_________________________

The Nakasero-based Anti-Corruption Court has ruled that the two directors of Threeways Shipping Services Limited, accused of stealing sh7b from MTN, have a case to answer.

The head of the Anti-Corruption Court, Justice Lawrence Gidudu, ordered Oscar Baitwa and Geoffrey Bihamaiso to defend themselves against charges of theft and conspiracy to defraud. However, the court acquitted them of charges of obtaining money by false pretence.

The maximum punishment for theft under section 261 of the Penal Code Act is 10 years in jail and conspiracy to defraud under section 309 of the Penal Code Act attracts three years in jail.

While delivering the ruling on Tuesday (January 30, 2024), Gidudu said a case has been established against Baitwa and Bihamaiso, who also double as brothers, requiring them to explain the charges of theft and conspiracy to defraud.

Gidudu further stated that evidence on the court records indicates that money was paid by MTN to Three Ways Shipping Services Limited based on 24 fictious invoices and that there was the intention to deprive MTN of the money permanently.

“Money was processed on MTN Uganda Limited supplier payment forms. The money totaling over $1.8m was paid using fictious invoices. This money is traceable to Three Ways company via documents, namely the supplier payment forms, and bank statements of Three Ways company,” Gidudu said.

The court further ruled that evidence shows that Baitwa and Bihamaiso participated in facilitating the transfer of the money by using their mandate as principal signatory to siphon the money.

“In this case, no theft of money would have occurred if the accused’s company bank accounts had not been used for a period of three years to siphon money. It would be naïve and illogical to say that the accused as mandate holders were not aware of funds hitting their company accounts without corresponding legitimate invoices.

The fact the accused kept quiet from 2009 to 2012 while the huge sum of dollars was coming in for no work done renders the accused liable,” Gidudu said.

Option to defend case

The court offered the accused three options for defending themselves: testifying under oath, which would necessitate cross-examination from the state, giving unsworn testimony without cross-examination; or remaining silent. However, the two brothers asked the court to allow them to consult their lawyers Henry Kyarimpa and Yusuf Nuwamanya, who were not present in court when the ruling was being delivered. Gidudu said the accused, in addition, can also choose to call witnesses or not call witnesses, regardless of whichever option they choose.

Justice Gidudu deferred the case to March 11 and directed the accused to appear in court ready to start their defence.

Prosecution’s case

The prosecution, led by the Chief State Attorney at the Office of the Director of Public Prosecutions (ODPP), Abigail Agaba, said the accused in 2009 and 2012 stole money from MTN Uganda in the course of business.

In another count, the prosecution alleges that the accused conspired to defraud the company of the said money. They denied the charges.

Initially, former MTN employees — accountants John Paul Basabose and Naphtali Were — were charged alongside Baitwa and Bihamaiso before the same court, but Basabose pleaded guilty through a plea bargain. He agreed with Director of Public Prosecutions (DPP) Jane Frances Abodo and refunded over sh820m to MTN, he was convicted on his own plea of guilt. Were has since passed on.

The DPP also discontinued proceedings against two other employees of the Threeways Shipping Services: chief finance officer Waiswa Kafuuko and logistics officer Faridah Senkumba.

Contract

Threeways Shipping Services Limited was contracted by MTN Uganda on April 1, 2004, to provide clearing and forwarding services. In the course of business, MTN alleged that the company had been paid money based on fake invoices supported by fake airway bills.