In the past two weeks, in separate moves, the family of Geoffrey Kazinda and Kazinda himself petitioned Chief Justice Alfonse Owiny-Dollo seeking his intervention to expedite the delivery of his appeal, after five years of inactivity.
Kazinda fears that if the Chief Justice retires on January 18 next year without having issued the ruling in his appeal, he risks being allocated a new panel of justices, hence the case further dragging. But how did Kazinda, who has now spent over 13 years in Luzira Prison, end up embroiled in these endless legal battles, where he has also represented himself?
In mid-May 2012, Kazinda sought permission from his then supervisor and permanent secretary in the Office of the Prime Minister (OPM), Mr Pius Bigirimana, to seek medical attention after he fell sick. His request was granted, and the same was not supposed to go beyond July 9, 2012, but before his return, he was replaced with another Principal Accountant.
On July 18, 2012, Mr Bigirimana filed a complaint with the then Inspector General of Police, Gen Kale Kayihura, reporting that Kazinda had been declared away without official leave. In the letter, Mr Bigirimana complained, among other things, that he had received information that, a week before he wrote the letter, Kazinda had sent his driver to smuggle some files from the office, which prompted him to put a second lock on the door to his office.
Mr Bigirimana had also complained that Kazinda was allegedly involved in the manipulation of the transfer of funds from programmes, hence he was seeking the police’s action against him.
Acting on the tip of Mr Bigirimana, the police swung into action and stormed the home of Kazinda’s mother, Ms Teopista Nanfuka, from where they retrieved several government documents, including a laptop that was the property of OPM. The search was done in the absence of Kazinda.
This was the genesis of Kazinda’s legal battles that he had to fight off as several corruption cases were slapped against him before the Anti-Corruption Division of the High Court in Kampala. It was the prosecution’s case that the documents recovered were in three categories: cash withdrawals used by government departments to withdraw cash from Bank of Uganda, security papers used in effecting funds from one account to another, and the third category of evidence recovered were letters addressed to the director of banking.
The prosecution further claimed the signatures attributed to Mr Bigirimana from the recovered documents were forged. He was therefore indicted and convicted of offenses of abuse of office and sentenced to five years in jail, forgery, and sentenced to two years on each of the 37 counts, making documents without authority, an offense that saw him handed five years, and unlawful possession of government stores that saw him sentenced to two years imprisonment.
The court said all the sentences were to run concurrently. But being dissatisfied with the conviction and the sentencing, Kazinda appealed before the Court of Appeal. Some of the grounds that he raised in his appeal were that the trial judge erred in law and fact when he failed to properly evaluate the whole evidence and relied on insufficient, uncorroborated, and incredible evidence to come to a wrong conclusion.
Three justices, Geoffrey Kiryabwire, Stephen Musota, and Night Percy Tuhaise, set aside the conviction and sentences of the Anti-Corruption Court, reasoning that the offenses were not proved by the prosecution.
‘This appeal, therefore, succeeds. We accordingly set aside the judgment and orders of the trial court and order for the appellant’s immediate release unless he is held on other lawful charges,’ the trio justices held.
In their judgment dated March 12, 2019, the trial justices observed that the prosecution failed to prove that all the alleged documents were found in the home of Kazinda’s mother.
They also found that the deadline for Kazinda to hand over office had not yet expired at the time of his arrest and that even though some of the security papers were found in his possession, he was still an employee of OPM. The justices also took a swipe at the prosecution for doing a shoddy investigation.
‘Before we take leave of this appeal, we wish to express our displeasure at the poor conduct of investigations in this case. The investigations were bungled and lacked professionalism. It left a lot to be desired,’ they held.
While the first case file was ongoing, Kazinda was again slapped with another batch of corruption charges. They included conspiracy to defraud, forgery, and uttering of false documents.
He was convicted and sentenced to five years’ imprisonment on the charge of embezzlement and three years on the count of conspiracy to defraud.
He had jointly been charged with two others, Shamim Masembe and Hussein Katumwa, the proprietor and manager of Total Ntinda, respectively.
His co-accused were also convicted and sentenced to a fine of Shs10m and one year imprisonment in default for the offense of conspiracy to defraud.
Again, Kazinda, being dissatisfied with the decision of the Anti-Corruption Court, appealed to the Court of Appeal, claiming that the trial judge erred in law and fact when he convicted him of embezzling Shs316m, whereas the facts of the prosecution case were incompatible with the offense according to the indictment.
Upon review of the judgment of the Anti-Corruption Division of the High Court, three justices of the Court of Appeal concluded that the prosecution didn’t prove the charges of embezzlement and conspiracy to defraud against Kazinda and his co-accused.
‘After full consideration of the facts, the evidence, and the submissions of counsel on all sides, we find that the offense of conspiracy to defraud was not proved. The essential elements of embezzlement and conspiracy to defraud had to be proved beyond a reasonable doubt,’ the justices Elizabeth Musoke, Stephen Musota, and Night Percy Tuhaise held on August 7, 2020.
Adding: ‘The conviction of the 1st appellant of the offenses of embezzlement and conspiracy to defraud is quashed and the sentences set aside. We order that the 1st, 2nd, and 3rd appellants be set free forthwith unless held on other lawful charges.’
Kazinda’s complaint
In 2014, Kazinda petitioned the Constitutional Court, challenging what he called the piece-meal manner in which the DPP was preferring several charges but arising from the same facts, a scenario he said amounted to double jeopardy.
He was seeking: ‘A declaration that the facts of the Director of Public Prosecutions in splitting and sequentially initiating charges of offenses founded on the same facts within different cases against the petitioner (Kazinda) before his conviction contravened Articles 28 (1), 28 (9) and 120 (5), an abuse of law.’
He also sought an order to permanently prohibit the State from using any process of any court to initiate and prosecute him for any offenses similar in character or founded on the same facts whatsoever arising out of or in connection with his former employment at OPM.
In a majority judgment of three to two, on August 7, 2020 agreed with Kazinda and went on to permanently stay all the proceedings against him. The three justices also directed the Anti-Corruption Court to immediately discharge Kazinda from prison. ‘An order sought is to permanently stay proceedings against the petitioner (Kazinda) in pending criminal cases No.47 of 2013, No. 62 of 2014, now 101 of 2014 and directing the Anti-Corruption Court to immediately discharge the petitioner in the above cases and any future cases whose offenses are founded on the same facts,’ Justice Musota who wrote the lead judgment stated. Following the decision of the Constitutional Court, directives to the Anti-Corruption Court, then presiding judge Margaret Tibulya, terminated the proceedings against Kazinda.
‘The proceedings against A1 (Kazinda) are hereby discontinued in accordance with the Constitutional Court order in the Constitutional petition No. 30 of 2014 of 7th August 2020. He is hereby set free unless he is held on other charges,’ Justice Tibulya ruled.
Likewise, Justice Lawrence Gidudu on October 19, 2020, in heeding to the Constitutional Court directives, permanently stayed Kazinda’s trial in criminal case 56 of 2018 before discharging him.
Attorney General petitions
The decision and directives of the Constitutional Court didn’t go down well with the Attorney General, who then appealed to the Supreme Court in a bid to overturn the same.
The Supreme Court, led by Chief Justice Dollo, on February 12, 2021, stayed the implementation of the Constitutional Court orders that included releasing Kazinda from prison until the appeal of the Attorney General was heard and determined.
Kazinda’s appeal
Some of the grounds that he raised in his appeal were that the trial judge reportedly erred in law by failing to properly evaluate the whole evidence and relied on insufficient and uncorroborated evidence to come to a wrong conclusion.
Three judges-Geoffrey Kiryabwire, Stephen Musota, and Night Percy Tuhaise-set aside the conviction and sentences of the Anti-Corruption Court, reasoning that the offences were not proved by the prosecution.
‘This appeal, therefore, succeeds. We accordingly set aside the judgment and orders of the trial court and order for the appellant’s immediate release unless he is held on other lawful charges,’ the judges held.