By Isaac Ssemakadde
Kampala: The Basajjabalaba brothers, Hassan and Muzamiru, are the quintessential merchants of corruption in Uganda. On October 6, 2011, President Museveni decried their unmitigated infiltration of government and directed attorney general Peter Nyombi (RIP) to move against these “thieves” and their accomplices in various government departments.
On March 6, 2013, the duo was committed for trial in the High court on three counts of forgery of a judicial document, uttering a false document, and conspiracy to evade tax law.
The indictment was signed off on behalf of the Director of Public Prosecutions (DPP) by Jane Frances Abodo, then as resident principal state attorney at the Anticorruption court.
The charges stemmed from an extremely desperate attempt by the brothers to block Uganda Revenue Authority from recovering at least Shs 20bn in taxes. In the 2010/11 financial year, the duo received a windfall of Shs 142bn in a dubious compensation scheme arising from government’s repossession of three markets and the Constitutional square (which had been illegally tendered to them in the early 2000s).
On May 8, 2013 this landmark anti-corruption trial was “temporarily stayed”—initially by the Constitutional court and later the Supreme court, pending an inquiry sought by the duo into some matters of constitutional interpretation. On November 19, 2021 the Supreme court okayed the prosecution to continue.
However, between August 30 and October 7 this year, the same Jane Frances Abodo, now as DPP, secretly terminated this case by withdrawing all charges against the Basajjabalaba brothers.
Until we forced the issue by applying for a court order against her office on November 22, DPP Abodo and her colleagues at the Anticorruption court had not intended to give the public a full and proper account of their sweetheart deal with the Basajjabalaba brothers.
WHAT HAPPENED NEXT IS A COMEDY OF ERRORS
While appearing on NBS TV on December 13, DPP Abodo claimed that she needed an unspecified duration of time to obtain “certified copies” of some unspecified documents. On Radio One’s Spectrum show the same day, DPP Abodo claimed that she withdrew the charges because the case had been “derailed” by the long-drawn-out intervention of the superior courts, “people had moved on, institutions had changed” and consequently her office was not ready to proceed “within the six weeks’ policy of the Anti-Corruption court.”
DEBUNKING THE MYTHS AND LIES
It is imperative to debunk two of the most obvious lies publicly spread by the DPP, without much pushback or any questions from the journalists her office spoke to. First and foremost, on both television and radio, DPP Abodo misled the public by stating that her office is above the duty to account.
Under the 1995 Constitution, the DPP is obliged to account and her decisions, just like those of the IGG or any other independent constitutional body, may be challenged in the courts of law if they have the effect of frustrating or preventing, without reasonable justification, the ability of the people and their civic organizations to combat corruption and abuse or misuse of power by those holding political and other public offices.
A RED HERRING
Secondly, the alleged last-minute investigation ordered by DPP Abodo into the Basajjabalaba corruption case is utterly a red herring. In a four-page petition that we filed with her office on December 15, we laid out six grounds for our complaint and criticism of the DPP’s unprincipled oscillation.
The first point is that the Constitutional court does not deserve to be made the scapegoat for the DPP’s recent failure to resume where she had stopped in 2013.
Official records show that Abodo had personally informed court on behalf of the DPP on March 6, 2013 that “investigations had been completed” in the Basajjabalaba case and thus ensured that the “thieves” were jointly committed for trial on May 9, 2013 before the High court.
The Constitutional court intervened with a temporary halt-order on May 8, 2013, a day before the prosecution was scheduled to present their first witness. Clearly, the halt-order did not “derail” an already completed investigation. It merely stopped the first prosecution witness from testifying.
Secondly, the DPP’s office has not explained what this last-minute investigation is, and why it could not be concluded before 30 August 2022 when Abodo decided to “enter nolle prosequi”— nearly 10 months after the Supreme Court had okayed the prosecution on November 19, 2021.
The excuse of seeking certification of unspecified exhibits is neither credible nor convincing. The crucial exhibit in this case is a forged judicial document uttered to the Uganda Revenue Authority (URA), Office of the Auditor General (OAG) and Chambers of the Attorney General (AG).
Have the Police and DPP faced non-cooperation from these public offices in their pursuit of certified copies? Thirdly, an investigation of indefinite purpose, methodology and/or duration is obviously improper, oppressive, in bad faith, capricious and against the public interest.
In view of the checkered history of the Basajjabalaba corruption case, the DPP’s decision to further delay the trial on account of an indefinite last-minute investigation is blatantly incompatible with the legal principle of speedy justice enshrined in Articles 28(1) and 126(2)(b) of the Constitution.
Why couldn’t this investigation be for a definite, limited duration that fits “within the six (6) weeks’ policy of [mentioning cases in] the Anti-Corruption court”?
What are the extremely onerous tasks in this investigation whose completion would reasonably exceed six (6) weeks? Does the DPP intend to apply for mutual legal assistance from a foreign jurisdiction?
Fourthly, by withdrawing the case completely instead of striving to conclude the alleged last-minute investigation within the six weeks’ grace period policy of the Anti-Corruption court, the DPP has in effect released the Basajjabalabas from the stringent bail conditions set by the trial court on 13 March 2013 (combined cash bail deposit of sh100m and sureties’ non-cash bond of Shs 22bn, etc).
As a result, Hassan Basajjabalaba, a proven flight risk, has been released from the obligation to report to the Director CID every two weeks and has already retrieved his numerous passports from court custody. With a tip-off at an opportune moment, he can freely leave Uganda and evade prosecution altogether.
Fifthly, the DPP has also unjustifiably thrown away the best chance to apply to court in terms of Section 53 of the Anti- Corruption Act for a restraining order, restraining the disposal of any property of, or in possession or under the control of the Basajjabalabas, wherever that property is situated.
Therefore, the formerly beleaguered entrepreneurs are now free to transfer or hide their illicitly acquired properties.
ONE RULE FOR THEM
Last but not least, DPP Abodo shamelessly lied about the alleged policy of the Anti- Corruption Court to dismiss cases where the prosecution is unable to present a witness within six (6) weeks of first mentioning the matter. The alleged policy does not in fact exist.
Although it communicates good practice, it is neither the law nor enforced with the harshness or absurdity imputed by the DPP. Of relevance to any accused person who is committed for trial in the High Court, the actual policy of the court is enshrined in Section 53 of the Trial on Indictments Act.
This section provides that the court may, for any reasonable cause to be recorded (e.g. the absence of witnesses or exhibits), postpone or adjourn the trial on such terms as it thinks fit and for such time as it considers reasonable.
In a Magistrate’s court, Section 119 of the Magistrates Courts Act applies. It states, in material part, that the dismissal of a charge for “want of prosecution” under this section shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts.
Clearly, Abodo has one for the Basajjabalabas and another for everyone else. She erroneously based her decision to enter nolle prosequi on blatantly unwarranted and exaggerated fears in relation to the alleged case management policy of the Anti- Corruption court.
Acting either out of fear or favour, DPP Abodo has in this particular case exercised her discretionary power to withdraw a corruption case in bad faith, arbitrarily and against the public interest.
It was blatantly imprudent of her to ignore other legitimate prosecutorial options such as beefing up the resources at her disposal including hiring private investigators and private lawyers to help her office expedite the prosecution.
Withdrawing a grand-corruption case of great historical significance on the pretext of concluding a last-minute investigation, moreover of unspecified parameters, is a cure worse than the disease. It has reinforced the deep skepticism that the people of Uganda have towards public institutions that are meant to fight corruption.
In order to overcome that skepticism, Legal Brains Trust has notified DPP Abodo of its intention to invoke the intervention of the High Court to challenge her unlawful use of the discretionary power to enter nolle prosequi in relation to the Basajjabalaba case.
She has been given up to December 20 to provide us with an unequivocal statement of her reasons for the secret, unconstitutional withdrawal of the Basajjabalaba case, as well as the intended date for resumption of the prosecution of the Basajjabalaba brothers.
Should we not hear from DPP Abodo by the said date, we will be compelled to act against her personally for abuse of office and wilful failure to comply with the lawful directives of the President and orders of the superior courts.
The author is the CEO Legal Brains Trust, a democracy and human rights watchdog.
Story Credit: The Observer