Kampala, Uganda | THE INDEPENDENT | The Court of Appeal has quashed the conviction and 30 months’ jail term that was handed to Dr. Yovantino Akii Agel, the former medical superintendent and director of medical services at Gulu Regional Referral Hospital.
Dr. Akii Agel together with the former accountant of the hospital Geoffrey Omongoo were on April 23rd, 2015 convicted by the then Anti-Corruption Court Judge Catherine Bamugemereire on charges of abuse of office and embezzlement of 3.6 billion shillings.
According to the evidence before court, the said monies were allocated by the government as capital development funds for two financial years 2008/2009 and 2009/2010 for the rehabilitation of Gulu Regional Referral Hospital.
However, not happy with the sentence, the convicts through their lawyers led by Macdusman Kabega told court that the learned trial Judge erred in law and fact when she convicted them solely on the prosecution evidence without regard for consideration of their defense among other grounds.
Court heard that the convicts diverted some of the funds on emerging issues like rehabilitation of the medical and surgical wards which had been last renovated in the 1930’s.
That when renovations began, they discovered that the structures were weak and couldn’t take the weight of a new roof as had been planned and to that effect, the district engineer recommended that the walls of the buildings be demolished and rebuild which necessitated extra works that had not been included in the original bill of quantities.
The emerging issues included the walk way between the theatre and maternity ward, toilets, generator house, and electrical wiring which they said the prosecution witnesses confirmed that the public had benefited from these services.
As such, the convicts who were out on bail asked Court of Appeal to overturn their sentences and set them free saying they didn’t embezzle anything. However, in their judgement dated September 17th 2021, the Court of Appeal Judges comprising of Kenneth Kakuru, Muzamiru Mutangula Kibeedi and Irene Mulyagonja agreed with the convicts and set them free because there was insufficient evidence pinning them of the crimes in issue.
The judges have ruled that after the rehabilitation of the structures and improvement in the facilities availed to them, the level of service delivery increased in the area as a result of the rehabilitation and construction of facilities in the financial year 2009/2010 as compared to 2008/2009.
They noted that the outpatient contacts increased from 47,459 to, 73,608, overall admissions from 12,414 to 18,929, surgical operations from 5,309 to 7,610 and specialized services increased from 35,285 to 75,000 as indicated in Dr. Akii’s handover report.
According to the Judges, the said figures do not indicate that the beneficiaries of the project were prejudiced, instead the Judges say they benefited from the works though they acknowledge that some of the processes were flawed.
“We therefore find that although the 1st appellant/Dr. Akii authorized spending of monies from the capital development fund on activities that had not been budgeted for and without approval of the ministry of finance, the use of the funds was not prejudiced to any person named in section 11 (1) of the Anti-Corruption Act, but instead beneficial. So was the increased expenditure that led to the ministry of finance allocating more funds to the project than was initially budgeted and planned for. We therefore find that the Judge erred when she convicted the 1st appellant for abuse of office.
On the former accountant’s part, the court has ruled that several documents relating to the alleged theft of funds such as bank statements and cash books were not placed before them and were neither included on the record of proceedings nor be traced on the court file of the Anti-Corruption Court.
“It was therefore not possible for us to reappraise the evidence and confirm that the prosecution proved beyond reasonable doubt that the 2nd Appellant indeed stole Ugx 135,720,624 from Gulu RRH,” reads the judgement in part.
Accordingly, the Judges have set aside the conviction and sentences of the two saying that the trial Judge Bamugemereire did not have sufficient evidence to arrive at her decision.
But before taking leave of the case, the Judges observed that the practice of criminalizing every irregular administrative act has no legal basis at all.
“In such cases, accounting officers and other public servants are entitled to administrative hearings before criminal charges are brought against them. This ought to be a prerequisite to a police complaint and or an investigation by any of the relevant bodies”, reads the judgement wrote by Justice Kakuru.
According to Justice Kakuru, where money is found to have been “lost”, the public standing orders provide for recovery of the money from a public officer through deductions from their monthly salary and not every wrong decision is necessarily criminal.
“Why would a doctor be sent to prison for having used money for staff houses to build an Intensive Care Unit? That officer should face only administrative disciplinary measures such as demotion, not criminal proceedings for alleged corruption”, said Kakuru.