KAMPALA – Three Justices of the Court of Appeal have upheld the decision of the lower court that ordered the Commission of Inquiry into land matters led by Justice Catherine Bamugemereire off cases that have been ruled on or are before any court.
The justices led by Justice Kenneth Kakuru dismissed with costs, an application by the Attorney General that had sought to stay execution of orders that were made by the High Court judge Andrew Bashija saying that the government will suffer loss of over UGX. 9 billion in questionable claims of payments to the respondent — Mr. Daniel Walugembe, a land dealer.
The others justices on the panel included Hon. Justice Stephen Musota and Hon. Justice Christopher Madrama.
The decision of the judges is a slap in the face for Judge Bamugemereire, herself a member of the Court of Appeal.
Mr. Walugembe challenged a decision by Justice Bamugemereire’s Commission which in an August 2, 2018 letter to the Uganda Land Commission directed that he is not paid compensation for his land but rather the landlords.
Justice Bashaija earlier quashed the orders as contained in this letter, a position now upheld by the Court of Appeal.
In dismissing the AG’s application, the Court of Appeal panel noted that an application of that nature seeking orders for stay of execution must first satisfy the court that indeed the orders or the decree appealed from is capable of being stayed and there is an inherent danger of execution.
“The law recognises that not every order or decree is capable of being executed or an appeal therefore warrants a grant of stay of execution,” the justice ruled.
Adding…. “In the appeal before us the applicant seeks to stay execution of the order of the High Court a rising from judicial review proceedings of order issued by the commission of inquiry into land matter directing Uganda Land Commission and other government agencies from complying with a decree of the High Court which was arrived at by consent of parties. The respondent challenged those executive orders which were countermanding judgement and decree of the High Court which has not been set aside.”
The justices noted that they are not satisfied that the orders issued by the High court which this application seeks to stay are capable of being stayed. “We find that they are not”.
“Be that as it may, even if we did find that the said orders could be stayed, the decree of the High Court in respect of which the applicant [Attorney General] is not a party has neither been challenged nor stayed. A grant of an order staying execution of the orders a raising from judicial review proceedings would in no way effect the said consent decree and as such it would be an exercise in flutily” the justices ruled.
Court also ruled that it would only result into a conflict between the executive on one hand and the judiciary on the other. “We say so because then, the orders of the Land Commission effectively staying the decree of the High Court of 2016 would appear to have been green light by the order being sought in this application,” the justices ruled.
Court also ruled that the Judgement of court cannot be stayed, reviewed or otherwise compromised by orders issued by the executive because that would be a blatant constitutional error and a decree of court can only be stayed by the court that issued it or an appellate court.
The justices asserted that the doctrine of separation of power which affirms the independence of the judiciary requires that the executive and or legislature ought to uphold the independence of the judiciary at all times.
“Allowing this application would revive the order of the commission of inquiry on land matters which have the effect of staying a judgment. In this case our considered view is that the attorney general ought to have sought to set aside the consent decree that is the case. That would have triggered a process in which a stay of that decree would be considered by the court itself,” the justices ruled.
Adding…”We find that the orders sought to be stayed are not capable of being executed and we decline to grant them. We re-affirm the independence of the judiciary by stating that orders issued by the executive however well intended cannot legally stay decisions of any court of law.”