LEGAL BRAINS TRUST V HASSAN BASSAJABALABA & 19 OTHERS CONSTITUTIONAL PETITION NO 04 OF 2012.
CORAM: Hon. Justice Kenneth Kakuru, Hon Justice Geoffrey Kiryabwire, Hon Lady Justice Elizabeth Musoke, Hon Justice Cheborion Barishaki, Hon. Justice Stephen Musota.
The judgment was delivered on 24th March 2020.
The petitioner, Legal Brains Trust Ltd, a Civil Society Organization fostering good governance and observance of constitutionalism filed the petition in respect of series of contractual arrangements entered into between 1st January 200 and 31stDecember 2011 involving several properties within Kampala City namely; Nakasero market, Nakivubo market, St Balikudeembe market, Nakawa market, and the Constitutional Square. The petitioner contended that these contracts were not subjected to legal advice or approval from the Attorney General of Uganda contrary to Article 119(5) of the Constitution. They were also not subject to established procurement procedures in force at the time and allegedly violated and or threatened the property rights of existing market vendors or their associations. This led to unprecedented popular resistance from market vendors and the public which involved demonstrations and riots. The government subsequently terminated and cancelled the said contracts. The Haba Group thereafter fraudulently, dishonestly or deceitfully applied to government of Uganda for compensation in respect of the terminated contracts. An amount of 54,690,517,149/= was agreed to but later the Haba group rejected the settlement. The AG directed the solicitor general to pay 142,697,752,244/= an amount that would need the parliament to pass a supplementary budget. Attempts were made to get the payment through the Central Bank and consequently resulted from funds being taken from the consolidated fund. The petitioner alleged that the Respondents jointly and severally undermined the Rule of Law and unjustly enriched themselves at the expense of the people of Uganda. They acted corruptly and abused or misused their power of influence. This contravened and threatened the right of people of Uganda to live free from corruption and abuse or misuse of power and public resources as guaranteed under National Objective XXVI and Articles 8A, 17 (1) (i), 20 (1) (2), 25(1), 41, 36, 38, 45, 164, 196, 201 and 233(2)(b) of the Constitution.
First, the Court determined the issue as to whether the Constitutional Court had the jurisdiction to handle the matter at hand. in other words whether it raised issues for constitutional interpretation as required under Article 137(3) (b) Relying on Serugo V Kampala City Council and AG Constitutional Petition No.14 of 1997, it was held that applications for redress can be made to a constitutional Court only under Article 137. Clauses 3 and 4 of the Article empower the Constitutional Court when adjudicating on a petition for interpretation of the Constitution to grant redress where appropriate. In this particular matter Justice Kenneth Kakuru found that the Constitutional Court had the jurisdiction to handle the matter however some matters were referred back to the High Court for to determine to appropriate liability to each of the parties for the Constitutional violations which were conceded.
The 7th Respondent agrees that the petition raises issues of constitutional interpretation particularly the question of disposal of public assets in accordance with the Public procurement and Disposal of Public Assets in accordance with the Public Procurement and Disposal of Public Assets Act, 2003 and regulations thereunder. The role the AG in the contract process involving public property and funds.
From submissions, the Respondents violated the right of people to live in a country free from corruption, abuse of power, misuse of public resources by people who hold public offices. The citizens of Uganda have a right to inquire into the affairs of government first through regular and fair elections and challenging illegal/unconstitutional actions.
Did KCC or government have authority in light of Art 237(b) to lease the Constitutional Square to the 1st and 5th Respondents.. The question is whether or not green areas in the cities and towns are “land reserved or ecological” purposes under the constitution. The city square was leased for a period extendable to 49 years. However it was contended that there was no lease agreement signed between the parties in respect of this property. Justice Kenneth Kakuru opined that the property is a green area in the middle of Kampala city and there is no doubt that the city planners had left this green area as a public green park. The respondent was not entitled to any compensation since the contract was void abinitio. It was food that the lease in respect of the city square was illegal and court cannot sanction an illegality and no legal obligation could result from an illegal transaction.
Additionally, the Solicitor General’s approval was never sought by KCC with regard to transactions involving management of St Balikuddembe market, Nakasero market an sublease of Shauriyako market. Therefore the transactions violated Article 119(5).
It was found that there was no valid existing contracts of management in respect of St Balikuddembe and nakasero market since the contracting parties were non-existent. Article 159(2) prohibits government from borrowing, entering a guarantee on behalf of itself or another person without being authorized by an act of parliament. This was also violated.
Clearly there were constitutional violations by th Respondents and the prayers of the petitioner were awarded by the Court.