KARAMOJA IRON SHEETS SCANDAL: Why all implicated ministers and govt officials must answer, and not only Agness Nandutu

By John Ssimbwa

I am Hon. Ssimbwa John who in the 9th Parliament moved a Private Members’ Bill to amend the Anti-Corruption Act 2009 to provide for mandatory confiscation of property belonging to those convicted of the offense of corruption. In the same amendment we also provided for Extraterritorial enforcement of Confiscation Orders and Reciprocity with other States or territories.

In our original proposed Bill we had provided for the confiscation of property of even those who are related to the convicted persons so long as those related individuals cannot explain how they acquired these properties and so long as the prosecution can link these properties to the offence of corruption committed by the convicted person. This part of the bill was intended “to hurt” those who knowingly benefit out of the proceeds of corruption and make corruption “a risky venture” but unfortunately this particular section was dropped by Parliament arguing that it offends some Articles within the Uganda Constitution.

So as movers of this private bill, we introduced section 21A in our amendment which created an offence of “dealing in suspect property”. This section generally applies when a person is found in possession of or handling property reasonably believed to have been unlawfully obtained. The major component of this law, that is, “mandatory confiscation” has not been fully operationalized because of the failure or refusal of subsequent Chief Justices to make rules and regulations as commanded by section 67A of this Act but as Movers of the amendment, we are now happy that some sections of the law have started to be operationalized and corruption is becoming “a risky venture” every day that passes.

The core elements in this section include;

Existence of “property”; For an offense under this section to hold, there must be identifiable property and so in this case of the Karamoja Iron Sheets scandal, the iron sheets procured under a government program for Karamoja is the “property”.

Property should be “suspect”; the property must be reasonably believed to have been obtained unlawfully, misapplied or diverted from its intended public purpose. In this particular case, the iron sheets were meant for vulnerable communities in Karamoja not for personal distribution to Ministers or government officials. The diversion of the iron sheets from a public relief program makes them “suspect property”.

The accused should “deal with” the property; Dealing according to this section includes;

Receiving

Possessing

Using

Transferring

Concealing

So in this particular case, Ministers or government officials who accepted, received and kept the iron sheets are arguably in “possession”. If they transported or distributed them further, then that strengthens the “dealing” element in this section.

The accused should have “knowledge or reason to believe”; this is the most critical element in this law. The prosecution must prove that the accused “knew or had reason to believe” that the property was unlawfully obtained or improperly allocated. In this case, I believe like any other person could believe that all the government officials including the Ministers who got a share of the Karamoja iron sheets knew or should have known that the iron sheets were meant for Karamoja because of their positions or roles in government. Some of the suspects might have seen official communication about the Karamoja relief program, and others were expected to have public knowledge of the program because of their positions and roles in government.

Absence of “lawful justification”; the accused must lack a lawful explanation for possessing the property in this case the iron sheets.

My belief is that the Ministers or government officials who received these iron sheets didn’t not received them through official government allocation and what the prosecution only needs to do is to show proof that the allocation itself was irregular or unauthorized.

Therefore I don’t see why the DPP decided to prosecute other suspects under different sections of the law and only prosecuted Hon Nandutu under section 21A because in corruption cases Courts accept circumstantial evidence so long as it points to guilt and excludes reasonable innocent explanations.

Secondly, the Courts also interpret “knowing or having reason to believe” to include constructive knowledge. So even if the accused denies actual knowledge, liability arises if a “reasonable person in their position would have known”. Therefore it was only enough for the prosecution to show that all those who benefited from the Karamoja Iron Sheets bonanza “should have known” because of them being in public offices with access to government information.

The other important issue that could have helped in the prosecution of these Ministers and the other government officials under this section is that Courts place higher expectations of knowledge and or having reason to believe on public officials because they are judged against a higher standard of awareness due to the offices they hold. So a government official cannot easily use ignorance as a credible defense since such information of the existence of a relief program for the vulnerable people of Karamoja was within their official domain.

Furthermore, these government officials who were implicated in the Karamoja Iron Sheets saga cannot claim to be innocent because “possession under suspicious circumstances” was proved. Under property related offense if a person is found in possession of property and the surrounding circumstances are suspicious, always Courts infer knowledge in case there is no “reasonable explanation”.

And in corruption related offenses once prosecution shows suspicious possession, then the accused may need to “explain lawful acquisition”. So it is now the burden of the accused to explain how they possessed and acquired these iron sheets. This does not mean a full reversal of “the burden to prove” but practically “silence or weak explanation” strengthens inference of knowledge.

We as anti-Corruption activists therefore believe that the DPP could not have put these culprits/suspects off the hook because “dealing in suspect property” as an offense only needs proof of knowledge or reason to believe. The prosecution could typically look at the positions and roles of the suspects /accused in government, the nature of the property (was it clearly government property and was it tied to a known public program), the surrounding circumstances (was distribution usual or irregular or was there public controversy), the conduct of the accused (did they question the source or did they conceal, keep or openly justify the possession of these iron sheets) and the explanation given.

So based on the above, I find all Ministers and all government officials who benefited from the Karamoja Iron Sheets bonanza culpable under section 21A of the Anti-Corruption Act as amended and I beg to move that the DPP opens up fresh charges against those who were not charged under this section to promote equal culpability before the law of all officials in the Karamoja Iron Sheets scandal. I do pray.

Hon. Ssimbwa John was the mover of a Private Members’ Bill that amended the Anti-Corruption Act 2009