KAMPALA – Attorney General Kiryowa Kiwanuka has rejected recommendations of a Parliament committee which ruled that the Finance minister cancels land titles of departed Asians’ properties that had been fraudulently expropriated by the Departed Asians Properties Custodian Board (DAPCB).
Mr Kiwanuka, in his opinion letter to the Finance minister dated March 11, 2022, said Mr Matia Kasaija has no powers under the law to rescind his past decision of cancelling the titles of the properties issued in error.
The minister of Finance oversees the management of the properties left behind by Asians who were expelled by Idi Amin in 1972.
A sub-committee of the Committee on Statutory Authorities and State Enterprises (Cosase) of the 10th Parliament had directed the government to recover at least 100 Departed Asian properties repossessed by former owners and prosecute those who aided their fraudulent transfer.
The Cosase sub-committee had also recommended the prosecution of those who had taken possession of such properties and their reversion into the hands of the government.
But the Attorney General warned that such action is illegal and would tantamount to serious legal consequences on the side on the government.
“Although the Cosase sub-committee investigations elicited findings similar to those of the old auditor General as contained in the two special audit reports, the recommendation of the Cosase subcommittee that DAPCB initiates the process for cancellation of certain repossession certificates and any substitute titles is legally untenable. This is in light of section 9 (1) (d) of the Expropriated Properties Act Cap 87 and case law and if carried forward such action would only increase on the number of lawsuits likely to cause substantial financial loss to Government,” Mr Kiwanuka said.
He added whereas Section 9 (I) (d) of the Expropriated Properties Act gives the minister power to repossess, sell or dispose of the property for failure by the former owner to return to Uganda in a period of 120 days, once the minister has issued a certificate of repossession, he has no power to cancel it.
The Attorney General quoted the ruling of Justice Mulenga in a case between Mohan Musisi Kiwanuka versus Asha Chand in a matter involving the expropriation of Departed Asian properties.
“Mohan Musisi Kiwanuka versus Asha Chand SCCA Ms. 14 of 2005 which dealt in the certificate of purchase, Mulenga JSC held; “In providing, in section 19 of the Act, (now Section 5 of Cap 87 revised edn. 2000] 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 the Minister, any power to review such a decision upon request by an aggrieved person. It only directed that such person should appeal to the High Court. I am also unable to construe from the Act, that the Minister retained any implied power to revoke his decision on the ground that it was made in error. In my view, to do so would perpetuate the very uncertainties about ownership of the expropriated properties, which the Act was, intended to eliminate…..”
Accordingly, the Attorney General said the power to cancel a certificate of repossession “exclusively vests in the High Court.
“the recommendation of the of Cosase subcommittee tor DAPCB to initiate the process for cancellation of repossession certificates acquired and any substitute titles is not capable of implementation in light of the existing case law,” he said.
“Any person who is aggrieved by any decision made by the Minister under the Act, may, within 30 days from the date of communication of the decision to him or her, appeal to the High Court against the decision. Needless to say the time to do this has expired for many of the cases in the report. (1) Once the certificate of repossession (letter of repossession) has been issued, DAPCB has no mandate whatsoever to deal with such property,” he added.
In 2018, then Finance Ministry Permanent Secretary Keith Muhakanizi warned the Executive Secretary of Departed Asians Property Custodian Board, Kampala, against cancellation of repossession certificates of Asians properties.
“Reference is made to the recent meeting between the Honourable Kasaija, Minister of Finance, Planning and Economic Development, yourself and the undersigned with respect to the management of properties under the Departed Asians Property Custodian Board (DAPCB),” he wrote.
“The meeting guided that where a Repossession Certificate for properties any under the Board had been issued, only the relevant Courts of Law had the authority to cancel such certificates, in accordance with the law. Furthermore, it was agreed that the Ministry of Finance, Planning and Economic Development and the Board must continue to respect the rule of law. Therefore, any orders of Court must be complied with. Please note that any person not acting in compliance with the law, will be held personally liable for whatever actions contrary to the law,” he added.
Last year, the Solicitor General also warned DAPCB that the Minister for Finance has no authority to cancel a certificate of repossession previously he/she issued and that the power is reserved for the High Court of Uganda under section 15 of the expropriated properties act cap 87.
A lawyer who handled several of the claims of the Asians said; “We welcome the opinion of the AG and it is what we have been emphasising all along. The AG’s opinion clearly shows that all allocations and purported sales by DAPCB of these properties are illegal and clearly amount to an abuse of power by the Custodian board. DAPCB is not only exceeding its powers, but has also resorted to extortion, both from unsuspecting ‘purchasers’ and Asians. They are even threatening people with evictions and forced entry”.