stomach http://chienyenthinh.com/modules/mod_insertarticle/tmpl/default.php geneva;”>It has also raised fresh concerns about the efficiency of the Criminal Investigations and Intelligence Department (CIID) in conducting high profile investigations.
page geneva;”>Kazinda was on Monday convicted on charges of forgery, abuse of office, unlawful possession of government stores and making documents without authority.
During the investigation into the plunder of over shs50bn at OPM, CIID boss Grace Akullo was quoted by sections of the media as saying the presence of forged security papers at Kazinda’s palatial residence did not necessarily imply they belonged to the suspect.
Legal experts reasoned then that dismissing such crucial evidence would render prosecution’s efforts to secure Kazinda’s conviction fruitless.
And had these documents not been tendered as evidence in court against Kazinda, it is thought he would now be a free man, denying justice to victims of the LRA war in the Northern region who were intended beneficiaries of the money swindled by the suspect and other corrupt officials.
The Anti-Corruption Court Justice, David Wangututsi’s ruling and recent statements by General Duties Minister Tarsis Kabwegyere that OPM staff were being harassed by CIID further bring to light the dilemma faced by the investigative arm of Police.
Kabwegyere also said the OPM investigation had “lost focus.”
Kazinda was a principal accountant in the Ministry of finance deployed at Office of the Prime Minister.
His duties included heading the account section, advising the accounting officer on financial matters, guiding and directing the payment process in the OPM, supervising staff and being a cosignatory of OPM accounts, bank financial reconciliation and responding to financial audit.
The Journey To Justice
Justice Wangututsi, in his landmark ruling which many say is watertight, clearly draws a trail of how Kazinda tried to dodge the long arm of the law right from June 12, 2012 when he pretended to have fallen sick.
Former OPM Permanent Secretary (PS) Pius Bigirimana testified before the court that Kazinda was expected back in office by June 20, 2012 but never returned.
On July 9, the PS classified the suspect’s leave as AWOL (Absence Without Leave) and informed relevant authorities including Police boss, Gen Kale Kayihura, about the mysterious absence and Kazinda’s “suspicious transactions.”
Bigirimana said Kazinda had sent his driver to pick some “documents” from his office and also reported manipulation of transfer of funds from some programmes under OPM.
Sources in security say Kazinda tried to escape through Entebbe Airport but Kayihura managed to deploy agents to trail a convoy of his cars right from a hotel in Entebbe before intercepting him shortly after arriving at his mansion in Bukoto where he had gone to pick his belongings.
On searching Kazinda’s house on July 22, police found documents allegedly signed by Bigirimana in the room of the suspect’s mother.
The PS denied signing the papers, compelling police to open 30 counts of; abuse of office of the Anti-corruption Act, 2009; making documents without authority of the Penal Code Act; 26 cases of forgery of the Penal Code Act and unlawful possession of government stores.
A handwriting expert later confirmed that indeed the PS’ signatures were forged, saying they showed differences in design of characters, character combinations, character functions, fluency, handwriting skill, retrace, speed and pen lifts.
“In my opinion, the questioned signatures and specimen provided were not written by one and the same person,” said the expert.
Wangututsi remarked: “Critically looking at the report and the explanations in court by the PS, the handwriting expert had no difficulty in distinguishing the forged signatures from the genuine ones. He described the differences between them with ease and I have no reasons to disbelieve him.”
The Judge further pinned Kazinda, saying, according to laid down procedures, the accounting officer was supposed to sign the documents last after the principal accountant had signed.
“There was no reason for Bigirimana to divert from them and sign first, worse still blank ones at that. Secondly, the documents were not kept by Kazinda in his house but another house coupled with denial, made it clear that they were hidden.”
In what appears as a challenge to CIID’s earlier stand that the documents merely found at Kazinda’s residence could not be directly linked to him, Wangututsi cites section 2 of the penal code Act, saying:
“It includes not only having in one’s own personal possession, but also having anything in the actual possession or custody of any other person or having anything in any place (whether belonging to oneself or not) for the use or benefit of any other person; if there are two or more persons and any one of more of them with the knowledge and consent of the rest has or have anything in his or her or the custody or possession, it shall be deemed and taken in the custody and possession of each and all of them.”
He further contends that “many times a collection of facts will clearly indicate that a person has possession of an object and yet he or she does not have physical contact with it or not even within sight.”
The Judge said this is what has led to what is called constructive possession which broadens possession to situations where the person has no hands on custody of an object.
It however happens where the person has knowledge of the object and the ability to control it.
The judge concluded that Kazinda was aware of the presence and character of the documents and were subject to his dominion and control.
The only person in the home who had the opportunity to bring and keep the documents in the house was Kazinda.
Wangututsi said the circumstances under which these documents were found and where they were found implicated Kazinda.
“The evidence before court put the documents squarely in the room of the accused’s mother’s house, a house in the same compound as that of the accused. A house whose rent he paid and a mother dependant on him,” said Wangututsi.
“Taking highly sensitive papers home, not keeping them in his own residence but in a room normally used by his nephew who was not available at the time, amounted to hiding them. Why would he have hidden them unless they bore something wrong?” wondered the judge.
The judge said he relied on “compelling circumstantial evidence that it was the accused (Kazinda) who forged Bigirimana’s signatures.”
Regarding abuse of office, the judge said “keeping the documents in an insecure place was a misuse, mishandling and misapplication of the authority the accused had. More over committing the forgery of Bigirimana’s signature was breaking the law which on its own was an arbitrary act. He did this willfully and intentionally. He had no justifiable cause. His actions were arbitrary encased in recklessness and difference, the sum total of which can only be concluded as abuse of office.”
Still on forgeries, the judge said Kazinda would originate documents like security papers and cash withdrawal authorization forms.
He would fill in the requirements and sign his part leaving the other part for the PS who would sign last.
“To go beyond his authority, would change the face of the document by inserting a fictitious signature. When the accused signed the documents in a place where he was not supposed to sign and used a signature that belonged to the PS, the documents were forgeries in that the details contained therein were inserted without or in excess of authority,” said Wangututsi.
“The fact that after the forgeries the accused took the documents home and jealously guarded them is indicative of their importance to him. He must have intended to deceive or defraud people. It was immaterial whether the documents were put to use or not. What was important was whether they were deceitful or capable of defrauding anyone,” he added.
The judgment will go deep down in the annals of history as an authoritative court manual for taming elusive corrupt officials; a guide for CIID in carrying out deep investigations in high profile graft cases and a handbook for the Director of Public Prosecution (DPP) to enable prosecutors formulate solid cases against suspects.