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NSSF’s Jamwa loses appeal against 12-year jail sentence

Court of Appeal upheld David Chandi Jamwa's earlier 12-year jail sentence

Four years after his appeal application was heard, David Chandi Jamwa, the former director of National Social Security (NSSF) is finally going start to serve a 12-year sentence given to him by the Anti-Corruption court in 2011.

Jamwa was found guilty of causing Shs 2.7 billion financial loss to NSSF in February 2011 by the Anti-Corruption court.

Unsatisfied with the ruling, Jamwa appealed the sentence, applied and was granted bail on June 24, 2011 by Court of Appeal judge Augustine Nshimye. Since then, Jamwa has enjoyed unfettered freedoms even when the Court of Appeal upheld the sentence in 2015.

Before he could deliver the judgment on behalf of two other Court of Appeal judges; retired deputy chief justice Steven Kavuma and Ruby Opio-Aweri, who were on the panel, Justice Kenneth Kakuru first explained as to why they had taken long to deliver their judgment.

On October 23, 2014, the Court of Appeal presided over by justices Kavuma, Opio- Aweri, who has since been promoted to the Supreme court and Kakuru, after several adjournments finally heard Jamwa's appeal.

Though the trio indicated that judgment was to be given on notice, it was only today, Monday that the judgment was delivered under such queer circumstances, compelling Justice Kakuru to offer a blunt explanation, which was essentially a veiled attack on his former boss, Kavuma.   

With a lot emotion, Justice Kakuru explained that the judgment was supposed to be delivered about two years ago in 2015, since he and Justice Opio-Aweri who was leaving having been promoted to the highest court in country, had already finalized writing their judgment.  

Upon writing their judgment, the blunt-speaking Kakuru, said that in accordance with the rules of the Court of Appeal, they handed it over to Justice Kavuma since he was the deputy chief justice at the time, such that he could set a day to deliver the judgment. From that day, Kakuru said they never heard anything from Justice Kavuma.  

“We expected him [Justice Steven Kavuma] to write a judgment,” started Justice Kakuru, who sounded bitter, “but he didn't write his judgment, that's why we have decided, that, since he didn't write his judgment, it means he was opposed to our judgment. So we are proceeding with our judgment because it's the majority judgment.”        

ENTER MPANGA

As Kakuru was finalizing his initial remarks and preparing to start reading the long-awaited judgment   David Mpanga, who is Jamwa's lawyer, was on his feet, preparing to utter some words but the impatient judge quickly shot him down.

“Can you just sit down,” Justice Kakuru said with authority as Mpanga obliged.
“I don't how a lawyer [Mpanga] was able to know the judgment before it's read. I don't know how you came to know that it's only two judges who wrote the judgment.”              

Since Justice Kakuru was insinuating that Mpanga had behaved unethically or engaged in some sort of malfeasance, the lawyer wasn't about to sit back and let the judge have a field day. He rose up to explain himself but again he was ordered by Justice Kakuru to resume his seat.  

“Please, sit down,” Kakuru barked. “If you have any problem with this judgment you will appeal”, Kakuru said.   

With Mpanga sorted, Kakuru now proceeded to give the real reason as to why he had come to court - reading the majority judgment. There was no dissenting judgment, he said since Justice Kavuma had lived up to his billing of being controversial; after all he did the unthinkable of retiring without writing his minority judgment.

In determining Jamwa's appeal, Kakuru and Opio-Aweri first dealt with Mpanga's argument in which he attacked, Jamwa's prosecutor, the Inspectorate General of Government (IGG). Mpanga had argued that the IGG had wrongly charged his client under Section 20 of the Anti-corruption Act.  

In Section 20 of the Anti-corruption Act, Mpanga contended that insurance companies, public bodies, customers of banks or credit institutions are not within the definition of causing financial loss, which Jamwa was found guilty of by the Justice Katutsi back in 2011.

Having been charged with the offence of causing financial loss, on account of being employed by NSSF and doing an act which he knew or had reason to believe would cause loss, Mpanga submitted that Jamwa was charged with an offence that is no longer known in law, as it does not fall within the ambit of Section 20 of the Anti-corruption Act.

But the two judges rejected this argument, saying that the said section when construed in general terms, would clearly include loss caused to an insurance company or a public body.

They went on to say that since Jamwa, by time he committed the offences, was an employee of NSSF, a body established by an Act of Parliament, they came to the conclusion that he was properly charged under the section 20 of the Anti-corruption Act.

“Counsel [Mpanga] for the appellant' interpretation of the section though ingenious, is not tenable”, they ruled as they rejected Jamwa's first ground of appeal. “We accordingly reject it.”   

BONDS

Then they came to the gist of the case, in which Jamwa, who, was present in court clad in Kaunda suit is being accused of between September 2007 and November 2007, in Kampala district of selling off several government bonds held by NSSF before their maturity dates to now defunct Crane bank.

NSSF had purchased the 3-year bonds in issue at Shs 34 billion and apparently was guaranteed to realize Shs 39 billion after a period of 3 years. In their analysis of this issue, the appellant judges pointed out that Justice Katutsi in his evaluation of evidence, found that Jamwa, on October 3, 2007 had written to Crane bank giving it the mandate to sell the 3-year old government treasury bonds held by NSSF whose face value was Shs 39 billion.  

A day later, on October 4, 2007, according to court documents, Jamwa approved a request to sell the same bonds at Shs 36 billion through Crane bank and that the bonds were eventually sold to the same bank before maturity date.  

Though Jamwa's first line of defence was that there was no loss occasioned to his employer NSSF, as the price at which the bonds were sold was still higher than that at which they were bought, Kakuru and Opio-Aweri concurred with Katutsi in rejecting this argument as ridiculous.  

“We are in total agreement with learned trial judge that the sale of the said bonds before their maturity date occasioned financial loss at NSSF,” they ruled.

“Even if there was justification for the sale and we have found none, the sale of bonds before maturity would still have constituted a loss to the holder [NSSF].”    

ABUSE OF OFFICE

Though Katutsi who retired a year ago acquitted Jamwa of the charge of abuse following a cross -appeal by the IGG, the Court of Appeal court added insult to injury by finding him guilty of that charge too.

“Although the minister had advised the board to raise money in the financial year 2007/ 2008, there is no evidence that at the time the bonds were sold in October 2007, NSSF was in such dire need of money that it could have not waited for a few weeks for the bonds to mature. The evidence on record is to the contrary,” the duo ruled, “We find that the appellant therefore abused the authority of his office when he acted the way he did as already outline above.”  

In respect, to the charge of abuse of office, the judges held that, Jamwa will serve a sentence of four years which he will serve concurrently with the 12 years which are in respect to the charge of causing financial loss.         

dkiyonga@observer.ug    

Comments

0 #1 Lakwena 2018-01-16 07:58
In other words, what a tragedy for poor Jamwa; that he now has to spend the best part of his life behind bars.
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0 #2 miki 2018-01-16 10:08
This is not justice. Mr. Jamwa got lynched by two men in judicial robes and gavels. The case was heard by a three judge panel.

But the final decision is based on a partial judgement because the third judge neglected to write his opinion? How can Mr. Kakuru think that this is justice?

Two opinions are still partial judgment in this case regardless of the conclusions therein. A partial judgment should not be used to convict anybody.

This is a mistrial due to indiscipline and abuse of court process by a judicial official. Re-assigned this case to another panel of judges or just let Mr. Jamwa walk. Without Kavuma's written opinion, the hearing never happened.
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0 #3 miki 2018-01-16 10:19
if the requirement is three opinions, two opinions cannot be a majority if the third opinion never materialized.

This is gross abuse of judicial power first by Mr. Kavuma who did not write an opinion or even cared to explain, and by Mr. Kakuru who seeks to twist both the law and common sense by trying to assert that two out of two is the same as two out of three. I am sure that Ugandans want justice.

But this is not justice. It is something else. And whatever it is, it is not good.
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0 #4 miki 2018-01-16 18:31
A judicial official who accepts to sit and hear a case is obliged to deliver a judgment.

This can't be discretional as Justice Kavuma did by choosing not to render an opinion or even an explanation. Partial hearing of a case is never treated as whole case.

Partial judgment is as defective as partial testimony in determining a case. The appeals should not have rendered a judgment under these circumstances. Instead it should have 'refused' to have an opinion on the case, and then refer it back to the original court that determined it in the first place.

This is legal and proper in many judicial systems. And it is legal. Conviction based on partial judgments should never be legal. It is simply blatant abuse of judicial process.

It is also gross abuse of the suspect's rights to a free and fair trial. By the way, has justice kavuma been sanctioned for his conduct in this case?
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