Kampala. This ruling is in respect to an application by the prosecution seeking an adjournment for the lead prosecutor, Ms Jane Abodo, who is indisposed but also that they are not ready to proceed because of the unfortunate demise of (Senior State attorney) Joan Kagezi, so they need time to reorganise themselves and that Mr Odit is seeking to re-perusing the file to make necessary amendments to the charge sheet in terms of the accused persons and the counts.
The defence has strongly opposed that application for adjournment on grounds that the late Kagezi has never prosecuted this case, hence no connection between her and this case and that for the last two years the accused persons have attended court only to listen to all manner of stories from the prosecution it has become a ceremony for them to appear before this court and go back.
Mr Evans Ochieng (one of the defence lawyers) submitted that there were no sufficient reasons given by the prosecution to warrant an adjournment. All the defence aocates prayed for the dismissal of this case for want (lack) of prosecution.
The case against the nine accused persons present in court today was filed on 29012013. The accused persons were remanded and released on bail on 31012013. The matter was then adjourned to 1032013.
On 01032013 the prosecution stated that inquiries were still ongoing and prayed for a one-month adjournment. The same was granted on 03042013.
On 03042013 the prosecution prayed for one final adjournment to conclude their inquiries. The same was granted and it was a last mention date until 03052013.
On 03052013 the prosecution informed court that the inquiries were complete and the matter was fixed for hearing on 17062013.
On 17062013 when the matter was up for hearing, the prosecution was unable to proceed because they had not completed the process of disclosure to the defence. The defence raised several issues and this court adjourned the matter to 1072013 to enable prosecution complete disclosure. The next hearing date was to be fixed after the mention on 15072013.
However, by 15072013 the Interim order by the Constitutional Court halting the operations of this court had been issued on 12072013 and therefore the court did not proceed. The proceedings in this case and other cases were stayed until this court resumed its operations on 08012014.
On 08012014, the matter was by consent adjourned until 03032014 and the hearing was fixed for 03042014.
By 03032014, the prosecution had done substantial disclosure and undertook to complete the remaining disclosure within two weeks. Court adjourned the case for further mention on 12032014 to allow completion of disclosure and maintained 4042014 as the date for commencement of hearing
On 12022014, the prosecution confirmed that they had disclosed most of the documents and prayed that the hearing date be set. The hearing date of 03042014 was maintained.
On 03042014, when the case came up for hearing, the prosecution submitted that they stopped their witnesses from coming because the DPP decided to amend the charge sheet to add two accused persons. The amended charge sheet was received and the two accused persons were A10 (accused 10)airo International Bank Ltd and A11 (accused 11) Mr Tarek Muhammed, who were not in court that day.
The defence on that day raised concerns over delayed commencement of trial. This count issued criminal summons for accused A10 and A11 and gave last adjournment until 30052014 but the criminal summons for accused 10 and accused 11 was for 22042014 so that they could take plea and be set for hearing on 30052014.
On 22042014, accused 10 and accused 11 never appeared. Accused 10 sent a representative, Mr MacDosman Kabega, who sought an adjournment at the point of taking plea. The court adjourned the matter to 6052014 and extended the criminal summons against accused 11 to the same date and maintained the hearing date of 30052014.
On 06052014, A1- A9 were in court. Accused 10 and accused 11 were absent. Mr Kabega appeared for accused 10 and accused 11. On that day Mr Kabega availed to court an interim order from the High Court Civil Division, staying proceedings against accused 10 and accused 11 before this court. The court proceeded on that day to read and explain the amended charge sheet to accused 1-9 who were present in court.
The matter was then adjourned to 2372014.
On 23072014, the matter was further adjourned to 22092014. On 22092014 the matter was again adjourned to 3112014. On that date, Mr Ochieng submitted that the delay was infringing on his clients’ right to a speedy trial and he proposed that the State should amend the charge and proceed against the accused persons in court. This court overruled him and the matter was further adjourned to 20012015.
On 20012015, this court adjourned the matter for two weeks for mention. The case was adjourned to 29012015. On that date the State confirmed their readiness for hearing and proposed March. The matter was fixed for hearing on 23032015 and today 13042015.
Today the matter was for hearing but the prosecution was not ready to proceed. The defence has strongly opposed the adjournment.
One pertinent issue is whether the reasons aanced by the prosecution are sufficient to warrant an adjournment. The reasons aanced for adjournment were: That the lead prosecutor, Ms Jane Abodo, is indisposed. No medical evidence to that effect was adduced hence that ground fails.
The effect of the untimely demise of Ms Joan Kagezi, I will not comment on the effect of the unfortunate incident on the entire legal fraternity in this country but I must point out and as conceded to by the prosecution, the late Kagezi has never prosecuted this case and hence the same fails the training of last week attended by some prosecutors thus lack of ample time to prepare for hearing of this case.
With due respect going for training at the expense of a case of this magnitude in terms of colossal sums involved (over Shs165bn of public funds)annot be a valid ground for failure to prepare for this hearing.
I find no merit on that ground either.
Mr Odit asked to re-peruse the file with a view to amend the charges. A charge can be amended at any stage of the hearing. Thus the need to amend the charge sheet is not a valid ground for adjournment nor can it stop witnesses to appear in court.
Almost two years have gone by and there was time to amend if at all. I find no merit in all the grounds aanced by the prosecution in seeking an adjournment.
This court was set up as a special division for corruption and related cases and the objective was that this court expeditiously dispose of these cases.
While I appreciate the conduct of accused 10 and accused 11 in terms of the stay they secured from the Civil Division, it is important to note that accused 10 and 11 only came into the picture in April 2014 yet the case was registered in January 2013.
For all this time no single witness has ever appeared in this court to testify against these nine accused persons who are alleged to have stolen the over Shs165 billion the subject matter of this case.
This court was not set up for purposes of mentioning and adjourning cases. This court has for over two years “adjourned and adjourned” this case, which Mr John Isabirye (one of defence lawyers), has baptised a ceremony of appearing and going away. That ceremony has come to an end as the patience of this court has been tested enough.
In my humble view the conduct of the prosecution in this matter is not in favour of public interest. I have no doubt that public interest does not favour a ceremony of adjournment after adjournment without any hearing taking place over two years. Is it fair for Ugandans to keep reading in the news that the pension case was again adjourned? In my view it is not fair. Ugandans want to read that so many witnesses have appeared, this or that was their evidence and judgment is due on such a date.
I must note that the story would have been different if the prosecution had at least lined up some witnesses today and then given their reasons for seeking adjournment. The court would be convinced that there is some level of seriousness in prosecuting this billion shillings case.
This court cannot continue to operate at the convenience of the prosecution.
Having found no merit in the reasons aanced by the prosecution in seeking an adjournment, this court is constrained to sadly and painfully dismiss a case of this magnitude for want (lack) of prosecution.
However, I do notify the nine accused persons before this court that this dismissal for want of prosecution is not the end of the road. The prosecution still has a right to reinstate this case as and when they wish.
The judgement was delivered by the Anti-Corruption Court Chief Magistrate, Sarah Langa Siu
SOURCE: Daily Monitor