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‘Kabasuma’ and the UBC mast: the learned analysis.

10 Dec

By My Learned Friend

Let me add my legal knowledge to some of the queries people have been posing on the issue of Presidency Minister, Kabakumba Masiko, and the stolen Uganda Broadcasting Corporation (UBC) transmission mast.

How did a broadcasting mast under the ministry she oversaw end up with her FM station?

MINISTERS IN BUSINESS

I agree that in order to LIMIT(we can never ERADICATE) incidents of corruption, abuse of office and other conflict of interest issues, ministers should be expected to make major decisions when asked to serve in government. This is because they oversee and ‘politically supervise’ govt policy in their various ministries. The Leadership Code is supposed to address some of these issues. If a Minister is conflicted,he/she shd make this known – the idea is that however slight the conflict might be – let it be disclosed. Let the people know that -like in the case of Syda Bbumba, she runs Apex Drycleaners and I am actually one of her clients. However since she uses polythene paper (kaveera) to wrap the completed tasks, how do you expect her to implement the kaveera ban? This would certainly injure her business. I recall her making a comment to this effect and probably that is why we couldn’t totally ban the kaveera let alone ensure that the existing ban applies. I am not saying she alone is to blame for this though.

Point is – declare your interests so that you can be judged fairly. Yes – we need stricter rules like for the Judges, pharmacists, etc. The deeper problem though is that since there is no living wage and there is poor remuneration, and until or unless we address this, we shall continue to see lecturers , teachers, doctors, nurses, etc either stealing materials, drugs et al or working in multiple locations to make ends meet.

CRIMINAL INTENT ON KABAKUMBA

Much to the chagrin of many who will read this, one of the reason why lawyers are hated is because they are able to punch holes in evidence. The legal system expects that the concept of truth must be water tight. That there should be a LOGICAL, almost scientific, explanation for things. One must be able to trace the ‘chain of evidence’ from point A to point Z. Failure of which, then the truth has not been established ”beyond reasonable doubt”. Note the words ‘ reasonable’ and ‘doubt’. Should there be a more plausible or possible explanation, then the case will be thrown out. There in lies the challenge. I think that is why the police is now looking at alternative offences if they fail to prove theft, much to the chagrin of others. See http://www.monitor.co.ug/OpEd/Commentary/-/689364/1286208/-/12ocgjlz/-/index.html

DEFINING INTENT OR CAUGHT under Section 20 PCA

When proving the case normally for joint offenders, my understanding is that there should be a chain of evidence which shows that the two were in cohorts. For example in the Mureeba case where a prison warder was convicted of killing her mulaamu and the unborn child, evidence showed that the lady brought witchdoctors to cleanse her from harm afer the shooting and there were telephone conversations and celebrations – as testified to by the housegirl. Mureeba might not have pulled the trigger but she was equally guilty of murder having planned and facilitated it – joint offener.

Similarly with Katuramu’s case – the former Toro PM killed Prince Kijjanangoma if memory serves me right by facilitating the actual murderers/shooters. The point am trying to make here is that when the evidence shows that the two were in cohorts, then they are taken as joint offenders.

Proving INTENT is a very interesting thing in the criminal law. The facts speak for themselves (Res ipsa loquitur). In the law of torts, we sometimes apply the ”but for” test in which we ask -if it wasnt for the actions of X, would Y be in the position they are in today?

Back to criminal intent – as i understand it -( or shd i say in my humble opinion)…
When establishing say the offence of murder, normally we look at where the injury was exacted – if it was the neck, heart, head, chest area, we say that the injury was meant to terminate life. If it was on the hand, leg, bum, knee etc then clearly there was no way such injuries would possibly have caused death unless one knew that that was the Achilles heel of the deceased. So intent is normally proven by the facts – did the accused run away, tamper with evidence, abscond jurisdiction, profiteer, benefit, get political expedience, etc – at least that is how i see it.

When dealing with theft or receipt of stolen goods – how does one deal with them? do they hide them? openly display them? What do they do that would normally be seen as ethical business practice as opposed to smuggling/stealing tactics?

Section 32 says “….every act in furtherance of the commission of the offence defined or every act of conspiring with any person to effect that purpose and every act done in furtherance of the purpose by any of the persons conspiring shall be deemed to be an overt act manifesting the intention….”

So in the cases at hand, we need to see these ingredients ….was the thing capable of being stolen? Was it moveable or not?

Section 254 (2) says

(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he or she does so with any of the following
intents—

(a) an intent permanently to deprive the general or special owner of the thing of it;

(b) an intent to use the thing as a pledge or security;

(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he or she may intend afterwards to repay the amount to the owner, and “special owner” includes any person who has and charge or lien upon the
thing in question or any right arising from or dependent upon holding possession of the thing in question.

Thus, as we debate, we should see the challenge before the prosecution in the situations above – failure to prove one thins would mean the collapse of the entire case and whoever is charged will walk scott free.

JOINT OFFENDERS

Facts vary in establishing who is or isnt a joint offender. The role is always with the police/prosecution to prove this. They need to investigate thoroughly since what the law requires is more rigorous than what the court of public opinion requires. It therefore should be clear that the chiin of evidence should be show to court in a way that eliminates ALL OTHER POSSIBILITIES of explanation.

A mast is stolen(UBC shd show that it owned it and it was stolen), the mast is actually a UBC mast (identification needed), the mast is transported to masindi(whoever drove it or supervisied its installation can be quizzed here), the mast is installed in masindi(the regulator must have sent someone to supervise this and say all is well), the mast is connected and the radio enjoys the profits/advantages of the mast. The shareholders are happy.

Thus, if it can be shown that Princess Kabakumba in one way or another facilitated the transportation or release of the mast from point one to Z or that the said mast somehow appeared in the area when she was minister, she will be put to her defence to explain how such a mast would have been stolen under her watch as minister. If the mast was already in position when she bought into the company that would have been a different story – the facts seem to suggest otherwise.

See the wording of the Penal Code

Section 19. Principal offenders.
(1) When an offence is committed, each of the following persons is
deemed to have taken part in committing the offence and to be guilty of the
offence and may be charged with actually committing it—
(a) every person who actually does the act or makes the omission
which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of
enabling or aiding another person to commit the offence;
(c) every person who aids or abets another person in committing the
offence.
(2) Any person who procures another to do or omit to do any act of
such a nature that if he or she had done the act or made the omission the act
or omission would have constituted an offence on his or her part, is guilty of
an offence of the same kind and is liable to the same punishment as if he or
she had done the act or made the omission; and he or she may be charged
with doing the act or making the omission.

POSSIBLE DEFENCES

In my view the best defence for Kabasumba Masiko will have to be –

Claim of right.

A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.

Note that under Section 2(t) “person” and “owner” and other like terms when used with reference to property include corporations of all kinds and any
other association of persons capable of owning property, and also when so used include the Government;

www.monitor.co.ugThe media reported that the Police recovered a UBC “radio tower mast and a transmitter” used by Kings FM at Tigulya in Masindi District and Police spokesman Asuman Mugyenyi said “there is no information to show that there was any contract signed between UBC and Kings FM in 2009.

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Posted by on December 10, 2011 in Stephen Twinoburyo's blogs

 

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