Analysis: Breaking down Byandala’s ruling, bit by bit

Edris Kiggundu

Despite the fact that he was passionately beseeched by defence lawyers to rule to the contrary, Justice Lawrence Gidudu, the head of the Anti-corruption court on Monday told all the seven individuals who are charged with corruption related offences in respect to the botched Mukono-Katosi road contract, that they have a case to answer. The taxpayer lost Shs 24 billion in the botched deal where Abraham Byandala, the former minister of Works, was implicated. The Nile Post breaks down Justice Gidudu’s ruling and what it means for Byandala and his co-accused.

 

On Monday while delivering the preliminary ruling in the Mukono –Katosi road mess, Justice Gidudu admitted that the case had taken a toll on him.

He explained the case has turned out to be bigger that he had anticipated in that when it came to writing  the ruling it gobbled up 41 pages.

“The exhibits are many,” he started, “the accused are many, the defence lawyers are many,” Gidudu sarcastically said, adding,” Even the prosecutors are many.”

The accused that the judge says are many are: Abraham Byandala, the former minister for works and transport, is charged with abuse of office, disobedience of lawful orders and influence-peddling.

His co-accused include:  Berunado Ssebbugga Kimeze, a former acting executive director of Unra; Joe Ssemugooma, Unra’s former acting director for finance and administration, and Marvin Baryaruha, the former Unra legal counsel.

Apolo Senkeeto alias Mark Kalyesubula, who introduced himself as the country representative for Eutaw, and Isaac Mugote, a former Housing Finance bank employee, are accused of aiding Eutaw to forge a bid security document that helped the company win the contract . Also on the charge sheet is Wilberforce Senjako, the former Unra regional accountant.

BYANDALA

Being accused number one, Justice Gidudu started off with Byandala, the Katikkamu  North legislator whom the IGG’s accused of abuse office when he directed Kimeze to sign a contract with Eutaw, a company whose identity by a due diligence report.

Whilst prosecution led by Sarah Birungi contends that Byandala interfered with procurement process and contract management, when he issued the said directives to Kimeze, his lawyer Nsubuga Mubiru contended there is no case here, since under section 7 of the Unra Act, 2006, the minister is mandated to give directions.

With such arguments, justice Gidudu said that the issue is whether the directives were arbitrary and prejudicial to the governments.

He said that having perused section 7 of the Unra Act he found that the “minister is required to publish in the gazette and lay a copy of the directions in writing to the authority with respect to policy. Were those directives policy matters?”

“Under section 7 (4) of the same Unra Act, the minister is required to publish in the gazette and lay a copy of those directions before parliament” Justice Gidudu said.

“I ask the question was this complied with? At this stage I’m unable to resolve those issues unless the case has been concluded,” adding, I put accused number one (Byandala) on his defence.

Byandala was also charged with disobeying the IGG’s directive she issued on July 2017 stopping all transactions relating to the said road.

In his no case to answer submissions, Mubiru  had argued that the charge cannot stand since Byandala’s directive were not acted upon by John Byabagambi the then  junior Roads  minister, which according to him meant Byandala’s defiance of the IGG’s orders did not take effect.

However, the judge  didn’t agree with Mubiru’s argument citing the evidence Lisa Mwagale, the IGG’s investigating officers who said that road works continued even during investigations and when Niu Hong the CICCO country manager, was challenged, he waved Byandala’s letter as a justification to continue working.

That question that arises at this stage and which can only be answered by accused one is why did he write the exhibit D4 (letter to Byabagambi) in the manner and tone that he did?,” Justice Gidudu asked,

“Was it not a defiance of the orders of the IGG contained in her letter of July 17, 2014, received on the same day at Unra but on the following day July 18, 2014 at ministry of works,”  Justice Gidudu said adding that its logical that Byandala  gives an explanation through his defence.        

KIMEZE

Essentially, Kimeze’s crimes according to the IGG, is that he abused his office when he rushed to communicate the award of the contract to Unra within 5 days instead of the 10 days which the government ombudsman says is contrary to regulation 224 (4)(a) of the PPDA regulation 2003.

But Ivan Engoru, Kimeze’s lawyer said that the actions of his client were prudent and diligent.

He asked the judge to consider that Kimeze did his best to act reasonably by instituting, a due diligence team to ascertain the identity of the contractor.

And according to Engoru when Kimeze was directed by Byandala to sign the contract he sought the legal opinion of Baryaruha.

But judge didn’t agree saying that Kimeze needed to explain himself in light of the fact that procurement of a contractor of the road that started in 2010 and went up to 2014,  was enough to show that it was not a smooth process.

Evidence on record according to Justice Gidudu revealed that a clause had to be smuggled into the contract which he said had been cleared by the Solicitor General to state that “if the identity of the contractor [Eutaw] turns out to be false then the contract would be repudiated.”

“Amidst all these controversies, accused number two (Kimeze) put pen to paper and communicated the award and subsequently signed the contract, “Justice Gidudu ruled.

“If the story stops here considering the events that followed after the signing of the contract, if no explanation is made, the actions of accused number two who was at the helm of Unra would pass for arbitrary actions because caution or prudence could have dictated otherwise unless he explains these challenges.”

BARYARUHA

IGG’s Birungi had faulted Baryaruha for advising or misadvising Kimeze to sign the contract without a detailed due diligence report to clear the red flags raised in the preliminary due diligence report.

But David Mpanga, Baryaruha’s lawyer, argued that the advice was perfectly correct in legal terms to say that “go ahead and sign if the company turns out to be fake the contract would be repudiated.”

But Birungi insisted that Baryaruha was aware of the background to this case and was alive to the dangers that were eminent before the contract was signed for him to smuggle a clause in a draft that was already cleared by the Solicitor General.

It was Birungi’s argument that Baryaruha acted arbitrary when he did not subject the repudiation clause to the clearance of the Solicitor General.

Though Mpanga had argued that the IGG wrongly charged Baryaruha with a charge of causing financial loss ,  Justice Gidudu didn’t agree.

With respect, Gidudu said, the moment a contract is signed on the advice of legal counsel, obligations begin to run.

“I will deal with the issue of loss after the case has closed but suffice to say, that on the basis of the bogus securities that were used to secure the advance payment [Shs 24billion], there is no fallback position for Unra, which short of an explanation, I consider loss.”

SENKEETO  

Peter Mulira, Senkeeto’s lawyer, had asked to judge to dismiss charges such as obtaining money via false pretenses, uttering false documents, theft and conspiracy to defraud saying that the IGG had no jurisdiction to  charge his client.

Mulira cited section 14(5) of the IGG Act saying that the IGG only has power to prosecute cases involving corruption, abuse of authority or public office.

He also cited section 19 of the Act saying that it doesn’t give the IGG powers to prosecute private individuals

But Justice Gidudu, citing the Constitutional court judgments of Jim Muhwezi and three others of 2008 Vs the Attorney General and that of Syston Kekurutso and another Vs Attorney General of 2007, said that the IGG has powers to prosecute private individuals.

“Without much ado, after perusing the two decisions  above, I have no doubt that the objections regarding the powers of the IGG to charge accused five (Senkeeto) who is a private businessman to be without merit because he is on a joint charge with public officials and funds complained of were public funds from government,” he said.

On the count of stealing Shs 24 billion, Mulira had argued it cannot stand because there was no complainant against Senkeeto in court.

On the contrary, Birungi, from the IGG, said that Senkeeto’s actions make him a complete thief because he was not a director of the contactor, Eutaw.

She said that Senkeeto opened an account in the Housing Finance Bank just for receiving the money and once the money hit the account they disbursed the same to the tune of Shs 12 billion in a matter of minutes.

“Accused five has a case to answer to explain away the manner in which he took control of these funds with the power to disburse them at will,” Justice Gidudu ruled.

When it came to charges of forging false securities from Kenya Commercial Bank, Statewide Insurance Company and Housing Finance Bank, Mulira had argued that except for one performance bond from Housing Finance, there was no evidence that his client uttered the rest of securities.

But Justice Gidudu did not buy that arguing that admission alone meant that Senkeeto had a case to answer.

In respect to other securities, Justice Gidudu said that evidence from Maimuna Kabasemeza an insurance agent with ICEA and Mariam Mutalaga from State Wide insurance company revealed that Senkeeto had meetings with them and was desperate to obtain securities.

In fact the judge said that Senkeeto paid millions Shilling to Kabasemeza to obtain fake securities from Statewide Insurance.

There is also evidence which is not disputed according to justice Gidudu of Mugote who used to work with Kenyan Commercial Bank before joining Housing Finance Bank and that it was there that he struck a relationship with Senkeeto

“It has already been admitted that he uttered a performance bond from housing Finance Bank to Prosecution witness 15 [Night Gertrude Akiiki] at Unra.,” Justice Gidudud said of Senkeeto.”

“There is therefore strong circumstantial evidence that even the advance payment guarantee from the same Housing Finance Bank was uttered by the same accused number five,” Justice Gidudu ruled.

He said if it’s not Senkeeto who uttered the Statewide false guarantees to Unra, why would he be holding meetings with manager at Statewide insurance, like Mutalaga which was attended by Mugote seeking verification of documents he had uttered at Unra.

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