On January 4, 2017, one Charles Kasibante preferred charges against Dr Louis Kasekende, the deputy governor of Bank of Uganda.

Kasibante accused Dr Kasekende of ‘conniving or colluding to commit a corrupt or fraudulent practice (sic)’ during the procurement of a public property, and of ‘engaging in corruption or fraudulent practice’ during procurement of public property (sic).

Both counts were preferred under the Public Procurement and Disposal of Assets Act of 2003. The Masaka Chief Magistrate’s court sanctioned these charges on January 6, 2017. The matter was heard on January 19, 2017 and finally disposed of by the ruling of the chief magistrate on January 24. So far, as I am aware, there is no pending appeal.

RIGHT MOTIVE

It is Mr Kasibante’s right to prefer private prosecution against anyone he believes to have committed an offense under the laws of Uganda. But to do so, one ought to be driven by the right motive and decency, lest we abuse not just a vital tool for holding public servants accountable, but also injure or otherwise destroy the integrity and repute of innocent members of society.

This is why I think it is important to revisit this case. Allegations of corruption are as serious as they are sensational. They must not be brought with malice, preferred casually or taken lightly. I have read the ruling of the chief magistrate and I have attempted to find the facts underlying this case. I am convinced that Mr Kasibante’s charges were not preferred with good intention.

These are the facts: on June 28, 2006, Bank of Uganda, through Bageine & Company Limited, executed a sale agreement for the purchase of property on plots 15-17 Birch avenue from M/s Laston Hotel Ltd. At the time, M/s Laston Hotel Ltd had a 10-year lease on the property.

On January 22, 2007, Bank of Uganda was then registered as proprietor of the said property. Sometime in 2009, the bank’s lease was then extended for a term of 30 years and subsequently varied to 99 years.

Subsequent to this variation, the bank then sought approval of its development plans for the property. It was at this point that district officials declined to approve the said plans.

As a result, there were various engagements between the bank and Masaka district officials. The bank produced evidence to demonstrate that it lawfully acquired this property and that the district had no legal interest in the said property.

It is also noteworthy to add that there was a comprehensive investigation by the inspectorate of government of the district’s refusal to grant approval of the bank’s development on this land.

The inspectorate’s findings are enumerated in a letter of January 5, 2015 written to the town clerk of Masaka municipal council to which the comprehensive report of the investigation was attached. The inspectorate, in its letter and report, recommended that Masaka municipal council reconsiders its decision and allows Bank of Uganda to develop the impugned land.

On February 10, 2015, Masaka district authorities approved the bank’s development plans. The bank also subsequently converted its leasehold interest to a freehold interest, a prudent action, in my view.

The bank’s freehold interest was registered on September 25, 2015. Following these developments, the bank commenced development of the property in November 2015.

INTERRUPTED

Towards the end of 2016, Mr Jude Mbabali, as the Masaka LC-V chairman, interrupted the bank’s development on the land on allegations that the property was acquired unlawfully. He was quick to take to social media to castigate Dr Kasekende. This fact considered, together with the fact that his law firm now represents Kasibante in the related civil matter, makes this case “curiouser and curiouser.”

The bank convened a meeting with the district officials to which Mr Mbabali was invited. He elected not to attend. The district authorities in attendance allowed the bank to proceed with its developments. The bank officially communicated this position to its contractors who resumed their work as contracted by the bank. It was at this time that Kasibante elected to prefer private prosecution against Dr Kasekende.

I have considered both the pleadings and the ruling of the chief magistrate. I believe this prosecution was not just misconceived; it was in bad faith, and a complete abuse of the court process. Here are a few reasons.

First, Kasibante charged Dr Kasekende in his personal capacity. This was fundamentally wrong. The institution, and not the individual, undertook the procurement about which Kasibante complained.

Second, at the time of the purchase of the property, Dr Kasekende was not employed by Bank of Uganda. He was working with the African Development Bank as chief economist, where he worked until 2010.

Dr Kasekende commenced his tenure as deputy governor on January 18, 2010. Kasibante states in his particulars of offense that Dr Kasekende acted in his capacity as deputy governor. This was simply not possible.

Third, the charges themselves were so materially defective that the chief magistrate spilt many [units] of ink on this matter. I will just add a few observations.

The charges do not even relate to the section under which they are preferred. Section 95 under which Kasibante’s charges are preferred relates to: (i) refusal to give information or documents required by the Public Procurement and Disposal of Assets Authority (PPDA); (ii) interference or exertion of undue influence on any officer or employee of the PPDA; and (iii) connivance or collusion to commit a fraudulent or corrupt act.

In other words, the section assumes that one misrepresented facts in order to influence procurement. If Kasibante knows how Kasekende, who was not employed by the bank at the time, could have engaged in such practices, his complaint does not show this. To a curious bystander such as myself, this is just impossible.

MISGUIDED

But why then, with the advice of counsel, would Kasibante prefer such a complaint? Until he offers me a better explanation, I believe Kasibante was misguided by his malice and ill-intent. Further, Kasibante’s lawyers ought to have known that once the DPP writes to take over the matter, the course of action is clear.

The histrionics of applying for an arrest warrant and attempting to sustain charges that were clearly not going to proceed were thus unnecessary. All concerned parties, including the chief magistrate, would have done well to consider the ruling of Justice Joseph Mulangira in Uganda v. Kale Kayihura & Ors Cr. Rev. Cause 36 of 2016.

If they had done so, they would have noted that once the DPP indicated that they were filing a notice of withdrawal, even the very subsequent hearing and ruling were, plainly, moot. The said Justice Mulangira’s ruling was never appealed and, for now, contains the statement of the law.

In fact, it is not necessarily with the flaws in Kasibante’s complaint that I take the strongest issue for, as one of my former employers once said, everyone has a right to be wrong.

The right we do not have is to gamble with other people’s reputations. In the advent of both social media and a flourishing flow of information on the internet, there is no telling to what extent a matter so flawed and misconceived as this would tarnish Dr Kasekende’s image.

Kasekende is a man I consider to be not just of impeccable repute, but also a very key contributor to Uganda’s economic stability. When we target such persons for the political expediency of cheap popularity, we discourage the honest men and women who wake up each day to play their part in building the nation.

We also discourage those of matching caliber who might join the not-so-easy endeavor that is government service, or those with the ambition to aspire to replace them someday.

It is for these reasons that I believe Kasibante owes Kasekende a public and unequivocal apology.

I am aware that on January 11, 2017, Kasibante and two others filed a civil suit in this regard. The pleadings are virtually identical; save for the fact that now Kasekende is not a named defendant. This is what Kasibante should have done in the first place.

But then this brings me to another concern: we, as practicing lawyers, owe it to our clients and to society to counsel them against abusing the judicial system the way that, I believe, Kasibante did with his now decided private prosecution.

When we as advocates aid the growth of malicious abuse of the judicial system, we unwittingly contribute to restraining the very tools of our trade and, by a short route, lead this country to chaos.

robert.kirunda@gmail.com

The author is a practicing advocate of the courts of judicature.