Bukenya CHOGM case

By Eriasa Mukiibi Sserunjogi

Why are the IGG’s witnesses vanishing?

Why have witnesses been flying off the Inspector General of Government’s (IGG) list in the case against former Vice President Gilbert Bukenya?

At midday on Nov. 7, Stanley Nsubuga, a Principal Inspectorate Officer in the IGG’s office, took to the witness stand as prosecution witness number four. Nsubuga told court that the IGG was unable to trace two witnesses he had expected from Kenya due to jurisdictional reasons.

The IGG sought the two witnesses, a one Mwanik and Gachega who are both associated with Kenyan automobile dealer Masharik, to prove that there was collusion between Motorcare Uganda Ltd and Mashariki. The IGG alleges that Mashariki’s withdrawal of its bid to supply motorcycles from the Ministry of Works, leaving Motorcare as the only bidder, constituted fraudulent practice.

At least court heard an explanation for why the Kenyan duo would not turn up. Within the court premises, there was another would-be witness who had just been withdrawn at the final minute.

Edgar Agaba, the former Executive Director of the Public Procurement and Disposal of Assets Authority (PPDA), was due to appear on Nov. 7. PPDA, the statutory authority that oversees public procurements, cleared the procurement of the 80 police outrider motorcycles which are the subject of the case.

Bukenya is battling the charge of abuse of office and is jointly charged with two Motorcare Directors, Per Lundgren and Klaus Karstensen for fraudulent practice over the purchase of the motorcycles that were used during the Commonwealth Heads of Government Meeting (CHOGM) in 2007. If convicted, Bukenya faces a maximum sentence of seven years without the option of a fine for abuse of office and three years for fraudulent practice. Motorcare directors face a maximum fine of Shs 20 million each. Bukenya’s defence team comprises McDusman Kabega and Enos Tumusiime while Motorcare is represented by Edmond Wakida. The case is before the head of the Anti Corruption Court, Justice Paul Mugambe.

The Independent has learnt that Agaba, who was summoned on Nov. 3 on the application of the IGG, pressed the IGG to drop him as a witness, arguing that there was no case against the accused. Agaba’s fight to be dropped from the case dragged on up to the morning of Nov. 7 and he only learnt of his being dropped having already arrived at the court.

Agaba, a lawyer and currently working as a partner with Agaba Muhairwe & Co. Advocates, told The Independent, “I have carefully perused the evidence in this case and I find that as government we don’t have evidence to successfully prosecute it”. He warned that if he were forced to testify, he would turn into a hostile witness against the state.

Agaba argued that the moment Inspector General of Police Kale Kayihura asked the Transport and Infrastructure sub-committee on CHOGM to restrict the type of motorcycles to BMW, the range of choices available to the government and the number of firms that could bid to supply the motorcycles were restricted.

Since all the three companies that were bidding to supply the motorcycles – Motorcare Uganda Ltd, Mashariki of Kenya and Dyna of South Africa – were agents of BMW, argues Agaba, “BMW must have instructed the other companies to leave the deal to Motorcare (since the procurement was within its jurisdiction),.

Agaba said that the procurement of motorcycles was approved by the PPDA upon advice from the Inspector General of Police that police preferred BMW bikes as they were stable and durable.  Kayihura’s letter, a copy of which The Independent has seen, said the police had riders and mechanics trained to handle the BMW motorcycles. Works and Transport Permanent Secretary Charles Muganzi, appearing as a witness, told the court on Nov. 7 that he had learnt from the chief mechanical engineer in his ministry that the police was finding problems servicing the motorcycles.

Whereas PPDA invited the three firms to bid and they all picked documents, it is only Motorcare that went through with the process, with Mashariki withdrawing its bid which was already with Ministry of Works and Dyna not bidding at all.

“Obviously, the other two firms were ordered by the manufacturer to back off as government preferred BMW bikes which any of them could supply from the same manufacturer,” argued Agaba.

Basing on this, Agaba says there is no case against Bukenya and Motorcare because “essentially the idea (of restricting the motorcycle brand to BMW) was government’s and not the accused in this case.”

Agaba argues that if there are complaints about price and allowing collusion, “the case should be brought against the procuring entity itself ie the Ministry of Works and not Bukenya or Motorcare”.

Agaba posed questions to the IGG, “Where is abuse of office by the accused person or firm? There is no remote connection at all. What do I tell court as a government witness? PPDA cleared the procurement. How can I help government prosecute a case where government cleared the procurement? Professionally this is wrong.”

Agaba is not done; “How would we prove collusion among the three firms when they are not connected in ownership? Is there proof of meetings or correspondence among the firms and Prof. Bukenya? How does Prof. Bukenya come into fraudulent practice when he has no connection with Motorcare and its businesses? Did he aid or abet their conduct?”

Agaba concludes, “This is surely malicious prosecution where government will face law suits after this criminal case is dismissed for lack of evidence.”

In his testimony, Works Permanent Secretary Muganzi, who chaired the Transport and Infrastructure sub-committee that was responsible for acquiring the motorcycles, told court that Bukenya didn’t get involved at any stage in the procurement of the motorcycles. The only loss the government suffered during the procurement of the motorcycles, said Muganzi, was the money spent by three officials who went on a futile trip to inspect the manufacture of the motorcycles in Germany. Whereas they left for Germany on September 16, 2007, the motorcycles had been delivered in Uganda a day before.

Agaba argues that the procurement of the motorcycles was less contentious than the procurement of motor vehicles. Since the case on motor vehicles, which Agaba says was more contentious, has already been dropped, he wonders why the state is continuing with this one.

When prosecution led by Asubo opened their case, they hoped to present 16 witnesses. By the time the IGG started summoning its staff to testify, only three non-IGG officials had testified. How many more non-IGG witnesses would be willing to testify?