By Independent Team
On the morning of August 26, 2010, the Special Investigations Unit (SIU) of the Uganda Police led by its then head and now Assistant Inspector General of Police (AIGP) in charge of the Criminal Investigations and Intelligence Directorate (CIID), Grace Akullo, raided the Kololo home of Kampala lawyer Bob Kasango and arrested him following allegations by the Queen Mother of Tooro Kingdom, Best Kemigisa. The arrest was on the directives of the Inspector General of Police Gen. Kale Kayihura who acted in the belief that President Yoweri Museveni had directed him to arrest Kasango following a complainant to the President by the Queen Mother that “Kasango had received the sum of Shs4.5 billion on her before and diverted it all to his personal use.”
The following day, The Monitor newspaper ran a front-page story detailing the reasons for the arrest. The then spokesperson of the Uganda Police, Ms. Judith Nabakooba stated with finality and authority that, “he (Kasango) received all the money and did not pass on even one shilling to the Queen Mother”.
Following an investigation by The Independent, it came to light that what in fact transpired was that Kemigisa and her lawyer met the President in Jinja and complained that Kasango had taken all her money. According to a reliable source at the Jinja meeting, the President promised to “look into the matter and take necessary action”. Noting that the President was not acting at all, the Queen Mother and her lawyer approached the then Principal Private Secretary (PPS) to the President, Grace Akello, and asked her to transmit the “President’s directive” to Gen. Kayihura. Ms. Akello declined, saying she only acts on the direct orders of the President and not through third parties. Frustrated that no action had been taken one week after the Jinja meeting, the Queen Mother and her lawyers went directly to the IGP and relayed the “Presidential Directive to arrest Kasango”. Kasango was subsequently arrested.
In a later interview with The Independent, Gen. Kayihura revealed that he did not receive any directives from the President and that no such directive was in fact ever made but he believed and trusted the Queen Mother and her two very senior lawyers to be honest and truthful in what they were relaying to him as having transpired in the meeting with the President. Gen. Kayihura also revealed that the “decision to arrest Kasango was one of the most difficult ones I ever had to make, because Kasango had been in my office two days prior and we had discussed an important matter of national significance on which we were to work together”. On September 10, 2010 Kasango was charged in the Buganda Road Chief Magistrate’s Court with three counts of forgery, uttering a false document, and theft by agent. After four years and four months, 47 court sessions and 9 prosecution witnesses, the court handed down its verdict on January 30, 2015. It acquitted Kasango on all three counts.
In his ruling, the Magistrate – Simon Kintu who was the fourth judicial officer to preside over the case, found that the prosecution had failed to prove beyond reasonable doubt any of the offenses against Kasango and accordingly acquitted him. He reasoned that the “inconsistencies and contradictions in the prosecution case and the testimony of the Complainant (Kemigisa) were so grave and glaring that the evidence did not meet the standard of proof required to sustain a conviction in a criminal case”.
Kemigisa had made a statement to the Police on August 26, 2008 and positively stated: “Ever since I gave instructions to Mr. Kasango to recover money on my behalf from Government in respect of 11 parcels of land that belonged to my late husband, he has never paid me anything…” In the same statement, she denied ever “signing any agreement for legal fees with Kasango…. But that Kasango was to receive the money, pass it all to me and I would then pay him later…”
In the charge sheet, it was alleged that Kasango stole the sum of Shs3.3 billion from the Queen Mother, leading the Magistrate to wonder in his judgment, “why if the accused received Shs4.5bn and paid nothing to the Complainant and had no authority to deduct his fees at source, is he being charged with the theft of only Shs3.3 billion and not Shs4.5 billio?” He contended that the prosecution failed to answer this question, raising doubt in the accusation.
Furthermore, the magistrate noted that in November 2008, the Queen Mother filed a Civil Suit against Bob Kasango in the High Court at Kampala in which she claimed a sum of Shs2.6 billion only. The Magistrate stated that these are glaring inconsistencies that the court would not turn away from and could only weaken the prosecution case against the accused. The court noted as well that Kasango presented certified bank documents showing the transfer of Shs950 million to Bank of Baroda into the account of Haba Group, a company owned by businessman Hassan Basajjabalaba. These monies were transferred from Kasango’s personal accounts and many weeks before he received payment from the Government of Uganda on behalf of the Complainant.
The court noted that in her testimony, the Complainant alleged that she gave Kasango this money in cash to pay Basajjabalaba but also noted that she provided no evidence of such and that Kasango’s bank statements showed clearly the trail of money and there was no large deposit of cash in the period question and there was a Sale Agreement too and an acknowledgment of receipt of the money from Kasango by Basajjabalaba’s lawyer, Obed Mwebesa and his personal assistant Ms. Kellen Karemera. The court was inclined to believe Kasango who stated that the Queen Mother requested him to pay Basajjabalaba because she did not have money at the time and when she would be paid, he (Kasango) should offset the amount. When the Ministry of Justice paid the first installment of Shs1 billion to Kasango, he deducted the sum paid to Basajjabalaba. The court accepted his version of facts as more believable and supported by documentation.
The court then found issue with the Statement of the Complaint made to Police on August 26, 2008. She denied receiving any money from Kasango, but two months later, made an additional statement acknowledging receipt of Shs720 million. When questioned as to the contradiction, she stated in her testimony that she had “forgotten that Kasango had paid her this money”. The Magistrate wondered how one could forget receipt of such a large sum of money in a dispute of this nature?
Ms. Kemigisa also denied receipt of Shs 300 million from Kasango on January 16, 2009 on her account with DFCU Bank. She stated in her testimony that it was a loan from DFCU Bank to her that was paid to Kasango and then he deposited it in cash on her account!
The Queen Mother swore an Affidavit under Oath in the Civil Suit denying knowledge of the Shs300 million. The court noted that under cross-examination, and when she was confronted with her own bank statements that indicated that the loan and the Shs300 million were separate and different transactions and that the bank never remitted the amount to Kasango but credited her account directly, she changed her story and admitted the Shs300 million as money paid to her by Kasango.
In further pointing out the contradictions in Kemigisa’s testimony, the court noted that she denied ever signing any agreement with Kasango to pay him any fees. Again, when she was confronted with copies of the Retainer Agreements, one for Shs600 million and the other for Shs1 billion, she changed her story and admitted the lesser Agreement of Shs600 million and denied the one with the larger sum. The court castigated the prosecution for failing to subject the Agreements for handwriting examination since Kemigisa had denied them previously. The court emphasised that the prosecution was attempting to shift the burden of proof to the accused and yet this burden never shifts in criminal cases. It noted that the prosecution carried away the entire file from Kasango’s office in August 2008 and produced the file in court. They took 294 documents from Kasango including the Retainer Agreements but failed to subject these documents to expert scrutiny.
The court made reference to the testimony of prosecution witness number 7, Owor, a Police officer who under cross-examination by Kasango, described the Queen Mother as “not entirely reliable” and further stated that “hypothetically, if we had the facts we know now, I don’t think we would have charged the accused with these offenses”.
The court further noted that the Queen Mother even denied her own bank statements that had been procured by order of court made by then-trial magistrate Eleanor Khainza. Magistrate Kintu wondered, why if the Complainant denied these statements, the prosecution made no effort to verify with the banks if indeed they were her statements. The Queen Mother made blanket denials of every document proved against her but offered no alternative explanation. The court observed that on the basis of the documented payments made by the accused to the Complainant, the Complainant received a total of Shs3.46 billion from the accused. In conclusion, the court found that all these inconsistencies and contradictions in the prosecution meant the case did not meet the required standard of proof beyond reasonable doubt and accordingly acquitted the accused on all charges.
In a bizarre turn of events, the Prosecution Witness number 7, Mr. Owor, a Police officer, admitted to taking originals of documents and the entire file from the office of Bob Kasango at Workers House. He also admitted to taking the originals of the Retainer Agreements, but when prosecution sought to introduce them in evidence, they could not be traced and they were declared “missing”. Curiously, the Retainer Agreements that had also been deposited with the Law Council as required by the Advocates Act, are also “missing” as per a letter written by the Ag. Secretary of the Law Council – Margaret Apiny. The “loss” of the originals of the Retainer Agreements by the Prosecution/Police and also from the Law Council raises a serious question as to whom such a loss favours?
“Appeal” to the President
The Independent has also learnt from reliable sources that on Jan. 25, while President Museveni was on a tour of Tooro the Queen Mother “complained” to him that she did not get justice because according to her, “Kasango has bribed all the Magistrates who handled the case and the entire judiciary”, and that she would not get justice even in the High Court. The Independent has also learnt that Queen Mother’s lawyers subsequently went to court in a jubilant and buoyant mood and telling Kasango’s colleagues that “Kasango should settle this matter before the judgment because the President has directed his conviction”. The Independent has further learnt that after the judgment, the Queen Mother is seeking to have Kasango arrested again for charges not yet known.
It is not the first time that the Ms. Kemigisa is resorting to executive action after losing in the judicial forum. In 2012, the Disciplinary Committee of the Law Council before whom Kemigisa had also accused Kasango of the same offences, deferred the determination of the matter pending the disposal of the Criminal and Civil suits filed by Kemigisa against Kasango. The Council reasoned that since any appeal against their decision would be referred to and determined by the High Court, it would be ill-advised for them not to stay the hearing of the matter based upon the same facts. They stayed the matter indefinitely pending the determination of the High Court Civil Suit and also found in their ruling that payments had been made to Kemigisa.
Dissatisfied with the ruling, instead of lodging an appeal to the High court as provided under the law, Kemigisa referred the matter to the Attorney General, who subsequently summoned the Ag. Secretary of the Law Council, Margaret Apiny, to “explain their decision”. In spite of the case being before the Law Council, the High Court and the Chief Magistrates Courts, the Attorney General had at the instance of Kemigisa and her lawyers, written several opinions to the President effectively “convicting” Kasango while the matters were pending before three judicial bodies. In one letter to the President, the Attorney General positively stated that there was no way Kasango was going to win the case because “he had paid Kemigisa only Shs720 million and taken the rest”.
When the Independent contacted Kasango over this allegation, he stated, “I have done my part and proven my innocence with documentation. I was in that court every single trial for four years and not one person made out any case against me. I am at peace with myself. If that is the directive, I cannot do anything about it. I will go and sit in jail in the knowledge that I am there not because I did anything wrong but because I am wanted there regardless of the truth”
After the judgment, Kasango said to The Independent, “I welcome the judgment but it is one of those times when even when you win, you have lost. The negative publicity and rash action of the police coupled with the comments of Ms. Nabakooba, damaged and mortified me so much. And there are many who will never believe that I never took a cent of the Queen Mother’s money. But that is the world in which we live and I accept it as it is – it is awash with people whom even if you presented the splendor and beauty of life, they will see the evil in it instead, the evil in them has triumphed over the good. Rumor has taken the place of truth in our societies and no one wants to defend the truth. People love to spread negative rumor. I am resigned to that.”