[2022] UGHCACD 13

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

#### ANTI-CORRUPTION DIVISION AT KOLOLO 10

## CRIMINAL SESSION CASE NO 0001 OF 2020

## <table><tbody>UGANDA (IGG)PROSECUTOR</tbody>

$5$

## **VERSUS**

### A1 ROBERT BARYAMWESIGA A2 FRED KIWANUKA ......................................

$20$

## BEFORE: OKUO JANE KAJUGA, J

## JUDGEMENT

The accused persons, **Robert Baryamwesiga (A1)** and **Fred Kiwanuka (A2)** were indicted for the following offenses:

#### 1. Corruption: Contrary to Sections 2 (a) and 26 (1) of the Anti-Corruption 25 Act 2009.

Both are separately charged with this offense in three counts on the indictment. In Counts II and IV, A1 is accused of receiving gratification of Ushs $235,500,000/$ = and Ushs 29,140,000 from Jinako Engineering Works

Ltd and Atlas Engineering Services Ltd respectively, as an inducement to 30 recommend payment accruing to the two firms for demarcation and allocation of plots of land at Bidi Bidi Refugee settlement camp in West Nile.

In count VII, A2 is alleged to have corruptly received gratification of Ushs 129, $000,000/$ = as inducement for recommending payment to Jinako Engineering Works Ltd for work done.

In an alternative count, A2 is indicted under Section 2 (h) and 26 (1) of the same Act for instructing Directors of Jinako to deposit Ushs 129,000,000 on his account prior to execution of any work in order to illicitly obtain a benefit for himself

## 2. Money Laundering: Contrary to Sections 3 (c), 116 and 136 (1) (a) of the 40 Anti-Money Laundering Act.

Both accused are separately indicted of this offense in three counts. In Counts I and III the prosecution alleges that A1, for purposes of disguising or concealing the origin of illicit funds, instructed the Directors of Jinako Engineering Works Ltd and Atlas Engineering Works Ltd to deposit on his

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$\mathbf{1}$

Bank Account, **Ushs 235,500,000/=** and **Ushs 29,140,000/=** respectively, $\mathsf{S}$ knowing or having reason to believe that the said funds were proceeds of crime.

In Count VI, A2 is alleged to have similarly instructed the Director of Jinako Engineering Works ltd to deposit Ushs $129,000,000/$ = on his bank account, for the same purpose of disguising the origin of the funds, with knowledge or

10 having reason to believe that these funds were proceeds of crime.

# 3. Abuse of Office: Contrary to Sections 11 (1) and (2) of the Anti-Corruption Act 2009.

Both accused are separately indicted with this offense. In Count V, A1 is indicted for demanding and receiving a total of Ushs 264,640,000/- from 15 Jinako and Atlas Companies, an arbitrary act prejudicial to the interests of his employer and to the Companies involved.

A2 is in Count VIII, indicted for the same offense in respect of the Ushs $129,000,000/$ =. It is alleged that his act of demanding and receiving the said money from Jinako Engineering Works Ltd was arbitrary and prejudicial to his employer and to Jinako.

## Representation:

The prosecution was conducted by Rogers Kinobe and Jacky Mawemuko from the Inspectorate of Government. They called 12 witnesses and tendered

a large number of exhibits. Both accused were represented by **Emmanuel** 25 **Emoru** and opted to make unsworn statements in their defense. They did not call any witnesses.

At the close of the trial, both parties adopted their very detailed submissions on no case to answer and made additional final submissions orally and in writing.

## The brief facts of the case:

The prosecution case is that the accused were employed by the Office of the Prime Minister as Settlement Commandants at Bidi Bidi Refugee Settlement Camp in Yumbe District in West Nile, Uganda between 2016 and 2018, and that by virtue of their employment were to ensure that land offered by the 35 host communities for settlement of refugees was demarcated. The Office of the Prime Minister (OPM) entered into contracts with two firms, Jinako Engineering Works Ltd (hereinafter referred to as Jinako) and Atlas Engineering Works Ltd (hereinafter referred to as Atlas) to carry out the demarcations according to specifications, plots for occupation, roads, land for

40 schools, health Centres, woodlots, cemeteries and agricultural land for farming. The accused were expected to verify their work upon completion, and

Juse

- make recommendations to the Refugee Desk Officer Arua in order for their $\mathsf{S}$ payments for work done to be effected. It was the evidence of the Directors of the contracted firms and other witnesses that the accused demanded a "cut" or percentage from the payments due to them from OPM, as a condition for securing their recommendations. Owing to fear of loss of future business - prospects with OPM or other related agencies and frustration of their work, 10 these firms yielded to the demands and deposited money in the bank accounts of both accused whenever there were payments made. The charges revolve around these payments and the circumstances under which they were made.

The accused denied the charges.

#### Burden and standard of proof 15

The law on this is well settled. The burden to prove the charge against an accused person lies on the prosecution. See **Woolmington versus DPP [1935]** AC 462. This right stems from the principle of presumption of innocence enshrined in Article 28 (3) (a) of Uganda's Constitution. 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;

prisoner's guilt subject to... the defense of insanity and subject also to 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 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 guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the

The law is that the accused does not bear any burden to prove his innocence except in a few statutory exceptions. There are no such exceptions for the case before court.

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.

## Resolution of the case:

I have considered the charges before court, the provisions of the law under which they are brought and analysed the evidence tendered by both parties through witnesses and documentary exhibits, and the detailed submissions

Husler

$\overline{3}$

of both counsel. I now proceed to resolve the issues, starting with the charges $\mathsf{S}$ of money laundering, corruption and then lastly, abuse of office.

# A) Money laundering

These charges are brought under Counts I, III and VI of the indictment against 10 both accused, under Sections 3(c), 116 and 136(1)(a) of the Anti-Money Laundering Act (AMLA)

Section 3 (c) of the AMLA prohibits any person from intentionally acquiring, possessing, using or administering property knowing at the time of receipt 15 that the property is a proceed of crime. Section 116 criminalizes the actions cited in 3 (c) along with other conduct listed in the other subsections. Section 136 (1) (a) prescribes the punishment for the offense.

The elements of the offense that have to be proved by the prosecution as $20$ drawn from the foregoing provisions and established in the decided cases of Uganda versus Sserwamba and 6 others (HCT-00-AC-SC-11-2015), Uganda versus Yudaya Ntumwa (HCT-00-AC-SC-0136-2015) and Uganda versus Malong Lawrence Lual Yor and 2 others (HCT-00-AC-SC-0004-2019) are as follows:

- a) That the accused intentionally acquired, possessed, used or administered property - b) That he or she knew or had reason to believe that the property was proceeds of crime

These elements were confirmed by the Court of Appeal in the case of **Yudaya** Ntumwa versus Uganda, Criminal Appeal No 136/2020. However, the Justices of Appeal further defined the parameters of this offense and in their judgement, guided as follows:

"Before we take leave of this matter we note that section 116 of the Act applies to any person who may not be responsible for the crime from which the proceeds of the crime are derived. In other words, it applies to third parties who may not have participated in the commission of the crime from which the

- 40 proceeds of crime are derived." "... Section $3(c)$ provides that it is prohibited for any person to intentionally acquire, possess, use or administer property knowing at the time of receipt that the property is proceeds of crime. ...where the person is part and parcel - of the commission of the crime there would be no need to charge that person 45 under section 116 (c) of the Act. Such a person would be charged with the main offense of the case"

- The Anti-Money Laundering Act, 2013 was amended in 2017, and effective $\mathsf{S}$ 26^th May 2017, section 116 of the principal Act was substituted by section 16 of the Anti-Money laundering Amendment Act. The effect of the amendment was that section 116 generally criminalized the various acts prohibited in section 3 without specifying or listing them, doing away with sub-sections (a) - to (g). Section 116, therefore, reads as follows: "A person who engages in any 10 act of money laundering prohibited in section 3, commits an offense" There is therefore in effect, no section 116 (c) in operation since the amendment entered into force. At the time of the decision in the Yudaya case, the amendment had not been made. - 15

Nevertheless, both the substituted section 116 (c) referred to in the Yudaya appeal case and Section 3 (c) refer to the act of intentionally acquiring, possessing, administering or using property with knowledge that the property is the proceed of crime. It still holds, therefore, that the offense in issue can

- only be committed by third parties who were not part of the commission of 20 the crime that generated the proceeds. This decision is particularly relevant in the facts of the instant case, as I shall demonstrate later. - Before I evaluate the evidence however, I must first dispose of an objection to the particulars of Counts 1, III and VI raised rather belatedly by counsel for 25 the defense in his final submissions. The objection raised the question of whether the charges were defective for ambiguity and whether the same caused a miscarriage of justice or prejudice to the accused persons in their defense. - 30

Counsel for defense submitted that there was a material deviation from the case as framed and read to the accused in the indictment, and the submissions of the prosecution. That in all the counts in issue it was alleged that the accused persons for purposes of disguising or concealing the origin

- of illicit funds, instructed the Directors of the two companies to withdraw from 35 their accounts and deposit on the accused persons accounts, monies which were proceeds of crime. He contended in his final submissions that the prosecution had abandoned the case as set out in those counts and instead sought to argue that money was received, which was never alleged in the - counts. 40

Counsel for the prosecution on the other hand submitted that the accused received, withdrew and utilized the money according to their wishes. They further argued that the process by which the money was laundered by the accused was demonstrated by the use of different depositors, the disappearance of deposit slips, and the withdrawal of money in bits from the accounts, among others.

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$\mathsf{S}$

$\mathsf{S}$

For the purpose of clarity, the particulars of the relevant counts I, III and VI are reproduced here below;

Count 1:

Robert Baryamwesiga between 1^st October 2016 and 30^th May 2018 in Arua 10 and other parts of West Nile Region, for purposes of disguising or concealing the origin of funds, instructed Mr. Omia Mudasiri Obiga, the Director of Jinako Engineering Works Ltd to withdraw and deposit a total of UGX 235,500,000/= (Two hundred thirty five million , five hundred thousand shillings) from their company accounts in Centenary and Stanbic Bank Moyo Branch, knowing or

15 having reason to believe that the said funds were proceeds of crime.

Count III;

Robert Baryamwesiga between 1^st June and 30^th July 2017 in Arua and other parts of West Nile Region for purposes of disguising or concealing the origin 20 of illicit funds, instructed the Directors of Atlas Engineering Works ltd to withdraw and deposit a total of Ushs 29,140,000/= (twenty-nine million shillings) from their Company's account No 9030012579364 at Stanbic Bank Arua Branch to his personal account at Stanbic bank Moyo Branch, knowing or having reason to believe that the said funds were proceeds of crime. 25

Lastly, the particulars of Count VI are as follows;

Fred Kiwanuka between $1^{st}$ June 2016 and $30^{th}$ December 2017 in Arua and other parts of West Nile region, for purposes of disguising or concealing the origin of illicit funds, instructed Omia Mudasir Obiga, the Director of Jinako 30 Engineering Works Ltd to withdraw and deposit a total of Ushs 129,000,000/= (one hundred and twenty-nine million shillings) from their company accounts at Centenary and Stanbic Banks Arua branch to his personal accounts in Stanbic Bank Kireka Branch, Bank of Africa Arua branch and Equity Bank Oasis Mall, knowing or having reason to believe that the said funds were 35 proceeds of crime.

I have carefully considered the submissions of the prosecution regarding the three counts, and they are to the effect that both A1 and A2 received, withdrew and utilized money which they had instructed the Directors to deposit on their accounts, having knowledge that the monies were proceeds of crime.

I have considered also, the provisions of the law under which the money laundering charges were brought, and the particulars of Counts 1, III and V1 of the indictment which are similar in format as reproduced above. I note that 45 the particulars do not conform to the statement of offense under which they are brought, Section 3 (c). There is no statement as to whether the accused allegedly acquired, possessed, administered or used property. Instead there are statements that they "instructed the withdrawal and deposit" of

- money from the company's accounts to their personal accounts while they $\mathsf{S}$ knew or had a reason to know the same were proceeds of crime. There are also allegations that the instructions in issue were made for purposes of disguising or concealing the sources of funds. - 10 The issue for court to determine is whether the particulars of counts 1,11 and V1 in the indictment were properly drawn. If not, whether this is fatal in effect and invalidates the charges. The determinant of this is whether the accused, from the particulars of the indictment read out to them at plea taking, had reasonable information regarding the nature of the charges they were to - defend themselves against and if not, whether they were prejudiced by the 15 same.

Part 111 of the Trial on Indictments Act, Cap 23 (TIA) provide rules for framing of indictments. Sections 22 and 25 thereof are very instructive in this matter.

# **Section 22** provides:

"Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offense or offenses with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offense charged"

Section 25 (c) provides; "After the statement of the offense, particulars of that offense shall be set out in ordinary language, in which the use of technical terms shall not be necessary; but where any written law limits the particulars

- of an offense which are required to be given in an indictment, nothing in this 30 paragraph shall require any more particulars to be given than those so required. - Lastly, Section 25 (n) provides; "Subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or 35 omission whatsoever to which it is necessary to refer in any indictment in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to. - The import of the above provisions is that the act or omission complained of 40 must be clear to the accused. The particulars must correspond to or be guided by the provisions of the law under which the charges are brought. The provisions of Section 3 (c) of the AMLA are succinct. The particulars of the impugned counts are not. They are muddled up with facts that are not - relevant or required by the law, and do not constitute particulars of the offense 45 envisaged by section 3 (c). They include particulars envisaged under section 3 (a) and (b) which require proof of the purpose of concealing or disguising the illicit origin of property

Huger

Money laundering is defined as process of turning illegitimately obtained property into seemingly legitimate property and it includes concealing or disguising the nature, source, location disposition or movement of the proceeds of crime and any activity which constitutes a crime under section

116 of this Act. (emphasis mine) 10

> The interpretation of the above provision is that it is not necessary for every offense of money laundering, to indicate in the particulars, or even have to prove that the accused concealed or disguised the nature or source or movement of the proceeds of crime.

Sections 3 (c) defines the activities constituting a crime envisaged and a person charged under that provision is not required to prove concealing or disguising the nature or source of funds, neither does any person charged under sub section (e) (f) and (g). Sub sections (a) and (b) expressly require it and state so therein.

In light of the foregoing, the particulars cited in the counts in issue to the effect that "the accused persons for purposes of disguising or concealing the origin of illicit funds" are not necessary. They instead exacerbate the lack of 25 clarity in the counts. I do not find the charges as framed explicit.

The end result is that the accused is left to guess or imagine what specific matter, act or omission he is alleged to have done in contravention of the law. Was it that he possessed the money? Or that he acquired it or managed it or

- 30 used it? The accused are alleged to have "instructed" deposit but this is not the terminology of the section that creates the offense in issue. This lack of clarity leaves the accused to draw his own conclusions as to what the allegation he is faced with is. The effect of this can be seen from the - submissions of the defense on no case to answer, where they labor to define 35 what "disguise" and "conceal" mean and in their substantive arguments, delved into the fact that no evidence had been led to prove the form and nature of the instructions cited in the particulars. The prosecution too appeared to labor under a misconstruction of section 3 (c) as they went ahead to address - the court on the three stages of money laundering, placement, layering and 40 integration, positing that the demand for kickbacks, use of different depositors was intended to conceal the source and disguise the money, and that the funds were layered through withdrawal in small bits eventually reintegrating them in the society. All these submissions were irrelevant as far as the preferred charges are concerned. 45 - In Muhanguzi Kashaka and Others versus Uganda, Criminal Appeal No **723/2014**, the Justices of the Court of Appeal dealt with the issue of framing

Nuell

$\mathsf{S}$

- of particulars. In that case, the 5^th appellant had been charged along with $\mathsf{S}$ others with the offense of abuse of office. In the relevant Count 9, they were alleged to have done an arbitrary act of recommending as compliant, MS Aitel's bid as having met the minimum capacity and past experience requirements of having supplied 70,000 bicycles as a single lot in the - 10 solicitation document whereas not. The trial court had convicted the 5^th appellant in the same count for having abetted the actions complained of therein.

One of the grounds on appeal was that the trial Judge had erred in convicting him of an offense with which he was not charged. The Justices of the Court

of Appeal found fault with the particulars of offense against the 5^th appellant 15 for not indicating in any way that he was being charged with abetting so as to afford him an opportunity to plead and put up a defense accordingly. They held that "...it was essential that the particulars of the offense should have adequately informed him of the abetting element so as to afford him an

20 opportunity to prepare his defense'. The appeal was allowed on that ground. In the analysis, the provisions of the law under which the charges were brought were not in issue, rather it was the failure of the particulars to afford adequate information to the accused.

- I find the principle applicable in this case. For reasons I have detailed 25 hereinabove, I find merit in the submissions of Counsel for the defense produced hereinbefore. I find the particulars fatally defective and strike them out. - I note however that even if I had not struck out the charges as fatally defective, 30 they would not have been sustained in light of the decision in the Yudaya **Ntumwa Appeal case** (supra) on the application of Section 3 (c) of AMLA to third parties. From the evidence on record, the accused persons, in this case, cannot be considered as third parties to the transactions in issue.

Black's Law Dictionary, the 8^th Edition at page 1518, defines a third party as: a person who is not a party to a lawsuit, agreement, or other transaction but who is usually somehow implicated in it, someone other than the principal parties.

The evidence of PW 2, Aijuka Lincoln, a technician with Atlas Engineering Works Ltd and of **PW3 Zodia David**, Managing Director of the same company was led to support count 111 in the indictment.

PW 2's evidence is to the effect that he was a witness to the framework 45 contract signed between the Director of Atlas and OPM on 31^st March 2017. That he was called by a procurement officer at OPM called Isaac who notified

There

- him that the plots were ready for demarcation and that he should contact the $\mathsf{S}$ settlement commandant. He gave him the telephone number of A1 Robert who told him they were not yet ready and that he would call him back. After waiting for the call in vain, PW2 decided to drive to his office in Bidibidi. A1 then told him the land was ready, however he was not sure if PW2 was willing to - cooperate, and that if he was, then he would show him the land. When PW2 10 asked him what he meant he explained that they should give him Ushs 5,000 per each plot they demarcate. The company was charging 17,000/- per plot. When he contacted Zoodia David, a director, the latter told him that the amount demanded was too high. Subsequently the amount was renegotiated - to 3,000/- per plot. A1 informed him that since it was their first time, if they 15 cooperated they would be assured of more projects and he would even lobby with other organizations for them. Further, that there were others on the ground who could do the job if PW2 and the company did not cooperate. Zodia agreed to the 3,000/ $=$ and work commenced. After plotting 11,000 plots, they - needed to be paid. They needed a verification report from the settlement 20 commandant. When he went to A1, the latter reminded him of the $3,000/$ = per plot. He wrote his account number on a piece of paper and directed him to pay the money onto his account. He gave him the recommendation. PW2 handed all these to PW 3 Zoodia David.

PW 3, Zoodia testified that he received the account number from PW2 and after hesitating about the payment for 3 days, they agreed to pay A1 a total of 29,140,000/=. He identified the deposit slip of $29/7/2017$ and his signature on the same. This payment is the subject of count 111 of the indictment.

The evidence in respect of the charges in count 1 and V1 emanate from the testimony of PW4, Omia Mudasir who was the Director of Jinako Engineering Services. He testified that he knew both A1 and A2 and that he paid them a total of Ushs $129,000,000/$ = and Ushs $235,500,000/$ = respectively. He testified that both accused demanded payment before they could approve their payments, and that they were forced to make the same for fear of the loss of business.

From the above, it is clear that the Directors of Atlas and Jinako dealt with the accused persons directly, the transactions in issue were allegedly 40 concluded between them and their employees/ agents and the accused. The money paid to them was an economic advantage derived by them in a manner alleged by the State to be illicit. The prosecution evidence is that the two accused were responsible for the crime from which the proceeds of crime are

generated. They were therefore not third parties to the transactions in issue, 45 and cannot be treated as such. It is clear from the above testimonies that the $\mathsf{S}$ accused were involved in reaching the agreement for payment and were a party to the transactions that led to the payments allegedly made.

For this reason, therefore, the charges of money laundering in Counts 1, III and V1, brought under section 3 (c) of AMLA which applies to third parties, are ill-conceived and not sustainable.

The charges against both accused for money laundering accordingly fail.

#### B) Corruption contrary to Section $2(a)$ and $26(1)$ of the Anti-Corruption Act 15

The relevant counts are II and IV in respect of A1, and Count VII against A2.

In Count II it is alleged that Robert Baryamwesiga between 1^st October 2016 and 26^th May 2018 while performing his duties as a settlement commandant 20 at Bidibidi refugee settlement camp received a gratification of Ushs 235,500,000 from Jinako Engineering Works as an inducement for him to recommend payment of Ushs 2,395,496,000/ $=$ accruing to the said company for land demarcation and allocation in the camp. Secondly, in count IV its alleged he also received gratification of Ushs 29,140,000 from Atlas 25 Engineering Works Ltd as an inducement to process payment of

$175,780,000$ /= accruing to it for a similar exercise.

In Count VII, A2 is accused of receiving gratification in 2016 of Ushs 129,000,000 from Jinako Engineering Works as an inducement for 30 recommending payment of monies accruing to the firm for plot allocation and demarcation.

Section 2(a) of the Anti-Corruption Act under which the charges are brought provides as follows: 35

"A person commits the offence of corruption if he or she does any of the following acts— (a) the solicitation or acceptance, directly or indirectly, by a public official, of any goods of monetary value, or benefits, such as a gift, favour, promise, advantage or any other form of gratification for himself or herself or for another person or entity, in exchange for any act or omission in the performance of his or her public functions;

In light of the above section, the particulars of the offense set out in Counts II, IV and VII herein and on the authority of previous decisions including

45 Gawaya versus Uganda HCT-00-CN-0016-2005, the prosecution had to prove the following:

- 1. That the accused is or was a public official at the time of the commission of the offense - 2. That the accused directly or indirectly received a gratification - 3. That the gratification received was for himself or any other person or entity in exchange for an act or omission in the performance of public functions.

I now proceed to evaluate and analyze the evidence so as to determine if the ingredients of these offenses were proved to the requisite standard.

#### Ingredient 1; Accused being a public official 15

### Submissions of the parties:

- The Defense in their submissions contend that ingredient 1 was not proved as the accused were not public officers as provided under Section 2 of the 20 Interpretation Act and Articles 175 and 257 (1) and (2) of the Constitution. He relied on the authorities of **Uganda Revenue Authority V Quinto Ojok,** Supreme Court Civil Appeal No 33/95: Uganda Versus Hudson Jackson Andrua and another, Criminal Session Case No 54 of 2012: R versus Whitaker (1914) KB 1283 for the position that for one to be classified a public - 25 officer he or she must be recruited by the Public Service Commission, Education Service Commission or the Health Service Commission and his or her emoluments must be derived from the consolidated fund or funds appropriated by Parliament. - 30

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$10$

It was submitted further, that the contracts of service admitted in court as Prosecution **Exhibits P1a- P1J** and **P2** for both A1 and A2 respectively, and the evidence of witnesses showed that the accused were project staff whose employment was based on funding from the United Nations High Commissioner for Refugees (UNHCR). That the basis of their recruitment was 35 the project Partnership Agreement signed between OPM and UNHCR which allowed the former to recruit people to undertake some services in the project, and that their salary was paid from project funds, not public funds within the meaning of the law. Further that they are not described as employees but

- rather "persons engaged" because OPM has no mandate to recruit on its own, 40 and the provisions in the contract that stated that the contracts were subject to the Public Service Act and the standing Orders does not render the two public officers. He strengthened his submissions by relying on the Refuges Act 2006 Sections 7 to 10 which establish the Office for Refugees as a public - office and stipulates that other officers apart from the commissioner for 45 Refugees shall be appointed by the Public Service Commission. OPM therefore had no power to recruit.

Nuel

He further submitted that the funds used to pay the accused were not from the consolidated fund as confirmed by PW1, Osakan Solomon during the cross examination and PW 9. In the absence of any evidence that UNHCR gave money which then went to the consolidated fund and was appropriated by Parliament as required by the law, then any contention that money is from the consolidated fund cannot apply.

He referred court to the testimony of A1 and A2 where they clearly stated that they joined as volunteers and were deployed by phone call from the UNHCR offices. They were also to report to the Commissioner for Refugees and not to PW1 who stated so in his testimony.

The Prosecution on the other hand submitted that the Public Service Act section 6 thereof defines public service to include officers recruited by the service commissions and other relevant appointing authorities. Further that

20 the Public Service Standing Orders, 2010 (A-b) permit appointments on contract basis, and non-pensionable terms; The employment contracts for the accused stated expressly that they would be subject to the Public Service Act and the Standing Orders; The contracts show that the two were employed by

- the Government of Uganda, specifically Office of the Prime Minister (OPM) 25 represented by the Permanent Secretary. The two were therefore public officers as they were employed by Government, specifically OPM which had the power to do so. They enjoyed the rights and benefits under the above provisions while in service and therefore could not refrain from being liable - under the same laws. They further relied on the evidence of PW1 regarding 30 employment and duties of the accused.

In respect of the source of funds used to pay the two, they relied on Section $3$ of the Public Finance Management Act 2015 to support their position that the funds used to pay the accused belonged to the Government of Uganda, 35 having been received from UNHCR. Further that it constituted public money as it was received by a Vote or collected for a purpose of Government.

Lastly, that in the instant case P Exh P $1(a-n)$ - the employment contract of A1 between Government of Uganda represented by Office of the Prime Minister 40 and Baryamwesiga Robert (A1) shows that the employer being the government of Uganda received funds under the project (UGA/ABC/2710/OPM). This means that the funds in issue are government funds and also fall within the ambit of Article 153(1) of the Constitution.

### **Resolution:**

Threeder

$\mathsf{S}$

- I have carefully considered the evidence of the witnesses and the primary $\mathsf{S}$ documents on the employment of both A1 and A2. Exhibits PEX 1 (a-n) in respect of A1 and PEX 2 (a-g) in respect of A2 were tendered as proof of employment. - I note that for A1 it is alleged that he committed the offenses in issue during 10 the period 1^st October 2016 - 30^th May 2018 (count I1) and on 29^th of July 2017 (for count IV) while employed as settlement commandant in OPM. The prosecution thus had the burden to prove that A1 was a settlement commandant during that period. Close scrutiny of the employment - documents shows that most of them did not cover the period in issue. PEX 1 15 9 (c-n) cover the period before 2016 so they are not relevant, except to show the history of employment. PEX 1 (b) is a contract of employment of A1 as settlement commandant dated 25.9.2017 and covering three months of October 2017 to December 2017. PEX 1(a) is a letter of offer for contract - renewal addressed to A1 for the same post for one year, from 2^nd January 20 2018 to 31st December 2018. The actual contract was not tendered in evidence; neither was the acceptance of A1 of the same offer tendered.

As regards A2, the prosecution case in Counts VII and the alternative count cover the period 1st August 2016 to 31st December 2016. The only relevant 25 document is PEX2 (d) which is an offer of renewal of appointment to him for the post of Settlement Commandant for the duration of one year, with effect from 4^th January 2016. There's no acceptance letter on record nor is there a valid contract to confirm the employment.

In the final analysis, the documents fall short of proving the employment of the accused as settlement commandants for the periods in issue, save for PEX 1(b) which covers three months of October to December 2017 for A1. It is trite law however that employment can be proved in a myriad of ways, and not strictly through formal employment letters or contracts.

The evidence of PW1, PW2 and PW4 is relevant in this regard. PW 1 (Osakan Solomon) the Refugee Desk Officer OPM Arua testified that A1 was a settlement commandant at Bidibidi from 27^th July 2016 to mid-2019 when he was transferred to Kyaka. A2 on the other hand was sent to provide emergency response support to OPM at Bidibidi from 27^th July 2016 to 31^st December 2016. PW2, Aijuka Lincoln of Atlas Engineering testified that he got to know A1 as settlement commandant in 2017, after they had signed their contract for plot demarcation. He was referred to him. He spoke to him on phone and also physically met him in his office as settlement commandant, in July 2017. 45 **PW 3 Zoodia David.** Director of Atlas Engineering testified that he paid Ushs

29,140,000/= to A1 on the 29^th of July 2017, about three days after they had

June Der

- received their money from OPM, and that at the time, he was the settlement $\mathsf{S}$ commandant. PW 4, Omia Mudasir similarly testified that he knew both A1 and A2 as settlement commandants and interacted with them both during the period when his company, Jinako carried out plot demarcation and that they made payments spanning 2016-early 2018. - PW 1 tendered documents authored by the two accused within the periods in 10 issue as settlement commandants and they were admitted as part of Prosecution Exhibits **PEX8-PEX 24**.

I find the above evidence as corroborating the testimony of PW 1 regarding the employment of the accused persons as settlement commandants in the 15 period in issue. I have considered the defense case and noted that there was no contest to the fact that A1 and A2 were settlement commandants in the periods in issue. Neither during cross examination of the four witnesses nor during their defense was this issue controverted.

I thus find that that both A1 and A2 were settlement commandants during the period of 1^st October 2016 to 31^st December 2016 (for A1) and 1^st August to $31$ ^st December 2016 (for A2).

The contention is whether the two were public officers. 25

Chapter 10 of the 1995 Constitution provides for the Public Service. Article 175 thereunder provides as follows:

- "In this Chapter, unless the context otherwise requires- "public officer" means 30 any person holding or acting in office in the public service; "public service" means service in any civil capacity of the Government the emoluments for which are payable directly from the Consolidated Fund or directly out of moneys provided by Parliament." (emphasis mine) - Merriam Webster's English dictionary defines context as "interrelated 35 conditions in which something exists or occurs; environment" while Black's law dictionary defines it as "the surrounding text of a word or passage used to determine the meaning of that word or passage; setting or environment"

The phrase "unless the context otherwise requires" means that the interpretation or definition of the term public officer as used in Article 175 is 40 subject to interpretation within the relevant surrounding environment. In other words, the definition offered may not be read in isolation and may not be treated as being conclusive if it is otherwise required by the context.

The context, in this case, is provided by the mandate of the Public Service and 45 the provisions of the Anti-Corruption Act under which the charges are levelled. The objective of the Public Service generally is to enable the Government of Uganda to formulate and implement policies and programs for

fueler.

the development of Uganda. Public officers are the personnel that execute that $\mathsf{S}$ mandate.

The Anti-Corruption Act 2009 interestingly does not define a public officer, like other laws e.g. the Public Service Act, 2008. It is however the relevant legislation in this case and should offer the context within which a "public officer" cited under section 2 (a) should be understood. A public body as

- 10 defined under section 1 of the Act includes the Government, any department, services or undertaking of the Government. It would appear that having defined a public body, the legislature did not find it necessary to define who a public officer is within the context of the Act. I am of the persuasion that any person employed in a public body that provides services or undertakings - 15 of the Government qualifies to be a public official within the meaning of the Anti-Corruption Act.

Careful reading of Section 2 (a) shows that the legislature was interested in generally curbing the acts of corruption by persons employed in public bodies in the exercise of their public functions, hence Article 275 of the Constitution must be read together with the Anti-Corruption Act.

The defense in their submissions take a rather strict approach to the interpretation of Article 257, that a public officer must be recruited by the Public Service commission, Education Service Commission and the Health Service Commission and that their salary must be paid out of the consolidated

- 25 fund. Such an interpretation leaves out other officers who form part of the public service but are not appointed by the three commissions. Section 6 of the Public Service Act provides that the public service is composed of persons employed by the service commissions and any other relevant authorities. Further, the Uganda Government Standing Orders 2010 edition (A-b) allows - 30 for the recruitment of public officers on contract. Not all are on permanent and pensionable terms.

In the context of this case and the object of the Anti-Corruption Act, I therefore find such strict interpretation to defeat the purpose for the enactment of the

- law against corruption. It is precisely this narrow interpretation that the 35 Constitution guards against by the employment of the phrase "unless the context otherwise requires". In penal legislations, a broad and liberal interpretation must be given so as not to suck out the life and blood of the provisions or defeat its purpose and make it ineffective. - Who, therefore, is a public official within the context of the Anti-Corruption 40 Act? I am persuaded by the definition of a public official in Black's law dictionary 8^th Edition which provides that it is "one who holds or is invested with a public office, a person elected or appointed to carry out some portion of a Government's sovereign powers" - This broad definition is reflected in the case of **Uganda versus Geoffrey** 45 Kazinda HCT-SC-0138-2012 where the court adopted the meaning ascribed

Well

to "public officer" by Lord Mansfield in R Vs Bembridge (1783) 3 Dong K. B $\mathsf{S}$ 32 as one "Having an office of trust, concerning the public, especially if attended with profit by whomever and in whatever way the officer is appointed." and in R Vs Whitaker (1914) KB 1283 where it was defined to mean "a public office holder who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of $10$

## fund provided by the public"

This is the meaning adopted in this case. PEX 19 (a-n) and PEX2 (a-g) all show the employment history of the two accused. They were employed on local contracts by the Office of the Prime Minister, Department of Refugees under

- project with the UNHCR. In Exhibit PEX 1 (b) the OPM is clearly stated to be 15 the employer of A1. He was supposed to report to the Commissioner of Refugees. The letters of offer for renewal of contracts which were tendered to prove the employment history of the accused all were signed by the Office of the Prime Minister and the appointments were cited as being subject to the - Public Service Act, Standing Orders, UNHCR terms of agreement and 20 administrative instructions that would be issued from time to time. PEX2(d) confirms an offer to A2 as settlement commandant on Local contract by the OPM. This position is confirmed by PW1 who testified that both the accused were not recruited by Public Service Commission and were not permanent - and pensionable. However, that the adverts for the position were made by 25 OPM and the interviews conducted by the same office. Further, that the partnership agreement with UNHCR allowed the OPM to recruit staff for the project. All this evidence of employment history contradicts that of the accused who claimed during their defense that they were recruited by UNHCR - and never by OPM. I find the evidence on record as pointing overwhelmingly 30 to the contrary. The administration of and resettlement of refugees in Uganda under the OPM is an undertaking of the Government which provides its land in the host community in West Nile and other amenities to the refuges for resettlement, with support from UNHCR. The accused were paid by the OPM, directly supervised by the OPM and not UNHCR. I find that the accused were - 35 employed by OPM on contract basis.

Lastly, the court has to consider whether they were paid out of public funds. The Public Finance Management Act 2015 defines public money as follows:

- "public money" means money received by a vote or collected for a purpose of Government and includes revenue from taxes and government charges, 40 proceeds of loans raised on behalf of the Government, grants received by the Government, recoveries of loan principals, redemption and maturity of investments, sale or conversion of securities, sale proceeds on Government property, other recoveries, or other funds for the purposes of Government and any other money that the Minister or the Secretary to the Treasury may direct - 45 to be paid into a public or official bank account; (emphasis mine)

These

- The same Act provides exceptions where public money does not have to go $\mathsf{S}$ through the consolidated fund, but that does not make is less of public money. - The evidence of PW 1 was that the funding for the project was from UNHCR and accountability had to be made to them. PW 9 the Inspectorate Officer also 10 informed court that the funding for the project came from UNHCR through OPM and that the investigations in this case commenced upon receipt of complaints from donors that money provided to OPM for refugees was misappropriated. What is clear is that the money was received by the - Government for carrying out a public undertaking. The OPM used UNHCR 15 emergency procurement guidelines, but it was the OPM that advertised for service providers for demarcation, the OPM Arua that handled the procurement of the service providers, the OPM contracts committee awarded the contracts and OPM executed the contracts with them. PEX 3 and PEX4 - are framework contracts signed between OPM and the service providers, and 20 both show that the contracts were supported by funds received from the UNHCR and that the project or contract was dependent on availability of these funds. The same applied to the salaries of the accused persons and the payment of service providers. They were not paid by UNHCR directly. - 25

# PW1 testified as follows:

"I recall the project partnership agreement between UNHCR and the OPM. ... The Bidibidi operations were a sub project of the program, we had four settlements under that project. The funding for the project was from UNHCR

- and the basis for the funding was the PPA. These funds are not from the 30 consolidated fund; they are from UNHCR given to the Government of Uganda. These funds are not appropriated by Parliament of Uganda. The PPA has financial guidelines on how funding should be used. Accountability is to first Government of Uganda and then to UNHCR and then the donor community. - Clause 11 of the agreement provides that the partners shall submit 35 accountability to UNHCR. Financial reporting for funds expended is to UNHCR. Only copies of the reports are given to the PS OPM and Commissioner Refugees OPM. Where at the end of the year there are unspent funds they must be returned to UNHCR" - 40

He further stated in respect of the accused that "The contract staff only worked if funds are available from UNHCR. Funds become available when the contracts are signed and this is clear from their appointment letters. All their payments are from UNHCR its where funding comes from. The PPA is the basis

of their employment with funds availed from UNHCR. These funds are not from 45 the consolidated fund they are from the project"

There

Under cross examination he further clarified: "their payments and salaries $\mathsf{S}$ were by me as accounting Officer for that region. They work for OPM so they are Government employees."

What is very apparent from the above is that the accused were paid from UNHCR funds received by OPM for the project. Whether the money was

- appropriated by Parliament or not, or whether it was from the Consolidated 10 funds or not, the money was given to Government by UNHCR. The definition of Public Officer in as far as relates to payment of emoluments from Public funds in Article 175 of the Constitution must be read in the context of Public Finance Management Act, 2015 and the objects of the Anti-Corruption Act. - This context is important. 15

I am satisfied that the funds received by Uganda Government through OPM for management of resettlement of refugees and payments of the accused's salaries were public funds within the meaning of the Public Finance

Management Act. I agree with the submissions of the State in respect of this 20 matter and find that they have adduced sufficient evidence to prove that the accused persons were public officers within the meaning of the Anti-Corruption Act. I therefore find that A1 and A2 were public officers.

#### Ingredient 2: That the accused directly or indirectly received a 25 gratification

Section 1(a) of the Anti-Corruption Act defines gratification as including money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or 30 immovable.

It is the prosecution's case that the accused persons received money on their accounts and that the evidence of the prosecution witnesses proved that A1 received a total of Ushs 235,500,000/= on his personal account at Stanbic 35 Moyo Branch, from Jinako Engineering Works Ltd. He also received Ushs 29,140,000 on the same account from Atlas Engineering Works Ltd. A2 on the other hand received Ushs 129,000,000/= from Jinako Engineering works. That these monies were well described by witnesses and reflected on the relevant bank statements and deposit slips that were tendered in court. The 40 ownership of the bank accounts by the accused was also confirmed though prosecution witnesses.

It was further submitted that in their defense, the accused did not deny receipt of money on their accounts, rather they furnished different 45 explanations for the source of the money deposits and the purpose for which the money was received.


I agree with the prosecution's submissions that the defense did not in fact $\mathsf{S}$ contest the aspect of receipt of money, but rather contested the source and purpose of the funds. The submissions of the defense on this will be dealt with when resolving the next (third) element of the offense. I proceed to nevertheless, analyze the evidence in respect of this ingredient as per the amounts stated in the particulars of the offenses in counts II, VI and VII. 10

## Count II

The evidence of PW1 is that several deposits were made to A1's account at Stanbic Bank Moyo branch from 2016 to early 2018, by himself personally or

- through representatives/employees. He states the deposits were as follows; 15 On 15/10/2016, 8/11/2017, 11/12/2017 and 3/1/2018 he deposited Ushs 16 million, Ushs 23.5 million, another Ushs 23.5 million and Ushs 12 million respectively. On 5/11/2016, he gave Chandiga Zubairi another Ushs 16 million to deposit. On 29/12/2016 he gave Razak Omia Ushs 23.5 million - which he deposited; on 28/6/2017, 8/8/2017 and 23/11/2017 he sent 20 **Rwothungeyo Rogers** to deposit Ushs 23.5m on each respective date. Lastly, he gave Ushs 10 million to **Omia Adiru Kato** to deposit on the 26^th of June 2018. He testified that the total money he paid to A1 via his account at Stanbic Bank Moyo branch is Ushs $235,500,000/=$

I have considered the testimony of **PW 11 Omia Razak** who confirms that he deposited Ushs 32 million on A1's account and identified the Deposit slip PEX 45 as his document as it reflected him as the depositor. PW 12, Rwothungeyo Rogers also confirms making deposits on behalf of Omia Mudasiri on three occasions of 28/6/2017, 8/8/2017 and 23/11/2017 and that on each of those days he deposited Ushs 23.5 million. PEX 42 to PEX 50 were deposit slips tendered by PW 7, Akuaku Albert Abdul Hakim, the former branch Manager of Stanbic Bank Moyo branch and they confirm the transactions of 15/10/2016, 5/11/2016, 29/12/2016, 8/8/2017, 28/6/2017, 8/11/2017, $23/11/2017$ , $11/12/2017$ , $3/1/2018$ and $26/5/2018$ . These were ten in number.

Lastly I have considered the bank statement of A1 tendered as PEX 40 which reflect the following deposits;

| | Depositor | Date | Amount | |----------------|---------------------|------------|-------------------| | | Omia Mudasiri (PW4) | 15/10/2016 | 16 _m | | $\overline{2}$ | Chandiga Zubairi | 5/11/2016 | 16 _m | | 3 | Omia Mudasiri | 7/12/2016 | 32 _m | | | Omia Razak | 29/12/2016 | 32m | | 5 | Rwothungeyo Rogers | 28/6/2017 | 23.5 _m | | 6 | Rwothungeyo rogers | 8/8/2017 | 23.5 _m | | | Omia Mudasiri | 8/11/2017 | 23.5 _m |

Throat | | TOTAL | | $235,500,000/=$ | |----------------|--------------------|------------|-------------------| | | Adilu Kato Omia | 26/5/2018 | 10m | | 10 | Omia Mudasiri | 3/1/2018 | 12 _m | | $\overline{Q}$ | Omia Mudasiri | 11/12/2017 | 23.5 _m | | | Rwothungeyo Rogers | 23/11/2017 | 23.5 _m |

$\mathsf{S}$

I find the bank statement to contain the best proof of the money deposited on the account of A1, as compared to missing deposit slips or memory of PW4. Altogether, I find that in totality, the evidence of the deposit slips, the testimony of the witnesses and the bank statement overwhelmingly demonstrate the evidence of the deposit of Ushs $235,500,000/=$ on the account of A1 as alleged by the witnesses and specified in the Count II particulars.

#### Count IV

- The evidence of PW 3 Zoodia David is that he deposited Ushs 29,140,000/-15 on A 1's account No 9030012579364 held at Stanbic Bank Moyo branch on the 29^th of July 2017. He identified the deposit slip (PEX 41), his signature on the same and his telephone Number thereon. The bank statement of A1, PEX 40 confirms this deposit. PW3's testimony is therefore aptly corroborated - by the deposit slip and the bank statement. Despite the witness's failure to 20 explain why he arrived at a payment of Ushs $29,140,000/$ = and why he did not state the payment in his first statement recorded by IGG, the evidence of the receipt of the money is irrefutable. I am satisfied the prosecution proved that A1 received a gratification, i.e. money of Ushs 29,140,000/- from Zoodia 25 David.

## Count VII

Omia Mudasiri, Director of Jinako Engineering Ltd testified as PW 4 and stated that he made payments to A2 personally and through others about 8 times between August 2016 and December 2016. The amount paid according 30 to him came to Ushs 129 million shillings. The payments were made to his accounts with Equity Bank Oasis Mall A/C No 1036100655243, Stanbic Bank A/C No 9030000758328 and Bank of Africa Arua Branch AC No 03330940019.

Two deposits were made on Bank of Africa account on 9/11/2016 for Ushs 8 million by PW4, and Ushs 32 million by Omia Razak on 29/12/2016. One deposit of Ushs 12 million was made by PW4 personally on the equity account on 19/10/2016. For the Stanbic Bank account, Ushs 4.5m was deposited by PW4 on 24/8/2016, Ushs 8.5 million on 9/9/2016 by PW4, Ushs 16m on $15/10/2016$ by PW4, Ushs 12 m on 19/10/2016 by PW4, Ushs 16m on

$5/11/2016$ by Chandiga Zubairi and Ushs 32m on $7/12/2016$ by PW4.

ferge

#### $\mathsf{S}$

All the relevant deposit slips were tendered and admitted as PEX 29-33, PEX 54 and PEX 36

- I have considered the relevant bank statements. PEX 52 for Bank of Africa confirms the deposit of Ushs 8 million by Omia on 9/11/2016 and a cash 10 deposit of Ushs 32 million by Razak. Only first names are reflected on the statement. PEX 53 is the account opening information confirming the account to belong to A2. - **PEX 35** is the bank statement for Equity Bank and it reflects the payment of 15 Ushs 12 m on 19^th of October 2016. The depositors name is not reflected, however the deposit slip is admitted as PEX 36 and reflects the depositor as Omia. PW 4 in his testimony owned the deposit slip and confirmed the payment.

**PEX 27** which is A2's bank statement from Stanbic Bank as confirmed by the Customer Information Form from the Bank PEX 28 reflect the following deposits;

| Depositor's name | Date | Amount | |------------------|------------|------------------| | Omia Mudasiri | 24.8.2016 | 4.5 _m | | Omia Mudasiri | 9.9.2016 | 8.5 _m | | Omia Mudasiri | 15.10.2016 | 16m | | Candiga Zuber | 5.11.2016 | 16m | | Omia M | 7.12.2016 | 32m | | | | |

From the bank statements a total of **Ushs 129,000,000** was indeed received by A2 on his account as alleged by the State, and by the evidence of PW 4 and PW 11 Omia Razak who confirmed depositing the 32 million on A2's account. Candiga Zubair was not called to testify but PW 4 clearly stated that he sent him to deposit money on A2's account.

I am satisfied that the prosecution has proved beyond reasonable doubt that A1 and A2 received gratification stated in Counts II, IV and VII of the indictment. This money was received by A1 and A2 through their accounts. There was no evidence that these payments were rejected, reversed or even queried by the account holders. The bank statements for the four accounts all show that the accounts were operational and that the money was withdrawn. PW 8 Michael Amai from Bank of Africa testified that at the time he printed the statement, all the monies on the account of A2 at Bank of Africa had been withdrawn. As per **PEX 40** Stanbic Bank statement for A1, it is the

evidence of PW 7 Akuaku Albert Abdul Hakim that at the time of printing

Never

- the statement on 30^th June 2019, the balance on the account was Ushs 5 $413,000$ /= and that there was never any query about any transaction by the account holder. The Equity Bank statement for A2 admitted as **PEX 35** had a balance of Ushs $167,452$ = as at $30^th$ August 2019. PW 6 testified that at the time she printed the statement for A2 the money was not on the account. - Ushs 12 million had been deposited on that account by Jinako. Lastly, PEX 10 **26** which is the bank statement for A2 at Stanbic Bank shows that at the time of printing out the same on 31st August 2019 the account balance was Ushs 7, 741,989=. Over 77 million had been deposited by Jinako on the account. It is the testimony of PW2 and PW4 that the moneys were received as - evidenced by their conversations and exchanges after the transactions. PW 4 15 stated that he always sent proof of the payment to the accused, though they never issued any acknowledgement of receipt. The latter was unnecessary in the circumstances, to prove the receipt. - I find that A1 and A2 received the gratification for themselves. 20

# Ingredient 3: Whether the gratification was received in exchange for any act or omission in the performance of their public functions

This ingredient and the facts requires us to explore two critical issues: 25

# 1. Who made the payments of the gratification?

Defense submitted that the prosecution failed to tender evidence that the money was from Atlas and Jinako as none of the companies is shown as the 30 depositor on the deposit slips; none of the companies is indicated as the source of funds on the deposit slips or even on the bank statements. It is argued that Jinako and Atlas are bodies corporate with capacity to transact, but no evidence had been led to show the money belonged to these companies, as alleged in the particulars of the relevant counts in the indictment. 35

I have carefully scrutinized the above documents and indeed confirm that neither Atlas nor Jinako is reflected on any deposit slip, or bank statement as depositor or source of funds. PW 10, Nabachwa Maureen from the Uganda Registration Services Bureau tendered certified copies of Certificates of 40 incorporation and other company documents admitted as PEX 56 and PEX 57 for the two companies. These confirmed Zoodia David PW 3 and Matenga Remullus as Director of Atlas and Omia Mudasiri (PW4) and Abib Toa as the Director of Jinako. During cross examination, she elaborated that upon incorporation a company becomes a legal entity capable of entering contracts 45 and that the actions of companies are done through resolutions. In the absence of a resolution it becomes an internal matter whether a person can

Thear

- act for the company of not. I note that no resolutions were tendered by the $\mathsf{S}$ two companies in respect of the transactions with OPM or its officials. I have no doubt however that PW 3 and PW4, being Directors had the power to make decisions and act in respect of the demarcation of plots in Bidibidi especially as both signed the Framework agreements admitted as PEX3 and PEX 4. I - note that no bank statements for Jinako Engineering or Atlas Engineering 10 was tendered by the prosecution in evidence. This would have directly demonstrated the pattern of payments and withdrawals. It is not the law however that all matters in issue must be proved by direct evidence. The court can also examine pieces of circumstantial evidence that may be available and - which may give rise to a logical inference that the fact in issue exists or is 15 true.

The evidence which the prosecution tendered is as follows:

- PW 1, Osakan Solomon Refugee Desk Officer OPM Arua testified that the 20 two companies entered framework contracts for plot demarcation with OPM, admitted as PEX 3 for Jinako and PEX 4 for Atlas dated 30.3.2017 and 31.3.2017 respectively. He testified that there was an earlier contract in respect of Jinako for the year 2016 and it was admitted as PEX 7(d) dated $2/8/2016$ . These contracts were on framework basis and commencement of 25 the application of its provisions started when the need for plots by beneficiaries would be expressed. - That after the contracts were signed, the contractors would be notified of the need for plots and would then execute the works and thereafter, submit their 30 requisitions for payment backed by the invoice. Payment would be effected upon verification of demarcated plots by camp authorities. Once approved, the money would be paid to the companies less 6% withholding tax, and the companies would furnish receipts as proof of payment. - 35

According to him payments were made by OPM to the two companies as follows:

#### **JINAKO**

| PEX<br>No | <b>Requisition</b><br>/Invoice<br>date | Amount<br>requisitioned | <b>Payment</b><br>Voucher<br>No<br>$&$ date | Amount paid | Date<br>receipt | of | |----------------|----------------------------------------|-------------------------|---------------------------------------------|-------------|-----------------|----| | $\overline{7}$ | 8/8/2016 | 100,400,000 | 1889<br>9/8/2016 | 94, 376,000 | 11/8/2016 | | | 8 | 16/8/2016 | 87,200,000 | 1918<br>18/8/2016 | 81,968,000 | 23/8/2016 | | | $\overline{Q}$ | 30/8/2016 | 100,000,000 | 1988 | 94,000.000 | 7/9/2016 | |

Well.

| | | | 5/9/2016 | | | |------|--------------|---------------|-------------------|-------------|-------------------------| | 10 | 13/9/2016 | 100,000,000 | 2011 | 94,000,000 | 26/9/2016 | | | | | 19/9/2016 | | | | $11$ | 20/9/2016 | 100,000,000 | 2107 | 94,000,000 | 13/10/2016 | | | | | 12/10/2016 | | | | 12 | 24/10/2016 | 300,000,000 | 2234 | 282,000,000 | 05/11/2016 | | | | | 2/11/2016 | | | | 13 | 9/11/2016 | 200,000,000 | for<br>2468 | 94,000,000 | 17/11/2016 | | | | | 100m | | | | | | | 11/11/2016 | | | | | | | | | | | | | | 2484<br>for | 94,000,000 | 7/12/2016 | | | | | 100m | | | | | | | 30/11/2016 | | | | 14 | 21/11/2016 | 200,000,000 | 2518 | 188,000,000 | 7/12/2016 | | | | | 30/11/2016 | | | | 15 | 6/12/2016 | 200,000,000 | 2649 | 188,000,000 | 24/12/2016 | | | | | 20/12/2016 | | | | 16 | 13/12/2016 | 120,000,000 | 2656 | 112,800,000 | 24/12/2016 | | | | | 20/12/2016 | | | | 17 | 21/12/2016 | 100,000,000 | 2721 | 94,000,000 | transfer<br><b>Rtgs</b> | | | | | 22/12/2016 | | application | | | | | | | 23/12/2016 | | 18 | 12/6/2017 | 168,000,000 | 3174 | 157,920,000 | 19/6/2017 | | | | | 16/6/2017<br>3240 | 157,920,000 | 17/7/2017 | | 19 | 17/6/2017 | 168,000,000 | | | | | | | 168,000,000 | 11/7/2017<br>3305 | 157,920,000 | 11/9/2017 | | 20 | 17/6/2017 | | 7/9/2017 | | | | | 03/11/2017 | 168,000,000 | 3545 | 157,920,000 | 15/11/2017 | | 21 | | | 13/11/2017 | | | | | 3/11/2017 | 168,000,000 | 3564 | 157,920,000 | 22/11/2017 | | 22 | | | 17/11/2017 | | | | 23 | 3/11/2017 | 100,800,000 | 3633 | 94,752,000 | 13/12/2017 | | | | | 6/12/2017 | | | | | <b>TOTAL</b> | 2,547,600,000 | | | | | | | | | | |

# $\mathsf{S}$

#### **ATLAS**

| 24 | 10/7/2017 | 187,000,000 | 3251 | 175,780,000 | Proof of inter | | |----|-----------|-------------|-----------|-------------|----------------|----| | | | | 18/7/2017 | | account | | | | | | | | transfer | to | | | | | | | account | of | | | | | | | Atlas | | | | | | | | 26/7/2017 | |

# a) Was the gratification paid by Atlas

Micen

- 5 **PW 2, Aijuka Lincoln** who signed the framework contract on behalf of Atlas Engineering in March 2017 testified that he was the officer on the ground in Bidibidi that he was called for work in May 2017. They plotted 11,000 plots for which they were to be paid Ushs 187 million, at the rate of 17,000 per plot. In July 2017, they made a request for payment and were then paid. During - 10 cross examination, he confirmed that **PEX 24 (c)** was the verification report he collected from A1 dated 11th July 2017 addressed to the Refugee Desk Officer Arua. He confirms that he handed over this document to PW 3 Zoodia David, together with the Bank account details of A1, which he had received from A1 himself. He also confirmed that they paid Robert after they received 15 payment. - The defense through cross examination established that the witness had wrongly represented himself as an Engineer and Director at the time he signed the framework contract. He had also omitted in his first statements to the 20 Inspectorate of Government, the fact that he had been given an account number by A1 and that A1 had demanded money from him. In his second statement however, he did mention the two, though he did not give the specific account number. When asked why he omitted the information he stated that he had not thought it important to state this in the first statement since "we - 25 are all human and I didn't want to implicate him" He also explained in reexamination that he was subsequently made a Director in Atlas and that when he made the statement he was not properly guided and did not know how best to present himself. I find the explanations of the witness viable and find that the wrong representations were of little if any effect, to the evidence relating 30 to the transactions.

I have considered the evidence of PW1 and find that it was not shaken at all in the relevant aspects regarding the execution of the contract, his interactions with A1, the process of payment by OPM and the subsequent 35 deposit of money on the account of A1. It is his testimony that the deposit made to A1 came from work which Atlas Engineering had done for OPM under the framework contract and that it was only after they were paid as a company, that the deposit on A1's account was made.

- 40 PW 3 Zoodia David testified that he signed the contract on behalf of Atlas Engineering but was away when time came for execution, and that he deployed Aijuka Lincoln to represent the firm and get the work done. He never met with A1, nor did he speak with him at all. He agreed that he relied on reports from PW2 that A1 had demanded for payment and that he asked him - 45 to negotiate an agreeable rate. Eventually, after the work was executed, he deposited Ushs 29,140,000 personally onto the account of A1, whose details had been provided to him by PW2. It was a Stanbic Bank Account in the name

of Robert Baryamwesiga. The relevant deposit slip was tendered in court and $\mathsf{S}$ bears both PW3's name and telephone contact. The deposit was made on 29^th of July 2017, just two days after the money reached Atlas Account.

Under cross examination, he confirmed that the depositor on the Deposit slip is not Atlas Engineering. When re-examined on this issue he stated as follows; 10 "I indicated my name as depositor because in Uganda, they always require the depositors specific name and contact. That's why I gave my name and contact, I thought it is what was needed"

I have carefully considered the deposit slip PEX 41 which was tendered 15 through PW 7, the Stanbic Bank Moyo Branch manager at the time. He is Francis Akuaku. It's a Stanbic bank standard deposit slip which provides space for the following entries: Details of Depositor; Name, Phone Number and signature. There's space at the bottom of the slip "source of funds". In PEX **41** the source of funds is indicated as "business" When asked by defense

20 about the reflections on the deposit slips he stated as follows; "In banking, both an individual and a company have the capacity to open accounts. An individual can deposit money and so can a company. The person who deposits is stated in the narrative in the bank statement. There is none of these deposit slips

where Jinako Engineering is indicated as depositor. There is nowhere in these deposit 25 slips where Jinako is Indicated as source of funds. The bank statement does not reflect any deposit by Jinako Engineering" Under reexamination, he stated that source of funds refers to where the money is coming from. It can be the activity which generated the income. It's the bank policy to indicate the source of

funds. 30

> The fact that the source of funds is indicated as "business" on the deposit slip is satisfactory and confirms what PW3 states as the source of funds. It is the depositor who is best placed to explain source of funds banked. I find no

reason to disbelieve the explanation offered by PW 3 regarding how he filled 35 the deposit form and the source of funds he banked as being the payment from OPM.

From the prior evidence of PW1, Atlas Engineering raised their invoice for payment on the $10/7/2017$ for Ushs 187 million. Payment was raised by the 40 RDO on voucher number 3251 dated 18/7/2017. Payment of Ushs 175, 780,000 (less 6% tax) was received on Atlas Engineering Account No 9030013486122 on 26^th of July 2017 as evidenced by **PEX 24(1)** which is the interbank transfer document. The deposit on A1's account was made two days

later on $29$ ^th of July 2017. 45

> This was the single payment made to A1 by PW3. I find PW 2's evidence is corroborated by PW 3 whom this court observed testified in a manner that

Meco

- was forthright and honest. From their testimony and the fact that there was $\mathsf{S}$ indeed a framework contract with Atlas for land demarcation, the dates for the works execution, the date of payment by OPM and the date of the deposit onto Al's account, and the fact that there are no other deposits, I can comfortably draw the inference that the money was from Atlas Engineering's 10 payment from OPM.

### b) Was the gratification paid by Jinako?

- PW 4 Omia Mudasisir Obiga testified that he was a Director of Jinako Engineering Services Ltd. His company was prequalified by OPM Arua in 15 2016. Following the signing of the framework contract, they were shown plots to demarcate in Bidi Bidi. They executed the contracts and were paid about 18 times. He made payments to A1 and A2 from the moneys that he was paid under the contract. He states that he made the payments personally, and 20 through Rogers Rwothngeyo, Chandiga Zubairi, Omia Razak, Adiru Kato and **Adruma Jamal.** He identified the transactions made by all these persons except for Jamal. By way of explanation, he stated that he could not see the deposit slips for payments made by Jamal but was sure that they reflected on the bank statement. He didn't say how much he sent Jamal to pay. During - 25 cross examination, he clarified that none of the deposit slips or the bank statement reflected Jinako as the source of funds or as depositor. During re examination, he stated as follows; "Iam a staff of Jinako so I did the payments on behalf of the company." - These deposit slips were for Bank of Africa, Stanbic Bank and Equity Bank. 30 PW 6 Basemera Pamela of Equity Bank testified and tendered documents related to the payment to A2 via her bank. It was actually only one transaction and the deposit slip was admitted as **PEX 36**. It is a standard deposit slip with spaces for filling in. It bears Omia as depositor. I note that it does not 35 provide for source of funds, but only for the name and signature of the depositor. During cross examination, she confirmed that a person can deposit money on a company account and the narrative shows the money is from a company. There was nothing on the bank statement or the deposit slip to show the money came from Jinako Engineering. However, she stated that even where the slip asks for the name of the despositor, a customer can 40 request to put the company name.

PW 8 Michael Amai of Bank of Africa testified about the transactions of payments made to A 2's account and tendered the deposit slips and bank 45 statements. He confirmed under cross examination that none of the exhibits he tendered reflected Jinako as depositor or source of funds and that it is possible to indicate that the company is the depositor of money as reflected

Juela<br>Juela

- in a different slip shown to him. I have carefully looked at **PEX 54** which is $\mathsf{S}$ the certified copies of the two deposit slips in issue. Like Stanbic and Equity bank, the forms are standard issue forms which are filled in by the depositor. They provide for the name of the person depositing the cash, their signature and telephone number. There is no provision for indicating the source of funds. PW 8 explained that at the time of these transactions there was no 10 provision for source of funds but still they expected that the person depositing indicates where the money is coming from. - My analysis of the explanations of the bank officials from Stanbic, Equity Bank and Bank of Africa regarding the making of deposits is that a depositor 15 may choose to reflect a company as depositor or not. All the deposit slips require name of depositor. For anyone depositing money therefore, there is no mandatory requirement to indicate the source of the funds or reflect the company as the depositor. A person faced with the deposit forms may conclude that what is required is his name and not that of the company. It is 20 doubtable that a company paying money under the conditions in this case

would put its details on any documents. These were not regular transactions.

- It is the evidence of PW 4 that he asked others to deposit for him. This is confirmed by the PW 11, Omia Razak and PW 12 Ruthngeyo Rogers. The 25 latter states clearly that he did not know the reason for the deposits. How then could he be expected to indicate the company as the depositor? Both witnesses confirm however that all the money they deposited was given to them by **PW 4, Omia Mudasir**, the Director of Jinako. - 30

The court has to look to the evidence of PW 4 regarding the source of funds. I find corroboratory evidence of PW 4s testimony when I consider the pattern of payments made to Jinako and the pattern of deposits on the accounts of A1 and A2. As per record of payments tendered by PW1, Jinako was paid

- between 11^th August 2016 and 21^st December 2016. During this period 35 deposits were made by PW 4 and his representatives to A1's Stanbic bank account Moyo Branch on 15 October, 5th November, 7th December and 29th December 2016. A2's Stanbic account received deposits from the same on 24^th August, 9^th September, 15^th October, 5^th November and 7^th December 2016. Deposits were made to A2's Equity Bank account on 19^th October and on his 40 - Bank of Africa accounts on 9^th and 29^th December 2016.

Thereafter there is a lull in payments made by OPM to Jinako between January and June 2017. The first payments by OPM to Jinako in 2017 for

land demarcation is made on 19^th June 2017 and immediately thereafter, the 45 deposits on A1's account start on 28^th June 2017. The OPM makes payments to Jinako on several times thereafter, around 17^th July, 11^th September, 15^th

Blander

- November, 22^nd November and 13^th December 2017. In this period further $\mathsf{S}$ deposits are made on A1's account on 8^th August, 8^th and 23^rd November, 11^th December and lastly 3^rd January 2018. The last deposit is made on 28^th of May 2018 and it is for 10 million shillings. - 10 From the above, a pattern of payments that corroborates the testimonies of the prosecution witnesses is established. First, the payments to the accused accounts occurred during the time they were stationed at Bidibidi. There are no payments to Atlas in 2016 because the contract was not in existence, and no deposits on the account of A2 in 2017 because he was no longer at work. - Jinako had a contract in 2016, and is the only company that was paid that 15 year by OPM. According to PW4 the first two payments to A2 were made without the knowledge of A1, who came on board thereafter. Indeed, the evidence of payments show that A2 was paid on 24/8/2016 and then on 9/9/2016. Afterwards, there are deposits made on the same dates on both A1 - and A2's account from Jinako as evidenced by PEX 55. These include the 20 simultaneous deposits on 15/10/2016 and 5/11/2016 of Ushs 16 million on each accused's account. On 7/12/2016 and 29/12/16 both accounts received Ushs 32 million each. The above pieces of evidence lead to the inference that the money paid to the accused indeed came from the two 25 companies even though there was no direct evidence to that effect.

### Conclusion

Counsel for the defense invited me to find that since the books of accounts and tax returns for the two companies for the years in question and evidence of witnesses showed the accounts were unqualified, and the monies allegedly paid to A1 and A2 were not reflected in the books of accounts or list of company expenses, that no such payments were in fact made.

I have already resolved that the payments were in fact made onto the accused persons accounts.

I am also satisfied that the pattern of payments to Jinako and Atlas, and of deposits on A1 and A2's accounts demonstrate that PW2, PW3 and PW4 are telling the truth when they state that the funds they deposited were from Jinako and Atlas. The failure to reflect these payments in their annual income returns or other books of accounts (DEX2 and DEX9) does not invalidate the

40 fact that the money was from Jinako. I accept the explanation of PW 3 that there was no way they could reflect the payments in their accounts when they were illegal transactions. PW 4 stated that whereas he told the auditors about the payments, he was sure they did not know or were at a loss on how to 45 reflect these payments in these reports.

Theele - I find that the circumstantial evidence led by the state proves beyond the $\mathsf{S}$ shadow of a doubt that the source of the gratification (money) deposited on A 1 and A2s accounts was Atlas and Jinako engineering, and related to the period when both A1 and A2 were located at Bidibidi as settlement commandants. - $10$

providers.

## 2. Whether the gratification was in exchange for an act or omission in performance of public functions?

The prosecution is required to prove that the gratification was received by the accused persons in exchange for an act or omission in performance of public 15 functions.

It's the prosecution's case that the money was received by the accused in exchange for recommendations for payment of the contractors for work done.

- In Count II they allege that it was an inducement for A1 to recommend 20 payment of Ushs $2,395,496,000$ /= accruing to Jinako for land demarcation and allocation in Bidibidi camp. In Count IV, it was an inducement for A1 to recommend payment of Ushs 175, 780,000/ $=$ accruing to Atlas for the same work in Bidibidi. Lastly in count VII, it is alleged that the money received by - A2 was an inducement to recommend payment of Ushs 2,395, $496,000/$ = 25 accruing to Jinako for land demarcation and allocation at Bidibidi camp.

The defense disputes this on grounds that; there were no recommendations for payment by either of the accused and that the state had misconstrued the relevant documents, the verification reports, completion of plot demarcation reports and the comments on the requests for payment by the service

The relevant evidence in this case emanates from the testimonies of PW2, PW3

and PW4 which I proceed to analyze. 35

> PW 2 testified that when he was informed by the procurement officer OPM that there was work and that he should report to A1, he was given A1's telephone contact and he made a call to him. A1 informed him that they were still mobilizing land and that he would call him back. He waited for a call in

vain so he drove to Bidibidi and met A1 in his office. He stated that; "I met him in the office, showed him the contract and he told me the land is there but that it was the first time to meet and work with him and he did not know if we were going to cooperate. He said that if we can cooperate he can

show us the land. I asked him what he meant and he said that on each plot 45 we demarcate he would get Ushs 5,000/= I told him I had to call the Director I then called Mr Zoodia Davis about the request and he said that was too

Beech

- much. I told Robert the Director had said it was too much and he said the $\mathsf{S}$ least he could take was Ushs 3,000/= ... When he reduced to 3,000/= I called Zoodia again. He explained to me that since it's the $1^{st}$ time, we had a chance to get more projects and that he can even lobby for us with other organizations and with OPM as they still needed to demarcate more plots. He said there was - another person on the ground doing that demarcation so if we did not 10 cooperate they would do the work we were supposed to do."

He further testified that Zoodia agreed to the payment of Ushs $3,000/$ = per plot. He agreed with A1 that he would get the money when they were paid by

- OPM for the work. After reaching the agreement, he was handed over to one 15 Shaka, an assistant to show him the places. When they completed demarcation of 11,000 plots they requested for payment, however this required a verification report from the settlement commandant. He narrated that: - "I went to him to get a verification report. This was in July 2017. When I went 20 in he reminded me of his share of Ushs 3,000/= per plot. He wrote his account on a piece of paper and said this is where we should pay the money. It was a Stanbic bank Moyo Branch account. He gave me the recommendation and the account number and I gave to Director Zoodia. He was in Arua. I can't - remember the date I picked the recommendation. I gave it to Zoodia because 25 he was to raise the requisition. Robert called me complaining that the money put on the account was not enough. I didn't know how much this was. He said he was expecting 33 million but he had received 29,140,000/= I also had to ask Zoodia who told me that there were a lot of deductions and taxes and he - could not pay all that money... He said he wanted the money because it was 30 the way that they were doing things. He didn't issue any acknowledgement of receipt of the money. There was no refund of the money to the company"

During cross examination, the above evidence went un rebutted or contested. The cross examination dwelt on PW2's reference to himself as an engineer, 35 the nature of his employment at Atlas, omissions from his first statement to the Inspectorate, which I do not find to be of much impact on the above testimony.

Noteworthy however was the lengthy cross examination of witnesses regarding the process for payment and whether there were in fact any recommendations 40 for payment as alluded to by the prosecution. I will however return to this matter later.

On the whole, I find the evidence of PW1 believable. There is no history of any relationship between PW 2 and A1 outside of the execution of works under 45 the framework contract between OPM and Atlas of March 2017. PW 2 did not know A1 before, and by his testimony neither did he meet him after the interactions he relayed above. No malice was imputed on PW2 to justify telling

Blueer

of blatant lies in a court of law against A1 whom he did not know or have any $\mathsf{S}$ grudge against.

I find the evidence of PW2 supported by that of PW 3 who testifies that he was told of the demands of A1 when they reported to do the work. I quote from his testimony;

"To my dismay Lincoln told me that Robert could not show then land and that they should offer 5,000/- of each plot out of the 17,000/= to him. I personally felt bad but I looked at the present contract and future contracts. I told Aijuka to handle but that the 5,000/- was a big figure which we could not accept.

- They later agreed to 3,000/= to be given to Robert Baryamwesiga.... We went 15 on ground to demarcate, we demarcated 11,000 plots and allocated them to refuges. These were both agricultural and residential plots. The 11,000 plots we demarcated meant our total pay would be 187 million. After submitting our work, on $10^{th}$ June 2017, we submitted our requisition. We submitted - through hard copy, we attached the invoice and the settlement commandant's 20 verification reported which we submitted to Arua Office. The verification report of the settlement commandant was dated 11/7/2017 and our request was dated 11/7/2017. We were duly paid 187 million on 26/7/2017. Though the pressure from Robert was so high we hesitated for 3 days, afterwards we 25 agreed to pay $29,140,000$ ="

Much as PW 3 never met A1, he confirms that he was informed of the demands for money and indeed received the bank account details from PW2. If PW3 indeed had never met A2 at all, where would he have obtained the personal details of A2 from, and why would he deprive himself / Atlas of money that they had worked for and earned? PW 3 testified under cross examination that he accepted A1's terms because they had hope for future contracts and that the settlement commanders had a lot of powers to frustrate them in their

future contracts in Bidibidi.

I noted the demeanor of the witness (PW3) when he was testifying. He was forthright and steady, answered questions put to him directly and calmly. He was not evasive. I observed that under cross examination, he was unable to explain how he arrived at **Ushs 29,140,000/=** which he paid to A1 since it was less than what would have been paid if withholding tax of 6% had been levied. There is no doubt however that the money was paid, and that it was

- out of the funds received by Atlas. I do not find any error in calculation, or failure to explain the total as critical to this case, considering the passage of time and PW3's own statement that he determined what to deduct. Indeed, - from the evidence there was contention between A1 and Atlas when he 45 demanded to know why he had not been paid 33 million. It is not in doubt that in the end, the sum of Ushs 29,140,000/- by whatever method derived, was paid.

Near

$\mathsf{S}$

The testimony of PW 2 and PW 3 is further supported by that of PW4, who is from a different company altogether. There is no evidence as to whether the three knew each other. He testified as follows:

"When we reached Bidibidi we had to locate the office of the settlement 10 commandant. The day we reached there was another meeting so we waited till evening. We introduced ourselves to the settlement commandant and his deputy introducing ourselves, our roles and how the refuges desk office had said they would help us with the plot allocation and demarcation.... After the layout of plots, we started demarcation. The number of refugees coming in

- was a lot. We would at time receive 2,000-3,000 refugees per day. All these 15 weren't supposed to take more than a day at the reception center therefore we should have settled at least 1,000 a day. We got challenges at this point. We had interference from the settlement commandants Robert was with the most of our settlement work was with Fred Kiwanuka. He started telling us - how they used to handle these matters. He said it was the $1^{st}$ time that OPM 20 was hiring a firm to handle this. Previously this was their work as settlement commandants. "

When they needed more land to continue Fred told them that they could do the work themselves, then when they told him that they were going to put in

- an invoice for demarcated and allocated plots, "he hoped we were aware that 25 he had been in the bush moving with us and that therefore his signature for the purpose of payment would not be for free. I asked him what he wanted us to do. Iam the one who was communicating with Fred. I asked him what he meant by that and he said he did not come only to do Government work; he - had come to look for money as well. He asked me why I thought he would be 30 moving with us in the dew in the morning.... The first payment was about 95 million. Fred asked how much I was going to give him in order to write a report in regards to the verification of the number of plots demarcated so that he could recommend for payment. ... At first he told me he needed 10 million - out of the money that was going to be paid to us. When I saw the breakdown, 35 it would leave us with nothing. He told me that I could see the influx of refugees that there would be a lot of work to be done till all were settled. However, that they could equally recommend for another service provider to be brought for the works. I told him giving 10 million would leave us with - 40 nothing. He later came down to $4.5m$ All these were happening without the knowledge of Robert. 4.5m was affordable at least. He then went ahead and wrote a verification report for land demarcated and allocated to refuges and we were able to submit an invoice to OPM Arua Office. After submitting we were paid." - 45

The witness testified that A2 gave him his account number and he personally withdrew the money from company account and banked with Stanbic bank. The bank statement confirms that the first payment to A2 in August 2016 was Ushs 4.5, hence corroborating PW4's testimony.

Merce

Regarding the involvement of A1, he testified thus;

"The first two payments I made to Fred, Robert was not aware. Fred told me it would not be good for Robert to discover that he was getting money without Robert Knowing. This was at the third payment. It could have been in October

- or November 2016. I told him that I didn't know their relationship. He asked 10 me to meet them both later in the evening. We had the meeting. Fred narrated to Robert about the demarcation and claims for money. Robert suggested that each time we were given plots to demarcate if its 5,000 plots the amount they needed was about 20% of the value. If it was 10,000 plots they would get close - to 30%. In all these I would negotiate and tell them how the whole thing was 15 breaking us down. My intention was to have this reduced at least to 10%. In that meeting we didn't have an agreed conclusion. These things kept varying and I tried hard to make sure these sums kept to about 10%. - I recall OPM paid us about 18 times. I paid Fred about 8 times... Fred had three 20 bank accounts he kept giving me. He had an account in Equity Bank Oasis Mall, Bank of Africa Arua. The third bank was Stanbic bank... I recall the total I paid to Robert is Shs $235,500,000/$ =." - There is no evidence to suggest that PW4 met and talked with PW 2 and 3 25 over the demands by the settlement commandants. The evidence of the three witnesses establishes a pattern and confirms why the money was being demanded for. Both PW2 and PW 4 were warned that if they did not cooperate, report for recommendation for payment would not be made by the settlement commandants. They were also threatened that another firm would get the 30 business if they did not yield.

The defense sought to provide a reason for the money which the prosecution witnesses/ their agents had deposited on their accounts. A1, who gave unsworn testimony in his own defense as DW1, stated that when refugees 35 increased in number there was high demand for goods and services and that he and A2 got involved in the business of selling poles for construction. Hajji Gule Musa was running the business on their behalf and they supplied him with their bank account numbers on which he would deposit their profits. According to him, Hajji deployed a team of salesmen and women to man the

- 40 trading Centres on their behalf. He states that this business continued until end of 2017 when he was redeployed. Thereafter, Hajji continued selling the remaining poles and deposited the last money on his account in May 2018. According to him, he had never checked his bank statement until when the - IGG called him in 2019 and asked him about people who deposited money on 45 his account. He realized that he did not know those people. When he called Hajj he told him that he had sent some people to deposit money on his account. He contacted Omia Mudasiri and they began to communicate

Hele

$\mathsf{S}$

- directly on phone and on WhatsApp. Omia told him that he was being coerced $\mathsf{S}$ to say that the accused were bribing him. He denied knowing Zoodia David and Aijuka Lincoln. He met them for the first time in court. At the conclusion of his testimony, he stated that he knew Gule and Omia are from the same village and Gule raised Omia when he lost the father. That even Kato and - Razak were all working for Gule. As for Remullus Matenga of Jinako, he was 10 among the up takers of poles. He also stated that Mudasiri banked money on several instances because he was among the biggest up takers as they were involved in construction - A2 also gave unsworn statement to the effect that he and A1 were involved in 15 selling of poles and Hajji Musa was their representative. He too claimed never to have checked his bank statements until 2019 when investigations in this matter commenced. He contacted Hajji Gule who said he had sent different people to deposit money. He denied having met Omia or discussed anything with him.

I have considered the explanations by the accused but find them unbelievable. Both say they never checked their bank statements and that they had never heard of Omia Mudasir, Razak, Kato and others who Hajji Gule asked to deposit money on their accounts until 2019 when investigations commenced. I find it incredible that the two would receive repeated deposits of the rather large sums of money involved, and never have to cross check with Hajji Gule to confirm if that deposit related to the sale of poles, and never knowing that

Hajji had asked people to deposit the money. The deposits ranged from Ushs $32$ million to $4.5$ m. 30

I also find this aspect of their defense an afterthought. The issue of poles sales and Hajji Gule was never put to the witnesses during cross examination. They were never asked if they knew him or were related to him, whether they were involved in purchase of poles, whether the money they deposited was for sale of poles, whether they were used by Hajji Gule to deposit money, whether their firms were involved in construction etc.

Cross examination is not a matter of course. Failure of the defense to cross examine in this crucial area leads me to draw the inference that evidence was 40 accepted.

The purpose of cross examination as explained in **Black's Law dictionary**, 8^th Edition is to discredit a witness before the fact finder in any of several ways, as by bringing out contradictions, and improbabilities in earlier testimony, by suggesting doubts to the witness and by trapping the witness into admissions that weaken the testimony"

This is in line with Section 145 of the Evidence Act which provides that during cross examination, a witness may be asked questions that test his or her veracity and those which shake his or her credibility. This right stems

- from Article 28 (3) (g) of the Constitution which allows persons charged $\mathsf{S}$ with offenses to examine witnesses and even obtain attendance of witnesses before court. It is also through cross examination, that the accused may tender evidence in support of his or her case. - It is for the above reasons that failure to cross examine on a crucial matter will lead the court to rightly draw an inference that the evidence is accepted. 10 (James Sawo- Abiri and another versus Uganda, SCCA No 5 of 1990). In Apea versus Uganda CA 653/2015 the justices referred to Lee vs. Illinois **case (supra)**, the US Supreme Court, citing their earlier decision in **California** v. Green, 399 U. S. 149, 158 (1970), stating that cross examination in - criminal trials: 15

"(1) insures that the witness will give his statements under oaththus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility"

I find failure of the defense to cross examine in this area fatal to its case.

Lastly, it is the testimony of **Ariko Simon PW9**, the investigating officer that when he sought an explanation from A1 about the deposits, he explained that the money was for the payment of unskilled workers who had become rowdy demanding for their pay. He asked for the proof of payment of the workers

- and he said he didn't have any. A2 offered the explanation that Omia sent him 30 the money so he could pay a foreman in Yumbe who was constructing his house. This again went unchallenged in cross examination. I am convinced therefore that this is the explanation they offered for the deposits to the investigator. This sharply contradicts the explanation given in their unsworn - statements in court. I see no justifiable cause as to why the accused could 35 not provide the exculpatory information they received from Hajji Gule to the investigator, and instead choose to withhold it until they were put on their defense. - For the foregoing reasons, I dismiss this defense as untrue and believe the 40 version of the prosecution witnesses.

I was also invited by the defense to find that there was in fact no recommendation for payment by the settlement commandants and therefore

it was not possible that they demanded money in order to recommend 45 payments. PW1, PW3, PW4 and PW9 were cross examined thoroughly about whether the reports being made by the settlement commandants amounted to recommendation of payment. The defense position is that none of the

Delle

- reports written by the accused expressly stated "recommended for payment" $\mathsf{S}$ It was also submitted that the verification reports tendered by prosecution were not the right ones and that in any case, none of the accused was a settlement authority required under the contract to make verification. - I have considered the framework contracts entered into by OPM and Atlas and $10$ Jinako admitted as PEX3 and PEX4 respectively. Article 4 and 6 in both contracts are relevant. Art 4.2 reads "payment shall be effected upon verification of demarcated plots by camp management authorities" Article 6.3 reads "Payment shall be effected upon receiving a verification report from settlement management authorities" 15

I have noted that nowhere in these contracts is there any reference to settlement commandants nor is there a definition of who the settlement authorities were. I note however that the term "authorities" is an ordinary English term that's generic in nature. Cambridge English dictionary defines 20 an "Authority" as "a group of people with official responsibility for a particular area or activity." Following the above meaning I am convinced that the term "camp settlement authorities" refers to whichever group of people were responsible for the activity of verifying demarcated plots in as far as settlement at the camp was concerned. It is not a specific title or specific 25 office referred to.

PW 1 testified that both accused were "settlement commandants". This is the description of their job title. He testified that they were responsible for ensuring that land offered by host communities was the right land 30 demarcated for the settlement. They were to verify if the service provider had demarcated the plots and then recommend to OPM so that they are paid for work done. He tendered in court PEX 7-24 (each exhibit here is a collection of related documents sequentially numbered) and in his evidence in chief stated that payments were made upon recommendation by the accused. 35 Careful scrutiny of these exhibits shows the following;

PEX 8- there's a request letter from Jinako for payment addressed to the OPM Arua through Settlement commandant. It bears name of A2 and signature dated same day 6^th August. There's also a document titled "verification report 40 on demarcation and allocation of plots at Bidibidi refugee settlement in Yumbe District" dated 6^th August 2018 and bearing A2's signature. This report is PEX8(f). Bothe the request from contractor and the verification report bear the same date.

**PEX 9-** There's no letter of request for payment but there's an invoice dated 30/8/2016. There's a "completion of plot demarcation" report bearing the

Dever

name of A2 and his signature. It is PEX 9(b). Again the two documents are $\mathsf{S}$ issued the same day.

**PEX 10**- There's a letter of request dated 13^th September 2018 signed by A1 and A2 and written on "forwarded for action" and a completion report received as PEX 10 (e) signed by A2 on $13/9/2016$ and A1 on $16/9/2016$ 10

PEX 11- Request for payment is dated 20/9/2016. A1 and A2 sign against it on same date and "forward for action" The completion of demarcation report is PEX11 (c) signed by both accused on the same date and forwarded in similar manner.

**PEX 12**- The request for payment dated $31/10/2016$ is signed by both accused on the same date and "forwarded to RDO Arua for appropriate action" plus a completion report signed by both on same date and forwarded to RDO

- for appropriate action in the same manner. It is PEX 12 (d). There's a second 20 request of $24/10/2016$ signed by both accused and a completion report they both signed marked PEX 12 (h) - PEX 13- Request for payment letter dated 9/11/2016 is signed by both accused and "forwarded for action" together with a "completion of plot 25 demarcation report also signed by both accused and forwarded in similar manner marked PEX 13 (d) and bearing same date of 9^th. - **PEX 14** Request for payment letter of $21/11/2016$ signed by both accused and "forwarded to RDO for consideration" plus a 'completion of demarcation" 30 report signed by both and dated 21/11/2016 and similarly forwarded to RDO for action marked PEX 14(d)

**PEX 15-** Request letter of $6/12/2016$ signed by both accused on same date and forwarded to RDO "for action" plus completion of demarcation report by 35 both accused similarly forwarded for action. It is PEX15 (e)

PEX 16-There are request letter and completion of demarcation of plots report signed by both accused on 13/12/2016 and both forwarded "to RDO for action"

PEX 17- Request letter signed by both accused dated 21/12/2016 and forwarded for action, along with completion of demarcation report signed by both accused on same date and similarly forwarded

There

All the above payments related to Jinako and apart from PEX 7 and 8 which $\mathsf{S}$ only bear A2's names and signature, are related to both accused. They cover the year 2016.

**PEX 18**- Request for payment dated 12/6/2017 signed by A1 and forwarded to RDO for action. Plus, PEX 19 (d) which is the report that confirms 10 demarcation had been completed forwarded by A1 in similar manner.

**PEX 19**- Request letter dated 17/6/2017 signed by A1 and forwarded to "RDO for action" plus a demarcation report signed by A1 on marked PEX 19(d)

PEX 20- Request letter dated 17/6/2017 and forwarded by A1 "to RDO for action" and a report dated same day titled "agricultural plots in zone 5" similarly forwarded and signed by A1

- **PEX 21** Letter of request dated 3/11/2017 forwarded for action by A1 on 20 $5/11/2017$ along with a demarcation report of same date similarly forwarded and marked PEX 21 (e) - PEX 22- Request letter dated 3/11/2017 signed by A1 and forwarded for action on 5/11/1017, plus a demarcation report marked P22 (e) similarly 25 forwarded.

PEX 23- Letter of request dated 3/11/2017 forwarded for action on 5/11/1017 plus a "demarcation of farmland in zone3" report marked PEX 23 (d) similarly signed and forwarded

It should be noted that the above transactions relate to A1 and concerned payments to Jinako. They were made at the time when A2 had been transferred from Bidibidi. The records confirm the testimony of PW4 that after Fred would make the report Robert would sign it and that later when Fred was transferred, all verifications were done by Robert.

Lastly, PEX 24- it relates to the single payment by Atlas to A1. There's a request for payment letter dated $10/7/2017$ and signed and forwarded for action by A1 on $11/7/2017$ . There's a plot demarcation and allocation report signed by A1 and similarly forwarded and marked PEX 24 (c)

From the documents above it is clear that though A1 and A2 were settlement commandants as per job title, the documents signed by A2 in 2016 all indicate him as "in charge land demarcation" he signed against that title. This 45 strengthens my view that their job titles were not the critical issue, but rather whether their job description entitles them to be referred to as "settlement

"Huell". - authorities". From the testimony of PW 1 and the above, it is clear that both $\mathsf{S}$ accused qualified to be called as such, and were in fact the people who were referred to in Articles 4 and 6 of the framework contracts. - It was the requirement that a report confirming that plots demarcation had $10$ taken place should accompany the invoice for payment. Whereas the contract does not require a request letter, it appears this was the practice adopted as these letters were received and acted upon by A1 and A2. They cannot turn around and claim that there was no requirement for letters of request, in a bid to extricate themselves from culpability. - 15

I note that regardless of the titles that the reports on demarcation bore, they were all verifying the fact that the demarcation had taken place as required by the contracts. They were all issued on the same date of request, or at least within a day or two of the letters of request by the contractors. This confirms that the two sets of documents were related.

I note that it is immaterial that these reports did not have "recommended for payment" written on them. It is clear that the demarcation completion reports were a requirement for payment, and were in fact issued by the accused in that capacity. Without them payment could not be made. So, whether they 25 were endorsed "forwarded to RDO for action", or plain "forwarded to RDO" or "forwarded to RDO for consideration", they in effect served as recommendations for payment. In all these reports, there was confirmation that work had been done. No wonder PW2, PW3 and Pw4 related that they were conditioned to pay the money to the accused if they wanted 30 "recommendations for payment". It is also little wonder that PW 1 considered the endorsements as recommendation to pay. He recognized the signatures of A1 and A2 as he had worked with them for long. He also pointed out that in many instances, they signed against the written name so he could identify

what they had done. 35

**Only PEX7** did not have a recommendation letter. According to PW1, payment was made on the basis of the interim report and invoice. I note however that from the evidence of PW4, money was demanded for and paid by PW4. He testified that the paid to the accused's account 4.5 m on 24^th of August 2016. 40 It is his testimony that the first payment to A2 was 4.5m. Evidence on record PEX 7 (e) shows the RTGS transfer was made on 11^th August 2016 and the receipt acknowledging payment was dated same day. They had been paid 94,354,000/- just as PW 1 had confirmed in his testimony. I believe that the fact that the recommendation letter is not on record does not absolve A2 from 45 the transactions in issue. There is other evidence that the court can and has looked at to arrive at the conclusion that the allegation that A2 demanded

Ducce.

- payment before making recommendation for payment is true. There is no $\mathsf{S}$ other explanation for the deposit of the 4.5 m on A2's account. I have already discounted the poles theory as a lie. The fact that there are reports on verification of plots by both A1 and A2 confirm further PW4's and PW2 and 3's claims that the accused demanded for payment. - $10$

The defense claimed that the prosecution had misinterpreted the verification reports. A 2 stated in his statement to court that these reports were not verification reports. That plot verification reports were compiled by the site planning technical team led by Salvatore working with the commandant

- deployed by Solomon to provide day to day management of the settlement. 15 These reports were shared in inter agency meetings and was a highly technical report which he and A1 did not have the technical capacity to make. **DEX 16** was tendered as the true report. I have considered the two sets of "verification reports" in issue. I disagree. First, the "new' verification report being - 20 introduced at that stage of the case (defense) is an afterthought. The verification reports tendered as part of PEX 8-PEX24 were tendered in court and never contested as false. I am satisfied that the framework contract was not requiring a highly technical report, because this was a report to justify payment. It is enough if the report confirms/ that verification has taken place - and the demarcation was done. I am satisfied that these are the reports which 25 A1 and A2, generated and forwarded to RDO as support for payment. I reject the version of the accused that the verification report referred to in the framework contracts was the one tendered during their defense. - 30 I have already resolved that the two accused were public "officers' within the meaning of the Anti-Corruption Act. It is not in doubt that the resettlement of refugees was a public duty. The best justification for this is found in **DEX 11** which is the prequalification document for the provision and supply of goods, services and works to the OPM Arua. In the preamble, it reads; - "Office of the Prime Minister (OPM) is a Government arm charged with the 35 responsibility of overseeing the coordination of refugee programs in the country. Our vision is" ...to find durable solutions to refugee problems by addressing refugee issues within the broad framework of Government policy and to promote self-reliance and local integration of refugees in the communities through social development activities 40 in host areas.

Our mission is to" ...manage the response to refugees in Uganda by assuring their welfare and protection, within the framework of national policy international laws and standards while safeguarding local and national interests.

45 The above is self-explanatory. The functions executed by the accused were functions of the State.

Mover

In light of the foregoing I conclude that the gratification was received by A1 $\mathsf{S}$ and A2 as inducement for them to recommend Payment to contractors, as alleged in the various counts. This ingredient has been proved beyond reasonable doubt.

#### Conclusion

I find that the prosecution adduced sufficient evidence to satisfy all the 10 elements of the offense of corruption in Counts II, IV and VII beyond reasonable doubt.

#### c) Abuse of Office

The accused are charged with abuse of Office in Count V of the indictment for 15 A1 and in Count VIII for A2. It is alleged that the accused persons while performing their duties arbitrarily demanded and received money, acts which were prejudicial to the interests of their employer and the companies. from the Director of Jinako and Atlas employed

#### Section 11(1) of the Anti-Corruption Act which creates the 20 offense 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.

The ingredients of abuse of office as set out are:

- 1. That the accused was employed in a public body or company in which 30 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 - 4. That the arbitrary act was prejudicial to the interest of his or her

employer or any other person.

I have already found that both accused were employed by OPM which is a public body.

On the second ingredient of whether the accused persons acted or directed to 40 be done an arbitrary act, I will rely on the authority of the case of **Hudson** Jackson Andrua and another Versus Uganda COA Criminal Appeal No 45 of 2014 where it was found that an arbitrary act or omission is an action, decision or rule not seeming to be based on reason system or plan and, at times, seems un fair or breaks the law. It entails using power without 45 restriction and without due consideration of other people. It is characterized

Mase

$\mathsf{S}$ by reliance on individual discretion rather than going by the fixed rules, procedures and or the law.

In the instant case prosecution led evidence to prove that the accused persons asked for money from the Directors of Jinako and Atlas Engineering companies as a pre-condition for recommendation for payment by OPM. This 10 was not the established procedure. Payment to the contractors was due and owing upon completion of the job and the presentation by camp settlement authorities of a verification that the demarcation had taken place. The setting of conditions before issuance of this verification report was nothing but 15 arbitrary.

- On the ingredient of the act being done in abuse of authority, the case of Andrua (supra) further held that the term "abuse of authority" means the arbitrary act must be done willfully in that one accused of acting arbitrarily deliberately does an act or omission which is wrong, knowing it to be wrong 20 or with reckless indifference as whether it is wrong or not. It is a departure from the reasonable use of power of the office one holds in dealing with others. It is the abuse of the power or responsibilities of the office one holds. It is an - act or omission done in an official capacity which negatively affects the 25 performance of official duties. Such an omission or act exceeds the lawful authority of the doer of the act or omission, or one does so, well knowing that what he /she is doing or omitting to do is forbidden to be done or not done in an official capacity. - In the instant case the prosecution led evidence to the effect that the accused persons willfully requested for the money and it was paid on their accounts. I 30 find that their demands were an abuse of the authority of their office.

I now move to the ingredient of whether the act was prejudicial to the employer or any other person.

"Prejudice" is defined in Black's Law Dictionary, 8^th Edition as "damage or 35 detriment to one's legal rights or claims" This ingredient is satisfied.

PW 3 Zoodia David testified that he was extremely disappointed to make the payments. He was unhappy and heavy hearted about the demands and the effect that the payments would have on their profit. He was worried that making the payments would lead to insolvency of Atlas which had borrowed money in order to execute the contract.

PW 4 said he had to make the payments because they were conditioned to do so by the accused to their own detriment. The detailed negotiations regarding

Theeler

⁵ the percentage to pay to them was narrated before court. He also testified that his company suffered losses after making the said payments.

I therefore find that the acts of the accused persons were prejudicial to the companies in issue

#### CONCLUSION 10

I was advised by the assessors to acquit the accused on all charges.

I am unable to follow their advice wholly as the evidence adduced by the prosecution for the offenses of corruption and abuse of office satisfied the standard of proof set out in Miller Vs Minister of Pensions. I do not find any probability that the accused persons are innocent of these charges.

## In conclusion:

The money laundering charges in Counts I, III and VI of the indictment were struck out.

## I CONVICT A1 of:

Corruption c/s 2a and 26 (1) ofthe Anti-Corruption Act on count II; Corruption c/s 2a and 26 (1) ofthe Anti-Corruption Act on Count IV; Abuseof Officec/s 11 (1) and (2) of the Anti-Corruption Act on Count V of the

indictment 25

## I CONVICT A2 as follows:

Corruption c/s 2 (a) and 26(1) of the Anti-Corruption Act on Count VII; Abuse of Office c/ s 1 I ( 1) and (2) of the Anti-Corruption Act Count VIII of the indictment

Having convicted A2 on Count VII, I see no need to make any finding on the alternative count, which becomes redundant.

(

Jane Okuo Kajuga Judge of the High Court 14/7 /2022 Dellvered ln open court

In the presence of :

A1 and 42: Robert Baryamwesiga and Kiwanuka Fred Counsel for the prosecution: Kinobe Rogers and Jackie Mawemuko

Counsel for the accused: Emmanuel Emoru Clerk: Alice Bugoosi 45

#### SENTENCE AND REASONS FOR SENTENCE

In her submissions on sentencing, the learned State Prosecutor prayed for a deterrent custodial sentence on all counts on the following grounds; that convicts were Senior OPM officials entrusted with the task of resettling refugees who were in the midst of crisis. Instead, they took advantage of the situation for 10 their own interests. Their actions were premeditated. They had not exhibited any remorse and taken the court through a full trial. Their actions caused financial distress to the contractors who were compelled to incur loans to complete the work leading to a loss of Ushs. 393,140, 000 on all cases. Corruption is prevalent and has led to compromise in the quality of work in the country. She prayed for

15 a sentence of 3 years on each count as against the maximum sentences prescribed for the offences under the Anti-Corruption Act. She also referred to the sentencing ranges under the Sentencing Guidelines.

The learned defense counsel on the other hand prayed for a lenient sentence on the following grounds; Both convicts are $1^{st}$ time offenders and are remorseful; 20 Both look after their nuclear and extended families:

A1 has a wife and 4 children, aged between 2 and 11 years. His wife is a house wife currently pursuing studies. He also takes care of his mother aged 79 years old and stepmother who is about 100 years. He has been out of formal employment since January 2022 and runs a community based organization called world Rescue Mission which looks after street children of which he is the sole resource mobilizer and founder.

A2 on the other hand has a pregnant wife with whom they have 4 children: aged between 6 and 14 years. He relies on odd jobs to raise money to sustain his family. That two of his children and his wife have sickle cells, and the latter gets complications with child delivery.

He further submitted that both convicts were committed workers and the time they spent in Bidibidi, the camp was named the $2^{nd}$ best in the world. He further submitted that there was no loss to the RDO's office, this being a state investigated prosecution and that neither Jinako nor Atlas Engineering companies complained.

He asked court to consider Regulation 49 of the sentencing guidelines that provides for sentencing of primary care givers is a person who takes primary responsibility of a child below 4 years. That the welfare principle of the child as enshrined in the children's Act should be considered while sentencing care

$\mathbf{1}$

$\mathsf{S}$

$\mathsf{S}$ givers. He also submitted that the appellants undertake to reconcile with the victims.

He therefore prayed for a non-custodial sentence considering all the mitigating factors.

I have considered all the factors raised by the parties.

10 The offence of Abuse of office is punished by imprisonment not exceeding 7 years or a fine not exceeding 168 currency points or both. The offence of corruption is punishable by a maximum sentence of 10 years or a fine not exceeding 240 currency points.

I have taken into account the current sentencing practices in relation to the 15 offences of this nature.

In the case of Hudson Jackson Andurua Vs Uganda, Supreme Court Criminal Appeal No 17 of 2016 court in sentencing considered the fact that the appellants were public officials entrusted with public officers to protect the environment on behalf of the citizens. The Supreme Court maintained the 3 years and $2\frac{1}{2}$ years' imprisonment handed down by the trial court for abuse of office.

In the case of **Ouma Adea Vs Uganda Court of Appeal Criminal Appeal No 109** of 2014, the appellant was sentenced to pay a fine of UGX 2,000,000 or imprisonment for 1 year in default which sentence was upheld. The appellant in that case received about 4000 dollars from the complainants as an inducement to enable Busitema Mining Company to survey land at Tiira centre, Busitema sub county for purposes of mining gold.

In Uganda Vs John Ogol Charles and Another HCT-00-AC-SC-0006-2017, the convicts were sentenced to 2 years for accepting a gratification of 50,000 dollars for expediting documents documentation for financing the construction of a power substation and transmission line at Osukuru Phospahte project in Tororo district.

I have also considered Cheptuke Kaaye David Vs Uganda Court of Appeal Criminal Appeal No 293 of 2010, the appellant was sentenced to 1-year imprisonment for the offence of corruptly receiving a gratification and sentenced to pay a refund of UGX 100,000. He was a magistrate grade 1 had solicited for 100,000 to release the complaint's relatives' o bail.

Regulation 6(c) of the Sentencing guidelines provides for the need for consistency with appropriate sentencing levels and other means of dealing with offenders of in respect of similar offences committed in similar circumstances.

- In the instant case I take note of the fact that the convicts were employees in $\mathsf{S}$ OPM who were charged with the responsibility of settling refugees. They instead arbitrarily received a gratification from the companies that were supposed to do demarcation work. They threatened the companies that they would withhold their approvals for payment and hand the business over to others. They also promised them future business if they complied. This kind of conduct is 10 widespread and deplorable and court must send a message through its sentence - to deter the public.

Counsel for the convicts requested for imposition of a fine instead of a custodial sentence. I have considered that the maximum fine payable for corruption is 240

currency points which translates into a maximum of Ushs 4.8 Million. For abuse 15 of Office, the maximum fine is 168 currency points translating to Ushs 3,360,000. In my view the imposition of a fine will not meet the ends of justice and the purpose of sentencing considering the amounts involved. For purposes of deterrence and punishment, a custodial sentence will be appropriate. I decline to order a fine, and find a custodial sentence more appropriate. 20

-I have considered the sentencing guidelines, the current sentencing practice in relation to offences of this nature, and the fact that the accused were never on remand. I have also considered the fact that A2 received less money (Ushs 129 million) and had less incidents of corruption whereas A2 received about 264 Million over a one-year period. I consider a sentence of 3 years' imprisonment appropriate for A1 on both counts of corruption and 2 years' imprisonment on the offence of abuse of office and sentence him accordingly.

I sentence A2 to $2\frac{1}{2}$ years' imprisonment on the offence of corruption and 2 years for the offence of abuse of office.

All sentences run concurrently 30

> It is further ordered under Section 46 of the Anti-Corruption Act that both convicts are barred from holding public offices for a period of 10 years from the date of conviction.

- I decline to exercise my discretionary power to grant compensation to Atlas Engineering Company Limited and Jinako as prayed by the prosecution. The 35 Directors of these companies were under an obligation to report any corrupt acts by virtue of their engagement with the OPM. They admitted to this during cross examination. If they had, corruption would have been nipped in the bud. They did not report to OPM or to any law enforcement authorities and were in fact, - not the complainants in this matter. The IGG commenced investigations after an 40 outcry from donors, and the investigators are the ones who worked backwards

- $\mathsf{S}$ and discovered the reason for payments to the accused persons accounts were emanating from the accused's wrongful and illegal conduct. Jinako made payments over a period of 6 months to A2 and over a year to A1. Even in their initial interaction with IG officials they withheld information about the corruption, and it was during their additional statements that they obliged. They 10 were complicit to the actions. An award of compensation will send the wrong - message and not help the fight against corruption.

Government of Uganda did not lose money. The projects for land demarcation by OPM Arua took place as planned as evidenced by the verification reports on record and the testimony of PW1 Osakan Solomon. No loss was demonstrated and thus no compensation is awarded to OPM.

I have inquired from prisons and established that the two convicts have never been on remand hence there is no period to deduct from the above sentences.

Right of appeal explained to the parties

$1100$ er:

Jane Okuo Kajuga Judge. 15/07/2022

# In the presence of:

Counsel for the State: Jacky Mawemuko

Counsel for the convicts: Jonah Mafuko Masa 30

Convicts: Both preset Clerk: Alice Bugoosi