David Chandi Jamwa, the former National Social Security Fund (NSSF) Managing Director is in tears after Constitutional Court justices led by Justice Catherine Bamugemereire dismissed his petition to survive jail.
Jamwa is fighting to survive 12 years imprisonment and the 10 years without holding any public office upon being released from prison.
In 2011, former head of the Anti-Corruption Court retired judge John Bosco Katutsi convicted Jamwa on charges of causing financial loss to NSSF.
State alleges that between September and December 2007 in Kampala, the convict in his capacity as the head of the fund, sold government bonds held by NSSF before their maturity date to defunct Crane Bank at a price below their worth hence causing financial loss to government.
The convict was accused of causing a loss of Shs3.16bn but he denied the offences.
He appealed against the sentence and conviction at the Court of Appeal and the appeal was dismissed.
He further appealed to the Supreme Court which also dismissed his appeal in 2018. Four more years were added to his sentence.
Jamwa through his lawyers led by senior counsel Peter Kabatsi and Bruce Musinguzi of Kampala Associated Advocates (KAA) challenged the judgments of the Court of Appeal and the Supreme Court insisting that they violated the Constitution.
They explained that the judgments violate Articles 2 (2),135 (l), 126 (2) (b), 28 (l), 28 (3) (d) and44 (c) of the Constitution.
In his submission, Kabaste told Court that while the Court of Appeal received the petitioner’s appeal on 27th of March 2011, it heard the same 3 years and 7 months later on 14th October 2014 and worse still on, delivered the judgment much later on 15th January 2018; precisely 3 years and 3 months later, making the total appeal period almost 7 years.
Counsel Kabaste further submitted that no explanation or plausible excuse was given to explain the severe violation of Article 126 (2) (b) of the Constitution.
He contended that the conduct of court to deny the Petitioner a fair hearing amounted to denying him justice.
He further submitted that the process of delivering the judgment abrogated the constitution.
He drew court’s attention to the fact that a single justice sat to read the judgment.
He added that during the delivery of the judgment at the Court of Appeal, the single Justice proceeded to make an extensive statement, not on oath, in which he attempted to rationalise the integrity, validity and authenticity of the judgment he was to deliver.
Jamwa’s lawyer argued that the Justice in effect was adducing evidence from the bench and further inexplicably and contemptuously denied the petitioner’s counsel the right to address the court thereby denying the petitioner a right to be heard.
He added that such acts constituted severe violation of Article 129 (2) of the Constitution and thus a serious abuse of authority on his part, rendering the judgment delivered suspect, questionable and fallible.
In Response, State Attorney Bichachi Ojambo raised a preliminary objection regarding the jurisdiction of the Constitutional Court to hear the matter.
He submitted that it is not enough to merely allege that a constitutional provision had been violated and that the petitioner had the obligation to prove the alleged violation and its effect before a question could be referred to the Constitutional Court.
Counsel contended that the matters that the petitioner wants the Constitutional Court to interpret had already been determined by the same court before and their legal fate and stand established.
He added that no questions that call for the court to pronounce itself on their Constitutionality were raised, the same having been fully and ably determined and resolved by the Supreme Court.
In their judgment, the justices agreed with the respondent and dismissed the petition with no award for costs.
In her lead judgment, Justice Bamugemereire stated that there is a contradiction in thinking that every issue that leads to great dissatisfaction must have an answer in the Constitution.
Bamugemereire explained that there is sometimes tension between the interpretation of the Constitution and judicial enforcement of its commands.
On the issue of conviction and sentencing, justice Bamugemereire stated that the appellate court does not interfere with the sentence imposed by a trial Court which has exercised its discretion exercised in sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence where the sentence imposed is wrong in principle.
She noted that to consider the issue of severity of the sentence, the Supreme Court has to choose what cases it wishes to take up as mandated under Article 132(2) of the Constitution.
She explained that the matters of sentence have often been seen as matters of discretion.
The justice insisted that not every question on whether a discretionary matter as sentencing is one which invites a constitutional question demanding an answer should be answered.
She concluded that the petition before the Constitutional court was res judicata and since the majority of the panel agreed as much with her, there is no merit in it and therefore it was dismissed.
Jamwa has the opportunity to appeal against the constitutional court judgment at the Supreme Court while he serves his 12 year imprisonment sentence which he started in 2018 when he lost the appeal at the Supreme Court.
By Sengooba Alirabaki
Leave a Reply