The Anti-corruption court will this week rule on whether it stays the trial of businessman Apolo Senkeeto for his role in the Mukono-Katosi road fraud in which government is said to have lost over Shs 24 billion.
Though he gave his defence about a month ago, Senkeeto through his lawyer Peter Mulira on Monday, asked Justice Lawrence Gidudu the head of the Anti-corruption court, to refer the case to the Constitutional court since his trial at the anti-graft court raises constitutional issues, which, he says that should interpreted by the Constitutional court.
The lawyer told Justice Gidudu that he has no option but to refer the case to the Constitutional court since the constitution spells it out in mandatory terms that “once issues concerning constitutional interpretation are raised they should be referred to the Constitutional court for interpretation.”
First, Mulira argued that there’s a need to refer to the case to Constitutional court since the Inspector General of Government (IGG) is prosecuting his client in a criminal case, yet according to the lawyer, there was no complainant against Senkeeto as the penal code envisages.
Though the IGG, Irene Mulyagonja claimed that it was the commissioner of patriotism Lt. Col. Henry Masiko, who lodged this particular complaint against Senkeeto, Mulira said such a move is unknown in law.
“The commissioner of patriotism cannot lodge a complainant against my client,” Mulira argued, “So we need the Constitutional court to interpret if one can be prosecuted without a complainant.”
Another issue that Mulira says that Constitutional court should interpret, is whether the IGG can prosecute criminal offences when the Directorate of Public Prosecutions (DPP) hasn’t sanctioned the same.
According to Mulira, article 120 of the Constitution vests the DPP with powers to prosecute all criminal matters and according to him, the IGG had to get the consent of that office before proceeding to prosecute Senkeeto, which she didn’t do.
Mulira also reproduced his arguments that he made a couple of months back when he was arguing that Senkeeto had no case to answer. Mulira, who remains unfazed despite Justice Gidudu dismissing this submission earlier, insists that the case should be referred to the Constitutional court because the court needs pronounce its self on whether the IGG case prosecute private individuals such as Senkeeto.
The veteran lawyer says that only the DPP can initiate criminal charges against private individuals since the IGG’s powers are only restricted to prosecuting public officials.
Justice Gidudu, in October, while dismissing Mulira’s arguments that the IGG cannot prosecute private individuals, cited the Constitutional court judgments of Jim Muhwezi and 3 others of 2008 Vs the Attorney General and that of Syston Kekurutso and another Vs Attorney General of 2007 saying that the IGG has powers to prosecute private individuals.
“Without much ado, after perusing the two decisions above, I have no doubt that the objections regarding the powers of the IGG to charge accused five (Senkeeto) who is a private businessman to be without merit because he is on a joint charge with public officials and funds complained of were public funds from government,” Justice Gidudu ruled about three months ago.
Tellingly, Mercy Ninsiima, the IGG’s prosecutor, asked Justice Gidudu to let this particular trial go on, accusing Mulira of recycling the submissions he made during the “no case to answer” session which were dismissed by Justice Gidudu.
Ninsiima answered Mulira’s query of there being no complainant against Senkeeto arguing that the IGG can initiate criminal proceedings without being tipped off by any complainant.
In the case, Abraham Byandala, the former minister for Works and Transport, is charged with abuse of office, disobedience of lawful orders and influence peddling. His co-accused include; Ssebbugga Kimeze, a former acting executive director of Unra; Joe Ssemugooma, Unra’s former acting director for finance and administration, and Marvin Baryaruha, the former Unra legal counsel.
Senkeeto, who introduced himself as the country representative of Eutaw, and Isaac Mugote, a former Housing Finance bank employee, are accused of aiding Eutaw to forge a bid security document that helped the company win the contract. Also on the charge sheet is Wilberforce Senjaako the former Unra regional accountant.