OPM-KASESE RELIEF MESS! PPDA witness in floods victims’ poor quality items case made to swallow words by defense lawyers
Nabbanja then declined to distribute the blankets and mosquito nets claiming they were of poor quality. Photo by Enid Ninsiima
When the Prime Minister Robina Nabbanja had just started duty in 2021, a disaster happened in Kasese and relief items including Mosquito nets, Blankets and Tarpaulins were sent to help the displaced people.
When the PM went there, she declined to distribute the blankets and mosquito nets claiming they were of poor quality.
She only distributed maize flour, beans and Tarpaulins.
As a result, when she returned to office in Kampala, she sought for a brief from the then accounting Officer Godfrey Kaima, who subsequently provided one.
She was not convinced. She State house Anti-corruption unit to investigate and bring the culprits to book.
SHACU swung into action. Statements were recorded from various officers of OPM and also requested all procurement related documents.
PPDA, UNBS and Auditor General’s offices were engaged to help in the investigations.
The following officers were charged before the Anti-corruption court with six counts of abuse of office and corruption based on what the PPDA had submitted in their report.
Kaima Godfrey: He was the accounting Officer at OPM. He was charged with two Counts of abuse of Office, count one was that he paid for blankets without clearance from solicitor general. In count two a similar charge was made against him for Tarpaulin.
Nakabugo Rose: She was then the Ag Commissioner Disaster Preparedness andManagement. She was also charged on two counts of corruption. That she neglected to provide a clear statement of requirement with specifications for blankets, a duty she was required to do.The other charge was of corruption for neglecting to provide a statement of requirements with specifications for Tarpaulins a duty she was required to perform.
Dhikusooka Cyprian: He was then a Principal Disaster Management officer who initiated the procurement and was a member of the evaluation committee. He was charged with two counts of abuse of office and two counts of corruption. As a member of the evaluation committee, he abused office when he stated that Canaan Supply and Construction Ltd complied with submission of documents for eligibility whereas no documents were filed to that effect for procurement of Tarpaulins.
That as member of the evaluation committee abused office when he stated that Emax Supplies and Logistics limited was responsive to technical specifications for procurement of blankets whereas not.
Martin Odong: He was a member of the evaluation Committee. Two counts of abuse of office together with Dhikusooka as pointed out above.
Mugerwa Kizito: He was also a member of the evaluation Committee. Two counts of abuse of office together with Mugerwa and Dhikusooka as pointed out above.
WITNESS CROSS EXAMINED
For today’s article, we shall focus on the PPDA because so far, their witness has testified before court and in determining the charges by police and DPP and who to charge their report was fully relied upon.
All the above counts against the accused persons were based on the findings of the PPDA in their report on Courts record.
This therefore makes the testimony of the PPDA/ state witness very crucial.
The case is at the stage of cross examination of the first state witness, one Agnes Seera.
She testified March 16, 2023 before the defense side led by Counsels Asuman Nyonyintono for Dhikusooka Cyprian and Odong Martin; Joseph Kyazze for Kaima Godfrey; Duncan Kagimu for Rose Nakabugo and Friday Kagoro for Mugerwa Kizito.
The state is represented by prosecutors Nelly Asiku and David Mugamba.
The matter is before Chief magistrate Joan Aciro.
BELOW ARE THE PROCEEDINGS VERBATIM
The hearing began at around 10:30am with the state prosecutor introducing the matter before court stating “this matter is set for hearing and the witness is ready for cross examination, all the accused are in Court represented by the learned friend…..
Asuman: Introduces the defense team for all the accused.
Chief magistrate: Is the defence ready to proceed?
Asuman (for A 3 and A 5): On behalf of the defence team answers in affirmative.
Chief magistrate: Turns to the witness and informs her ‘you are still on oath and therefore be aware while giving evidence.
Seera (the witness): Okay your honor.
Chief magistrate: to the defence, proceed
Asuman: Madam Seera, can you tell us your qualifications and experience in the procurement field?
Seera: My name is Seera Agnes, a Senior performance and compliance officer but before then I worked at the Ministry of defence as a Procurement Officer.
Asuman: You see you are the expert in these matters and since you worked at the defence ministry, you are in position to explain to us how procurement in an institution is conducted. We wish to learn from you about procurement. Can you please tell Court about the procurement cycle, the stakeholders involved and their roles?
Seera: the procurement cycle begins with procurement planning by the user department, initiation of procurement by the user department to the Procurement and disposal unit, the initiation should have a requisition with form 5 attached containing a statement of requirement.
Duncan (for A2): is the requisition and specifications separate documents or a single document?
Seera: it depends, sometimes specifications are included in form 5 or even attached when more details are required.
Duncan: Is it one document or separate documents?
Seera: it is one document
Asuman: Okay please continue enlightening us.
Seera: the requisition is sent by the user department to PDU (Procurement and disposal Unit). But before then, the Accounting Officer must confirm availability of funds and conduct a market survey. When the request reaches the PDU, it is given a unique reference number that becomes its identifier. Then a bid document is prepared, a proposal of evaluation committee made and procurement method proposed all submitted to the Contracts committee for approval. After approval by the contracts committee, invitation to bidders is made, and the approved bid document is issued to bidders. Bids are received and after closure of bid receipts, they are opened and handed over to the evaluation committee for evaluation in line with the bid document issued. The evaluation makes a report to head PDU.
Asuman: Who was the head PDU in this case?
Seera: the acting head PDU was Agnes Katembeko. The head PDU then makes a submission to the Contracts Committee and the report is approved. When the report is approved the notice of best evaluated bidder is displayed as per the approved time of display. After that administrative review is allowed during the display time.
Asuman: That is enough because the charges against the accused persons are all up to that stage. By the way, to help you appreciate my questions, you need to know that the accused are before court for having failed to perform duties they are meant to perform. For ease of reference let me introduce the accused persons to you. A 1 is the Accounting Officer, A2 is the head user department, A3 is a member of the user department but also a member of the evaluation committee, A4 was a member of the evaluation committee and A5 was a member of the evaluation committee. Hope now you understand why I said what you had provided in the cycle was enough?
Seera: yes
Asuman: Thank you. Okay first of all during your investigation did you ever interview any of the accused persons?
Seera: I only interviewed Kaima Godfrey as Accounting officer and Dhikusooka Cyprian electronically as contract manager.
Asuman: What about the others?
Seera: No I never interviewed them
Asuman: Now I want us to start with the file for Tarpaulins, sorry for Blankets
Chief magistrate: Please be sure on what you want to start with, you are making my recording confusing and confusing the witness.
Asuman: Much obliged your honor.
Chief magistrate: Okay which file are you starting with?
Asuman: Tarpaulins or sorry rather blankets
Chief magistrate: Okay blankets it is
Asuman: yes, your honor
Chief magistrate: Okay proceed
Asuman: Okay your honor. Madam Seera hope you are aware the accused are before court for failure to perform their duty of providing statement of requirement as users?
Seera: Yes
Asuman: Why do you think they never performed their duty?
Seera: Because while making the requisition they never included statements of requirement
Asuman: Who in particular was responsible?
Seera: Dhikusooka Cyprian
Asuman: What makes you think it was his duty?
Seera: Because he is the one who signed the procurement requisition
Asuman: And you never saw a statement of requirement in the requisition?
Seera: No I did not
Asuman: Okay let us look at PE document marked A17/A18
Clerk: Provides the file and Seera opens document A17/A18.
Asuman: What is that document?
Seera: it is specifications
Asuman: issued by who?
Seera: I don’t know
Asuman: Do you see a signature on it?
Seera: Yes
Asuman: whose is it?
Seera: I don’t know
Asuman: you said Dhikusooka Cyprian signed the requisition, not so
Seera: Yes
Asuman: okay bring out that requisition and look at the signature. Does it resemble that on A17/A18?
Seera: Yes
Asuman: Whose is it?
Seera: for Dhikusooka Cyprian
Asuman: So did the user department perform its duty at this stage?
Seera: Yes, they did
Asuman: I want you to tell the court, who is responsible for preparation of the statement of requirement that is issued to the bidders?
Seera: the user department
Asuman: Are you sure? I said statement of requirement issued to the bidders
Seera: they are prepared by the user department
Asuman: Okay let us go to the law
Chief magistrate: Which law?
Asuman: the procurement and disposal of public Assets Act 2003 and its regulations
Seera: I have it
Asuman: specifically, I want you to read aloud section 31 (h) and (i) of the Act
Seera: A procurement and disposal Unit shall; (h) Check and Prepare statements of requirements. But under section 34…
Asuman: Please I asked about section 31 (h) but even then to quench your anxiety we shall as well reach your section 34 that you are eager to read now.
Seera: okay
Asuman: read regulation 23 of statutory instrument number 8 of 2014
Seera: Reads the regulation
Asuman: No sorry not that one, okay go to part five of Statutory instrument number 8 of 2014 and read the heading loudly to court.
Seera: BIDDING DOCUMENTS
Asuman: Okay read section 31 (i) of the Act
Seera: A procurement and disposal unit shall prepare bid documents
Asuman: read regulation 24 and 25 of statutory instrument number 8 of 2014
Seera: starts reading what should be included in preparation of statement of Requirement
Asuman: Okay now back to your section 34. Read specifically section 34 (1) c
Seera: The User department of a Procuring and disposing entity shall perform the following functions; (c) propose technical inputs to the statement of requirement for procurement requirements to the Procurement and Disposal Unit.
Asuman: did the user department perform their duty at this stage?
Seera: Yes, they fully performed their duty
Asuman: Now tell this court who is responsible for preparation of Statements of requirements that are issued to bidders?
Seera: The Procurement and disposal Unit.
Asuman: In this particular procurement who was responsible?
Seera: The Ag Head PDU
Asuman: Who by the name?
Seera: Agnes Katembeko
Asuman: After a procurement is concluded who by law keeps custody of documents?
Seera: Head Procurement and Disposal Unit
Asuman: Who was it in this case?
Seera: Agnes Katembeko
Asuman: Now I want to refer you to the evaluation report. Which method was used? Read it verbatim for court
Seera: restricted quotation method
Asuman: Does such a procurement method exist among the methods?
Seera: NO
Asuman: Do you notice there was alteration as to the method?
Seera: yes
Asuman: What was the alteration?
Seera: the word restricted was added by pen.
Asuman: As a civil servant, how does such alterations given legal force
Seera: by counter signing by the author.
Asuman: did you by chance see the signature of any of the members of the evaluation committee countersigning that alteration?
Seera: NO
Asuman: who do you think would be the first suspect to have made that alteration?
Seera: definitely the person with custody of the documents.
Asuman: Who in this case?
Seera: The Ag. Head PDU Agnes Katembeko
Asuman: when you saw all those alterations, did you seek clarification from any of the authors of the report?
Seera: No I did not.
Asuman: Now let us go to the bid document. What was the procurement method used?
Seera: restricted bidding
Asuman: Is there a standard document used for this method
Seera: we issue standard documents for all methods of procurement
Asuman: did this standard document exist before this particular procurement?
Seera: Yes
Asuman: So Katembeko just filled in a standard document?
Seera: yes
Asuman: What shows that this document was issued by you?
Seera: it has our logo and footnotes
Asuman: read the footnotes for court
Seera: Standard bidding document for procurement of supplies under quotation method issued by PPDA March 2014.
Asuman: Now go back to the evaluation report and remove the word in pen. How does it read?
Seera: quotation method
Asuman: the method used and the one in the evaluation report without the word in pen, which of the two matches with the standard bid document?
Seera: the one in the evaluation report
Asuman: Now I want you to tell the court when the evaluation report was submitted to the contracts committee. Please be keen on the dates
Seera: A resubmission was made on 10th/05/2021
Asuman: I asked for the submission not re submission
Seera: Submission was made on 5th/05/2021
Asuman: how did you know that?
Seera: according to the submission sheet to contracts committee
Asuman: made by who?
Seera: Agnes Katembeko the Ag. Head PDU
Asuman: did you by chance see an evaluation report dated 5th/05/2021 signed by the accused members of the evaluation committee.
Seera: NO, I only saw the one dated 7th/05/2021
Asuman: Is it possible that the contracts committee can make an award before the evaluation committee report?
Seera: No
Asuman: When was the award made?
Seera: 5th/05/2021
Asuman: who signed the minute of award?
Seera: Kalule as chairman contracts committee and Annet Musinguzi as Secretary Contract committee.
Asuman: Was there a notice of the best evaluated bidder?
Seera: Yes
Asuman: When is it dated?
Seera: 7th/05/2021
Asuman: Is it possible one procurement having two notices of best evaluated bidder displayed?
Seera: No
Asuman: When you noticed these anomalies, did you ask any of the accused for clarification?
Seera: No I did not
Asuman: Can we now look at the letter from the police upon which you carried out this investigation.
Seera: I don’t have it
Chief magistrate: Asks the clerk to provide the witness with the police letter.
Clerk: we don’t have it
Asuman: It is okay. Let us go to the letter from PPDA to the police , submitting the report and the contract management report.
Seera: Okay
Chief magistrate: Proceed
Asuman: You said while giving us the procurement cycle, that at the start of the procurement, every procurement is given a reference which becomes its identifier, isn’t it?
Seera: yes
Asuman: Is it possible for one procurement to have two reference numbers?
Seera: NO, each procurement has one unique identifier.
Asuman: Okay according to your letter submitting the report, what procurement were you investigating?
Seera: OPM/SUPLS/ 20-21/ 00818
Asuman: Did you by any chance come across documents with the said identifier during your investigations?
Seera: No I did not
Asuman: Which documents did you deal with?
Seera: Those on file.
Asuman: with what reference number.
Seera: OPM/SUPLS/20-21/00685
Asuman: So, you were asked to investigate reference number OPM/SUPLS/20-21/ 00818 and instead you analyzed documents with reference number OPM/SPLS/20-21/00685?
Seera: Yes
Asuman: When you noticed these contradictions, did you seek clarifications with any of the accused persons?
Seera: No I did not.
Asuman: Your honor, I seek adjournment for at least 30 minutes.
Chief magistrate: I think we should exhaust everything about blankets so that when we return next time we only deal with tarpaulins. So anything to do with blankets should be dealt with by all defence lawyers.
Asuman: Okay your honor if that is the case, just give me ten minutes to complete
Chief magistrate: Let me hope it will be ten minutes
Asuman: In fact, I only need five minutes except maybe my colleagues.
Chief magistrate: Okay let it be five minutes and I hope the others don’t have much to ask except what your colleague has not dealt with.
Asuman: Okay, I will ask a few questions, if you answer as expected I will let go, but if we fail to agree I will take you to the law.
Seera: fine
Asuman: Tell us the process of preparation and approval of statement of requirement issued to bidders
Seera: Statement of requirement are prepared by the user department
Asuman and Duncan: Interject, prepared?!
Seera: the user department propose statement of requirement and they are adopted by PDU
Asuman: “Adopted” please use proper words.
Seera: the user department proposes a statement of requirement, the PDU checks and prepares the statement of requirement and the contracts committee approves the statement of requirement.
Asuman: in your report you indicated that the statement of requirement was ambiguous. So I want you to tell us if this ambiguity is to be done away with, at what stage in that process is it done.
Seera: At the stage of checking and preparing the statement of requirement.
Asuman: whose responsibility in particular?
Seera: Procurement and Disposal Unit.
Asuman: No further question your honor
Chief magistrate: Have you closed cross examination for the defence.
Asuman: No your honor except for blankets on my side
Joseph Kyazze (for A 1): I just have just a few questions to ask your honor.
Chief magistrate: Proceed
Joseph: Does the contracts committee have representation of a person from the solicitor general’s chambers?
Seera: Yes
Joseph: Why do you think it is so?
Seera: it is just how the constitution dictates, the contracts committee is by law.
Joseph: Why a lawyer and not any other profession like engineer or doctor?
Seera: I don’t know
Joseph: don’t you think is to provide legal guidance to the committee
Seera: I think so
Joseph: was Kaima part of the user department
Seera: No. Kaima was not a member of the user department
Joseph: Was Kaima a member of the evaluation committee?
Seera: No. Kaima was not a member of the evaluation committee
Joseph: was Kaima a member of the PDU
Seera: No, Kaima was not a member of the PDU
Joseph: Was Kaima a member of the contracts committee?
Seera: No. Kaima was not a member of the Contracts Committee.
Joseph: No further questions your honor.
Duncan: I fully associate myself with the cross examination done by my learned friend for A 3 and A5
Kagoro (for A 4): But sincerely with all those contradictions do you think the accused have a case to answer?
Seera: I cannot answer that question
Kagoro: Okay, which procurement were you asked to investigate?
Seera: OPM/SUPLS/20-21/00685
All defence Counsels: Sure is it not the other way round
Seera: OPM/SUPLS/20-21/00818
Kagoro: don’t you think if you had the right documents, your opinion about the accused persons would have been different?
Seera: For me the findings are based on documents on file
Kagoro: What is the reference number of the documents on file?
Seera: OPM/SUPLS/20-21/00685.
Kagoro: No further questions about your honor.
Chief magistrate: Hearing adjourned to 27th/04/2023 at 10:00 am
To be continued…………..
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