Bicycle Scam: Kashaka's Lawyers Present Fresh Application to Challenge Conviction

The lawyers representing jailed former Permanent Secretary to the Ministry of Local Government John Muhanguzi Kashaka have presented a new application seeking to overturn his conviction.

The lawyers led by Macdusman Kabega on Tuesday told a panel of five Supreme Court Justices led by the Chief Justice Alfonse Owiny-Dollo that one of the Judges who presided over Kashaka's appeal case should have recused himself from the matter since he was privy to the evidence that was adduced in the trial. 

Other Justices are Rubby Opio Aweri, Faith Mwondha, Percy Night Tuhaise and Mike Chibita.  

In 2014, Kashaka and three other former employees of the Local Government Ministry were convicted by the then Anti-Corruption Court Judge Catherine Bamugemereire for causing government financial loss of 4.2 Billion Shillings.

The others included Former Principal Accountant Henry Bamutura who is equally serving a ten-year jail term and Assistant Commissioner in Charge of Policy and Planning Sam Emorut Erongot who is serving 13-years and Adam Aluma, who had been sentenced to 1 year and nine months but has since served the sentence.  

They were found guilty for the different roles played in contracting a sham company, Ammam Industrial Tools and Equipment Limited (AITEL) to purchase 70, 000 bicycles from India. The bicycles were to be used by parish and Local Council chairpersons in the 2011 general elections. But to date, no single bicycle has ever been delivered.

Bamugemereire sent them to jail, barred them from holding any government office for ten years and ordered them to compensate the government for the loss. 

However, the convicts challenged their respective sentences and conviction before the Court of Appeal, arguing that it was harsh and not valid in law.

Among other grounds, they also argued that the lower court judge erred in law and fact, when, she failed to apply provisions of the PPDA Act in determining the ingredients of the offense of financial loss committed by the appellants, as a result of the procurement transaction. 

But the Court of Appeal comprising of Justice, Elizabeth Musoke, Christopher Izama Madrama and Hellen Obura upheld the conviction and subsequent sentences which forced the convicts to appeal in the Supreme Court.

However, when the matter came up for hearing on Tuesday, the lawyers representing the convicts led by Kabega told the Supreme Court Justices that Justice Madrama should have recused himself from the case.  This was on grounds that Madrama had presided over a matter at the Commercial Court where 90 percent of the evidence that was used to pin Kashaka and the group in the criminal case was adduced. 

Court heard that sometime back before Kashaka was convicted, the Attorney General filed a case against Niko Insurance Uganda Limited that offered the performance guarantee of 470,000 dollars that the suppliers of the bicycles were required to come up with and when AITEL failed to supply, the Attorney General had to sue the Insurance Company that had offered the guarantee and documents like the charge sheet with the names of the convicts, procurement and contracts were brought in that case as exhibits.

Court further heard that Niko Insurance Company said in its Defense that it was not liable to pay because the local government employees were involved in the fraud. 

However, after looking at the evidence in the case, Justice Madrama held that the government employees were not criminally liable and therefore it was the Insurance Company to pay.

As such, Kabega noted that during the case at the Anti-Corruption Court, Kashaka and others were found guilty and that 90 percent of the evidence used was similar to that of the commercial court where Madrama said they were not liable before upholding their conviction when he again sat in the appeal at the Court of Appeal.

Kabega who was accompanied by a team of other lawyers including Wandera Ogalo, Evans Ochieng and Sandrah Namigadde accordingly asked the court to rule that Madrama shouldn't have presided over the matter.

But the Assistant Director of Public Prosecutions Josephine Namatovu said that much as the application is presented as additional evidence, it's an application to raise bias against Justice Madrama.

After listening from both sides, the Chief Justice said the hearing of the consolidated appeals cannot proceed and the ruling on this application will be on notice.

If this application succeeds, it means that the appeal cannot go on at the Supreme Court and either the file has to be sent back to High Court for a retrial or the convicts who attended court via video conferencing except for Bamutura who is out on bail will be set free.