THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)
CIVIL SUIT NO. 612 OF 2017

PIUS BIGIRIMANA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

1. THE MONITOR PUBLICATIONS LTD

A NATION MEDIA GROUP COMPANY
2. THE MANAGING DIRECTOR
THE MONITOR PUBLICATIONS LTD
3. MANAGING EDITOR/EXECUTIVE EDITOR/EDITOR-IN-CHIEF
THE MONITOR PUBLICATIONS LTD
4. THE EDITOR, SUNDAY MONITOR,
A PUBLICATION OF THE MONITOR PUBLICATIONS LTD
5. ANDREW BAGALA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS

BEFORE HON. JUSTICE SSEKAANA MUSA

JUDGMENT

The plaintiff filed this suit against the defendants jointly and severally for
general damages for defamation to the tune of 1,000,000,000/=; Exemplary
damages of 900,000,000/=; An order compelling the defendants to publish
an apology in the said newspapers and online news channel; A Permanent
injunction restraining the defendants and or their agents, editors,
publishers, from making, publishing, circulating any further defamatory
stories against or about the plaintiff.

The plaintiff contended that between the year 2012 and 2015, the
defendants continuously made numerous malicious, spiteful, untrue and
defamatory publications against him in the daily Monitor, Saturday
monitor and the Sunday monitor under the following title heads;
1) Auditors target Bigirimana in cash probe; a publication of 14th October
2012;
2) MPs Order Government to remove Bigirimana; a publication of 2nd
November 2012;
3) Government remains undecided on calls to suspend Bigirimana; a
publication of 5th November 2012;
4) MPs give ultimatum over PS Bigirimana; a publication of 7th November
2012;
5) Law makers want First Lady to defend self in OPM scam; a publication of
9th November 2012;
6) The Treasury Officials accuse OPM PS of covering money scam; A
publication of 16th November 2012;
7) Bigirimana contradicts himself on purchase of Ministers’ cars; publication
of 30th November 2012;
8) Bigirimana’s wife acquires shs 250m Mercedes Benz; a publication of 4th
December 2012;
9) Police to question Bigirimana today; a publication of 28th December 2012;
10) Bigirimana refuses to meet detectives; a publication of 29th December
2012;
11) OPM inquest hits new set back; a publication of 21st February 2013;
12) OPM officials survive lynching; a publication of 7th March 2013;
13) Denmark warns of aid cut over OPM scandal; a publication of 26th March
2013;
14) Money, Drugs eat up police Force; a publication of 5th November 2017;
and
15) Corruption Ledger; a publication of 10th March 2013-.
The plaintiff contended that the different stories portrayed him as; a smart
criminal who was untouchable in any circumstances; an embattled civil
servant who made illicit expenditure on OPM funds; a person who thrives
on State house pampering and patronage, and who obstructs police
investigations and above all a liar.

The defendants never at all reached the plaintiff or called him to verify the
veracity of the said allegations, despite the fact that as, a public servant the
plaintiff was accessible to anybody but decided to go ahead and publish
the stories wantonly without regard to the negative impact they would
have on the plaintiff.

The plaintiff further averred and contended that the said publications were
false and intended to tarnish his name as the then Director of Public
Prosecutions, Justice Mike Chibita wrote a letter on 28th May 2019 clearing
the plaintiff and stating that in all the cases that have been prosecuted so
far, the role of the plaintiff was that of a complainant and prosecution
witness.

The publications of the defendants as set out in the plaint in their natural
and ordinary meaning, meant or were understood to mean in the minds of
right thinking members of the public that the plaintiff;
i) was a beneficiary of illicit dealing in a public office.
ii) Is a disdainful and arrogant Public Servant,
iii) Is person with no respect for due process,
iv) Is a person with no regard to civil authority,
v) Is a person too exalted to heed summonses of the police,
vi) Is a person who obstructs the course of Justice,
vii) Is a person who interferes with and obstructs the course of Police
Investigations,
viii) Is a person who is above the law with an untouchable mentality and
personality,
ix) Is culpable for fraud but disguises himself as a whistle blower,
 x) A person who thrives on presidential pampering and patronage.

The plaintiff contended that as a direct consequence of the false and

malicious publications, has suffered damage and injury (lost public
reputation and has been shunned) as result from taunts and malicious
publications at his place of work, family, general public and the world at
large.

The defendants admitted having published the words pleaded in the

paragraph 6 of the plaint but denied that the stories were spiteful,
malicious, odious, unprofessional and defamatory to the plaintiff or that
there is no grain of truth in said stories and the plaintiff shall be put to
strict proof thereof.

The defendant further admitted having published the words but deny that
the said words are false or defamatory of the plaintiff or that they bear the
alleged meaning attributable to them or that it is relevant as to what
meaning is ascribed to them or that the plaintiff was defamed thereby.

The defendant further averred that the publication was in respect of issues
concerning the running of public offices in which a colossal amount of
money was lost, the plaintiff was the overall accounting officer in the said
ministry, the amount was lost over time, the loss caused public and donor
community outcry, the loss resulted in police investigations and
accordingly the defendant has a social, moral and legal duty to make
publication in that respect to the public which similarly had a
corresponding moral and social duty to receive the publication and each of
the impugned publication was made on an occasion of qualified privilege
and is not actionable.

The defendant further contended that the publications were not made in a
cavalier fashion and were commentaries on an issue of public importance
and it would be a breach of duty being a public watchdog for the
defendants to keep mum on the events of the day.
The Plaintiff was represented by Mr. Godfrey Himbaza while the defendant
was represented by Mr. James Nangwala and Ms Diana Kwesiga.

The parties filed a joint scheduling memorandum and the following facts
and issues were agreed upon and the documents agreed upon were
exhibited;
Agreed Facts

The defendants made publications about the plaintiff.

Agreed Issues

1. Whether the plaint discloses a cause of action against the defendants.

2. Whether the defendants’ publications about the plaintiff were defamatory?
3. Whether the publication was made on account of qualified privileged.
4. What remedies are available?

The plaintiff led evidence of 3 witnesses to prove his case to wit;

Komurubuga George (Police Officer) PWI, Pius Bigirimana (Plaintiff) PWII
and Frank Kanduho Rwabosy (Lawyer) PWIII. The defendants led
evidence of Yasin Mugerwa (News Editor) DWI and Nalugo Mercy-
(Regional Editor) DWII.

Parties filed written submissions which have been considered by this court
in writing this judgment.
The first issue was abandoned by the parties (defendants).

ISSUE 2 AND 3
Whether the defendants’ publications about the plaintiff were defamatory?
&
Whether the publication was made on account of qualified privilege?
Plaintiff’s Submissions
The plaintiff’s counsel submitted that In a defamation law suit, the duty of
a complaining party is to address Court on the natural and ordinary
meaning of the actual words used in an impugned publication and a
demonstration to the Court that the impugned words when looked at in
their natural and ordinary meaning, had the effect of injuring one’s
reputation. Once the plaintiff has discharged this duty, the burden of
qualifying the impugned publication(s) whether as true or privileged shifts
to the defendants.

This was Court’s stand point in the case of AK OILS & FATS (U) LTD VS
BIDCO UGANDA LIMITED HCCS 0715 OF 2005, to the effect that;
“In defamation suits, for Court to determine whether the words complained
of are capable of a defamatory meaning, one must first look at the words
themselves. Then one has to consider the circumstances under which they
were published. In all this, the Plaintiff does not shoulder the burden of
proving falsity or Malice in order to establish a cause of action. If the words
are defamatory or capable of being so construed, the law presumes that they
are false. The burden shifts to the defendants to show that they are true.”

The plaintiff did complain that the defendants made malicious, spiteful, false
and defamatory publications against him in The Daily Monitor, The Saturday
Monitor and the Sunday Monitor, which publications were accessed and read by
people all over the world given the readership coverage that these publications
enjoy.
The plaintiff counsel particularly contended and submitted that the
impugned stories published about and against him were numerous
intuitively suggesting that the motive was malicious so far as the
defendants did not, at any moment in time, through their various reporters
care to reach out to him for his side of the story in informing the balanced
coverage of the stories outed about and against him.

On the test of the decision in ADAM -vs- WARD [1917] AC 309, as per
Lord Atkinson, at page 334:
 “Qualified privilege is when a person who makes a communication has an
interest or a duty, legal, social or moral to make it to the person to whom it
is made and the person to whom it is made has a corresponding duty to
receive it”. Qualified privileged operates only to protect statements which
are made without malice”

Further, the House of Lords in REYNOLDS -vs- TIMES NEWSPAPER LTD

[2001] AC 127, 205 set out multiple factors to be considered when deciding
whether a defendant has established privilege. Those factors were stated to
be;
i) The seriousness of the allegations. The more serious the charge,
the more the public is misinformed and the individual harmed, if
the allegations are not true.

ii) The nature of the information and the extent to which the subject
matter is a matter of public concern.

iii) The source of the information. Some informants have no direct

knowledge of the events. Some have their own axes to grind or are
being paid.

iv) The steps taken to verify the information.

v) The status of the information. The allegation might have been the
subject of an investigation which commands respect.

vi) The urgency of the matter.

vii) Whether a comment was sought from the plaintiff.

viii) Whether the article contained a gist of the plaintiff’s side of the
story.

ix) The circumstances of the publications including the timing.

In the case of ENG. BARNABAS OKENY & 4ORS -vs- PETER ODOK
W’OCENG CIVIL SUIT NO. 12 OF 2009, (Gulu High Court Circuit) Hon.
Stephen Mubiru. J held that:
“a person alleging in good faith must establish the fact that before making
any allegations, he had made an enquiry and necessary reasons and facts
given by him must indicate that he had acted with due care and attention
and that he was satisfied about the truth of the allegation.

Evidence of inadequate investigation would show intent to inflict harm

through falsehoods. Such evidence would suggest that because of his bias, the
defendant knowingly or recklessly avoided the truth by performing an
inadequate investigation. Deliberate or reckless falsity is evidence of express
malice.”
The plaintiff’s counsel further submitted that it is therefore trite to
approach the matter now before Court from both the perspective of malice
or the lack thereof in order to establish whether the plaintiff can sustain a
claim of defamation or whether indeed the defendants are entitled to
qualified privilege. This would require that the second issued is not
segregated from the third issue and vice versa. In effect, the resolution of
both would lead to the same result whether for or against the plaintiff.

In the instant case, DW1 in cross examination conceded that as a journalist,

he owed a duty of care onto the plaintiff to ensure responsible reporting. It
is therefore presupposed that DW1 is a man sufficiently tooled with the
necessary skill and expertise to discern reckless reporting from cautious,
fair and balanced reporting.

Applying the test established in the decisions afore-cited, the best approach
to take in resolving the case now before court would be a joint resolution of
issues 2 and 3.
The daunting question in the mind of the judge when faced with a defence
of qualified privilege would be:
1. Whether the defendants have demonstrated that they carried out adequate
investigations prior to the impugned publication(s)?
2. Whether the defendants have demonstrated that they reached out to the
plaintiff to source his side of the story?
3. Whether the defendants have demonstrated relevance of materials in their
story to the overall theme of the story?
4. Whether the defendants have demonstrated that steps were taken to verify
the story complained of on a bar of its ingredient(s) of truth and
accuracy?
5. Whether the defendants have demonstrated that their sources were
credible?
With that test in mind, the court would proceed to examine the story
complained of and weigh the plaintiff’s contention on a balanced bar of
malice on the one hand and privilege on the other hand.
he publication of 14th October 2012, to the effect that:
“AUDITORS TARGET BIGIRIMANA IN CASH PROBE”
Sources revealed that Mr. Bigirimana’s name is expected to feature prominently in
the audit report…with a case to answer... all I can say for now is that the PS has a
case to answer. A source said, we are still investigating him and other officials in
the OPM but I can assure you when the report finally comes out, heads are going
to roll. We have found unaccounted for funds and forged accountabilities for
advances among other irregularities where tax payers lost money”.

The operative words prominent in the impugned story are:

i. “the PS has a case to answer”
ii. we have found unaccounted for funds and forged accountabilities”
Going by the script of the impugned publication, the intention was to
malign the person of the plaintiff. This is especially so given that the course
of investigation(s) had just been oscillated. No interviews had been
conducted. No witnesses had testified whether at police or elsewhere.
The publication of 4th December 2012, exhibit PE5A, so far as the said
publication was to the effect that:
“ Just Weeks after 12 European nations suspended budget support to Uganda until
2015, parliament has taken an interest in reports that the wife of one of the
embattled senior civil servants in the office of the Prime Minister acquired a brand
new $ 100,000 (Shs 250 Million) car which was paid for in cash….the four wheel
drive is now registered in the names of Mrs. Elizabeth Bigirimana, the wife of the
Permanent Secretary in the OPM Mr. Pius Bigirimana…Mr. Bigirimana is in the
eye of the storm in which according to a special audit by the Auditor General, over
500bn has gone missing under his watch”
The story went on to state under a sub-headline that;
“Suspicious expenditure.
…all payments were made in US Dollars and in cash and by December 9, 2010,
the vehicle had been fully registered in Ms. Bigirimanas’ name”.

The plaintiff did contend in his evidence-in-chief and during his

unchallenged evidence during cross-examination that the said story was
false so far as it portrayed him not just as a thief but also as a person who
deploys public resources towards illicit enrichment for self and his spouse.

The plaintiff, in explaining the malicious content of the impugned

publication relied on Exhibit PE 7 which shows that Spear Motors the
vendor of the questioned motor vehicle handed it over to the plaintiff’s
spouse after receipt of the last installment of USD 20,000, indicative that the
subject motor vehicle was procured in installments contrary to the
Newspaper publication which indicated that the vehicle was paid for in
cash.

The plaintiff contended that, to a reasonable newsreader, the impugned

story painted a picture of;
a. A motor vehicle bought using proceeds of graft,
 b. A motor vehicle paid off at one go on account of availability of money
from an illicit source,
c. A motor vehicle bought by the plaintiff for his spouse using illicit
funds.

The plaintiff submitted that there were more defamatory remarks in the
publication of 28th December 2012, PE5B, whereby, the Daily Monitor bore a
headline title:
“POLICE TO QUESTION BIGIRIMANA TODAY”
and a sub headline:
“This Follows several attempts to have him quizzed but only for top government
officials to block the police.
The Police will today question Permanent Secretary Pius Bigirimana over the
massive fraud in the office of the Prime Minister…it is the first time that Mr.
Bigirimana will be questioned over his role in the fraud…senior government
officials blocked previous attempts by the police to interview Mr. Bigirimana.
Although Mr. Bigirimana says he is the whistleblower in the matter, several
workmates, MPs and an Audit report by the Auditor General point to his
knowledge and involvement in approving many payments.Investigations
continue”
It was the plaintiff’s evidence and that of PW1, SP Komurubuga that by the
time the impugned story was done, he had fully cooperated with the police
and that he had indeed recorded many statements. The plaintiff insisted
that the intention of the Daily Monitor in publishing such a malicious story
was to portray him as a man who was being pampered and protected by
government.

The publication of 29th December 2012, PE5W whereby the Saturday

Monitor bore a story to the effect that;
” Bigirimana refuses to meet detectives-
Permanent Secretary in the OPM tells Police he’s not ready to record a statement
over fraud in his office…the Permanent Secretary Pius Bigirimana yesterday
refused to be interrogated by Police detectives investigating a multi-billion shilling
fraud in the office of the Prime Minister…. yesterday was supposed to be the first
time Mr. Bigirimana was facing the police to assist them in their investigations
which started more than five months ago………………. sources told this
newspaper that Bigirimana did not report at the Police Station or record a
statement, instead the source said the Permanent Secretary wrote and submitted a
document to the Police to support the charges against Mr. Kazinda… … … Mr.
Bigirimana’s refusal to meet detectives is likely to raise fresh questions about
whether he’s benefitting from preferential treatment in the
investigation….…………..………. Although Bigirimana says he is the whistle
blower in the matter, several workmates, MPs and an audit report by the Auditor
General point to his knowledge and involvement in approving many of the
payments”
The natural and ordinary meaning of the words herein employed in this
publication is that;
1. The plaintiff had made it a habit not to cooperate with police,
2. The plaintiff had been snubbing police summonses and five months have
gone downhill without him recording a single statement,
3. Even when the police thought it was going to interact with the plaintiff for
the first time, he still declined to render his cooperation.
4. So, to speak, the plaintiff was untouchable.
The plaintiff equally complained that vide exhibit PE5BB, a story of 21 st Feb
2013, the Daily Monitor injured his reputation when it wrote against him as
follows:
“OPM Inquest hits new setback”
…appearing in Court last week as the main state witness and complainant in a
forgery case against Mr. Kazinda, Mr. Bigirimana denied a statement that the
prosecution produced and attributed to him. The disputed statement later
disappeared from the court registry under unclear circumstances.”

The plaintiff contends that the said publication, in its natural and ordinary
meaning, meant or was understood to mean that;
 1. The plaintiff, who appeared for the prosecution, turned a hostile witness by
denying a document that the prosecution had “attributed” to him.
2. The plaintiff used underhand methods leading to obscurity in the
disappearance of the alleged document,
3. The plaintiff so did in order to avoid being implicated in the scam.

The plaintiff contends that the publication of 2nd November 2012, exhibit
PE5X, by the Daily Monitor about and against him was defamatory.
That impugned story went as follows:
“MPs ORDER GOVERNMENT TO REMOVE BIGIRIMANA.
On Monday the government interdicted 17 senior officials from OPM, Bank of
Uganda and Ministry of Finance over the theft of donor funds meant for
reconstruction of Northern Uganda and Karamoja sub region. However, Mr.
Bigirimana was spared on claims that there was no evidence linking him to the
theft of the money. State House yesterday also jumped into Bigirimana’s defence”.
In and through the said story, the plaintiff contended, in its natural and
ordinary meaning, meant or was understood to mean that he was one of
the culprits in the scam, who only thrived on State House protection.

The plaintiff further submitted that the content of the Daily Monitor story
of 5th November 2012 wherein it was published of and about him as
follows;
“Government remains undecided on calls to suspend Bigirimana.
As accounting officer at OPM Mr. Bigirimana has been held personally liable in
particular instances of the reported fraud by the Auditor General”
Vide Exhibit DE3, which is the report of the Auditor General, there is
nowhere where a “holding” was made to the effect that the plaintiff was
“personally liable in particular instances of the reported fraud.” What
appears in the said report, at page 177, the Auditor General faults the
plaintiff for not ensuring that closure of accounts on a daily basis. This does
not amount to “personal liability in instances of the reported fraud” as
reported by the Daily Monitor. Intuitively, the story was false.
The deliberate usage of the terms “held personally liable in the instances of
the reported fraud” was calculated to portray the plaintiff as a fraudulent
person. It is not explainable on any hypothesis of common sense why the
Daily Monitor chose, of all diction, such damning phraseology.

The plaintiff further contended that he was defamed by the content of the
story ran by the Daily Monitor of November 7th 2012, exhibit PE5 O.
The impugned story went as follows:
“MPs give ultimatum over PS Bigirimana.
The Lawmakers say they will not rest until the OPM Permanent Secretary is
removed from office.
MPs yesterday accused the government of pampering suspects in the office of the
Prime Minister.
“ Even if the government decides to protect Bigirimana, the angry spirits of the
people whose lips were cut and those who were killed by rebel leader Joseph Kony
will not allow him rest”. Said Haruna Kasolo.
“Those shielding Bigirimana should know that the ghosts are not sleeping and they
will not let him off”
“Mr. Bigirimana knew about the stealing and he must leave office. He must take
responsibility unless government wants to tell us that he is immune…”.

The said story carried material falsehoods as there was no evidence to

prove that the plaintiff had stolen any funds.
The defendants cannot benefit from qualified privilege when they opted to
publish a story that lacked truth in material particular. Their failure to
conduct investigation(s) before the story could be published renders them
liable for the impugned malicious publication.

The publication of 9th November 2012, PE5E, in which a story was carried
to the effect that;
“Lawmakers want First Lady to defend self in OPM scam.
 At Yesterday’s closed door meeting, MPs also heard that when auditors
asked PS Pius Bigirimana to explain why he authorized the suspect
spending of 20.1 Billion off the Crisis Management account, he replied ‘ I
thought the money had come from heaven and we started spending it’.”
The Plaintiff avers that the said statement was false and malicious. There is
no record that attributes the words highlighted to the plaintiff.
The fact that the meeting was closed door necessitated the defendants to do
much more than they did to establish whether indeed the plaintiff had said
that “the money came from heaven”. For the defendants to have gone ahead to
publish such a story and attribute such words to the plaintiff, a right thinking
member of society was suffered to believe that the plaintiff is reckless in his
application of public resources. The plaintiff came out as a person who haphazardly
goes about the discharge of his public functions without the care to verify sources
of funding.

The Daily Monitor bore on November 16th 2012, exhibit PE5C headlined:
“Treasury Officials accuse OPM PS of covering money scam.
The Deputy Treasury Secretary Mr. Keith Muhakanizi, said OPM Permanent
Secretary Pius Bigirimana was the architect of removal of an official who detected
the scam…Top bureaucrats from the Treasury department yesterday pinned down
the Permanent Secretary OPM Mr. Pius Bigirimana over the suspected cover up
of the scam in which billions of shillings in foreign aid was lost….the former
principal internal auditor Shaban Wejula who had detected the fraud in OPM was
removed on orders from above but the Deputy PS/ST said Mr. Bigirimana was the
architect of his removal.”

The plaintiff complains that if the Daily Monitor had cared to double check
its sources, it would have established that Keith Muhakanizi did not utter
the alleged outbursts. He contends that if the Daily Monitor had cared to
establish well, it would have established that it was him and not Wejula
who had detected the fraud.
The plaintiff did complain that he was defamed by the content of the story,
exhibit PE5H, which was ran on 30th November 2012 titled;
“Bigirimana Contradicts himself on purchase of ministers’ cars.
Events of the past few days suggest that Mr. Pius Bigirimana, Permanent
Secretary in the OPM may have lied when he publicly refuted reports that money
was diverted from the Northern Uganda Peace Recovery Development Programme
to buy cars for Ministers.”

By the content of the said story, the plaintiff contends that a picture was
painted of and about him to the right thinking members of society that he
is a liar and unfit to hold a public office.

The plaintiff also contends that he took offence with exhibit PE5CC, a
publication of the Daily Monitor of 7th March 2013 to the effect that:
“OPM OFFICIALS SURVIVE LYNCHING.
Mr. Bigirimana remains in office months after Parliament resolved that he be
suspended because of the scandal at OPM. He has also recently been handed
additional duties to monitor other Ministries and Departments by President
Museveni, whom MPs accuse of protecting some suspects.”

The plaintiff contended that this story defamed him in the manner it
portrayed him as a smart a man who had presided over scandals at OPM
but on account of being untouchable he could not be suspended.

The plaintiff further took offence with the story carried in the Sunday
Monitor of 10th March 2013, exhibit PE5GG, headed:
“Corruption Ledger.
MPs in a bid to get down the nitty gritty in the theft of donor money in the office
of the OPM are inspecting supposed projects in northern Uganda and Karamoja.
They have apparently managed to uncover ghost projects and some that do not
measure up to the expenditure attached to them. Interestingly, Mr. Pius
Bigirimana disputes the findings as usual for example a review of the resettlement
exercise for Bududa landslide survivors in Kiryandongo found ghost food deliveries
and suspicious accounting in agriculture expenditures”

In this story, the choice and use of phrases such as “Bigirimana disputes the
findings as usual” , “for example a review of the resettlement exercise for Bududa
landslide survivors … found ghost food deliveries and suspicious accounting…”
would be central in interrogating the defamation attendant to the
impugned story.

The choice of a phrase “as usual” connotes that the Sunday Monitor had,
over time, studied patterns regarding the plaintiff’s public conduct and it
had come to the conclusion that he is habitually evasive and refutes the
obvious.

The plaintiff further takes exception with the Daily Monitor’s story of
March 26th, 2013, exhibit PE5AA under the subject caption:
“Denmark warns of aid cut over OPM scandal.
OPM Principal Accountant Geoffrey Kazinda, his middle level colleagues and
their alleged accomplices in the finance ministry and the central bank were either
interdicted or arrested but Permanent Secretary Pius Bigirimana, who is the
accounting officer remains in office. Some of his bosses say he blew the whistle on
the cash bonanza but there has been no explanation as to why he never prevented it
in the first place”.

The plaintiff’s counsel submitted that had the Daily Monitor not been
motivated by malice it would have carried out independent investigations
and come up with the truthful version regarding how the diversion was
brewed and fermented.

The Sunday Monitor publication of 5th November 2017, exhibit PE5UU,

another malicious story was authored about and against him through the
5th defendant. The impugned story ran as follows:
“But M/ Akullo’s attempt to move further against corruption suffered a blow when
officials in the Ministries fought back. For example, Mr. Pius Bigirimana, the then
Permanent Secretary in the OPM who has since been transferred to the Ministry
of Gender, Labour and Social Development again as Permanent Secretary, declined
to record a statement with the police about the cases in the OPM. MS Akullo and
her CID team were rendered helpless…..Ms Akullo’s response was that she could
not proceed without senior officers in the OPM recording statements. “We have
written to PS Bigirimana to record statement with our detectives to help us
understand how the funds were used but up to now, he has refused, how can we
fast track the investigations when people who claim to be whistle blowers don’t
want to cooperate”. Akullo’s letter said in part”

The 5th defendant, had earlier in May 2013, written and published another
false story in the Daily Monitor, Exhibit PE5 VV, that read follows;
“ Ms Akullo said that investigating fraud is not as easy as is the case with
catching chicken thief, it takes time and resources. We have over 180 case files we
are investigating which we can’t do overnight…..senior officers in the OPM and
other ministries including Permanent Secretary Pius Bigirimana have refused to
record statements in regard to mismanagement of funds…we have written to
Bigirimana to record a statement with our detectives to help us understand how
the funds were used but up to now he has refused. How can we fast track the
investigations when people who claim to be whistle blowers don’t want to
cooperate?”

The Plaintiff avers that the said stories were false considering that at the
time they were published, Police, in particular, CIID, already had in its
possession more than one score statements.
The said publication, the plaintiff contends, in its natural and ordinary
meaning meant or was understood to mean, in the minds of the right
thinking members of the public that;
i) he was a beneficiary of illicit dealings in a public office,
 ii) he is a disdainful and arrogant Public Servant,
iii) he is a person with disrespect for due process and has no regard for
civil process,
iv) he obstructs Police investigations with an untouchable mentality.

Both from the perspective of the flow of evidence and the pleadings before
Court, it did not feature that the defendants ever bothered to reach out to
the plaintiff to verify the veracity of the above allegations, despite the fact
that, as a public servant the plaintiff, as he does aver, was accessible to
anybody desirous of consulting him for whatever reason.

The plaintiff rightly complains that the 5 th defendant decided to go ahead

and publish the stories without regard to the negative impact they would
have on his person.

The malice that colors the impugned stories is driven home by the
falsehoods attendant to exhibit PEB5 to the effect that the plaintiff had
“refused to meet detectives” and that it was meant to be the first time he
was recording a statement, yet, as discerned from collective exhibit PE4,
the plaintiff had actually recorded several statements with Police before
this publication.
The plaintiff prayed for the reliefs sought in the plaint.
Defendants’ submissions

The Defendants have contended mainly that the publications complained

of were made on an occasion of qualified privilege which, when
established, is a complete defence to an action for libel.

The most recent English decision which summed up the defence is the
House of Lords case of Jameel and others –v- Wall Street Journal 2006
UKHL 44. The court departed from its earlier decision of Reynolds v
Times Newspaper Ltd. which was extensively relied upon by Counsel for
the Plaintiff and noted as follows;
“A defence of privilege in the usual sense is available when the defamatory
statement was published on a privileged occasion and can only be defeated by
showing that the privilege was abused”.

A statement by Lord Diplock in Horrocks –v- Lowe [1975] AC 135, 149

quoted.
“The public interest that the law should provide an effective means whereby a man
can vindicate his reputation against calumny has nevertheless to be accommodated
to the competing public interest in permitting men to communicate frankly and
freely with one another about matters in respect of which the law recognizes that
they have a duty to perform or an interest to protect in doing so. What is
published in good faith on matter of these kinds is published on the privileged
occasion. It is not actionable even it be defamatory and turns out to be untrue.. the
privilege is not absolute but qualified. It is lost if the occasion which gives rise to it
is misused”.

The Judge elucidated further that misuse of the privileged occasion is

malice and the burden is on the Plaintiff to prove it. In paragraph 48, Lord
Hoffman, in dealing with the question whether an article was a matter of
public interest had this to say:

“…. One should consider the article as a whole and not isolate the defamatory
statement”
In paragraph 51, His Lordship had this to state to sum up the defence.
“.. if the article as a whole concerned a matter of public interest, the next question
is whether the inclusion of the defamatory statement was justifiable. The fact that
the material was of public interest does not allow the newspaper to drag in
damaging allegations which serve no public purpose. They must be part of the
story. And the more serious the allegation, the more important it is that it should
make a real contribution to the public interest element in the article. But whereas
the question of whether the story as a whole was a matter of public interest must be
decided by the Judge without regard to what the editor’s view may have been, the
question of whether the defamatory statement should have been included is often a
matter of how the story should have been presented. And on that question,
allowance must be made for editorial Judgment. If the article as a whole is in the
public interest, opinions may reasonably differ over which details are needed to
convey the general message. The fact that the judge, with advantage of leisure and
hindsight, might have made a different editorial decision should not destroy the
defence. That would make the publication of articles which are, ex hypothesi, in the
public interest, too risky and would discourage investigative reporting”.

In paragraph 56 the Judge held that “the standard of conduct required of the
newspaper must be applied in a practical and flexible manner. It must have regard
to practical realities”.

Still on the principles underlying the defence of qualified privilege, Lord

Hope of Craighead had this to emphasize in the Jameel case in paragraph
107.
“Responsible journalism” is a standard which everyone in the media and elsewhere
can recognize. The duty-interest test based on the public’s right to know, which
lies at the heart of the matter, maintains the essential element of objectivity. Was
there an interest or duty to publish the information and a corresponding interest or
duty to receive it, having regard to its particular subject matter? This provides the
context within which, in any given case, the issue will be assessed. Context is
important too when the standard is applied to each piece of information that the
journalist wishes to publish. The question whether it has been satisfied will be
assessed by looking to the story as a whole, not to each piece of information
separated from its context”.
In paragraph 108, Lord Hope further emphasized that in assessing whether
the public had a right to know, each piece of information in the article should not be
assessed piece by piece. That a piece of information may lose colour in the context
of the entire article when evaluated. Further that, “Weight will be given to the
Judgment of the editor in making the assessment, as it is the article as a whole that
provides the context within which he performs his function as editor”.

Reference is made to Gatley on Libel and Slander in a Civil Action 4 th

Edition published by London Sweet & Maxwell Limited. At page 287 the
learned author tackles jurisprudence on Report of Parliamentary
Proceedings and has this to state:

A fair and accurate report in a newspaper or otherwise of any debate or proceeding

in either House of Parliament, or in any committee thereof, is privileged at
common law. … The publication is privileged on the same principle as a fair and
accurate report of the proceedings in a court of justice, viz, that the advantage of
publicity to the community at large outweighs any private injury resulting
from the publication. “The analogy between the two cases is in every respect
complete……… whatever will deprive a report of proceedings in a court of justice
of immunity, will equally apply to a report of proceedings in Parliament”.
By the above extract one infers that the jurisprudence covering qualified
privilege of a report of judicial proceedings will equally apply to a report of
Parliamentary proceedings without exception.

The author makes extensive coverage on reports and broadcast of judicial

proceedings, which as seen above extends to reports out of Parliamentary
Proceedings. From Page 294 to 295, the learned author has this to say:

“The privilege given to reports of proceedings in courts [read parliamentary

proceedings] is based upon this, that, as everyone cannot be in court, it is for the
public benefit that they should be informed of what takes place substantially as if
 they were present.” “Such publication is merely enlarging the area of the court,
and communicating to all that which all have the right to know.” “It is important
that the country should know what goes on in courts of justice and there is also
this consideration, that justice is often assisted by publication of reports of
proceedings.” “Though the publication of such proceedings may be to the
disadvantage of the particular individual concerned, yet it is of vast importance to
the public that proceedings of courts of justice should be universally known. The
general advantage to the country in having these proceedings made public more
than counterbalances the inconvenience to the private persons whose conduct may
be the subject of such proceedings.”

The defendants’ counsel submitted that; The preamble to the Constitution

sets down National Objectives and Directive Principles of State Policy.
Under Directive Principle II,
The state shall be based on democratic principles which empower and encourage
the active participation of all citizens at all levels in their own governance.
Directive Principle XXVI provides as follows:
i. All public offices shall be held in trust for the people.
ii. All persons placed in positions of leadership and responsibility shall, in their
work, be answerable to the people.
iii. All lawful measures shall be taken to expose, combat and eradicate
corruption and abuse or misuse of power by those holding political and
other public offices. [emphasis added]

It was counsel’s contention that the above principles embodied in the

Constitution are an instrumental juxtaposition with the extract above cited
in the landmark case of Jameel and others –v- Wall Street Journal which
should inform court in the decision it is to make in this case concerning the
role of the Plaintiff and the sources of the publications made by the
Defendants concerning him, which were mainly Parliament and the Office
of the Auditor General. Exposure of abuse of office and public funds is not
only a moral and social duty but is a Constitutional duty as can be
discerned from the National Objectives and Directive Principles of State
Policy which are embodied in the Constitution. It is submitted that when
analysing the defence of qualified privilege, a court of justice in Uganda
should consider the Common law and the above cited directive principles
concurrently.

Investigations and inquiries by the office of the Auditor General, the

Criminal Investigations Department of the Police and Public Accounts
Committee of the Parliament of Uganda regarding those funds took place.
The office of the Auditor General and the Public Accounts Committee of
Parliament produced Reports which were exhibited in court.

The Plaintiff and many of the officers working under him, including but
not limited to officers from Bank of Uganda and Ministry of Finance
appeared before the Auditor General, the Criminal Investigations
Department of the Police and Public Accounts Committee of the
Parliament of Uganda. A good number of them were charged convicted
and jailed. In his evidence under cross examination, the Plaintiff admitted
that he came under scrutiny and was therefore the subject of investigations.
See Page 84 and 85 of the Proceedings.

Was there recklessness and hence malice in the publication? The finding
can best be made by briefly analyzing each of the articles which is the
subject of the suit.

The caption Auditors Target Bigirimana in cash probe. Counsel

contended that the plaintiff singled out the phrase, “the PS has a case to
answer”. it is the ordinary meaning of the words used and not the
technical meaning thereof that should be employed in the interpretation
unless the publisher contextually used them in a technical sense. The use of
the phrase “the PS has a case to answer” should be interpreted using the
ordinary meaning attached to those words and in the context of the fact
there was an ongoing audit. The audit was not in respect of some petty
cash expenditure but in respect of abuse of public funds in excess of UGX
20,000,000,000=. In carrying out the audit there was a case to explain on
how the funds ended up in the Department to which he was the accounting
officer and how they were abused. In that case, a case to answer should be
interpreted to mean that there was heavy explanation to make to convince
whoever was auditing the questioned expenditure.

The Publication of 4th December 2012 Exhibit PE5A. This was in respect of
acquisition of a United States Dollars 100,000 Mercedes Benz by a one Mrs.
Elizabeth Bigirimana, wife of the Plaintiff. It transpired in evidence that the
wife of the Plaintiff is a civil servant working with Uganda Broadcasting
Corporation (UBC). The Plaintiff did not deny that Mrs. Elizabeth
Bigirimana is his wife. It was not denied that the vehicle was paid for in
cash deposits. Of course, the sources of the funds were not explained. This
story was true in fact and in substance and one would wonder why the
Plaintiff complained about it.

The Plaintiff has no problem with the above details but has a problem with
the opening statement that the vehicle was paid for in cash of $ 100,000.
Besides the article cites Parliament as having been interested in the said
acquisition using that mode of payment. It is submitted that the said article
which is true in fact and in substance is not actionable. The defence of
justification may not have been framed as an issue, but in this respect, the
plea of justification was raised by the defence in their pleadings.

Publication of 28th December 2012, Exhibit PE5B under the heading

POLICE TO QUESTION BIGIRIMANA TODAY
The Court is invited to analyse the entire article as a whole. The article was
not about recording statements but about interviewing the witness which
was supposed to be done at his office and not at CID headquarters. The
article is in respect of interviewing the Plaintiff to shed light on how Shs.
6.9 billion was fraudulently diverted to the National Policy, Disaster
Management Account and not statement recording. The article was about
interviewing the Plaintiff as a possible suspect and not merely recording a
statement as a witness. It is submitted that the context in which the article
was published was on a matter of public interest given that the Plaintiff
was the Accounting Officer in the Office of the Prime Minister and massive
fraud involving funds in a public office to which he was the Accounting
Officer had taken place. There was nothing wrong with appearing at police
for questioning.

Publication of 29th December 2012, Exh PE5 – Bigirimana refuses to meet

detectives.
Without delving so much into the merits of this publication, the alleged
cause of action founded on this publication was introduced in the
Plaintiff’s pleading pursuant to the amendment of the Plaint filed on 20 th
November 2020. The latest time that it should have been filed in court is
29th December 2018. The submissions in Paragraph 16 apply to this action
and it should also be dismissed with costs.

Publication of 21st February 2013 under the caption, OPM Inquest hits
new set setback
It is unclear why the Plaintiff is complaining about this one and half
sentence extract out of the entire article. This was a report of Court
proceedings. Nevertheless, action on this article was initiated as a cause of
action on 20th November 2020. The last date on which action founded on
this publication should have been filed was 21 st February 2019. The
submissions in Paragraph 16 apply to this action and it should also be
dismissed with costs.

Publication of 2nd November 2012 under the caption, MPS order

Government to remove Bigirimna.
The main substance in the article was a detailed story on how Donors froze
aid to Uganda in view of the previous massive fraud in the Office of the
Prime Minister. In his evidence in chief, DW1 in Paragraph 20 testified that
the story was based on Parliamentary Proceedings which the witness
covered. He even mentions the Members of Parliament who contributed to
the debate. The publication is privileged. To single out three sentences and
claim they were defamatory is in fragrant deviation of the principles
enunciated in the case of Jameel and others –v- Wall Street Journal

The Publication of 5th November 2012 (Exh. PE 5 t) under the caption,

Government remains undecided on calls to suspend Bigirimana.
The complaint from the entire article is only one sentence! The sentence
when read in the context of the entire article falls squarely under the
defence of qualified privilege. The commentary stems from the report of
the Auditor General. For example, the Court is referred to Page 177 of
Exhibit DE3 on which the Plaintiff as Accounting Officer is faulted for
having failed to carry out his duties. The Accounting officer is also faulted
on Page 100 to 101 of the proceedings. Nevertheless, this plea only came
into the court as a cause of action on 20th November 2020 with the filing of
the amended Plaint. The latest time that an action arising out of the
publication should have been filed was 5th November 2018. The action is
time barred.

Publication of November 7, 2012 (Exhibit PE 5O) under the caption, MPs

give ultimatum over PS Bigirimana.
This is an extract is from a very long article authored by DW1, Yasin
Mugerwa. The sources of the publication are disclosed as coming from
Members of Parliament after a debate. The story was published on an
occasion of qualified privilege. Nevertheless, the cause of action was
introduced in the amended plaint filed on 20 th November 2020. The latest
time that an action arising out of the publication should have been filed
was 7th November 2018. This action is time barred.

Publication of 9th November 2012 (Exh PE5E) under the caption, Law
Makers want First Lady to defend self in OPM scam.
The Plaintiff singles out one sentence from an article spilling over to 2
pages and alleges that it is defamatory. The publication names the sources
of the story as being Parliamentary Proceedings and the therefore it was
published on an occasion of qualified privilege. To single out one sentence
out of the entire article offends the rule in Jameel’s case. However, the
cause of action was first initiated in the amendment of the Plaint filed on
20th November 2020. The latest time that an alleged cause of action arising
out of the publication should have been filed in court was 9 th November
2018.

Publication of 16th November 2012 (Exh PE5C) under the caption

Treasury Officials accuse OPM PS of covering money scam
The story was about the removal of an auditor who is reported to have
detected the scam. The source of this story is the Report of the Public
Accounts Committee of Parliament- Exh DE 1. The publication is therefore
privileged. Nevertheless, the alleged cause of action was first filed in court
in the amended plaint filed on 20th November 2020. The latest time that a
cause arising out of the publication should have been filed was 16 th
November 2018. The action is time barred.

Publication of 30th November 2012 (Exh PE5H) under the caption,

Bigirimana Contradicts himself on Purchase of ministers’ cars.
The publication is a long one but the Plaintiff has singled out one sentence.
The publication gives a background to the impugned statement. The
Plaintiff had earlier responded to questions from Odonga Otto MP on the
expenditure concerning procurement of a vehicle for the then Prime
Minister where he denied that the funds were from PRDP. Later during the
Public Accounts Committee hearing, he admitted spending the money
from PRDP after the diversion. The statement is therefore a fair and
accurate comment on the contradictory statements.

Publication of 7th March 2013 (Exh PE5CC) under the caption, OPM
officials survive lynching.
This is yet another long story covering almost half a page but only two
sentences are singled out and it is alleged that the publication is
defamatory. It is a fact that notwithstanding, money being defrauded in a
government department in which he was the Accounting Officer, the
Plaintiff was not removed from office. Probably it should have been the
President to complain about the publication. The statements complained
about constitute fair comment.

Publication of 10th March (Exh PEGG) under the caption, Corruption

Ledger
The story was a proper description of the conduct of the Plaintiff during
the inquiry. He attempted to distance himself from the expenditure of
PRDP funds and yet they were fraudulently spent by the Government
Department in which he was the Accounting Officer.

Publication of 26th March 2013 (Exh PE5AA) under the caption, Denmark
warns of aid cut over OPM scandal
This was a comment to the effect that many officials from the Ministry of
Finance and Bank of Uganda were interdicted or arrested but the Plaintiff
remained in office. That his bosses claimed that he blew the whistle but it is
not known why he did not prevent the scandal. This was a fair comment on
the facts as they unfolded. This was not a one-off loss. It was protracted
and in many instances the Plaintiff signed off money which had not been
appropriated to the Office of the Prime Minister.

Publication of 5th November 2017 (Exh PE5UU), under the caption

Money, Drugs eat up police Force
This is the only cause of action which is not subject to the bar by the
limitation period. Indeed, it is the cause of action which was filed originally
before the amendment. The article was highlighting the weakness of the
police force following the arrest and charging of three (3) senior police
officers, Nixon Agasirwe, Joel Aguma and another who is not mentioned in
the article. The article was published as a critique mainly of the then CID
under its Director Ms. Akullo. The Plaintiff featured in this Article when
Ms. Akullo was responding to the general criticism.
“We have written to PS Bigirimana to record a statement with our detectives to
help us understand how the funds were used, but up to now he has refused. How
can we fast-track the investigations when people who claim to be whistleblowers
don’t want to co-operate?” Ms. Akullo’s letter said in part.
It is important to understand the context in which the quotation was
published. The Plaintiff must have been required to record statements in
respect of aspects which point to him and not merely as a witness. The
Plaintiff tendered many statements (Exhibits PE4 A to PE4 GG) to show
that he recorded statements. He stated that these statements were self--
recorded. Akullo was not referring to these statements by context.

The Court is referred to the Publication of 28th December 2012, Exhibit

PE5B under the heading POLICE TO QUESTION BIGIRIMANA
TODAY and the Publication of 29th December 2012, Exh PE5 – Bigirimana
refuses to meet detectives. These publications clearly show that there was
a statement recording which was required of the Plaintiff and for which
special arrangement had been made to meet him in his office which he
allegedly snubbed. As the Accounting Officer he should have been the
prime suspect. At no time was the Plaintiff treated as a suspect. The Court
is further referred to Exhibit PE5UU which is under contention. In Column
4 last paragraph, the reporting is significant. It goes as follows:
As head of CID, she could not do much about a matter involving her subordinates.
She identified the detectives in question as Mr. George Komurubuga and Mr.
Moses Kato. She accused the duo of writing a second investigation report without
her knowledge, which contradicted the official report she had signed off and
submitted to the DPP. She said they wrote the second report “in order to account
for the money they had received from the suspects.”

Akullo said the operatives had since “deserted office” at the CID and taken up
different working stations, signaling a house in disarray. Mr. Kato, one of the
detectives Ms. Akullo accused of taking a bribe and abandoning his office at Kibuli
to work from elsewhere, told this newspaper in a story published on April 22 2015:
“it is true we are no longer at CID.”

The above extract is relevant background to determine the manner in

which PW1 testified defending the Plaintiff as if he had nothing to do with
expenditure of the diverted money. It is not surprising that Ms. Akullo
expressed frustration as per language in the article. It is therefore
submitted that in the context in which the article was written, it was not
defamatory. It was merely quoting statements of a public officer.

Analysis
According to Black’s Law Dictionary 11th Edition 2019, defamation means;
Malicious and groundless harm to the reputation or good name of another
by the making of false statement to a third party.

In defamation suits, for court to determine whether the words complained

of are capable of a defamatory meaning, one must first look at the words
themselves. Then one has to consider the circumstances under which they
were published. In all this, the plaintiff does not shoulder the burden of
proving falsity or malice in order to establish a cause of action. If the
words are defamatory or capable of being so construed, the law presumes
that they are false. The burden shifts to the defendant to show that they are
true. See AK Oils & Fats (U) Limited vs BIDCO Uganda Limited HCCS
0715 of 2005.

The right to reputation is acknowledged as an inherent personal right of

every person. A man’s reputation is his property and perhaps more
valuable than any other property. Indeed, if we reflect on the degree of
suffering occasioned by loss of character and compare it with that
occasioned by loss of property, the amount of injury by defamation far
exceeds that of loss of property.

The essence of defamation is ‘publication’ which excites others against the

plaintiff to form adverse opinions or exposes him to hatred, contempt or
ridicule, or injure him in his trade, business, profession, calling or office or
to cause him to be shunned or avoided in society. See Yusuf Sembatya
Kimbowa v The Editor, Observer & Ors HCCS 482 OF 2018
Furthermore, Gatley in his book Gatley on Libel Paragraph 31, 8th Edition,
states that:

“a defamatory statement is one which tends to lower a person in the estimation of

right thinking members of society or to cause him to be shunned or avoided or to
expose him to hatred, contempt or ridicule or to convey an imputation on him
which is disparaging or injurious to him in his office, profession, calling, trade or
business’’

In the case of Shah v Uganda Argus [1971] EA 362 Youds J stated that;

“…..any words or imputation which may tend to lower a person in the estimation
of right thinking members of society or expose a person to hatred, contempt or
ridicule have been held to be defamatory and it is a general impression that the
words are likely to create in the minds of reasonable persons which must be
considered rather than making a loose and precise analysis of the words used.”

In the case of Francis Lukooya Mukome and Anor versus The Editor in chief of
Bukedde News Paper. HCCS NO 351/2007, Hon Justice Yorokamu Bamwine
as he then was stated
“That defamation is something more than insult or derogatory comment. It is not
capable of exact definition. How far a person is affected by unkind words will
depend not just on the words used, but also on the people who must then judge
him……Defamation is an injury to one’s reputation and reputation is what other
people think about a man and not what man thinks about himself.”

The defendants admitted publishing the said articles but their defence is
that it is a qualified privilege and that the articles are true. The defence
counsel cited the case of Jameel and others –v- Wall Street Journal 2006
UKHL 44 noted as follows;
“A defence of privilege in the usual sense is available when the defamatory
statement was published on a privileged occasion and can only be defeated by
showing that the privilege was abused”………………….. that misuse of the
privileged occasion is malice and the burden is on the Plaintiff to prove it.”
The defendants’ counsel further submitted and justified that the published
articles were made in public interest and furtherance of the Constitution’s
National Objectives and Directive Principles of State Policy. Under
Directive Principle II,
The state shall be based on democratic principles which empower and encourage
the active participation of all citizens at all levels in their own governance.
Directive Principle XXVI provides as follows:
i. All public offices shall be held in trust for the people.
ii. All persons placed in positions of leadership and responsibility shall, in their
work, be answerable to the people.
iii. All lawful measures shall be taken to expose, combat and eradicate
corruption and abuse or misuse of power by those holding political and
other public offices.

A statement by Lord Diplock in Horrocks –v- Lowe [1975] AC 135, 149

quoted.
“The public interest that the law should provide an effective means whereby a man
can vindicate his reputation against calumny has nevertheless to be accommodated
to the competing public interest in permitting men to communicate frankly and
freely with one another about matters in respect of which the law recognizes that
they have a duty to perform or an interest to protect in doing so. What is
published in good faith on matter of these kinds is published on the privileged
occasion. It is not actionable even it be defamatory and turns out to be untrue.. the
privilege is not absolute but qualified. It is lost if the occasion which gives rise to it
is misused”.

“.. if the article as a whole concerned a matter of public interest, the next question
is whether the inclusion of the defamatory statement was justifiable. The fact that
the material was of public interest does not allow the newspaper to drag in
damaging allegations which serve no public purpose. They must be part of the
story. And the more serious the allegation, the more important it is that it should
make a real contribution to the public interest element in the article. But whereas
the question of whether the story as a whole was a matter of public interest must be
decided by the Judge without regard to what the editor’s view may have been, the
question of whether the defamatory statement should have been included is often a
matter of how the story should have been presented. And on that question,
allowance must be made for editorial Judgment. If the article as a whole is in the
public interest, opinions may reasonably differ over which details are needed to
convey the general message. The fact that the judge, with advantage of leisure and
hindsight, might have made a different editorial decision should not destroy the
defence. That would make the publication of articles which are, ex hypothesi, in the
public interest, too risky and would discourage investigative reporting”.

The defence counsel made reference made to Gatley on Libel and Slander
in a Civil Action 4th Edition published by London Sweet & Maxwell
Limited. At page 287 the learned author tackles jurisprudence on Report of
Parliamentary Proceedings and has this to state:
A fair and accurate report in a newspaper or otherwise of any debate or proceeding
in either House of Parliament, or in any committee thereof, is privileged at
common law. … The publication is privileged on the same principle as a fair and
accurate report of the proceedings in a court of justice, viz, that the advantage of
publicity to the community at large outweighs any private injury resulting
from the publication. “The analogy between the two cases is in every respect
complete……… whatever will deprive a report of proceedings in a court of justice
of immunity, will equally apply to a report of proceedings in Parliament”.
The author makes extensive coverage on reports and broadcast of judicial
proceedings, which as seen above extends to reports out of Parliamentary
Proceedings. From Page 294 to 295, the learned author has this to say:
“The privilege given to reports of proceedings in courts [read parliamentary
proceedings] is based upon this, that, as everyone cannot be in court, it is for the
public benefit that they should be informed of what takes place substantially as if
they were present.” “Such publication is merely enlarging the area of the court,
and communicating to all that which all have the right to know.” “It is important
that the country should know what goes on in courts of justice and there is also
this consideration, that justice is often assisted by publication of reports of
proceedings.” “Though the publication of such proceedings may be to the
disadvantage of the particular individual concerned, yet it is of vast importance to
the public that proceedings of courts of justice should be universally known. The
general advantage to the country in having these proceedings made public more
than counterbalances the inconvenience to the private persons whose conduct may
be the subject of such proceedings.”

It is the duty of this court to evaluate and analyse the said articles and
establish whether the defence of qualified privilege can stand guided by
the above authorities. As noted earlier, the privilege is not absolute and the
court has a duty to establish whether the qualified privilege was not
abused in the circumstances of the published articles. This court will be
guided by the factors set out by the House of Lords in REYNOLDS -vs-
TIMES NEWSPAPER LTD [2001] AC 127, 205 which sets out multiple
factors to be considered when deciding whether a defendant has
established privilege. Those factors were stated to be;
i) The seriousness of the allegations. The more serious the charge,
the more the public is misinformed and the individual harmed, if
the allegations are not true.

ii) The nature of the information and the extent to which the subject
matter is a matter of public concern.

iii) The source of the information. Some informants have no direct

knowledge of the events. Some have their own axes to grind or are
being paid.
 iv) The steps taken to verify the information.

v) The status of the information. The allegation might have been the
subject of an investigation which commands respect.

vi) The urgency of the matter.

vii) Whether a comment was sought from the plaintiff.

viii) Whether the article contained a gist of the plaintiff’s side of the
story.

ix) The circumstances of the publications including the timing.

The defence counsel seems to challenge most of the published articles for
being time-barred since they were introduced in the amended plaint. The
plaintiff in the original plaint filed on 8 th December 2017, clearly set out
facts that gave rise to his cause action in paragraph 6 of the plaint as
follows;
“The defendants have on many occasions, in particular, between the year 2012 and
2015, made spiteful, malicious, odious, unprofessional and defamatory publications
about and against the plaintiff in; The Daily Monitor, The Saturday Monitor as
well as The Sunday Monitor. For the period herein referred to, the particular
stories the plaintiff could lay his hands and sight are 42 in number accounting for
the editions of;
9/05/2012,19/08/2012,14/10/2012,25/10/2012,26/10/2012,29/10/2012,30/10/2012,
31/10/2012,1/11/2012,2/11/2012,5/11/2012,6/11/2012,7/11/2012,9/11/2012,9/11/
2012,16,11/2012,30/11/2012,1/12/2012,8/12/2012,28/12/2012,29/12/2012,6/02/20
13,15/02/2013,21/02/2013,25/02/2013,04/03/2013,07/03/2013,08/03/2013,10/03/2
013,13/03/2013,13/03/2013,21/03/2013,26/03/2013,9/06/2013,11/06/2013,20/06/2
013,28/07/2013,28/07/2013,29/07/2013,31/08/2014,2/08/2015,07/11/2015 and
13/11/2015.
Wherein the defendants painted the plaintiff as an embattled civil servant who
made illicit expenditure on OPM funds, a person who thrives on statehouse’s
pampering and patronage, obstructs police investigations and above all, a liar.
(copies of the 42 stories herein complained of are hereto attached collectively
marked annexture AA)”

It can be seen from the above paragraph that the plaintiff’s counsel set out
clearly all the publications that he felt were defamatory and only amplified
or selected the most damaging stories in the amended plaint by setting out
the specific words that are defamatory. The amended plaint did not
introduce any new cause of action as the defence counsel seems to suggest
but rather provided further and better particulars to the original plaint.
Therefore, the introduction of the specific words from the different stories
did not introduce any new causes of action.

The defendants’ in their amended Written Statement of Defence did not

raise the issue of limitation in their pleading and therefore never objected
to the amended plaint as introducing new causes of action outside the
limitation period. This court does not agree with the defence counsel
contention and argument that the stories as set out in the amended plaint
were time barred.

The defence counsel submitted that the publication are not defamatory
since the defendants had a social, moral and legal duty to make the
publication in that respect to the public which similarly had a
corresponding moral and social duty to receive the publication and
accordingly each of the impugned publication was made on an occasion of
privilege and is not actionable.

The evidence on record clearly shows a systematic scheme to report

specifically about the plaintiff and this was in manner that would portray
him as the key suspect in the financial scam which was under
investigations. The publications seem to excite the public against the
plaintiff to form adverse opinions or exposes him to hatred, contempt or
ridicule, or injure him in his employment and thus to cause him to be
shunned or avoided in society. The stories as set in the plaint are twisted,
skewed and crafted in a manner which portrayed the plaintiff in a negative
sense as a corrupt person under investigations.

The publication of 2nd November 2012: MPs Order Govt to remove Bigirimana.
7th November 2012 MPs give Ultimatum over Bigirimana; “ Mr Bigirimana
knew about the stealing and he must leave office. He must take
responsibility unless government wants to tell us he is immune…”

5th November 2012: Govt remains undecided on calls to suspend Bigirimana.

The story seemed to implicate the plaintiff but State house jumped into
Bigirimana’s defence. The stories are crafted in such a manner as to show
that the plaintiff is guilty and especially when another story was written to
confirm……”As Accounting officer at OPM Mr. Bigirimana has been held
personally liable in particular instances of the reported fraud by Auditor
General”

9th November 2012: Lawmakers want First Lady to defend self in OPM Scam.
“….when Auditors asked PS Pius Bigirimana to explain why he authorized
this suspect spending of 20.1billion…..he replied I thought the money came
from heaven and we started spending it..” This story was indeed false and
verified from the plaintiff. It arose out of a closed meeting without the
press.

16th November 2012: Treasury Officials accuse OPM PS of Covering money

scam-“The Deputy Treasury Secretary Mr. Keith Muhakanizi said OPM
Permanent Secretary Pius Bigirimana was the architect of removal of an
official who detected the scam”

30th November 2012: Bigirimana contradicts himself- “Events of the past few
days suggest that Mr. Pius Bigirimana could have lied when he publicly
refuted reports that money was diverted……”

4th December 2012; Wife of one of the embattled civil servant in office of OPM
acquired a brand new $100,000(250,000,000): The story insinuated that the lost
money at OPM could have been the source of money for the purchase of
vehicle from illicit source.

28th December 2012: The plaintiff refused to cooperate with police and it infers
guilt on the plaintiff
“Although Bigirimana says he is the whistleblower in the matter, several
workmates, MPs and Audit report point to his knowledge and
involvement in approving many of the payments.”

21st February 2013: OPM Inquests hit new set back. “Bigirimana denied a
statement that the prosecution produced and attributed…..later
disappeared from the court registry.” This story inferred the plaintiff had a
hand in the disappearance of the document from the registry.

7th March 2013: OPM Officials survive lynching; Mr Bigirimana remains in

office months after Parliament resolved that he be suspended because of
OPM scandal…….was assigned other responsibilities by the President. This
story seemed or was meant to infer that the plaintiff is protected by the
President.

10th March 2013; Corruption Ledger; Bigirimana disputes the findings as

usual. The usage of the words as usual insinuated that the plaintiff is in the
habit of denying or that there is a usual pattern of denial.

26th March 2013; Denmark warns of aid cut over OPM scandal. OPM Principal
Accountant Geoffrey Kazinda…….were either interdicted or arrested but
Permanent Secretary Pius Bigirimana, who is the accounting officer
remains in Office. Some of his bosses say he blew the whistle on the cash
bonanza but there was no explanation why he never prevented it in the
first place”

8th May 2013: Permanent Secretary Pius Bigirimana has refused to record
statements in regard to mismanagement of funds.
5th November 2017: Mr Bigirimana declined to record statements with the police
about the cases in OPM……he has refused to record a statement.

These stories are materially false and only intended to portray the plaintiff
as uncooperative in the investigation of corruption in OPM or that he has
something to hide from the public. There is clear evidence on court record
of the several police statements made by the plaintiffs and some of which
have resulted in the conviction of the key suspects at the Anti-Corruption
Court.

The stories when read as whole it becomes clear that they were made or
reported in such a way that they were intended to tilt public opinion
against the plaintiff or portray him as a corrupt fellow who is being
protected by the government.

Defamation perpetrated by the media or a distribution of published

material can be defined as: the unlawful (unreasonable), negligent
publication of defamatory matter referring to the plaintiff which causes his
or her reputation to be impaired. The test of whether a statement is
defamatory or not is an objective one. The question to be asked is whether
the statement tends to lower the respondent in the estimation of the
ordinary reader. See National Education, Health and Allied Workers v Tsatsi
2006 (1) All SA 583; See John Patrick Machira v Wangethi Mwangi and anor
KLR 532

The plaintiff bears the onus of proving the publication of the alleged
defamation which, once proven, gives rise to the inference that such
publication was wrongful and intentional.

The defendants’ counsel contended that the published articles were made
in public interest and furtherance of the Constitution’s National Objectives
and Directive Principles of State Policy. Therefore, according to counsel for
the defendants the publication was justified and the defence of qualified
privilege is available to the defendants.

The conflict between freedom of expression and the right of the individual
to his or her good name must be balanced and weighed against each other.
In the case of Argus Printing and Publishing Co Ltd v Esselen’s Estate
[1994] 2 All SA 160; The court accepted that freedom of expression and the
press are potent and indispensable instruments for the creation and
maintenance of a democratic society, but added:
“The right of free expression enjoyed by all persons, including the press, must yield
to the individual’s right, which is just as important, not to be unlawfully defamed.
I emphasize the word “unlawfully” for, in striving to achieve an equitable balance
between the right to speak your mind and the right not to be harmed by what
another says about you, the law devised a number of defences, such as fair
comment, justification (i.e truth and public benefit) and privilege, which if
successfully invoked render lawful the publication matter which is prima facie
defamatory……the resultant gives the due recognition and protection, in my view,
to freedom of expression.”

The courts have recognized the importance of the press to the maintenance
and stability of a democratic society, the notion of press exceptionalism (in
the sense of affording the press greater privileges than the individual has
been rejected. It is thus consistent to reject “press exceptionalism” while at
the same time emphasizing that, because of the critical role that the media
play in modern democratic societies, the law of defamation must leave
them free to speak on matters of public importance- though no more free
than other citizens – as fully and openly as justice can possibly allow. See
Khumalo v Holomisa 2002 (8) BCLR 771 (CC)

In considering a defence of public benefit or interest, there is a potential

clash between constitutionally entrenched rights in the form of the
plaintiff’s rights to the dignity and privacy on one hand and, on the other,
the right of freedom of the press, freedom of expression and of receiving or
imparting information. None of these rights should be regarded as
permanently overriding the others. The weight to be attached to these
rights is a given situation varies according to the circumstances.

The importance of the press is recognized but on the other hand, the right
to dignity (and thus right to one’s good name or reputation) is regarded as
founding value of the Constitution. Therefore, there must be a balancing
act between the two rights and one cannot be used to violate the other. The
defendants in this case cannot justify their actions that are negligent and
reckless in nature to violate the plaintiff’s reputation under the guise of
informing the public.

The press like the defendants in this cannot go around soliciting for
defamatory statements in form of interviews under the guise of their duty
of informing the public. The public must be informed and the information
must be straight and not skewed or tilted to bias the public against a
specific person.

What the defendants’ counsel seems to allude to as information from MPs

appears to have been solicited interviews and not deliberations of
Parliament (Parliamentary proceedings) which would ordinarily be
privileged once published to the public. Therefore, Parliament should
never be used to defame personalities and no justification can ever be made
for statements not made in the course of execution of their mandate as
people’s representatives especially interviews in ‘corridors’ or ‘parking
areas’ or ‘canteen’ of Parliament or any other idle talk not related to
parliament work. The MPs may use such interviews to attack specific
persons and some may have their own axes to grind or are being paid to
attack personalities.
The defence counsel further contended that they were reporting about an
Audit report-PAC report presented in Parliament on OPM to verify and
investigate specific allegations of; Embezzlement of PRDP funds; Use of
Personal accounts for implementation of activities; diversion of funds;
Unaccounted funds. The report once presented to Parliament does not
constitute a finding of fact or conviction but rather raises queries about
unexplained actions or transactions. Once the unexplained or the unclear is
later explained or cleared then the query is answered that closes the matter.
The person who publishes information in a biased manner is deemed to be
malicious and must carry responsibility for the publication and especially
when he/she fails verify or get the other side of the story from the person
directly affected. The defence counsel in his submissions contended as the
“Accounting Officer he should have been the prime suspect. At no time was the
Plaintiff treated as a suspect”. It appears it was the same view of the
defendants while reporting about the plaintiff.

It can be deduced from the evidence on record that the defendants were
interested in specific person in the entire investigation and reporting about
the OPM audit. In his witness statement; Yasin Mugerwa (DWI) stated in
paragraph 19: Auditors close in on Bigirimana in probe’ I interviewed officials
from Auditor General’s office who were probing alleged misuse of donor money in
the Prime Minister’s Office and they indicated to me in confidence that in their
report to Parliament, they were looking into the allegations of the involvement of
the Permanent Secretary ……They told me that the Permanent Secretary’s name
would feature in the final report to Parliament……” It is not surprising that the
plaintiff in all the stories or publications, he was never asked about his side
of the story and no verification of what was published was ever done.

The intention of the defendants in trying to leak what was to be in the final
PAC Audit report before it is tabled in Parliament cannot be taken as an
innocent reporting intended to inform the public under the duty to inform
or fight corruption as they have argued. Such action and other reporting
about the plaintiff where they failed to verify from him implies bad faith
and malice that was intended to impair his reputation in the eyes of the
public and thus lower him in the estimation of the ordinary reader as a
corrupt person. The publication was done with actual malice (with the
knowledge of its falsehood or reckless disregard for its authenticity. The
sources of the information are undisclosed and they are using blanket
statements like MPs, ‘Treasury Officials’, ‘several workmates’ etc. Parts of
what was reported were proceedings that were not open to the press or it
was closed door.

The defendants acted negligently while reporting about the OPM scandal;
a person is negligent once he has acted carelessly, thoughtlessly, or
imprudently. They paid insufficient attention to their action or failed to
adhere to the proper standard of care of required of them. The reporters
failed to appreciate the nature of the fraud and how it was done, and
resorted to make conclusive remarks about the plaintiff as the main suspect
since he was the Accounting office and yet the PAC report had set out an
elaborate procedure on how the scheme that led to the embezzlement was
executed by officials of Ministry of Finance, Bank of Uganda and the
Principal Accountant of OPM.

Reports of Parliamentary speeches are protected, provided they are fair

and substantially accurate. Summaries of extracts published in accordance
with decisions or approval of parliament are also provisionally protected,
but the protection falls away where the summary or extract is not made in
good faith. Whether it is parliamentary report like the PAC Audit report,
the question of qualified privilege in reporting about it and its content
must subjected to test of it being a true reflection and factual rendition of
the proceedings that culminated in the report which is unbiased and a true
account of the proceedings of the committee.

This court is mindful that sufficient latitude should be allowed to allow

robust and frank comment in the interest of keeping members of the public
informed about what government does. Errors of fact should be tolerated,
provided the publication is justified and reasonable, namely published in
the reasonable belief that the statements were true. The defendant
overstepped the bounds of what is permissible and they are thus liable for
defamatory statements made in the different articles. The statements were
defamatory against and the plaintiff and the publication was not made on
account of qualified privilege.

What remedies are available?

The plaintiff in his plaint sought General damages to the tune of
1,000,000,000/= and Exemplary damages of 900,000,000; An Order
compelling the defendants to publish an apology in the said newspapers
and online news channel and a Permanent Injunction restraining the
defendants and or their agents, editors, publishers, from making,
publishing, circulating any further defamatory stories against or about the
plaintiff.

The following were pleaded by the plaintiff as the damage suffered to his
reputation:
a) loss of reputation,

b) being shunned by the members of the public, his family,

workmates and acquaintances in Uganda and throughout the
whole world.
In the instant case, the allegations were very serious, given the amount of
money they alleged got lost in the hands and under the watch of the
plaintiff to the tune of 50.000.000.000/=

What made it even grave is that the said money was meant for Northern
Uganda post-war rehabilitation, the said region having gone through
decades of war and trauma.

Any person believed to have tampered with the said aid, in the eyes of
reasonable and right thinking members of society would be equated to a
mass murderer.
That was how grave the allegations made against the plaintiff were, and
that also accounts for the extent of damage inflicted upon the plaintiff’s
reputation, which must be compensated for by a reasonable amount of
damages.

Analysis

In the case of YUSUF SEMBATYA KIMBOWA v THE EDITOR, THE

OBSERVOR & ORS (ibid), this honourable court cited the case of
SAMWIRI LUGOGOBE -vs- HUSSEIN LUKAGA (1980) HCB 18, while
assessing damages, where ALLEN. J held:
“…in a defamation case when considering the quotation of damages, what
matters is the injury done to the Plaintiff’s reputation and character
taking into account his wounded feelings and any insulting or malicious
conduct on the part of the defendant.
In absence of evidence of any of those factors, an award of nominal
damages only would be made for injury done to the plaintiff’s good name”.

In KANABO -vs- THE CHIEF EDITOR, ENGABO NEWSPAPER the

Supreme Court held that:
“it is not enough to consider the social status of the defamed person
alone in assessing award of damages.
It is necessary to combine the status with the gravity of or the
seriousness of the allegations made against the plaintiff.
Anyone who falsely accuses another of a heinous crime should be
condemned heavily on damages”

Reputation is the asset that one has and the law of defamation is meant to
protect this reputation from injury without any just cause. See Monitor
Publications Ltd v. Ricky Nelson Asiimwe SCCA No.16 of 2015
In the case of John vs MGN Ltd [1997] Q.B 586, it was stated by Thomas
Bingham MR in giving the judgment of the Court of Appeal that;
“The successful Plaintiff in a defamation action is entitled to recover, as general
compensatory damages such sum as will compensate him for the wrong he has
suffered. That sum must compensate him for the damage to his reputation,
vindicate his good name and take account of the distress, hurt and humiliation
which the defamatory publication has caused.”

General Damages
I have reviewed the evidence adduced and the submissions of all parties
and I resolve that the Plaintiff suffered damage to his reputation. I am
inclined not to award the shs 1,000,000,000/= as claimed by the plaintiff
because it is exorbitant and excessively high and out of range in
defamatory cases.

This court is mindful of the fact that the defamatory statements were made
in several publications and at different times, therefore I grant general
damages amounting to 350,000,000/= to compensate for the damage caused
on the Plaintiff’s reputation, distress and humiliation the defamatory
statements had on his dignity as a Permanent Secretary. The damage to his
reputation was far reaching in Uganda and outside Uganda.

EXEMPLARY DAMAGES
The plaintiff sought 900,000,000/= as exemplary damages. This sum is
equally high and excessive. The punitive damages are awarded to serve as
a punishment to the defendant so that they do not repeat the same mistake
or action, an award of 100,000,000/= is appropriate as exemplary damages
to punish the defendants and discourage them from publishing any further
defamatory statements about the Plaintiff in such a reckless and negligent
manner.

INTEREST
The plaintiff is awarded interest at the rate of 10% on both general and
punitive damages from the date of judgment to the date of payment in full.
APOLOGY
In regards to the order directing the publication of an apology, the 1st
defendant ordered to publish an apology be published with equal publicity
as the impugned defamatory publications for a period of two weeks atleast
2 times a week.

INJUNCTION
As held in the case of Hon. Rebecca Kadaga vs Richard Tumusiime & 2 ors
HCCS No. 56 of 2013, this court also issues a permanent injunction
restraining the defendants jointly or severally by themselves, their agents
and assignees from publishing further defamatory statements about the
Plaintiff.

COSTS
The Plaintiff is awarded the costs of the suit.
I so order.

SSEKAANA MUSA
JUDGE
10th December 2021