16 November 2012

Uganda: Final Call - Will Mukula Go to Jail?

The prosecution and defence made final arguments before Chief Magistrate Irene Akankwasa in the case against Soroti Municipality MP George Mike Mukula.

The former minister is accused of embezzling Shs 210m belonging to the Global Alliance for Vaccines and Immunization (Gavi) programme on February 17, 2005.

Prosecution is led by Sydney Asubo, assisted by State Attorneys Diana Nantabaazi and Cyrus Mawano while Mukula's legal team has Atenyi Tibaijuka, assisted by Oscar Kambona. The Observer's Siraje Lubwama was in court to record the proceedings and below is an edited version of what transpired

'Convict him'

Asubo, for prosecution: Your honour, it is my submission that the prosecution has discharged this burden. To prove the case, three ingredients were to be established: One, the accused is an employee of government, two, in the course of employment, he stole the subject money; and three, the access to the money stolen was by virtue of his employment. Prosecution produced eight witnesses to prove its case.

On the first ingredient is the letter of appointment by president Museveni appointing the accused as state minister of Health in charge of General Duties a fact all witnesses and the accused himself attested to.

On the ingredient of theft, it is not in dispute that the money in issue was the property of the government whose intended purpose was organizing workshops and seminars by what is described as the office of the first lady which money was permanently deprived by the accused.

The evidence we have on record is that Margaret Lalamu, on behalf of the first lady, brought a request to the accused asking for about Shs 263m which money was processed and received by the accused. PW7 (Prosecution Witness 7) Hajji Muhammad Kezaala's evidence shows that it is the duty of those who take the money to account for it after they have carried out the activities.

The evidence of cashier Margaret Birabwa PW5 is that she is the one who withdrew the money from the bank and it was received by the accused. This evidence is supported by Lubwama [Senior Accountant] PW4 who also confirmed that money was received by the accused. Then there is evidence of PW8 Victor Achidru, the investigating officer, who testified that when he interviewed the accused who confirmed receiving the money, he said he kept it in a safe place somewhere.

It is very important to note that this evidence of the accused taking the money was also confirmed by PW6 Herbert Mugumya [Under Secretary] which evidence was not controverted. The accused himself admitted that he signed on the vouchers although he claims it was meant to facilitate movement of money which was not clarified.

At this time, money had been withdrawn by Birabwa from the bank. The question is: what movement was there to facilitate? I submit that there was none. The question of receiving the money was an intention to permanently deprive government on the following facts:

One, the money was to be handed over to the office of the first lady.

Only Shs 54m was passed over. Some people with their wisdom or for lack of it decided to withhold the money with the purpose of stealing it. If the purpose was not to steal it, why withdraw it from the bank and allegedly keep it in safe for eight months? We submit that the money was not in a safe but that it had been stolen.

The money was later returned to the bank in five installments. Why not carry the whole Shs 210m back? Our contention is that the money having been stolen was now returned in piecemeal.

We submit that it was because of the looming investigation which forced the accused to refund the money which otherwise had been stolen. According to [Lydia] Nalwanga DW2 [Accounts Assistant and defense witness], she got the money from the accused before rebanking it. By the time money was returned, theft had already occurred.

Money was returned after the intention for which it was intended to had passed. The return was a cover-up having been caught in the act. Three, criminal intention started from the voucher when the accused signed the money after it had been received by Birabwa on February 17, 2005 and not passed over to the first lady's office. Had the money been passed over, there would be no crime as the case was with the Shs 54m.

Had it not been for his job, the accused would not have had access to the money. Therefore, we submit that this ingredient too has been proven beyond reasonable doubt. The purported handwritten note dated February 18, 2005 from Mugumya to the then Principal Accountant James Mukasa [late] that money should be released to Jim Muhwezi [then minister of Health] had no value as money had been stolen the previous day.

Mukula alleged lies

For the accused to sneak away from the import of his signature to the voucher as a receiver of the money in question is a lie. Two, the accused says he does not know who took the money after he lost interest of the same when it was allegedly been ordered that it be given to Muhwezi is also a lie. The question is, is this the attitude of a prudent person?

If the accused tells such deliberate lies, we submit that his entire evidence is tainted with falsehood and we invite court to hold that the defence evidence was full of lies. The only truth facts in his defence are his name, age, the ministerial position he held and the name of the first lady.

Accordingly, we submit that the prosecution, having discharged its obligations to prove the case to the standard required, invites court to convict the accused as charged with count number five.

Mukula is innocent - lawyer

Tibaijuka: Your honour, going by the particulars of the charge, it would be incumbent of the prosecution to prove that the alleged Shs 210m was stolen from the Gavi account at Citi Bank (Uganda) Ltd and that the accused had access to that account by virtue of his employment.

Prosecution has totally departed from its case as particularized in the charge sheet and instead the evidence adduced was intended to show that the money in question was stolen after it had properly been requisitioned and disbursed. In fact according to evidence adduced, the money was never stolen at Citi bank and the accused had no account at that bank.

This case is supposed to be proven on the basis of evidence that relates to the particulars given in the charge sheet. Short of that, the accused is entitled to be acquitted (cites two authorities). There has not been any amendment to the charge sheet and since both parties have closed their respective cases, it would not be in the interest of justice for an amendment to be made at this stage.

But without prejudice to my prayer for acquittal based on the charge sheet, I will go on and make a two-fold submission. I will start with the prosecution case as it appears on the charge sheet. PWI Gustavus Bwoch being Accountant General since 2003, testified that he was the one who authorized the opening of the Gavi accounts at City bank. But according to him, his office did not officially know whether any monies were limited to those accounts by the donors.

In fact the only documents that the witness had were two letters; one authorizing the opening of the accounts and the other directing the transfer of money from those accounts to Bank of Uganda. The witness had no knowledge at all to the existence of any actual sums of money on those accounts and he told court that he only heard about the Gavi accounts for the first time when people from the Inspectorate of Government went to him and asked for records.

So it can be seen that the witness's testimony is irrelevant to count 5. We also have the testimony of PW2 Richard Muhinda who was previously a Permanent Secretary in the Ministry of Health and he testified that he is the one who started off the Gavi project and put its final system in place. He told court that ministers did not have access to or control of the funds. That testimony is corroborated by Mugumya who was an alternate signatory to Gavi accounts.

According to the charge sheet, it is alleged that the accused had access to the accounts of Gavi fund at Citi bank. If you look at the testimony of PW3 Dr Isa Makumbi who was in charge of Immunization, he did testify that to the best of his knowledge, no money was withdrawn irregularly from the Gavi accounts and that no money would leave Gavi accounts without authority from the Accounting Officer.

This witness, who actually signed the three cheques totaling to Shs 263m, confirmed in cross examination that he operated the Gavi accounts and no money was ever stolen from there. The witness was specifically shown count 5 and asked for his comment and these were his words:

"No, I do not agree with that charge sheet". And he added: "No, I do not agree that there was anyone who stole money from that account." He further added: "I know A1 [Muhwezi] and A2 [Mukula] but I do not know them as thieves."

We also have the testimony of PW4 Lubwama. This witness testified that he handled all the processing of three payments totaling to Shs 263m. According to him, the entire payment process including documentation and issuance of the three cheques was done in a proper way.

The witness concluded in a smooth way by telling court that he could not determine whether A2 stole the money. Then there was PW5 cashier Birabwa who contradicted evidence given by Dr Makumbi in a material way. Makumbi had told court that he is the one who had signed for the three cheques and that the accused was the payee of all those cheques.

But Birabwa did tell court that she herself was the payee of those cheques and that she herself withdrew the money from Citi bank. And in this regard, her testimony is corroborated by PW8. All these show that the accused had nothing to do with Citi bank and was not the payee. As a matter of fact, Birabwa testified that she is not aware whether there was any cheque in the accused's name or whether the accused withdrew any money from Citi Bank.

She also testified that she was not aware of the three vouchers getting lost and she could not tell whether any money was stolen. She was not re-examined on her testimony on cross examination which means the prosecution was satisfied with it. Mugumya testified as PW6 after telling court that ministers had no access to the bank account of Gavi and went on to state that there was no way any person who had no access to the Gavi account could steal money from there.

And particularly so, all payments had to be authorized by the Accounting Officer. That rules out the question of having stolen money from Citi bank as alleged. [Muhammad] Kezaala who testified as PW7 was the principal signatory to Gavi accounts. He confirmed that he acted on the vouchers and that there was nothing irregular about the payment since it was made on the strength of his authorization.

This is contrary to my learned friend's submission. I will also refer to the evidence of PW8 Achidru who told court that there was never any withdrawal of Gavi funds by the accused. He also confirmed that the cheques were signed by the authorization person. In fact this witness did not go to the ministry of Health to investigate the charge particularized in count 5. He told court that he went there to find out whether the money had been used for the purpose which it had been requisitioned.

In other words, the witness went to investigate whether there had been theft after the disbursement of money. He did not go to investigate whether the alleged money had been stolen at Citi bank. If this is the investigating officer who did the work from which prosecution preferred the charge, one wonders why the prosecution particularized the charge sheet the way it is.

By looking at all the evidence of the eight witnesses, it can be seen that none of them testified that there had been any theft at Citi bank or that the accused had access to the money by virtue of his position. So, not even a single element as particularized by prosecution in count 5 has been proven by prosecution. It is our humble submission that the elements of asportation and intention to permanently deprive have not been proved.

Outside charge sheet

In the first place, I should point out that the prosecution witnesses constantly told court that there was never any -loss of funds. In this regard, this was not restricted to any period at all. But if there had been any loss at any one time, the prosecution witnesses would have said so in so many words. Whether or not there was loss, is a matter of fact not mere inferences from what was never stated by witnesses.

PW3 in particular told court that he did not know whether people who received the money made accountability; he added that the donors have never complained about losses to the funds in question. PW6 Mugumya's testimony goes that if money had been lost after disbursement, the internal audit department would have queried it.

But he says that by the time he left the ministry in April 2007, no query had been made to him and or to top management. The same witness testified that when money is disbursed, it is accounted for to the Auditor General at the end of the financial year.

Where prosecution has not tendered in the Auditor General's report, it is difficult to see how the accountability of Shs 210m can be challenged. It is interesting to note that prosecution would want to eat its cake and have it.

At some point, in my learned friend's submission, he did rely on the evidence of DW2 [Nalwanga] to the effect that she had to take the vouchers to Munyonyo for signing by the accused and where her evidence does not favour the prosecution she find that she is a liar and, therefore, her testimony should he disregarded.

It is doubtful whether PW8 actually started investigating in 2006. The accused testified that the investigations commenced two years after the money had been returned to Bank of Uganda and this was not challenged. And prosecution has taken the issue with the fact that the money was returned in tranches.

As DW2 testified, she acted throughout on the instructions of her boss the Principal Accountant, the late Mukasa on returning the money in tranches. And it was also submitted that all the money could have been given to the first lady at a go instead of the initial payment of Shs 54m.

But no evidence was adduced to show that the other workshops or seminars that were supposed to be conducted in Luweero and Gulu were to be conducted at a go. There is evidence that the first lady complained that the remaining funds were not limited to her.

A question is raised whether or not the First Lady still intended to pursue her intended activities in those two areas. It would not have been reasonable for the ministry of Health to perpetually hold onto the funds and the decision to return the money to Bank of Uganda was reasonable. Further, it was also not reasonable to avail more funds to the first lady before getting accountability for the first release.

In the circumstances, no such evidence was adduced that the accused finally stormed the cash office and took away the money. All we have is exhibit D2 [showing the refund of money to Bank of Uganda] which clearly negates the possibility that the accused could have taken possession of the money. DW2 did not tell any lie as submitted by my learned friend.

All in all, my submission is that apart from the fact that the accused was an employee of government; the other two ingredients of the offence of embezzlement have not been proven against him. So, I pray that the accused be acquitted.

"In his rejoinder submission, Asubo clarifies that by Mukula signing the vouchers as a receiver of the said money, he legally received it. He also submitted that the failure to hand over the money to those who requested for it meant the accused had made up the decision to steal it.

Before reiterating his submission for court to convict the accused as charged, Asubo posed this question; What better proof is there of receipt of money other than the written acknowledgment of receipt on official government of Uganda vouchers?

After considering both submissions Chief Magistrate Irene Akankwasa announced that she will deliver her judgment on January 18, 2013.

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