Kazinda has faced trial for constructive possession of financial instruments, forging receipts and invoices, false accounting, making fraudulent payments, conspiracy to secure money outside authorized disbursement procedures, and living a standard of life beyond his known source of income. The trials started in 2012, in various courts.
But in 2014, Kazinda ran to the Constitutional court seeking, among other things, to declare that the act by the directorate of public prosecutions to split the cases and sequentially initiating charges of offences founded on the same facts for which he was earlier on convicted contravened the constitution.
With a 3-1 majority decision, the court agreed with Kazinda that all trials he faced after his conviction were illegal.
“...a person cannot be prosecuted for the same offences for which he has previously been acquitted or convicted. Similarly, a person cannot be convicted twice on two different charges arising from the same conduct unless they are significantly different,” justice Stephen Musota noted in his lead judgment.
Musota who granted all the declarations sought by Kazinda ordered the Anti-Corruption court to immediately discharge Kazinda in all pending criminal cases and any future cases whose offences are found on the same facts arguing that splitting charges of offences founded on the same facts caused double jeopardy, contrary to provisions of the constitution.
“The numerous trials for the offences similar in character amounts to deprivation of the right to a fair hearing and contravenes the constitution."
Justice Cheborion Barishaki also faulted the DPP noting that they should have joined all the offences in one trial. “Deliberately protracted piecemeal trials without a reasonable explanation of why it is being done offend the constitution,” he argued.
But justice Kenneth Kakuru noted that the defence of double jeopardy ought to have been raised at the trial as an objection to the indictment thus finding nothing in the application that required constitutional interpretation.
“He is still at liberty to raise the issues at the trial court. I accordingly find that this court has no jurisdiction to entertain this petition which is clearly misconceived,” Justice Kakuru argued.
Additionally, the court permanently prohibited the state from using any process of any court to initiate and prosecute Kazinda for any offences similar in the character with those found on the same facts whatsoever arising of or in connection with his former employment as the principal accountant at the OPM.
With victory in his hands on this round, Kazinda was returned to Luzira prison, as he awaits judgment in yet another appeal which is due on August 11.