The High Court in Kampala has been ordered to ascertain how much money, businessman, Hassan Basajjabalaba should refund to government in the cancelled Shs142b markets and Constitutional Square lease compensation.
In a majority judgment of 3:2, the justices of the Constitutional Court, held that the contracts executed between the then Kampala City Council (KCC) and Haba Group, Victoria International Trading Company, Sheila Investments, Yudaya International and First Merchant International Trading Comp, were null and void, having been executed in contravention of the Constitution.
“All the money paid as compensation to Mr Basajjabalaba and the aforementioned companies by government under the impugned contracts and leases shall be refunded by the said respondents jointly and severally to the government through the office of the Attorney General,” ruled the majority justices
“The exact amount of money to be refunded to government by the respondents referred above shall be ascertained and apportioned by the High Court,” they added.
To that effect, the Constitutional Court ordered its registrar to transmit the whole file to the High Court for the same determination.
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.
“Given that the money paid in the disputed compensation is tax payers’ money, the need to have the High Court determine the matter becomes very important. Therefore, I would order that the matter be referred to the High Court under Article 137 (4) (b) of the Constitution,” Justice Musoke held.
Likewise, Justice Kakuru in his decision, faulted the then Kampala City Council (KCC) for having given away Constitutional Square for redevelopment to Mr Basajjabalaba, reasoning that it falls under the green areas which should be held by government in trust of the people.
He added that any money paid in compensation of the same should be refunded to government.
The dissenting judges were Cheborion Barishaki and Stephen Musota.
The duo held that the petition before them did not raise issues warranting constitutional interpretation and that the case was before a wrong court.
“The violation of the laws does not necessarily call for constitutional interpretation and must be addressed to and settled by an appropriate court or tribunal, not this court.
Having found as above, the petition is not only incompetent but this court has no jurisdiction to hear it and grant reliefs sought. I accordingly dismiss it,” Justice Cheborion held.
Since the petition was brought in the public interest, all the five justices agreed and ordered each party to bear its own costs.
The legal battle arose in 2000 when Mr Basajjabalaba and the aforementioned companies, entered into a series of contractual arrangements with then KCC for the management of several city markets. The markets included Nakasero, Shauriyako, St Balikuddembe (formerly Owino), Nakawa and the Constitutional Square.
According to the petitioner, Legal Brains Trust, the contractual arrangements between KCC and Mr Basajjabalaba and others, did not obtain the legal advice or approval of the AG, contrary to Article 119 (5) of the Constitution and Section 67 (4) of the Local Government Act.
A year later, because of the public outcry for having leased away the markets and Constitutional Square, the then Local Government minister, stopped the development of Constitutional Square and instituted a commission of inquiry, whose recommendations stopped the whole lease process.
To that effect, government terminated the contracts awarded to the businessman and the various companies, a move that prompted Haba Group of Companies to seek compensation. Government then set up an inter-ministerial technical committee to investigate the claims. It went on to recommend compensation of Shs54b but Mr Basajjabalaba and group, rejected it before appealing to President Museveni.
This saw the Auditor General (AG) authorising Shs142b to be paid to Haba Group as compensation. The said funds were drawn from the Consolidated Account. However, the award of compensation led the AG to call for a value of money audit of the said compensation.