The Independent (Kampala)

22 February 2013

Uganda: Political Sins, Legal Penalties

Flt. Capt. George Mike Mukula is a rock star politician. The Soroti Municipality MP is flamboyant in dress and lifestyle, in good and in tough times and his recent conviction by the Anti-corruption Court, which has generated so much debate and attracted opinions from all corners, is not about to change that.

Mukula was the only suspect found guilty after a seven year court process involving the Global Alliance for Vaccines and Immunisation (GAVI) funds scandal.

His conviction has attracted criticism for the trial magistrate for alleged "selective judgment". This accusation is mainly based on Mukula's three co-accused; former minister of Health Jim Muhwezi, former minister of State for Health Alex Kamugisha, and former State House employee, Alice Kaboyo, being let off.

Court found that Muhwezi and Kamugisha "have no case to answer", whereas Kaboyo, who pleaded guilty to the charges of making an official document without authorisation, abuse office and uttering a false document, was fined Shs 20 million.

Inspector General of Government (IGG) lawyer Sydney Asubo, who led the prosecution, told The Independent that allegations of selective judgment are "an absolutely baseless and irritating accusation".

"Mukula was also found to have no case to answer in respect of offences he was jointly charged with the others," Asubo said adding that this point has been missed by some who are criticising the judgment.

Mukula was convicted of embezzlement and found to have no case to answer in respect of two counts; abuse of office and causing financial loss.

Asubo told The Independent: "Mukula confessed to the crime but then he thinks just because he handed over the money, the court should forgive him or the Chief Magistrate should be lenient with him and reduce on the sentence, like they did for Alice Kaboyo. Under the law of embezzlement when convicted of the punishment has to be more than 10 years but the chief Magistrate Irene Akankwasa has been lenient with him to give him four years that is because when the suspect convicted pays back the money he / she should be given three or four years of imprisonment".

Mukula, a former state minister for health, was found guilty of having wrongly received and misappropriated Shs 210 million meant for government projects under GAVI.

The prosecution led by Asubo told court: "Under the law misusing money meant for official government business is equivalent to stealing, which I highly believe Mukula did."

Asubo told court that at the start of the investigations in 2006 evidence pointed to Mukula having received and used the money for purposes other than those for which he said he requisitioned it for.

Details of the case were that sometime in 2004 during an HIV/AIDS workshop in Entebbe, the First Lady Janet Museveni pledged money to her audience to fund HIV/AIDS sensitisation workshops or conferences in various districts.

Mukula, who was then-minister of State for Health told her that she could get money from the GAVI funds.

Mukula and then-minister of Health Jim Muhwezi were involved in the authorisation of the money. Mukula, according to documents presented in court, signed for Shs 263,855,000. The documents also showed that Muhwezi received Shs 54 million of this money from Mukula for the Office of the First Lady. Mukula, the prosecution said, retained Shs 210 million.

Asubo told court: "(When) asked where he kept the Shs 210 million he (Mukula) never responds to the question".

Defense Witness Lydia Nalwadda told court that Mukula signed for the money but he and Muhwezi did not receive it. She said she kept the Shs 210 million in "the safe in office" and did not say in whose office and who had the keys to the safe.

Nalwadda told court that they later re-banked the money in four installments over a year from the time the Inspector General of Government (IGG) initiated investigations into the GAVI funds and some of the banking were made Mukula's personal assistant.

"It is a contradiction Hon. Mukula and his witnesses cannot explain. Their action contradicts their testimony that he did not receive any money but signed for it, when asked in court why he was re- banking the money in installments he still did not respond to the question, which leads to only one reasonable conclusion that he stole or embezzled the money."

Mukula has appealed his conviction in the High Court and a ruling has been set for March 13.

Whether his conviction is upheld or not, top lawyers that spoke to The Independent say Mukula's woes are partly results of legal technicalities and political machinations.

A senior lawyer who declined to be named told The Independent that, as a rule, "the government will continue to lose corruption cases as long as the witnesses that come to testify are junior to the accused". "Did you expect those junior officers from the Ministry of health to take the stand and pin their former bosses who are still holding influential positions in the ruling government? That is an illusion."

As the National Vice Chairman (Eastern Region) of the ruling NRM party, Mukula is also a top official. So why was he convicted?

Some critics blame the cross-examining strategy of Mukula's defense team.

"They were quarrelling with and annoying witnesses," one lawyer told The Independent," Some of the witnesses that pinned Mukula were those that were rattled by his lawyers."

Asked how he managed to keep his client from being sent to prison, Kaboyo's lawyer, Bob Kasango, told The Independent "the court doesn't always have to send all convicted persons to jail."

"The circumstances of each case have to been taken into account. In this case, we engaged in extensive and comprehensive plea bargaining over a period of over one year. Plea bargaining is not a common element of criminal trials in Uganda and so it is understandable that some sections of the public do not appreciate the sentence.

"We went through the prosecution case and our own case. We went through the hundreds of pages of evidence and evaluated the strengths and weaknesses of either side and came to the conclusion that the IGG would not succeed on some charges. We agreed to drop the charges we found were not supported by evidence and pleaded guilty to those that were very strong against us.

"It is against this background that Ms. Kaboyo pleaded guilty and it was another uphill task convincing the trial magistrate not to prefer a custodial sentence. We had to make a very strong case that I believe we did. It was that transparent and there was no involvement of any external forces or third party influence as has been intimated".

But the accusations of political interference in Mukula's case refuse to go away.

Nuwe Amanya Mushega, former senior cabinet minister and bush war veteran, now senior opposition Forum for Democratic Change (FDC) party official says "in Uganda, there is a problem of selective prosecution and selective protection."

"For things to work out the politics should first of all be sorted out because it has influenced a lot in everyday social affairs".

"No one is not pressured by the politics going on, which contradicts with a person's integrity whether they succumb to it or not," Mushega said.

"I don't support corruption but I would defend Mukula in court, because I don't want him to be used as a sacrificial lamb, yet the others in the same case were left to go scot free,|" says MP Odonga Otto (Aruu county, Pader district). Odonga Otto says Mukula needs political lawyers to defend him.

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