Court ordering Basajja to refund Shs142b a mere sham - lawyer Ssemakadde

Sunday March 29 2020

Appealing against the decision. Mr Isaac

Appealing against the decision. Mr Isaac Ssemakadde, the lawyer who lodged the petition on behalf of Legal Brains Trust (LBT), the civil society body that filed the petition. PHOTOS BY ALEX ESAGALA/ FILE 

By Derrick Kiyonga

This case has been in court for a long time…
I filed the case on February 27, 2012. The delay impacted on the inclusion. They have been two types of delay. There is what we call the [Justice Steven] Kavuma era delay and [Justice Alphonse] Owiny-Dollo era delay.

What do you mean by Kavuma era delay?
[This was] when My Lord Justice Steven Kavuma was still the Deputy Chief Justice (DCJ), and, therefore, the manager of the business of the Court of Appeal by virtue of Rule 20 of the Court of Appeal.

This is the most abused rule by DCJs. By July 27, 2012, we had finished scheduling (pre-trial) before His Worship Erias Kisawuzi. The only person who hadn’t filed their skeleton arguments was Haba Group litigants. [Lawyer Caleb] Alaka came and asked for an adjournment. Everybody was anxious to move forward, except the Haba Group litigants.

He was given up to August. In August he was a no show. The case began to lose status at this point. Those things shouldn’t have delayed. According to the conference rules, Kisawuzi had to bring this to the attention of the DCJ to fix the hearing. Non-compliance of one party doesn’t [halt] proceedings, after all Alaka had one point, which was the preliminary objection.

As a matter of fact, we sought to hear a temporary injunction in regard to a letter of comfort of $5 million that was due to ripen in favour of Orient Bank that it had sought to execute from Bank of Uganda (BoU).

There was also another matter in the High Court. We had brought a miscellaneous application seeking to halt business transactions between Orient Bank and Haba Group as they were known to us. A panel was constituted and it had justices Kavuma, [Augustine] Nshimye and [Remmy] Kasule.

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We had filed an application for discovery. We wanted to know the full extent; how a private bank and commercial bank had transacted, the nature of the case in contract and leases between KCCA and Haba Group.
It also rests on letters of comfort and contacts between BoU and private banks in connection with the bank’s Haba Group clients.

We were inviting court interpretation. Our argument was that both those dealings were in contravention of the Constitution. We were saying these transactions affect public trust. KCCA is a trustee of public land. BoU is a trustee of public money and their constitutional arguments safeguard public trust in both instances. There has been what we called judicial avoidance.

Have the judges understood the case?
Judicial avoidance is a common tactic in semi-democratic states. Even in fully developed states. Some judges aren’t ready. We had to argue every miscellaneous application at a very prohibitive cost.

We were interested in Orient Bank, and you tell us ‘go and call Tropical Bank’, which wasn’t our target for this particular application. There was a miscellaneous application in which we wanted to know how many letters of comfort were issued by BoU.

We wanted to know the full extent because our case relied on a whistle-blower we had no full picture [of]. But then the court was telling us to bring everybody. So we had to forfeit.

Suing Kavuma
But when it came to the main case, by then it was very clear we had a case against Justice Kavuma. The priorities of the petitioner had changed. There was something of greater importance to the independence of the Judiciary than the case we were pursuing at the time. We couldn’t play in the field that was muddled. The issue about the constitutionality and legality of Justice Kavuma, not just heading the Constitutional Court and Court of Appeal, but also heading the Judiciary as an institution, Legal Brains Trust had sued him in the lower court [High Court].

I recall Justice Elizabeth Musoke, who was deputy head of the Civil Division of the High Court, heard the case. And the day before her ruling, government gave us a CJ (Chief Justice), so she couldn’t give the judgment. Then we used to receive hearing notices with Kavuma on the panel and we were surprised that this man was so brazen, almost deluded to put himself on the panel yet the petitioner is a former opponent. Are you getting me?

Conflict of interest
Justice Kavuma insisted on empanelling himself to hear this case. Against this background, we couldn’t petition for a hearing date or participate in any that was offered. The case had to suffer delay caused by the court’s leader, Justice Kavuma. We thought there was too much proximity between Justice Kavuma and Haba Group litigants. So we said ‘let’s leave this matter.’ The case wasn’t about Haba, but about superior issue of the commercial banks.

Justice Owiny-Dollo era
When Justice Alphonse Owiny-Dollo took over at the beginning of 2018, there was poor case management. But to be fair to Justice Owiny-Dollo, he had a lot to do after the Justice Kavuma era. He inherited a mess. Our petition was part of the 6,000 cases in the Constitutional Court because Justice Kavuma had created a single judge jurisdiction.

During the Owiny-Dollo era, they started hearing cases on the first in, first out basis. They began to schedule cases in constitutional law sessions following the first in, first out basis. I was informed by my colleagues that in May 2019 there was a rehearing session where people wanted to see all those with petitions that I think fall in the bracket between 2011 and 2014. They were many and judges wanted to confirm the petitioner’s interest.

I wasn’t there, but the Alakas were. So we put in writing that we were still interested. On June 13, 2019, I was heard in a session. I wanted to ask for an adjournment, but the judges insisted that they wanted to hear the case and I should think about the adjournment carefully. So we proceeded, after all the Haba litigants had brought their skeleton arguments.

Delay in giving judgment
The matter was adjourned indefinitely on June 13, 2019, such that judges could deliver judgment. According to the judicial code of conduct, when you say you are going to deliver a judgment on notice, you must do it within 60 days, or give good reason for the delay. Nothing was done until December 17 when we received a judgment notice.

On reaching there, the judgment wasn’t ready. Justice [Kenneth] Kakuru told us judgement wasn’t ready because one judge was sick. The matter was pushed to January 9 this year, but still there was no judgment. They said they needed proofreading.

They said ‘comeback on January 15, 2020,’ but still there was no judgment. They said comeback on January 23. On January 23, the full panel came and gave an explanation as to why the judgement wasn’t ready, but still adjourned without giving a date. On March 6, I wrote to the DCJ a letter of compliant saying our client was dissatisfied with the court’s excessive delay.

I talked about the judicial code of conduct. I made it clear that continued delay causes unnecessary anxiety to our client and other stakeholders who have fears that some parties might be holding extrajudicial engagements with some members of the court. The DCJ wasn’t part of the panel, but we wanted him to investigate his colleagues. A Constitutional Court can’t issue a judgment notice in error. This is not the kind of case management that people of Uganda should expect from the Constitutional Court.

What are the misgivings about this judgment? They have told Basajjabalaba to refund the money through a High Court process
The judgment of the Constitutional Court comprising of justices Kenneth Kakuru, Geoffrey Kiryabwire, Elizabeth Musoke, Cheborion Barishaki and Stephen Musota – constitutional petition No. 4 of 2012, Legal Brains Trust Vs Basajjabalaba and 19 others – is shameful. It’s not what our country needs now, especially after the much publicised presidential walk against corruption of December 4, 2019. The purpose was to galvanise national response to the scourge of corruption which continues to destroy sectors of Ugandan life.

Save for Justice Kakuru’s verdict, the verdicts of his four colleagues are woefully inadequate to meet the needs of Ugandans who are most at risk from the consequences of grand corruption executed through sophisticated tools and techniques.



Businessman Hassan Basajjabalaba.
Businessman Hassan Basajjabalaba.

Let me start with two dissenting judgments of justices Barishaki and Musota who found that the petition doesn’t raise an issue for constitutional interpretation. Barishaki uses 44 pages to lay out his analysis, but in these pages he turns wilfully blind to the two-part nature of the case. He focuses entirely on the transactions between KCCA and the Haba Group. As if we don’t invite him to look into the transactions between BoU and commercial banks that fronted the interests of Haba Group.

He turned a blind eye to what is being removed from the national Treasury into the coffers of the four commercial banks, arising out of loan contracts those banks had entered into with a customer. You are going to scrutinise the loan applications Haba Group presented to the banks to build a hospital, to capitalise their companies. Somehow, they were asked for security, they said they have a letter of comfort from the [BoU] governor.

And the question we asked was that does the letter of comfort from the governor constitute a guarantee or not in terms of 159 (7)? That’s it. These banks took it as such, when Article 159(7) says there will be no borrowing done by government against public funds. What was this? Article 159(2) says government shall not borrow or guarantee a loan unless under an act of Parliament.

Haba Group offered no other security to the banks except for a letter of comfort from the governor. No single letter of guarantee is given space in the 44-page judgment of Barishaki. The people of Uganda don’t need the judge’s interpretation on land issues. The people of Uganda had taken back their property through people power. The victims of corruption rose up and retook their property.

How did foreign banks get their hands on national Treasury using a license issued by BoU and a letter of comfort? Why did the Constitutional Court fail to investigate a principle of sovereign debt? That’s a great issue for constitutional interpretation. Officers of BoU can use money any way they want and buy groceries. I accuse the Constitutional Court of judicial sophistry, judicial obscurantism, judicial avoidance and judicial impertinence.

The media reported that Basajjabalaba is to refund the money through a High Court process. Let me talk about the lead judgments, that of Justice Kiryabwire. He has a 53-page judgment. Thirty nine of those pages were about background and preliminary objection. He raises only one issue of Attorney General’s advice on markets. And this issue of the Attorney General is conceded. He spent 20 per cent of his judgment on a conceded matter.

He said the conduct of the Attorney General put him at a loss, but he goes ahead to entrust him with the process of recovery. Kiryabwire has removed me, the citizens’ representative. Ssemakadde who has dragged you to court, exposed you, and forced you into a concession, now go and work without his pressure. Yet citizen pressure is a constitutional right.

It’s a constitutional scheme. These are two inconsistent schemes: You find the Attorney General’s conduct to be constitutionally irrational and then you entrust him with other constitutional duties and shield him from citizen scrutiny and accountability.

You have asked what offends me about the referral order. And I tell you it excludes citizens’ oversight over people whose conduct has been found to be constitutionally delinquent. What offends me about the order of referral to the High Court is deliberately, strategically written in terms that purposefully excludes citizen oversight from the most critical stages of accountability.

Editors are writing big headlines, ‘we have won.’ We have not won, we have lost. The citizen has been elbowed out from the scene. The judgment has reset the table of wheeler-dealing. It has given wheeler-dealers a blank cheque. You find them to be wheeler-dealers and you tell them to continue business as usual. You find that the Office of the Attorney General causes this mess.

This judgment offends national objective 26 on accountability. It doesn’t restate the role of the citizen. When they go to the High Court, don’t they have a constitutional right to consent? And if they don’t, who can complain? Who can complain since I’m not party? If they don’t go [to the High Court] how can I enforce the order? I’m a winner who can’t enforce my order. I have been given an order I can’t enforce. Before the High Court I will be asked to make a case why I should be there and then I will be asked to seat in the gallery.

The order of referral gauges the citizen’s voice at the penultimate stage of the accountability process. I would have to make a fresh application at citizen’s cost for the right of audience before the High Court. I won’t participate in the bean counting process and yet it’s people’s money. The Attorney General is a fiction. The Constitution says it: the Office of the Attorney General is a great fiction which we build through the rule of law, but please the ultimate power is the citizen through which that fiction works.

The order of referral amplifies the voice of fiction; on one hand legal fictions called the Attorney General and on the other legal fictions called incorporated companies. The only individual whose voice will be heard is Basajjabalaba. He is the only individual. The rest are legal fictions. And so he will be the main player, plus the judge. So before the High Court there will be two individuals that count, the rest will be legal fictions and their agents.

Let me go back to Kiryabwire. For the High Court referral matter, Kiryabwire only talks about St Balikuddembe, Shauriyako and Nakesero markets. He leaves out two properties: The Constitutional Square and Nakawa Market. Invoices were presented for those two properties and the compensations were approved by the IGG (Inspectorate of Government). These were agreed facts. The judges robbed the people. We can appeal, but what are the sanctions for the judge?

Do you find any positive in this court?
I don’t think the postman should be applauded for delivering the mail at the door step. That’s his job. For the Constitutional Court to hear the case, it shouldn’t receive any applause. I have seen Busingye Kabumba’s [Makerere University law don] analysis. It’s shallow, with due respect. It sends a wrong message to these judges. The Constitutional Court should receive criticism from constitutional scholars.

What motivated the petition?

The need to recover an asset called public money from these commercial banks. Let’s look at Orient Bank, it received a loan application from Haba Group, who had an account with them. The purpose was real estate development. The facility they were receiving was $10 million to be recovered from pending government compensation. It was clear as day that there was no pending compensation.

This was fiction in which Basajjabalaba insisted and solicited public officials and politicians to make it a reality. In all these payments that BoU made to the commercial banks, they never consulted Parliament as the law stipulates. Who gambled with public money? It’s the banks. And they tell you on oath. They say we ‘lent out and Basajjabalaba failed to pay’. We presented these instruments (letters of comfort) to BoU and we were paid and we are happy.

‘People of Uganda refused to pay him (Basajjabalaba), but for us (banks) we were paid taxpayers’ money.’ We presented this question to the court clearly: Did the money the four commercial banks received from BoU pass through the constitutional procedures for disposal of public assets known as public money? That question has been skipped by the four judges. Those four judges deserve to leave office. These judges should be judged. But who judges the judges in Uganda?

How come judges couldn’t begin to torch into this scheme? Basajjabalaba never received any money. It is the banks that received the money. Where should we get the money? Who took Uganda people’s money? It’s the banks. Then you the banks go and tussle it out with the person who duped you. Did Basajjabalaba receive public money? Who should make a refund to the Consolidated Fund? BoU doesn’t know Basajjabalaba.

The paymasters don’t know Basajjabalaba. They have reported him to every agency. They have reported him to KCCA which conceded to this petition. They have reported him to URA, IGG and the DPP. Are you getting me?

Former Attorney General Peter Nyombi (RIP) conceded to the petition…
Imagine the memory of Nyombi who enabled this process to happen. His body must be shaking in the grave by this judgment because he knew the facts very well and he told the President to chase Basajjabalaba away and the President has never seen Basajjabalaba again.

Nyombi told the President ‘we owe Basajjabalaba nothing.’ He conceded the petition, he believed this issue that it’s the bankers that accessed this public money which court is now saying Basajjabalaba should pay. Nyombi’s affidavit is clear that the bankers took the money.

You have asked what pains me. There is no mention [in the judgement] of Nyombi’s affidavit. There is no mention of Nyombi’s patriotism. That pains me. Nyombi was very clear that the Basajjabalaba group and the bankers should refund the money. And then we get this judgment. Really? The majority of the Constitutional Court has shielded the commercial banks.

Judges must restate that power belongs to the people, as per Article 126 of the Constitution. The Attorney General admitted that BoU never consulted him as the law says when they were making payments to the commercial banks. Basajjabalaba was blocked from getting any money.

Are you appealing?
By Wednesday, we had filed the appeal. There is no way this is going to stop here. And we are going to make our case clear to the Supreme Court judges. Hope they will be able to stand up to this corruption.

Majority ruling

The majority justices were Kenneth Kakuru, Geoffrey Kiryabwire and Elizabeth Musoke.
Justice Musoke reasoned that from the petition filed by Legal Brains Trust, it was not clear how much money should be refunded as it was not sufficiently proven.

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