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War over departed Asian Assets rocks parliament

Some of the departed Asian properties in Kamwokya

Some of the departed Asian properties in Kamwokya

The request for documents and summons of witnesses — all touted as part of a new expansive parliamentary investigation into the disposal of properties of the departed Asians has escalated the fight between the House, Attorney General and individuals targeted by the probe.

Parliament with the nod of approval from speaker Rebecca Kadaga cleared a House sub-committee to travel to Canada between January 12-26 to investigate allegations that some properties of Indians expelled by “H.E President Idi Amin were repossessed, yet the owners had been compensated by the governments of Uganda and India.”

The seven member sub-committee is also supposed to establish any possible fraudulent activities committed during the repossession of the properties…And propose measures to safeguard the assets against any fraudulent disposal and obtain any relevant information concerning the management of the assets under the trusteeship of the Custodian board.

The delegation cleared to Canada includes; the chairman Hon Kasozi Ibrahim Biribawa, Twesigye Nathan Itungo, Mugema Peter, Akampulira Prossy Mbabazi, George William Bizibu (Executive Director DAPCB), Bakwega Emmanuel (Staff, parliament) and Kirunda Solomon.

But lawyers representing individuals targeted by the parliamentary investigation have written to the Attorney General protesting the probe by the parliamentary committee on Commissions, Statutory Bodies and State Enterprises, Cosase.

The lawyers; Akampumuza and Co. Advocates, claim in the letter dated January 13 2020 and received by the Attorney General’s office on January 14, that the parliamentary investigation is an outright Contempt of the Constitutional Court, Breach of the rule of Law and the Subjudice Rule. They reference Constitutional Petition N0.22 of 2019 Mohammed Allibhai and 12 others Vs. Attorney General, Departed Asians Custodian Board & George William Bizibu.

The lawyers claim parliament has written letters summoning their clients who have been legally advised not to participate in the ‘offensive proceedings.’

Essentially, the lawyers are asking the Attorney General, who is government’s chief legal adviser, to “prevail on Parliament and the Executive to stop the investigation and abide by the Constitution and respect the subjudice rule.   

“The respondents continue to gather evidence on similar matters which are ongoing in the Constitutional Court. The last being their summoning of our clients to produce before them the Powers of Attorney, the very matter that is before the court for adjudication...” the letter to the AG reads in part.

“…The other [matter] is the reported visit to Canada and the United Kingdom purportedly to look for former owners of the departed Asian properties to verify letters of repossession. While Bizibu and DAPCB are part of the delegation our clients were never invited for obvious reasons..”

The lawyers insist “The above acts evidence how far your officials are ready to go to undermine the Constitutional court unhindered. This does not portend well for the rule of law as it is willful and fragrant breach of the subjudice rule and therefore contempt of court being conducted by the very Parliament and Executive which are mandated to preserve and protect the Constitution.”

“As you are fully aware, our clients filed Constitutional Petition N0. 22 of 2019, challenging the constitutionality of the Respondents’ acts of purporting to decide matters of cancelling certificates of repossession, re-allocations. Injuncting transactions and the proceedings being conducted before Parliament despite the Petition having been duly served, you have left the Respondents for whom you are the legal representative to unbridlingly continue with the challenged acts. This is acting parallel to the Constitutional Court, in blatant breach of the subjudice rule. Shockingly is that William Bizibu, from the DAPCB is the main architect and an active participant in the Parliamentary proceedings when he is not a Member of Parliament.”

The lawyers claim, “The constitutional doctrine of separation of powers enjoins maximum respect for the independence of the judiciary. What is even more bizarre is the Parliament’s insistence that it is invoking its powers of the High Court to summon witnesses and enforce their attendance. The power to summon witnesses does not confer adjudicatory powers of the High court, which is a Constitutional matter. The above matter is subjudice under Article 28{1)(2), 128(1){2)(3) and 92 of the Constitution and Parliament is obliged to respect court. Besides, the powers of the High Court cannot be used to override the exclusive jurisdiction, power and mandate of the Constitutional Court. Neither is a party to a suit at liberty to continue collecting evidence in a matter which is under challenge including going out of Jurisdiction to undermine court.”

In conclusion, they say, “In those circumstances, our clients cannot be privy to nor participate in the offensive proceedings as they continue being pestered to do. The summons to produce documents to the Parliament committee can only await the adjudication of matters in controversy before the Constitutional Court. We have accordingly advised our clients not to participate in the overt contempt of court.

Interviewed for a comment yesterday, Parliament’s Assistant Director, Communications and Public Affairs Helen Nanteza Kawesa said “When Cosase started investigating the disposal of properties of the departed Asians, there was no ongoing court process. So there is no injunction at all and no lawful authority can stop us [Parliament] from going ahead with the investigations.”

“It’s clear that you cannot challenge the process of parliament, which is ongoing. You have to wait for the process to end then you can challenge the outcome.
But once we have started as parliament, you cannot say you are going to court to stop us. That cannot happen. When they heard that the process [parliamentary investigations] had started, they ran to court
and court has not pronounced itself on the matter,” she said.

Cosase sub committee

Kawesa said the sub-committee members had not left for Canada yet. However, insider sources said four MPs on the committee left yesterday morning for Canada while the rest of the delegation including Bizibu were scheduled to fly out anytime.

“The MPs must still be on the plane because they left at 4am today,” a source said.

This matter is a spillover from last year when Cosase under the stewardship of Kasozi was given the all clear to investigate the disposal of the departed Asian properties. Parliament gave the nod of approval after a list of the properties released by Bank of Uganda showed that government compensated owners in 1976 but some of the assets had been acquired or repossessed by private individuals. 

Outgoing Central Bank deputy Governor Louis Kasakende last year released the list of compensated properties to Cosase. Government paid out compensation for at least 460 properties, according to the list.

Asians who were expelled in 1972 by Uganda’s former president Idi Amin received compensation for 344 properties through the United Nations High Commissioner for Refugees (UNHCR) whereas compensation for 116 properties owned by Asians of British citizenship was paid through the British High Commission.

It’s also on record that an unstipulated number of properties were compensated in 1976 through the Indian government following an agreement between Amin and a delegation led by the then Indian deputy minister for External Affairs, Bipinpal Das.

Complaints state their case;

The repossession of formerly expropriated properties is mainly governed by the Expropriated Properties Act Cap. 87. 

Who is eligible to apply for repossession?

Any former owner, who includes among other; a registered proprietor at the time of expropriation, a shareholder of a company (where the application is for repossession of company property) 

A duly appointed attorney of any former owner (some former owners donated powers of attorney to different individuals to act on their behalf and apply for repossession).

What is the effect of a repossession letter viz a viz repossession certificate?

A letter of repossession has the same effect as a repossession certificate and grants the applicant with equitable rights in the repossessed property. Once a certificate of repossession is issued, it is deemed to be proof that all the necessary steps of verification have been under taken under the Expropriated Properties Act, Cap 87. The Minister cannot revisit this decision and the only remedy for one who is aggrieved is to appeal to High Court.

Can a certificate of repossession be cancelled and if so who has the power to cancel it?

Once a certificate of repossession has been issued, the Minister and/or the Departed Asians’ Property Custodian Board ceases to have any authority whatsoever to interfere, cancel the certificate of repossession or cause any investigation into a property.

The Attorney General of the Republic of Uganda, basing on case(s) decided by the Supreme Court of Uganda has opined to this effect and clearly stated that irrespective of the allegations, after the Minister has issued a repossession certificate, the Departed Asians’ Property Custodian Board is estopped from interfering with the property.

Remedy provided by the EPA

The only remedy provided for under the law governing expropriated properties is that any person 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.

The law is very clear on when the Minister and/or Departed Asians’ Property Custodian Board ceases to have any authority whatsoever to interfere with a property for which repossession certificates have been issued. The same law is also clear on the remedy and procedure to be followed by any party aggrieved by the issuance of the repossession certificate(s) over any property.

The law sets a limit of thirty (30) days from the date of issuance of the repossession certificate for an aggrieved party to appeal to High Court.

`Is the law being followed by the relevant authorities?

The complainants say a bold NO.

Time and again, according to the complainants, the Departed Asians’ Property Custodian Board has continued to reallocate properties which were repossessed over twenty years ago.

These allocations have been successfully challenged in Courts of law, which have always held that the decisions to allocate properties which were duly repossessed are unlawful, illegal and a nullity.

The complainants claim the Departed Asians’ Property Custodian Board through its Executive Director, while deliberately ignoring legal advice from the Attorney General, court rulings and judgments has instigated a probe by Cosase by sending a “confidential” dossier to Parliament alleging that several properties were fraudulently repossessed and should be taken over by government.

Racist motive

The complainants also claim that the parliamentary probe is directly targeting Ugandans of Asian descent who repossessed properties as duly appointed attorneys, bought formerly expropriated properties from the registered proprietors and/or are majorly managing various properties on behalf of the registered properties currently living in different parts of the world, including but not restricted to Canada, the United Kingdom and United States of America.

They also claim that the registered proprietors of these targeted properties have not complained or are not complaining that they have been deprived and/or defrauded of their properties by the individuals that the probe is targeting now.

Therefore where do the investigators or accusers who have no propriety interest whatsoever in these properties get the right to complain? Where do the “whistle blowers” get the right to complain yet they do not have any propriety interest in these properties. The “complainants” cannot claim to be acting in government interest either because upon issuance of a repossession certificate, government ceases to have any interest in these properties, rather than property tax (property rates) and stamp duty where applicable. 

They also say that Cosase has adopted a mode of operation which is clearly against the rules of natural justice. It has not provided the “accused” individuals with the claims or allegations against them, the details of the complaints and over which properties the allegations arise but has rather made a blanket accusation. It is now directing each individual to avail all documents used to apply for repossession and management of the properties.

What is the motive behind demanding for documents relating to an arrangement between individuals and/or private companies over management of private property? Is private property now part of Commissions, Statutory Authorities and State Enterprises?

Some of the targeted individuals participated in the repossession exercise over twenty years ago and all these documents the COSASE wants were duly submitted to the relevant authorities then and the Departed Asians’ Property Custodian Board must be having all these documents.

Are the documents lost?

The only logical presumption is that the documents have deliberately been tampered with. Working on the presumption that the said documents are lost yet this is a whole government body that we are talking about, how then does COSASE expect individuals to have all documents they used to repossess properties over twenty years ago?

Ordinarily, he who alleges must prove. If the Custodian Board and COSASE claim that some of the documents used by the individuals they are selectively targeting are forged, then the onus is on them to prove and not the other way round.

In the absence of any complaints from the registered proprietors of the various properties, the whole probe by COSASE is a mere scheme to persecute the individuals managing these properties, deprive the registered proprietors of their properties and reverse the repossession exercise.   

Compensation of Asians

The COSASE also claims some of the properties which were repossessed were actually compensated for by the government. It should avail the proof of these alleged compensation if any as it is in the best position to access any information regarding compensation.

There are three categories of Asians that were supposed to have been compensated; the compensation was only in respect of movable assets as land as well as buildings beyond ten years were valued for compensation. Clearly the properties which were repossessed were not compensated for.

Asians of undetermined nationality: As of 1977 following an agreement between the government of Uganda and UNHCR, these were to be paid a total of Ug. Shs. 40,509,996/56= (forty million five hundred nine thousand nine hundred ninety six and fifty one cents only). The payment was to be in 21 installments over a period of 11 years. However only the first three installments of 5,509,966/51/= were made and no further payments were made.

Indian Citizen: the information available is that the arrangement of compensating this category of persons was between the Government of Uganda and the Government of India directly.

British Citizens: in 1087 an agreement was reached between the Government of Uganda and the British Government for government to compensate the 67 elderly British Asians whose properties had been expropriated. Then in 1991, there was a world-wide appeal to Asians to come and repossess their properties. 19 elderly British Asians were subsequently compensated while 32 applied for and repossessed their properties.

If the compensation was majorly for movable assets other than immovable real property like land, then what compensation is the COSASE referring to? Only the 19 elderly British Asians can be confirmed to have been compensated for real immovable properties.

dkiyonga@gmail.com

Josephine Namuloki contributed to this article.

Comments   

0 #1 jose Semakula 2020-01-15 13:09
True We have DAPCB & Member of Parliament are trying to grab Legally repossessed properties , Majority of Properties belong to the Ugandans , the Unclaimed properties they are not declaring what happened where is the Monies???

The Commission of Inquiry in Lands was on Spot over the Exective Director and Members of the Board who are causing a Loss to the Public Coffers , YKM needs to have the culprits put away he should not spare the ROD on these corrupt official and Leaders
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+1 #2 John Emuron 2020-01-15 21:55
Jose Ssemakula,

The issue is Idi Amin Government compensated the owners of the expropriated properties. And as a result those property become property of government of Uganda. Evidence of the payments exits

The "investors" appeared with what appeared to be powers of attorney from the previous compensated owners sought and were fraudulent granted repossession.

Evidence came to light of the President Amin's compensation and also possibility of f fraudulent powers of Attorney.

Parliament has powers granted to it by the Constitution to investigate or cause to investigate any matter provided at the initiation of inquiries the investigations are not under Court proceedings.

The legal and media manoeuvres by these "Investors" to obstruct the investigation to how they come to repossess these properties raises suspicions that these "Investors" hands are not clean.
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0 #3 John Emuron 2020-01-15 21:58
Lest we forget these "investors" have a long history of tax fraud, and all other sorts of commercial fraud.

Both in Uganda, Kenya ,Dubai and any place with lax rule of law.
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+1 #4 Lysol 2020-01-15 22:27
Those legislators seems to consume plenty of bottle water and later donate them to Museveni for his primitive irrigation system

Plastics should always be recycled and not reused. They are environmental hazards.

Some Ugandans drink bottle water like some kind of phasion or mere posing..Wonder how much the level of arsenic (carcinogen/cancer causing) in those cheap bottled water

Most of those so-called member of parliament come to work with hangovers(after a night of heavy drinking) so they need to drink plenty of water in every meeting.

Some are just nervous so they need water to clear their throats. Next time will take about what is really inside that "tea flask" of the "bigman".
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+1 #5 rubangakene 2020-01-15 23:57
Have we Ugandans once asked these Asians how they acquired and amassed these assets in the first place?

Why do we pander to these thieves who milked our economy under the supervision of their British colonial masters who used them as "buffers" to stifle and drive the indigenous natives to poverty and suffering.

Ugandans must reject these so called Asians returning in different disguise for the final chapter of 'milking Uganda dry'!
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