The Attorney General, William Byaruhanga insists that the court process used to allocate departed Asians’ properties to all people can’t be reversed.
Therefore, it is illegal for Departed Asians Properties Custodian Board (DAPCB) to reclaim such properties.
The Departed Asians Properties Custodian Board, in an ongoing parliamentary inquiry investigating suspected fraud syndicate in acquisition of 460 Departed Asians Properties, had listed some properties, including those of individuals such as business tycoon Sudhir Ruparelia, which court had ruled that they were rightfully acquired.
Mr Ruparelia had always raised the same concerns, telling Speaker of Parliament Rebecca Kadaga why court was investigating a matter that had already been closed by court.
And now in a legal opinion to Finance minister Keith Muhakanizi on August 15, Mr Byaruhanga said such properties cannot be subjected to a further Parliament inquiry.
The Attorney General, in the letter, was responding to a letter by the Departed Asians Properties Custodian Board that is lying claim to Plot 98-104 Nakivubo Road, which belongs to Hajji Abdu Kasai, a businessman.
He explains that the powers of the Departed Asians’ Property Custodian Board are governed by Section 4 of the Assets of Departed Asians Act Cap 83, which stipulates that the Board shall take over and manage all assets transferred to it by virtue of Section 13 of the Assets of Departed Asians Decree, 1973. He adds that the same Section 13 mandates the Board to discharge all the liabilities to it by this Act, collect all debts or other monies due to the departed Asian; and may sell or otherwise deal with such assets in the same way as the departed Asian may do.
However, he explains that the Expropriated Properties Act Cap 87 and the Expropriated Properties (Repossession and Disposal)(No.1) Regulations S.I 87-8 limit the involvement of DAPCB and the Minister of Finance to transfer property already allocated to a person and take it back to the former owner.
“Section 3 of the Expropriated Property Act Cap 87 provides; (J) Subject to this Act; the Minister shall have the power to transfer to the firmer owner of any property or business vested in the Government under this Act that property or business,” the Attorney General’s letter reads in part.
He adds: “Nothing in this Act shall be construed as empowering the Minister to Transfer property or business to a former owner unless the Minister is satisfied that the former owner shall physically return to Uganda, repossess and actively manage the property or business. Subsection (2) shall not apply to a former owner who jointly participates with the Government in the ownership and management of any property or business pursuant to section 5.”
My Byaruhanga explains that in light of the above provisions, “it is evident that the DAPCB’s involvement is limited to only when the property is still vested in the Government by virtue of Section 2 of the EPA and before the issuance of a repossession certificate by the Minister”.
He also quotes a Supreme Court ruling in the case between Mohan Musisi and Kiwanuka Asha Chard. In the case, Justice Mulenga held: “The Minister has no power to cancel a Certificate issued under the Act. in providing in section 14 of the Act, that a person aggrieved by a decision made by the Minister under the Act may appeal to the High Court.
(Additional reporting by PML).