to whittle it down can be entertained."

The law is that the accused does not bear any burden to prove his innocence except in a few statutory exceptions. Those exceptions do not apply in this case.

The standard of proof required to secure a conviction is further elaborated in Miller versus Minister of Pensions [1947]2 All ER 372 as being 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. In our own decisions, the above principles have been further expounded. 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 and he said. The accused has no obligation to prove his innocence. If, at the end of the case, and having analysed all the evidence, there is a reasonable doubt in the mind of the court as to the guilt of the accused, the court must acquit. All the offence elements have to be proved to the requisite standard.

# 3.0. The Law on Abuse of Office

Section 10(1) of the Anti-Corruption Act, Cap 116, formerly Section 11(1) of the 2009 Act, which creates the offence, provides as follows:

> A person who, being employed in a public body or a company in which the Government has shares, does or directs to be done an arbitrary act prejudicial to the interests of his or her employer or of any other person, in abuse of the authority of his or her office, commits an offence and is liable on conviction to a term of imprisonment not exceeding seven years or a fine not exceeding one *hundred and sixty eight currency points or both.*

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From the above provisions, the essential elements of the offence which the prosecution has to strive to prove are the following:

- 1. That the accused was employed in a public body or company in which the Government has shares. - 2. That the accused acted or directed to be done an arbitrary act. - 3. That the act was done in abuse of the authority of his office $\frac{1}{2}$ . - 4. That the arbitrary act was prejudicial to the interests of his or her employer or any other person.

These have been confirmed and explained in a myriad of decisions, including **Uganda versus Hon** Eng Abraham Byandala, ACD Criminal Session Case No 12/2015, and Uganda versus Francis Atugonza, Criminal Session Case No 37/2010. As stated earlier, each element must be proved beyond reasonable doubt.

# **Ingredient 1:**

# That the accused was employed in a public body or company in which the Government has shares

During the preliminary hearing held under Section 64 of the Trial on Indictments Act, both parties admitted PEX 1 $(a, b, c)$ and PEX 2 $(a, b, c, d, e, f, g)$ as proof of employment of the accused persons by Ibanda District Local Government. This was therefore an uncontested fact. Specifically, **PEX 1 (c)** confirms that when the memorandum of understanding was signed on $6/6/2009$ , A1 was on transfer to Ibanda District Local Government as Chief Administration Officer on an Acting basis, a role of significant authority and responsibility. In contrast, **PEX 2 (b and c)** confirms that A2 was assigned the District Natural Resources Officer duties, a position with direct influence over the local environment.

**Section 1** of the **Anti-Corruption Act** defines a public body to include:

A District Administration, a District Council and any committee of a District Council, Local Council and any committee of any such Council

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The Local Governments Act of Uganda, Cap 243, provides for decentralisation and devolution of functions, powers, and services at all levels of Local Government. It also provides for offices in the District's Public Service. The Office of the Chief Administration Officer (CAO) is set up under Section 63 of the same Act. He is the Head of the Public Service at District Level. A1 was transferred to Ibanda District Local Government by the Ministry of Local Government as provided for under Section 53 of the Local Governments Act. The law also provides for the District Service Commission to employ other staff. The documentary exhibits presented confirm that A2 was employed as the District Natural Resources Officer by the District Service Commission, which is empowered to do so by Section 55 of the Local Governments Act.

Ibanda District Local Government qualifies as a District Administration within the meaning of the Anti-Corruption Act, and its employees are liable to criminal charges of abuse of office under Section 10 of the same $Act.$

The prosecution proved A1 and A2's employment by Ibanda District Local Government beyond a reasonable doubt.

### **Ingredient 2:**

### That the accused did or directed to be done an arbitrary act.

The arbitrary act complained of by the prosecution is set out in the particulars of the indictment as:

"...irregularly entering into a Memorandum of Understanding with Rukokoma Mixed Farmers' Cooperative Society, exchanging part of Ibanda DLG Forest reserve for an alternative piece of land without following the established procedures"

There is no contention that the accused executed the memorandum of understanding on behalf of the District Local Government. The evidence of all the prosecution witnesses, including PW 1, PW 4, PW 5, PW 7, PW 8, PW 9, and PW 10, confirmed this. Their evidence was not controverted. In their defence, both accused confirmed they signed the memorandum of understanding, which was admitted into evidence as **PEX 9**. There is therefore proof that by appending their signatures on **PEX 9**, they each performed an act in their respective capacities.

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What is in contention is whether that act was arbitrary. To resolve this question, the terms of the memorandum of understanding must be scrutinized. Therefore, it is necessary to reproduce it in its entirety. It is worded thus;

> This memorandum made this 6th day of June the year 2008, **BETWEEN**

Ibanda District Local Government of P. O Box 388 IBANDA, hereinafter referred to as "The Local Government" on the one part

$AND$

Rukokoma Mixed Farmers of Ibanda (hereinafter referred to as "The developer" of the other part

AND

*WHEREAS the Local Government is desirous of degazetting her eucalyptus* forest located along the Ibanda Kamwengye Road and acquiring 50 hectares for replacing the degazetted forest, and Rukokoma mixed Farmers has suitable land for exchange on top of Ibanda Hill,

NOW THIS MEMORANDUM WITNESSETH AS FOLLOWS:

- 1. That the Local Government hereby surrenders 50 Plots measuring 50 ft by 100 ft in the eucalyptus forest along Kamwengye and Kazo Roads to Rukokoma Mixed Farmers which shall be ready for use upon degazetting the forest. - 2. That Rukokoma Mixed Farmers hereby surrenders 50 hectares on top of Ibanda Hill to the Local Government in exchange for the 50 Plots. Signed transfer Forms to be surrendered upon degazetting the forest. - 3. That the 50 Plots will be used for commercial purposes only - 4. That the Local Government will plant the said 50 hectares with pine trees which are environmentally friendly on the water catchment area and where the 50 hectares are located.

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SIGNED and DELIVERED by the said CHIEF ADMINISTRATION OFFICER ............ (Signature appended) CHIEF FINANCE OFFICER .................................... DISTRICT NATURAL RESOURCES OFFICER ......... (Writes name and signs) ............

LOCAL GOVERNMENT

# Signed by THE SAID RUKOKOMA MIXED FARMERS (handwritten name of Kwetegyereza Fred and signature) (handwritten name of Gakyaro Camil*treasurer and signature)*

(Handwritten name of Bajunwoha Gabriel-

*Secretary, & signature)*

### **DEVELOPERS**

It is also important to juxtapose the above agreement with the Resolution of the District Council, which the accused persons have fronted as the basis and justification for signing the MOU. The Minutes of the meeting of the Council held on 28^th February 2008 and chaired by the District Chairperson, Melchidias Kazwengye, were admitted as PEX 7(b). Specifically, Minute 5/2/2008, which covers resolutions on the report of the Finance, Planning, Production, Administration and Natural Resources Committee, included the following:

> "Council resolved that the District exchanges 50 plots of land of 50 ft by 100 ft out of the Local Forest Land after degazettement with 50 hectares of land offered by Rukokoma Farmers' Cooperative Society on top of Ibanda Hill. The 50 hectares thus obtained be planted with trees as replacement of the forest reserve since it was a condition for degazetting."

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Further clarity on the disposal of the reserve lies in the State of the District address delivered by the Chairperson on 28^th April 2008, after the resolution had been passed. It was admitted as PEX 6 and reads as follows:

> "The District Forest Plantation is located in Ibanda Town Council. With the expansion of the town, this location becomes irregular. The forest poses a security threat while at the same time the land is underutilized. The District plans to build a stadium at the site and put the remaining portion to other use.

> To prepare for the relocation, ten hectares of land has been identified on Ibanda Hill. The land holds a title. The price per hectare is 4 million. The land is ecologically, environmentally and socially viable because it holds the water catchment area on top of the hill. On procurement of the land, the forest will be *relocated before it can be degazetted by Parliament. (emphasis mine)*

The above summarises the background to the MOU. Both the prosecution and defence cases are centred around it. It is the backdrop against which the charges stand and also upon which the criminal culpability of the accused persons will be determined.

### The prosecution's case:

In its final submissions, the prosecution contended that the MOU in effect exchanged Ibanda Forest Reserve land, a public asset, with land belonging to Rukokoma Mixed Farmers Cooperative Society. This act was not only highly irregular but also contravened the law. The arbitrariness of the accused's actions lay in their failure to follow the procedure for the procurement and disposal of public assets, as set out in the Public Procurement and Disposal of Public Assets Act. The exchange amounted to a Trade-in procurement, yet none of the procurement and disposal steps were followed. Furthermore, the forest reserve ought to have been degazetted before such a

8 Page Wuller; memorandum could be entered. Lastly, contrary to the law, no advice was sought from the Attorney General's office before entering the same.

## The defence case:

Counsel for the defence, on the other hand, submitted that the accused did not act arbitrarily as they were implementing the resolution of the Council when they entered into the MOU. That, contrary to the prosecution's claims, the MOU did not in effect transfer the forest reserve or give it away, as it was stipulated therein that the land would only be used upon degazettement. Further, only after the forest had been degazetted would the law on procurement and disposal of public assets come into play. He submitted that the accused were aware of the requirement for degazettement, which is why there were safeguards in the agreement that no exchange would occur until then. The MOU was intended to show the Ministry of Water and Natural Resources that there was alternative land for relocating the forest. There was no need for PPDA laws to be followed at that stage since, in his view, the memorandum did not amount to a procurement or a disposal. He argued that the Resolution of Council was never declared illegal or unlawful; therefore, the accused did not act out of their unilateral whims or desires. Finally, on failure to seek the advice of the Attorney General before entering into the MOU, he submitted that the burden fell on the prosecution to prove this fact, and they had failed to do so.

In rejoinder, the prosecution submitted that the accused cannot hide behind the council resolution, as it was their duty to offer proper legal advice to the Council. There was no excuse for their actions, which were in obvious contravention of the law.

## **Resolution of this issue:**

Many authorities have defined what an "arbitrary act" is. In the case of *Uganda versus Kazinda* Geoffrey ACD Criminal Session Case NO 138/2012, it was described as an action, decision or rule not seeming to be based on reason, system or plan and, at times, seems unfair or breaks the law. It entails using power without restriction and due consideration of other people. It is characterised by reliance on individual discretion rather than fixed rules, procedures and the law.

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This decision was adopted by the Supreme Court in *Hudson Jackson Andrua and another Versus* Uganda, COA Criminal Appeal No 45 of 2014. The Oxford Learner's Dictionary definition of arbitrariness as actions based on random choice or personal whim rather than any reason or system, or unrestrained and autocratic use of authority, was also adopted.

I have carefully scrutinized some selected cases to further understand the concept of arbitrary acts. In the case of **Hudson Andrua** (supra), the 1st appellant's non-compliance with the provisions of the National Forestry Act, Section 66 (2), which required him to seek Board approval for decisions about the authority, was found to be arbitrary. The Minister had also directed that he seeks the Board's support before entering into a contract with Midland Holdings Company. The impugned act was that he had entered into a grant with the company in Namanve Central Reserve without board approval and without following the laws on procurement. The appellant was the Executive Director of the National Forestry Authority. The Supreme Court held, "It has been established that the requirement for approval from the Board is a legal requirement and a breach of it is arbitrary" In Uganda versus Lwamafa Jimmy and others, Criminal Session Case No 9/2015, including a budget provision for the National Social Security Fund (NSSF), broke the law since the Ministry of Public Service had no legal mandate to contribute to NSSF. The technical Officers were supposed to advise on the budget, so they were held accountable, and their actions were found to be arbitrary.

In *David Chandi Jamwa versus Uganda*, *CA* 77/2011, the Court of Appeal dealt with a cross appeal filed by the prosecution against the appellant's acquittal on the charge of abuse of office. The appellant was said to have acted arbitrarily when he directed the sale of bonds before their maturity date to Crane Bank, causing unnecessary variance to the prejudice of NSSF. The prosecution argued that selling the bonds before maturity was unreasonable and arbitrary, even though the appellant claimed it was a collective act done for the company's good. It was held that in directing Crane Bank to sell the bonds on behalf of the employer, the appellant by-passed the Standard Chartered Bank, which was NSSF's registered primary dealer. This sale was single-handedly authorised; they were sold a few days before the maturity date when there was no dire need for cash in the Fund. The Court resolved the issue in favour of the prosecution and convicted the appellant for abuse of office. This decision was upheld by the Supreme Court, which held that the Court of Appeal had correctly

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found the acts of sale before the maturity date to be arbitrary. The appellant had not followed the correct procedure, the internal mechanism, before mandating Crane Bank to sell the bonds. There was no evidence that the Minister of Finance had approved the sale before maturity. There was also no Board resolution to that effect.

In the above cases, the accuseds' failure to follow established procedure, internal mechanisms, or the law in their impugned actions was found to be arbitrary. They demonstrate how actions taken single-handedly, without requisite authorizations, amount to arbitrary acts.

With that background, I now analyse the evidence tendered.

It is clear from the Council Resolution, the MOU and the State of the Nation address that the District officials, both the Council members and the public servants, knew there was a need to degazette the forest if they wished to address their security and environmental concerns by relocating the forest reserve. There is also no contention that for the move to degazettement to succeed, the District had to show that it had alternative land to relocate the forest reserve. This was brought out by the prosecution witnesses, specifically PW3, Charles Byaruhanga, the Assistant Forestry Officer in the Ministry of Water and Environment, responsible for coordinating forestry activities. Others were PW5, Kirya Elly, the Natural Resources officer of IDLG, and PW6, Turamye Ambrose, Assistant Forestry Officer, IDLG. The accused persons also alluded to this in their defence as the justification for the MOU. The prosecution did not contest this nor offer any evidence to the contrary. This court, therefore, accepts that as the proper position.

Notwithstanding the above position, the questions still loom. Did the accused have the authority to enter into the agreement on behalf of the Local Government? Did the MOU create any rights over the land? Was it the proper way to acquire the alternative land required for degazettement? What was the effect of the MOU? Did the accused enter the MOU according to the law and established systems, or were their actions unilateral, random, and not based on any justifiable reason?

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I have carefully considered the wording of the Council resolution and the state of the District address, reproduced in full earlier in this judgment. The Council intended that the land received from Rukokoma mixed farmers' cooperative society would be planted with forests before degazettement. No other meaning can be attributed to the phrases therein. These are:

> "On procurement of the land, the forest will be relocated before it can be degazetted by Parliament", and "the 50 hectares thus obtained be planted with trees as replacement of the forest reserve, since it was a condition for degazetting."

A2 confirms that he attended the Council meeting. There is no proof that he gave any advice to the Council regarding the resolution's impropriety or otherwise. Both A1 and A2, being technical officers with the mandate to advise the Council, based their subsequent actions on the above Resolution. This is apparent from the evidence.

I have considered the evidence of the witnesses who were present at the execution of the MOU. PW **1, Bwatota Bashonga**, the lawyer who prepared the agreement, testified that the accused and others from the Local Government went to his offices in Mbarara town on 6^th June 2009 and requested him to draft the agreement for them. They informed him that Rukokoma Mixed Farmers Cooperative Society had land on the hill measuring 50 hectares, which they were willing to exchange for the forest reserve in the middle of the town. The latter had come with a copy of their title. He testified that the DLG was to plant pine trees on the 50 hectares.

During cross-examination, PW1 grappled with the implications of the agreement he drafted. On one hand, stating that the surrender was immediate and that at the time of the agreement, land was being given out; on the other hand, the surrender was dependent on degazettement. The two run parallel to each other. It was established that PW 1 was part of Ibanda DLG, had previously done legal work for it and did not draft the agreement from the point of an independent advocate. This, in my view, explains why no proper legal input or advice was given to the DLG at that point.

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PW 4, Fred Kwetegyereza, Chairman of Rukokoma Mixed Farmers Cooperative Society, testified that in 2009, the district wanted a bigger place to grow trees and requested the Society to exchange land with it. After they signed the agreement, the physical planner measured the 50 plots out of the reserve. They then waited for degazettement because they were to use the land only after that had happened. The district, however, asked for transfer forms about two months after the exchange. It was A1 and A2 who made the request. They filled out the forms, and the district cut off their portion of land and returned their title for the balance of the land. This evidence was not controverted. Perhaps, this is significant in demonstrating the true intention behind the MOU as not being a futuristic affair to be effected upon degazettement, but rather a real exchange.

PW 5 Kirya Elly, the District Forestry officer, confirms they had the title for the 50 hectares they got from Rukokoma. PW 7, Kweyamba Ruhemba, the current CAO of IDLG, confirmed that the District had received a title in the name of Rukokoma for the 50.3 hectares for exchange with the forest reserve. PW 9 Karungi Betty Gafabusa from the Attorney General's chambers also testified that whereas it was one of the conditions that the transfer of the titled land would be signed upon degazettement, the truth on the ground was that the transfer forms were signed before hand and the land transferred. The accused persons did not controvert this evidence.

Given the above, I disagree with the defense that the MOU created no rights over the pieces of land exchanged by the two parties. The two parties exchanged land, and only deferred it's use. The parties assumed that the degazettement would be permitted. This wrong assumption brought many legal complexities and entitlements into play. Secondly, the accused's claims that the exchange was to take place only after degazettement are negatived by their act of securing the title to Rukokoma land just two months after the MOU was entered.

Section 11 (5) of the National Forestry and Tree Planting Act 2003 provides as follows: "An amendment to an order declaring a local forest reserve shall be approved *by Parliament, signified by its resolution.*"

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The process leading up to the degazettement is provided in subsections 1-4. Where a whole forest reserve is to be moved, an area equivalent in size to the abolished reserve shall be simultaneously declared a local forest reserve. The Minister manages the process. It involves securing an environmental impact assessment, valuation of the lands in issue, interviewing the community members, and securing different levels of approval, both at the Ministerial and Parliamentary levels.

Also significant is **Section 9 (3)** of the same Act, which provides that Local Forest reserves are held in trust for the people of Uganda and that the Local Governments are responsible for their management, maintenance, and control. They are to be managed in a manner consistent with the purpose for which they are declared and not to be put to any other use. They are not to be destroyed, damaged, or disturbed.

PW 3, Charles Byaruhanga, Assistant Forestry Officer in the Ministry of Water and Environment, testified that he first heard of Ibanda District Local Government's move to degazette the forest at a high-level meeting. The reason advanced was that it was in the middle of town. This surprised him because, due to climate change, a move was being made to plant more trees in the towns. He testified that he had advised the Chair of Council that degazettement was a lengthy process. As the officer responsible for the degazettement of forests, he provided the following procedure: the district with a plan to degazette first conducts due diligence to ensure it's not driven by corruption. Due diligence involves going on the ground and visiting all the relevant technical officers, visiting the land on the ground and establishing whether it is in a wetland or suitable area, establishing boundaries, titling and encumbrances. Villagers are interviewed, and an environmental impact assessment is made. They confirm if the district has passed a resolution. A report is then made to the Commissioner for Forestry, who, together with the Permanent Secretary, organises a meeting to discuss the degazettement. This meeting will give the Minister authority to proceed or not. If the degazettement is allowed at that point, a cabinet memo is made for discussion and approval. Parliament also has to approve, after which the degazettement of that reserve and the gazetting of alternative land is done. He testified that the move to degazette Ibanda Local Forest Reserve went to parliament clandestinely through a private members' bill in 2018, but it was blocked for failure to follow

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procedure. He was emphatic that the Ministry had never approved the degazettement and was not about to do so. In effect, the forest reserve in Ibanda has never been degazetted.

It follows that any action to surrender the forest reserve or give it to another person for commercial use as stated in the MOU conflicts with the National Forestry and Tree Planting Act 2003, which requires degazettement before any transactions occur on the reserve. This is the logical approach since degazettement is not automatic, is not under the control of the District Local Government, and there were no guarantees that the Minister or Parliament would agree with the Council's position to degazette and relocate it.

Another point of illegality pointed out by the prosecution was the contravention of the law on the Procurement and Disposal of public assets. PW 2, Nakiwala Sheila, an employee of the Procurement and Disposal of Public Assets Authority (PPDA), testified that the police sought an opinion from their office regarding the propriety of the exchange between Ibanda DLG and Rukokoma mixed farmers' cooperative society. A copy of this request letter was tendered in court as **PEX 10**. The Director of CID requested an opinion explaining procedures to be followed before a District's disposal of a local forest reserve.

In a lengthy reply dated 21^st February 2022 Ref PPDA/UPF/144, and via the testimony of PW 2, it was their opinion that: A local forest reserve is a strategic asset and a procuring and disposing entity is not to dispose of it without consent of the Minister of Finance, Planning and Economic Development or the District Land Board. The disposal of the forest reserve ought to have been planned and degazetted in accordance with the National Forestry and Tree Planting Act, 2003. It was erroneous for it to be disposed of before degazettement. The disposal process must start with a requisition by the Accounting Officer and approval of the contracts committee. Further, the exchange appears to be using a trade-in method of disposal, which should have followed the rules and conditions under the Local Government (PPDA) Regulations, 2006.

She testified that even where the Council takes a strategic direction, the technical officers must advise them to follow the established procedure. Under cross-examination, she confirmed that the

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letter from CID informed them that land had been exchanged at the signing of the MOU. By putting the question to PW2, the defence supported its position that there was no exchange and that the CID had misguided the PPDA in their letter, where they sought advice. I have already found that there was in fact a surrender or exchange of land, although the use was deferred until after degazettement. The defence position that there was no surrender or exchange and that the MOU was of no legal effect as it was pending degazettement was not tenable. If the MOU had no legal effect as they accused stated, why was it necessary to enter into it in the first place?

PW7, Kweyamba Ruhemba, current CAO of IDLG, testified that when he looked at the MOU, he realized the requirements for execution did not involve PPDA. There was no file on the transaction in the records of the District. He testified that procurement laws and guidelines are to be followed in any land procurement and disposal. He confirmed that the user department was supposed to initiate the procurement of the land for Rukokoma and the disposal of the forest reserve land. All these could only have taken place after degazettement had been allowed by Parliament. He further testified that the person responsible for ensuring that these processes are followed is the CAO, in this case A₁, assisted by the Heads of Department, including A₂. In this case, A₂ was to initiate the procurement and disposal as the user department.

**PW 8, Gafabusa** testified that the procurement and disposal procedures were to be followed before any arrangement to exchange property. Exchange is a disposal.

I have considered the defense of the accused. A1 stated that when he started work on 31.12.2008, he was notified that there was an essential activity of relocating the 13 ha of local forest reserve from Ibanda to the hill and that the Council had already passed a resolution approving the exchange. He was told that all that was lacking was an MOU to be used as evidence of alternative land. The MOU was to accompany the Environmental Impact Assessment report and other documents required for the process of degazettement. He stated that the MOU was a condition precedent, and they placed safeguards that it would be exchanged only after the degazettement. After the degazettement, the procurement and disposal process would take place. Rukokoma would benefit from direct

16 $P$ a g e Hulle: procurement. Further, the MOU was not supposed to be a legally binding document. It was a mere statement of intent to exchange. The duty of the technical persons was to ensure that the Council resolution was implemented.

He also stated that the land proposed for exchange was only 2.5 ha, and the rest of the forest land, after degazettement, would be sold off to interested persons through a competitive bidding process. Under cross-examination, he further stated that by signing the MOU, they had identified Rukokoma as a beneficiary and that the 2.5 ha planned for them was to be subjected to procurement. He confirmed that he was aware of the procurement procedures. Under questioning by the court, he also admitted that it was not given that degazettement was going to happen or even when it would happen.

A2, who testified as DW 2, said he signed the MOU because it had safeguards. The District said no plots before degazettement, whereas Rukokoma said no transfer forms before degazettement. The MOU was necessary because the district did not have land or the money to secure it. He stated that no exchange took place. He confirmed, however, that the title was transferred into the District's name. Under questioning by the court, he said that there was no letter requiring the alternative land to be in the names of the District.

I have carefully considered the prosecution and defence testimonies. The PPDA Act was passed to allow for fairness, transparency, and accountability in government procurements and foster value for money in these transactions. It is also meant to eliminate corruption in the procurement process. ALL public procurement and disposal activities are expected to follow the law, except where they are exempted under Section 1(2) of the Act. The current case does not fall under those exemptions. The law sets up under Part III, the procurement and disposing entity (PDE), which consists of the Accounting Officer, a contracts committee, a procurement and disposing unit and an evaluation committee. All these play specific roles in the process. The procurement and disposals must start from the user department (PDU). The PDE determines how to dispose of and procure assets at different authority levels.

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Auela:

It is clear that whereas the accused claim the MOU was harmless and did not contradict the procurement law, the choice of Rukokoma Mixed Farmers Society, the terms of the agreement which selected who IDLG would acquire the alternative land from, and committing to give the land to Rukokoma, breached the procedures set out in the law. By entering the MOU, the accused persons usurped the PDE's powers to determine how alternative land would be acquired and how the forest reserve land would be disposed of, even after degazettement. They put the cart before the horse in doing so. The law does not support the accused persons' claims that the procedures under the PPDA Act were to take place after degazettement. If that were the case, they would be presenting the PDE with a fait accompli at that point and force its hand to procure from and dispose of the land to Rukokoma Mixed Farmers Society. By committing the DLG to exchange land with Rukokoma in the MOU, it is clear that they expected that the PDE would ratify their actions after degazettement. This was arbitrary. It was not in their power to determine. The decision on which alternative land would be acquired lay with the PDE, in a process which the PDU should have formally started. This was not done. As testified by PW 2, the parties to the MOU agreed to exchange land, settling on a tradein method of procurement/disposal. That disposal method was to be suggested by the PDU and approved by the contracts committee. It was not the duty of the accused persons to determine this. Their actions were unilateral and contravened the set procedure.

Lastly, I address the capacity of the accused persons to enter into a contract on behalf of the Local Government. The prosecution submitted that there was no evidence that the accused sought advice from the Attorney General's office before signing the MOU. They relied on Nsimbe Holdings Ltd versus Attorney General, Constitutional Petition No 2/2006 and the evidence of PW 8 to support their case.

I have considered PW 8's testimony. She stated as follows:

"We engaged the Local Government to find out if they had sought legal advice from our chambers before signing the two MOUs and found no evidence. We

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Quele:

looked at the allocation book in our office and noted that Ibanda DLG hadn't sought advice from us on signing the 2007 and 2008.

The Local Governments Act has a statutory Instrument in it, titled the Local Governments (requirements for seeking legal and technical Guidance), and by it, it is mandatory for Local Governments to seek legal advice from the Attorney General before engaging in any activity likely to have financial and legal implications. This requirement is bestowed on the accounting officer of a local government. The transactions in issue, specifically MOUs of 2007 and 2008, fell in that category of issues that called for prior legal advice from us."

I have considered the above statement. I note that the defense, in its submissions, contended that the state had not produced any evidence to prove this fact, save for the witness's mere assertions. Neither A1 nor A2 canvassed this area in their evidence.

I acknowledge that the register that the witness checked to confirm request for legal advice was never submitted to the court. The law on failure to tender an exhibit is that the court may draw an adverse inference that if produced, it would not favour the prosecution's case. From evidence of PW8, such a register exists; since she saw it, it could have been produced, and no reason was advanced for its non-production. Nevertheless, I am satisfied that the investigating Officer who testified as PW9 corroborated her evidence. He found out that the Attorney General was not consulted.

However, I also note that the accused did not challenge the evidence of PW 8 and PW 9 regarding seeking the advice of the Attorney General. The law on failure to cross-examine a witness has been well settled. In James Sawo Abiri and another versus Uganda, Supreme Court Criminal Appeal No $5/1990$ it was held that:

> "An omission or neglect to challenge the evidence in chief on a material or essential point would lead to an inference that the evidence is accepted, subject to its being assailed as inherently incredible or possibly untrue"

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Guele.

In this case A1 and A2's failure to challenge Pw8 and PW9's evidence proves that they accepted that they had not sought the required advice.

**Article 119 (4) of the 1995** Constitution provides that the Attorney General shall give legal advise and services to the Government, draw and peruse agreements, contracts and treaties to which the Government may be a party. **Article 119 (5)** further provides that no agreement or contract to which the Government is a party or has an interest shall be concluded without legal advice from the Attorney General, except in cases exempted by law. The Constitution (Exemption of Particular Contracts from the Attorney General's Legal Advice) Instrument states that an agreement or contract involving fifty million or less is exempt from applying Article 119 (5) of the Constitution.

The prosecution was obligated to adduce evidence that the property in issue was worth over 50,000,000. This evidence was found in the testimony of the CAO, Kweyamba Ruhemba. It was also cited by implication in PEX 6, the State of the District address where the value of Ushs 4 million per hectare was cited for the land of Rukokoma Mixed Farmers Cooperative Society. A total of 50 hectares was to be exchanged. The value of the 50 plots of the forest reserve was not given. Although some witnesses mentioned a valuation report, it never saw the light of day in court.

I find, therefore, that the prosecution had met the threshold of proof beyond reasonable doubt on this element

In conclusion, the prosecution adduced sufficient evidence to demonstrate that A1 and A2 acted arbitrarily when entering the agreement because they contravened the Public Procurement and Disposal of Public Assets Act and the National Tree Planting and Forestry Act. They also did not seek legal advice of the Attorney General before executing the MOU.

Thille.

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## **Ingredient 3:**

# The act was done in abuse of the authority of their offices

The prosecution submitted that the accused were the custodians of the government assets and the disposal and procurement process, but they put their duties aside to sign the MOU. On the other hand, the defence submitted that this element was not proved.

The Local Governments Act sets out the roles of the Chief Administration Officer under Section 64 $(2)$ . He or she shall:

(a) be responsible for the implementation of all lawful decisions taken by the district council:

(b) give guidance to the local government councils and their departments in the application of the relevant laws and policies;

(c) supervise, monitor and coordinate the activities of the district and lower council's employees and departments and ensure accountability and transparency in the management and delivery of the council's services;

(i) assist in the maintenance of law, order and security in the district;

carry out any other duty that may be assigned by the district council from time to time.

The employment letter of A2 admitted as $PEX 2(b)$ by which he was assigned the role of District Natural Resources Officer sets out the key duties of the office as follows:

- a) Ensuring sustainable exploitation of District Natural Resources - b) Coordinating the implementation of Natural policies, Regulations and District ordinances and bylaws on natural resource management - c) Ensuring the provision of forest extension services to private investors in forestry activities - d) Advising District Council members and other stakeholders on sustainable natural resources management - e) Ensuring the compliance of district infrastructure designs and their location with land *use regulations.*

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Kuller:

## f) Ensuring security of land tenure ownership and lease holding in the District

The two accused, employees of the District Local Government, were entrusted with the care of the Local Forest Reserve under the National Tree Planting and Forestry Act. They were not to delineate, dispose of, or destroy the forest.

Considering the schedule of duties of A₁ and A₂, entering the MOU, which surrendered the forest reserve, was an abuse of the authority of their offices. The accused persons' actions contradicted the duties they were supposed to carry out in law, advising the Council and ensuring adherence to the law. They were expected only to follow the lawful resolutions of the council. In this case, the resolution was unlawful. IT did not have to be declared unlawful first. Above all, they were not to use their offices to surrender the forest before degazettement.

In conclusion, the prosecution proved this element of the offence beyond a reasonable doubt.

#### **Ingredient 4:**

## Whether the acts were prejudicial to the employer or any other person

The prosecution submitted that Rukokoma Mixed Farmers Society had, through the MOU, surrendered 50 hectares of land to IDLG, which had secured a title for the same. They filed a suit demanding specific performance, being given the 50 plots as per the MOU. They relied on the evidence of PW7 and PW8 to support the case that IDLG suffered prejudice by having to defend itself in court. Members of the public were offended and prejudiced when they learnt of the surrender of the forest reserve and reported the case to the State House Anti-Corruption Unit for investigation. Though not immediate, the accused's entering the MOU set off a chain of actions that prejudiced the Local Government.

On the other hand, the defence case was that Civil Suit No 31/2016, evidenced by the pleadings in PEX 8 (a-f), was filed by strangers to the MOU, Rukokoma Mixed Farming Cooperative Society and

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Aulle:

Bamya Francis. Rukokoma Mixed Farmers had signed the MOU. The suit was premature and misconceived, as the surrender could only occur after degazettement, which had not happened. The accused were therefore not responsible for what happened in court. Their actions were wellexplained and were not prejudicial.

Prejudicial, per Oxford Learner's Dictionary, means something harmful or detrimental. In the Hudson Andrua Case (Supra), the Supreme Court held that the appellants acting contrary to the Minister's directive and board authorization made them fall foul of the provisions of the law, which was clearly prejudicial to the interests of the authority. Exposure to legal action was found to be prejudicial.

Both A1 and A2 were seasoned public officers entrusted with discharging duties in the public's interest. By entering the MOU, they created interests in the forest reserve and land on the hill. These interests were solidified when they effected the transfer of Rukokoma land into the District's name. PW 4 testified that "they took our title but they never gave us the plots they promised. We waited and then reported the matter to High Court".

PW 8 testified at length about the legal battles that followed the MOU. The prejudice to IDLG in defending itself in actions arising from the unlawful MOU is undeniable. The CAO, Kweyamba Ruhemba, who testified as PW 7, stated that they suffered many things as a result of the MOU, including the time spent following the matter in court, hiring lawyers to defend and advise, and facilitating the staff to prepare and defend the District. He added that:

> "Up to now, we are reversing the land, so we have to hire Government valuers and we have to pay 1.5% of the value of the land. That is 1.5% of the 120 million that was valued for Rukokoma land on the hill"

The above was not controverted.

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Whereas inconsistent names were used in reference to Rukokoma Mixed Farmers Cooperative Society, I am satisfied it is the same organisation that PW 4 Chaired, which entered the MOU, and which filed the subsequent suit against the DLG. Therefore, the argument that a stranger filed the suit does not hold sway.

I am satisfied that A1 and A2's acts were prejudicial to the interests of the employer, Ibanda District Local Government.

#### **CONCLUSION**

I am satisfied that the prosecution tendered sufficient evidence and proved all the elements of the offence charged to the requisite standard in criminal matters.

In agreement with the assessors who advised me to convict the accused persons, I hereby:

- 1. Convict A1, Matsiko Mutungwire, of the offence of Abuse of Office c/s 11 (1) of the Anti-**Corruption Act** - 2. Convict A2, Nuwagira Tom of the offense of Abuse of Office C/s 11(1) of the Anti-**Corruption Act**

.........................

Okuo Jane Kajuga **JUDGE** 27.5.2025

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