Graft probes: Why they are all bark and no bite

Plot 5 Mackenzie Vale in the leafy Kampala suburb of Kololo has been at the centre of a protracted property row—in and outside court—that’s now into the fifth year.

The property ownership row is also under investigation by the State House Anti-Corruption Unit, which early last month arrested Mr Moses Bizibu, the embattled executive secretary of the Departed Asian Property Custodian Board (DAPCB), for allegedly obtaining nearly Shs600m from various persons falsely while purporting to allocate them properties.

The Kololo property is claimed by Mr Sadruddin Valimahomed, the administrator of the Late Tajdin Alidina Valimahomed’s estate, and Mr Geoffrey Baguma, a businessman. 

The property was lost following president Idi Amin’s expulsion of Asians in 1972. An estimated 60,000 Asians were given 90 days to vacate the country under Amin’s policy to nationalise the economy. The fleeing Asians left behind an estimated 7,000 to 10,000 properties around the country.

The government, through the UN refugee agency, UNHCR, and the Indian and British governments, compensated the Asians who opted not to return to Uganda when the political tide settled by 1993. 

The DAPCB was also established as a statutory body to, among others, ensure orderly [re]transfer of property to the owners who returned, collect debts, and deal with property sales.

Putting up a fight

The late Valimahomed, according to documents, applied for repossession of the property on June 22, 1992, and a certificate of repossession was granted to him on October 16, 1995. He was re-registered on November 3, 1995.

On September 5, 2019, the Indian family, through their lawyers, received a letter from the DAPCB. The letter stated that the property had been a subject of investigations by the Parliamentary Committee on Commission Statutory Authorities and State Enterprises (Cosase).

There was a sequence of events, starting with back-and-forth correspondences that culminated in the DAPCB informing the owners that the certificate of repossession they held was invalid. It also confessed to having not properly handed over the property to them. Then came police deployment at the property. The late Valimahomed dragged the DAPCB to the High Court in early 2019. The suit was dismissed.

“We have sought assistance from various state and security agencies, including but not limited to Police, State House Anti-Corruption Unit, Minister of Internal Affairs in vain,” a February 22 petition addressed to President Museveni reads.

When in 2019 a sub-committee of the then Mubarak Munyagwa-led Cosase put the operations of the DAPCB under the microscope, following red flags raised by Auditor General John Muwanga in a 2016 audit, the plot unravelled. A syndicated corruption involving, among others, questionable transfers and corruption carefully crafted behind the cloistered boardrooms, came to light.

Cloak and dagger games

Among others, the committee’s investigations were constrained by absence of a comprehensive inventory for all expropriated property, recalcitrant and defiant witnesses, who deliberately defied summons, and the Attorney General office’s failure to cooperate (availing documentation and failure to render legal opinion on legal issues).

The committee then established, among others, double or multiple allocations of property by the DAPCB, leading to protracted property rows. It was also discovered that some formerly compensated properties by the government had ended up in the hands of unscrupulous individuals. These individuals later transferred the same to bona fide purchasers for value without notice.

“All redeemed properties in respect of which special certificates of title were issued and yet the original certificates of title are in the custody of the board should be cancelled and the perpetrators be prosecuted,” the committee recommended.

The findings and recommendations of the parliamentary report are, however, now null and void.

Last month, the High Court in Kampala quashed the Cosase report on grounds that the committee exceeded its mandate and acted without jurisdiction when it purported to investigate properties already dealt with under the Expropriated Properties Act and in respect of which certificates of repossession had long been issued.

The court ruling followed a petition by Mr Mohammed Allibhai, the managing director of Tight Security, on behalf of a section of former owners of the expropriated properties in the repossession process and management of respective expropriated properties, against the Attorney General.

Tight Security was in 2009 engaged by Valimahomed’s estate to guard the property at Plot 5, Mackenzie Vale. The security company was, however, booted by the police when the contest over the property erupted.

It has also since emerged that Attorney General Kiryowa Kiwanuka rendered legal opinion to the effect that the committee’s recommendation to cancel all titles cannot be implemented under the current law.

After several months of investigations and millions of taxpayer’s money wasted, the Cosase report now joins a long list of probe reports—detailing syndicated corruption across government—whose recommendations (including criminal sanctions) have been stymied.

Dr Sarah Bireete, the executive director of the Centre for Constitutional Governance, told Sunday Monitor that whereas every country thrives on rule of law for the protection of human rights and the common good, it has become common practice for people being investigated to run to court on account of unfair treatment.

“I support the notion that the rules of natural justice should apply in all situations at all times, but we should not intentionally promote habits of running to courts of law under the claim of unfairness or arbitrariness to defeat the ends of justice,” Dr Bireete says.

In the Cosase report case, Justice Boniface Wamala of the High Court opined that the decisions arrived at by the committee were illegal because the matter had already been concluded by courts of law. Dr Bireete concurs with the verdict, adding that “Article 92 prohibits Parliament to engage in any actions or enact laws aimed at defeating court decisions.”

Double loss

Dubious schemes are, however, a malfeasance that has become commonplace. In April 2016, the parliamentary Public Accounts Committee directed the Auditor General to conduct a forensic audit into the court awards, especially those hastily done by the Finance ministry on court orders of mandamus after the officials of the Finance and Justice ministries were accused of collusion.

At that time, the Finance ministry had paid Shs78b as “mandamus payments” in respect to court awards against the government. Hence Mr Muwanga was also directed to evaluate whether the documents on which payments are requisitioned were actually orders of mandamus necessitating expedient payments.

The investigations came on the heels of widespread reports of collusion by the ministries’ officials, lawyers, and judicial officers to either lose cases against the government or award ridiculous compensation sums.

Halfway into Mr Muwanga’s probe, a group of implicated lawyers secured a court injunction blocking the audit. To-date, the Office of the Auditor General fears to comment about the subject matter of court awards.

The forensic audit, according to a working draft report, queried most of the payments, including some Shs44b which—although classified as mandamus—was not “supported by writ of mandamus from the courts of law.”

A review of the parent files in the Justice ministry failed to reveal any evidence of the said writ, the audit unearthed. 

Elsewhere, the Finance ministry wasn’t able to avail any evidence of the said writ.

Catherine Bamugemereire inquests

Months earlier in 2015, President Museveni asked current Court of Appeal Judge Catherine Bamugemereire to chair a seven-member Commission of Inquiry into mismanagement of the Uganda National Roads Authority (Unra) since its inception in 2008. 

Over the period of Unra’s existence until 2015, the commission established that the net impact of corruption was “significant.” The inquiry detailed in its final report that at least Shs4 trillion of the Shs9 trillion allocated to Unra between 2009 and 2015 was “misappropriated.”

Despite the ear-splitting revelations of grand scale corruption contained in the final report submitted in May 2016, no criminal sanction has ever been taken. 

Sections of the report have since been quashed by the High Court.

Justice Bamugemereire would later be tapped by President Museveni to lead the Commission of Inquiry into Land Matters, whose decisions and recommendations were quashed by the Constitutional Court in September 2020.