On Monday, a fraud case against the principal of Makerere University Business School (Mubs), Prof Waswa Balunywa, collapsed at the first hurdle on a technicality.
The development offers Prof Balunywa a brief respite in a case in which city lawyer Isaac Kimaze had instituted charges of uttering false documents, forgery and failure to execute duties of an accounting officer against him. However, the dismissal of the case does not get Prof Balunywa entirely off the hook, especially if Kimaze finds a way past Monday’s setback.
While dismissing the case, magistrate Flavia Nassuna ruled that Balunywa couldn’t take plea because Kimaze and his legal team didn’t get a letter from the local chief giving them a go-ahead to institute the charges as the law requires.
“On record is a letter that the chairman LC I Bugolobi recommended that the accused [Balunywa] should be prosecuted. It is on the basis of this letter that the court dispensed with consultation from the local chief,” she said.
However, citing the High court case of Basajjabalaba Vs Bernard Kakande, the Chief Magistrate ruled that LC I chairperson cannot be regarded as a local chief. She said in that particular case, the judge ruled that LC I chairpersons are political heads of their units and not chiefs or administrative heads and accounting officers of their respective sub-counties.
“I therefore do agree with counsel for the accused [Fred Muwema] that provisions of section 42(4) of the MCA were not complied with. This was a material omission that cannot be ignored since it has been brought to the attention of court,” Nassuna said.
But Kimaze’s lawyers, led by David Bwambale, have told The Observer that they will institute the charges again.
“The magistrate has agreed with us in everything but then she said we have to get authorisation from the local chief…Who is a local chief? If we have permission from the LC 1 chairperson, we shall look into this ruling and we shall return to court again,” Bwambale said.
Bwamble explained that as long as Balunywa doesn’t come clean to publicly show his academic documents, they will pursue the case. Nassuna also disregarded the argument by Kimaze’s legal team, which was to the affect that she should invoke section 42(2) of the Magistrates Court Act (MCA). The section provides that any criminal proceedings instituted shall not be affected by any defect in charge or complaint.
“I, however, note that in the case before court, the charge and complaint is not defective, but it is the procedure invoked which is defective. Therefore section 42(2) cannot be invoked,” she said, adding: “For the reason cited above, the accused [Balunywa] cannot take plea to the charges before this court… .The proceedings are accordingly hereby struck off. If parties are interested, they can initiate fresh proceedings and follow proper procedure.”
Although Nassuna dismissed the case, she ruled the fraud charges against Balunywa were not weak.
“… .On the basis of the complaint on oath, the magistrate was satisfied that there is a prima facie case, the commission of an offence had been disclosed and the compliant was not frivolous or vexatious. It is for that reason the charge sheet was drawn and consequently criminal summons issued,” Nassuna asserted.
She, however, rejected Muwema’s argument that the case should be dismissed because it is a subject of investigation by the police and the Inspector General of Government (IGG).
“There is no proof or evidence before this court that the proceedings before this court are subject of investigations by police or IGG. Besides, the DPP was informed about these proceedings, but has to date not taken any step to take up prosecution of this case in accordance with the law. This objection is accordingly overruled,” she asserted.
According to the charge sheet, Balunywa, using various pseudo names of Balunywa JMA Waswa alias Juma J Balunywa alias Juma Waswa Balunywa, committed various acts while serving at Makerere University and later at Mubs.
Source : The Observer