Controversial land inquiry warned over infringing judicial independence

29 April 2019 · Carmel Rickard

Tension between Uganda’s judiciary and a commission of inquiry headed by one of the judiciary’s own members has heightened following a new Court of Appeal decision. The appeal judgment refused to stay a huge, court-ordered payout to a local pastor and land broker, as ordered by the inquiry, and warned that the independence of the judiciary was at stake if court decisions and orders could be countermanded by a commission of inquiry.

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The commission of inquiry into land policies and administration in Uganda, headed by Judge Catherine Bamugemereire, has been at the centre of a number of high-profile disputes ever since it was set up.

Just weeks ago, the deputy attorney general, Rukutana Mwesigwa, was told to leave the inquiry because of “disrespectful” behaviour, to which his response was that the commission should “go and hang”, and his later comment to journalists was, “I don’t give a damn”.

There have also been spats between Judge Bamugemereire and other members of the judiciary, including the Chief Justice, over her remarks critical of judges for the role they have been playing in land-related matters.

Just as controversially, she directed that the Uganda Land Commission ought not to pay compensation “to a party that had been successful in a decided case.”

In the view of some commentators, the judge appeared to be positioning her inquiry as an “alternative, more transparent avenue for land disputes than courts of law.”

One of the disputes she has taken up – and that highlights this situation – involves local pastor and land broker, Daniel Walugembe. The pastor had a court order that the Land Commission should pay him compensation but Judge Bamugemereire instructed the commission to pay that money to someone else completely. It seemed the commission was about to re-open investigations into the compensation question, even though this had been settled by court order. The judge who had made the order that Walugembe be paid compensation then wrote in a related decision that an inquiry had no power to issue orders contrary to the orders of a court of law. And in ordering someone else to be paid, instead of Walugembe, the inquiry “acted illegally”.

Walugembe says he is due UGX 9,651,655,000 in terms of the original order but the secretary to the Land Commission, Douglas Singiza, went to the Court of Appeal saying that the commission wants to challenge that court order and a number of related orders including a high court order stopping any government official (including any commission of inquiry) from “interfering with compensation as directed by court relating to land … which is (the) subject of a court order.”

Singiza and Uganda’s attorney general say that they want to challenge aspects of the court judgment awarding a small fortune to Walugembe, saying there was a “great danger” that Walugembe and others will take advantage of the wide-ranging orders issued by the high court to get money from the government.

They added that the orders of the high court “greatly curtail the activities of the commission of inquiry; seriously compromise and impede its ability to exercise its mandate to investigate … the operations of the land fund”.

In particular they asked the Court of Appeal to order that the high court’s decision, authorizing payment of all those billions to Walugembe, be put on hold as this would be in the interests of justice

Faced with this clear attempt to prevent him being paid, Walugembe said the application was an abuse of court process and violated his rights.

Three judges of the Court of Appeal unanimously held against the commission and the attorney general’s attempts to prevent the high court order, arising from judicial review proceedings, from being executed. They held that in this case the orders were “not capable of being stayed”.

Even if they had found that the orders resulting from the review proceedings could be stayed, the original consent order of the high court had not been challenged. “A grant of an order staying execution of the orders arising from judicial review proceedings would in no way affect the consent decree and as such it would be an exercise in futility”. It would also cause conflict between the executive and the judiciary because a stay would revive the instruction by the chair of the inquiry that all payments of compensation be put on hold. “Judgments of court cannot be stayed, reviewed or otherwise compromised by orders issued by the executive,” said the appeal judges. “That would be a blatant constitutional error. A decree of court can only be stayed by the court that issued it or an appellate court.”

Any executive order that had the effect of staying reversing or otherwise altering a decision of court was “null and void”.

Uganda’s constitutional system ensured that any errors in the judicial process were corrected from within the same judicial process, via a self-correcting system of reviews and appeals. If the attorney general was unhappy with the original court order he should have sought to have it set aside. That would have triggered a process in which a stay would have been considered by the court itself.

“A consent judgment is not appealable … it cannot be stayed except in an application to set it aside. To that extent we find that this application is misconceived. We find that the orders sought to be stayed are not capable of being executed and we decline to grant them. We re-affirm the independence of the judiciary by stating that orders issued by the executive, however well intended, cannot legally stay decisions of any court of law.”

The unsuccessful application, dismissed with costs, has dealt the attorney general, the commission and the inquiry a significant blow. Outsiders, who had hoped the inquiry would get to the bottom of land-related corruption and fraud, must be feeling increasingly frustrated at the sight of the commission, the inquiry and the courts locked in battle with each other – rather than with the land sharks and embezzlers that the inquiry was intended to uncover.

Carmel Rickard

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