KAMPALA – High Court Judge Dr. Andrew Bashaija has ruled that it is illegal for Parliament and its committees to review and scrutinize court orders and judgments.
In his ruling delivered on Friday, February 7, the judge held that there is no law that vests Parliament or any of its appointed Committees with the power of oversight role to inquire into decisions of courts of law.
“No Constitutional power resides in Parliament or Committees to call to itself for review or scrutiny the decisions of courts of law. To do so would be for Parliament to constitute itself into the appellate body over decisions of courts and usurp such powers not vested in the legislature,” the judge ruled.
The court decision resulted from a case in which three persons, Jamada Baligobye, Augustine Ceaser Luseesa, and John M Nsubuga accused the Chairperson of Parliament’s Public Accounts Committee of overstepping its mandate when it sought to be availed, for review purposes, details of mandamus orders.
On August 26, 2019, PAC also asked for dates of determination, lawyers involved, presiding judges and amounts involved.
But the judge has thrown out the parliamentary orders, quashing the August 22, 2019 decisions of PAC requiring the submission of court execution orders and other details.
The Friday ruling comes on the backdrop of another committee of Parliament that od facing scrutiny for interfering with court orders. Parliament’s committee on Commissions, Statutory Authorities and State Enterprises is currently investigating the allocation of Departed Asians properties but has been accused of interference in properties already decided by the court, in spite of the Attorney General’s opinion prohibiting the same.
Describing themselves as persons with direct sufficient interest in the matter, the complainants said they were aggrieved by the decision of PAC and other government agencies that continue to interfere, meddle and undermine the sanctity of orders of court and execution thereof and delay payments due to litigants.
Considering the reasons and intentions, Justice Bashaija ruled that the decision of PAC and Solicitor General specifically sought to deal with cases that had been determined by the court of court process which was improper.
“…the issue of deliberations and decisions and orders of PAC and actions of the Solicitor General being ultra vires, irregular and illegal, was raised in the instant application,” held the judge adding that no doubt the Committee of Parliament invaded the sanctity of the independence of judiciary enshrined and protected under the Constitution.
Court heard that the Auditor General found that there was a persistent accumulation of domestic arrears that are not authorized, unbudgeted for, inadequate recognition and disclosure of the domestic arrears.
The record shows that the AG found that the liabilities comprised of unsettled court awards and compensations accounting to the sum of more than UGX.655 billion.
According to Court, it is not within the mandate and or powers of PAC to scrutinize/ review, examine, audit, investigate, and or approve payments of court awards and hence the chairperson of PAC and Parliament exceeded their mandate.
The AG’s Opinion:
In his legal opinion to Finance PS Keith Muhakanizi on August 15, 2019, the Attorney General Mr. William Byaruhanga said properties, whose status has been pronounced by the court cannot be subjected to a further Parliament inquiry.
The Attorney General was responding to a letter by the Departed Asians Properties Custodian Board that is laying claim to Plot 98-104 Nakivubo Road, which belongs to Hajji Abdu Kasai, a businessman. He explained that the powers of the Departed Asians’ Property Custodian Board are governed by Section 4 of the Assets of Departed Asians Act Cap 83, which stipulates that the Board shall take over and manage all assets transferred to it by virtue of Section 13 of the Assets of Departed Asians Decree, 1973. He adds that the same Section 13 mandates the Board to discharge all the liabilities to it by this Act, collect all debts or other monies due to the departed Asian; and may sell or otherwise deal with such assets in the same way as the departed Asian may do.
However, he explains that the Expropriated Properties Act Cap 87 and the Expropriated Properties (Repossession and Disposal)(No.1) Regulations S.I 87-8 limit the involvement of DAPCB and the Minister of Finance to transfer property already allocated to a person and take it back to the former owner.
“Section 3 of the Expropriated Property Act Cap 87 provides; (J) Subject to this Act; the Minister shall have the power to transfer to the former owner of any property or business vested in the Government under this Act that property or business,” the Attorney General’s letter reads in part.
He adds: “Nothing in this Act shall be construed as empowering the Minister to Transfer property or business to a former owner unless the Minister is satisfied that the former owner shall physically return to Uganda, repossess and actively manage the property or business. Subsection (2) shall not apply to a former owner who jointly participates with the Government in the ownership and management of any property or business pursuant to section 5.”
My Byaruhanga explains that in light of the above provisions, “it is evident that the DAPCB’s involvement is limited to only when the property is still vested in the Government by virtue of Section 2 of the EPA and before the issuance of a repossession certificate by the Minister”.
He also quotes a Supreme Court ruling in the case between Mohan Musisi and Kiwanuka Asha Chard. In the case, Justice Mulenga held: “The Minister has no power to cancel a Certificate issued under the Act. in providing in section 14 of the Act, that a person aggrieved by a decision made by the Minister under the Act may appeal to the High Court, Parliament did not expressly reserve in tire Minister, any power to review such a decision upon request by an aggrieved person.”
The legal opinion effects end claims by Departed Asians’ Property Custodian Board on the properties.