Justice Andrew Bashaija

The Judiciary has come out to state that the legislators of Uganda have no power whatsoever to probe or demand for the review of previous court orders or rulings concerning parliament.

This came after the Parliamentary Accounts Committee demanded a probe into earlier court rulings and decisions in which the government lost to complainants and was requested to compensate them.

“No constitutional power resides in Parliament or committees to call for review or scrutiny of the decisions of courts of law. To do so would be for Parliament to constitute itself into an appellate body over decisions of courts and usurp such powers not vested in the legislature,” High Court judge Andrew Bashaija ruled in a judgment on Friday.

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The PAC went ahead to request for documents, dates of trial as well as names of Judges and lawyers involved in the proceedings and rulings of this case. The committee has also gone ahead to sue the Attorney General together with the Solicitor General and Secretary of Treasury despite the Judiciary maintaining that such a move is illegal and seeks to compromise the powers of the Judiciary.

“This is not enough to satisfy some legislators who still believe that it is within the parliament’s mandate to review such rulings and procedures since it is indeed financed by the legislative branch. “I have not read the judgement but the only matters which Parliament cannot discuss are those where the contention is subjudice. Where the matter relates to accountability, Parliament has the powers to seek documents because it appropriates funds.” Said Mathias Mpuuga Masaka Municipality.

Justice Bashaija ruled the deliberations, discussions, and requisitions for scrutiny by PAC in the proceedings of August 22, 2019, in regard to payment of court awards and mandamus orders amounts to interference with the execution of court orders and are illegal and affront of the independence of the judiciary.

“A declaration doth issue that the directions, requisitions, orders and or decision by the chairperson of PAC in the proceedings to be availed details of mandamus payments for scrutiny and reviewing including case determination dates, lawyers involved, presiding judges of court awards amounts to interference with execution orders, is contemptuous, illegal, ultra vires, unconstitutional and a direct affront of the doctrine of separation of powers,” the court held.

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 firmer 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.”