By The Rwandan Economist
INTRODUCTION
Senior government officials who were accused of conspiracy to mismanage public funds, causing the government a loss of over Rwf2bn and flouting tender procedures are now convicted of those charges and sentenced to various years of imprisonment basing on the extent of the role played in the prosecuted facts. Those officials, include the Permanent Secretary in the Ministry of Finance and Economic Planning, Caleb Rwamuganza, Godfrey Kabera, the Director-General in the Ministry of Finance, Eric Serubibi, the former Director-General of Rwanda Housing Authority (RHA) and Christian Rwakunda, who was Deputy Director-General in Rwanda Social Security Board (RSSB) had been tried since last year before Gasabo Intermediate Court.
They were accused of conniving to flout tender procedures to force through a tender that saw the government acquire a building at an inflated price.The present article aims at analyzing some factors which drove the judge who partially tackled some fishes fearing sharks.
1.FACTS
Rwamuganza who is also the Rwandan secretary to the treasury is facing various charges including misuse of public property and complicity in flouting tendering procedures. They are all charged with three counts of felony, misappropriation of public funds, unlawful public procurement and conspiracy to commit fraud. According to the prosecution, the defendants allege that they procured and sold a commercial building to the government of Rwanda at Frw 9,850,000,000 yet the value of the said commercial building had been established at Frw 7,600,000,000. (1 USD = 950 Frw). The house was also reportedly purchased without the knowledge of the Rwanda Public Procurement Authority, even before negotiations between the suppliers and the bidders were carried out, it said.
According to the Rwanda’s National Public Prosecution Authority, investigations and subsequent arrests are based on audits conducted this year, which unearthed fraudulent acts through which huge amount were embezzled.
They are charged alongside Aloys Rusizana, a businessman, who is the owner of the building in question, located in Kacyiru, and Bonaventure Munyabugingo, a private property valuer, who is accused of conspiring with the accused to allocate a price to the building that was higher than its actual price by over Rwf2bn.
In this regard, Prosecutors contended that the accused led to a loss of taxpayers’ money when they valued the building at Rwf9.85bn yet it had been proved that the said building was worth at least Rwf7.6bn, something the prosecutors say was aimed at defrauding the government and taxpayers the excess amount.
2.PROCEEDINGS
When the hearing continued, the court started with Rusizana. His lawyer argued that there are no serious grounds to deny his client bail pending the substantive hearing because at this point the prosecution is yet to prove that he has caused a loss to the government.
The lawyers argued that Prosecution cannot say that a loss was caused when it has not done a counter valuation to ascertain that indeed the businessman inflated the price. It was argued that the Prosecutors are relying on the valuation done by Gasabao 3D which was commissioned by the Government.
They argued that the said valuation report does not give a clear picture since it was done before the building was completed, which could have resulted in undervaluation of the property in question.
Legally, they argued that the Gasabo 3D valuation was commissioned by the buyer, leaving room for undervaluing, hence an independent valuer was needed to ascertain the actual cost of the building, which is how Munyabungingo came in.
Lawyers argued that Munyabugingo did a report factor in all issues, proving that the building in question actually costs much more than what was indicated by Gasabo 3D. He was however also arrested for inflating the value of the property. It is said that Munyabungigo had put the value of the building above Rwf13bn.
They said that instead of Prosecutors relying on one report yet there are at least 3 evaluations done leaves a lot to be desired. They said the Gasabo 3D is no longer relevant because it was done before the building is complete.
On his part, Rwakunda denied any wrongdoing, saying that if he had reached an agreement with the owner of the building, he would not have demanded the valuation of the building again, and even the first negotiations failed because they failed to reach an agreement with the owner.
In addition, when the second round of talks was set to take place, he went to the City of Kigali to conduct a house-to-house comparison and in the second round of talks, they arrived at Rwf8bn.
It was revealed that during the third round of talks, Rwakunda, who was in charge of the previous two rounds of talks, stopped being in charge of the negotiations and Rwamuganza took over.
Rwakunda also said that he had not attended any procurement meetings with the Rwanda Housing Authority and that by the time the contract to buy the house was signed he was no longer the Permanent Secretary in MININFRA.
The lawyers argued that had he had an interest or had he been involved in the alleged conspiracy, he would have been involved in the process wherever he was by monitoring the progress.
In addition, he said that the agreement itself was signed when he was no longer at MININFRA, having joined RHA.
The prosecution alleges that Rwakunda did not deny that he attended the meeting and that it violated the Minister’s directives on the way negotiations are conducted.
It said it was not appropriate for him to attend the talks and that under the law, the decision was supposed to be made by the Procurement Board of the Rwanda Housing Authority and that whatever was done was against the law.
On his part, Kabera Godfrey, told the court that when the negotiations to buy the building began when the ministry was headed by Claver Gatete and ended he had moved to MINIFRA and Dr Uzziel Ndagijimana was in charge at MINECOFIN.
According to him, he was sent by PS Rwamuganza, who he reported back to and later to Minister Dr Ndagijimana and the Minister of State, Dr Claudine Uwera. He said that he was merely sent as a representative of the Ministry and said there are emails to prove that.
He wondered why the Ministry which sent him is not accused as an institution but rather him as an individual yet he was representing the Ministry. He wondered why he is held liable as an individual yet he was reporting to his superiors.
Prosecutors however said that they were not prosecuting Kabera for attending the meeting but that he was being prosecuted for the conspiracy that took place at the meetings he attended, which led to the aforementioned losses.
Kabera and his lawyer said there was nothing the prosecution did to prove that there was a conspiracy.
Serubibi’s lawyers said the Former Director General of RHA acted on the orders of PS Rwamuganza and Minister Gatete told him to fast track the process of buying the house for the National Intelligence and Security Agency (NISS), which needed its own building since it was spending a lot on rent.
That Gatete, who was also recently questioned by Rwanda Investigations Bureau (RIB) over his role in the scandal and other issues involved in the mismanagement of public resources, directed RHA to consider the issue an urgent matter of public interest.
Serubibi in turn informed Minister Gatete the tendering process that needed to be followed which was done and that the Rwanda Public Procurement Agency (RPPA), needed to approve the process, which was done before the house was purchased.
3.THE VERDICT
On 31 march 2021 the Intermediate Court of Gasabo pronounced its decision by sentencing RWAMUGANZA Caleb former PS minecofin ;RWAKUNDA Christian former PS mininfra;SERUBIBI Eric former director general of Rwanda Housing Authority and Kabera Godfrey who was the director of finance in MINECOFIN to 6 years of imprisonment and fined each one to 3millions and ordered them to pay back to the public treasury 1.804.727.200 Frw.The businessman named RUSIZANA who was also apprehended in the same case was acquitted.
4.ANALYSIS: BIG FISHES SPARED
During the proceedings, the two permanent secretaries objected that the transactions they made were ordered by their respective ministers insinuating that they were just enforcing their decisions; consequently, requesting the court to involve them in the casefile.
This request was legally founded as per article 106 of the law nº 027/2019 of 19/09/2019 relating to the criminal procedure governing the Summoning co-offenders or accomplices that were not brought before the court stating that If the court believes that there are reasonable grounds to suspect co-offenders or accomplices in commission of an offence, the court summons them to provide any required details in the proceedings. If the person summoned does not appear, the court orders the public prosecution to compel that person to appear If the court examines the person summoned in the proceedings in the procedure provided for under Paragraphs One and 2 of this Article and discovers that the evidence is insufficient to convict the person, the court decides to proceed with the hearing without re-summoning them in proceedings. If the court believes that the details submitted are insufficient and that there is incriminating evidence, the court instructs the public prosecution to conduct investigations on the basis of findings in the court proceedings in order to take him or her to court. The public prosecution is also required to comply with the decision of the court.(1)
Unfortunately the court did not deem to summon those two ministers i.e Mr.MUSONI James currently ambassador of Rwanda in Zimbabwe who was heading the MININFRA and Mr. GATETE Claver who was then managing the MINECOFIN.
There is then wondered whether the rejection of this objection raised by the former subordinates of those ministers is based on the mere sovereign appreciation of the judge or whether he was informally called upon to spare those high authorities from prosecution.
In the first hypothesis, the law protects the judge to discretionarily opt for involving people denounced or reject the objection ad hoc and it is what he may pretend as defence if asked why he took such a position
In the other hypothesis, the professional ethics of the judge and the virtue of rendering an impartial justice may have pushed him to require the presence of all people denounced in the casefile and get full clarification on their respective involvements in the offences committed. Otherwise, the judgment seems biased and not transparent as declared Me KAYIJUKA NGABO who was assisting the trader RUSIZANA owner of the implied building.
In our humble view, the government worried by a possible dismissal of two authorities still favored and fearing its effect on national and international levels instructed the judge through the judicial hierarchy to give up their prosecution. On the other side, the concerned authorities individually bribed the judge and the latter having the chance to try such a juicy case file spared them and it is “understandable” for a judge paid 500 thousand per month who then deals with a billionaire minister like MUSONI James
CONCLUSION
The trial punishing those state officials of second category reflects the unofficial image of embezzlements committed at the higher level. If a permanent spoiled 1 billion, a minister took five, the premier tens, and so on and it is a very time to tackle also those powerful personalities for huge sums they daily steal as they are better placed to access them.
Unluckily, there is still hard in Rwanda to fall on incorruptible judges who are enough strong to resist against external pressure from either the executive power or from his superiors and rarely found his boss will exclude him from such sensitive dossiers.
However, this is a laudable step because we were accustomed with contentions of economic crimes committed by lambda citizens involving tiny amounts.
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1 Official Gazette n° Special of 08/11/2019
