- Updated by Faith Barbara Namagembe at 1042 EAT on Wednesday 30 March 2022.
AG Kiryowa KiwanukaThe Departed Asians’ Property Custodian Board (DAPCB) has no powers to deal with any property that the minister of Finance has issued a certificate of repossession.The DAPCB divestiture committee does not also have the powers to repossess, manage or allocate any property that has been dealt with by the minister for Finance.In his view on how the ministry of Finance and DACBP should handle assets that belonged to the Asian community, the Attorney General Kiryowa Kiwanuka, said, “once the minister of Finance has expropriated property by issuing a repossession certificate, certificate of purchase or a letter of receipt, he or she has no power under the Act to cancel the certificate that was issued”.The attorney general’s opinion, issued on March 11, 2022, comes in the wake of a debate that has been making rounds in the recent past on the management of departed Asian’s property. A sub-committee of the committee on statutory authorities and state enterprises (Cosase) of the 10th parliament had directed government to recover at least 100 departed Asian properties repossessed by former owners and prosecute those who aided their fraudulent transfer.The Cosase sub-committee had also recommended the prosecution of those who had taken possession of such properties and their reversion into the hands of the government. However, the attorney general cautioned that such action is illegal and would tantamount to serious legal consequences on the side of government. “Although the Cosase sub-committee investigations elicited findings similar to those of the old auditor general as contained in the two special audit reports, the recommendation of the Cosase subcommittee that DAPCB initiates the process for cancellation of certain repossession certificates and any substitute titles is legally untenable. This is in light of section 9 (1) (d) of the Expropriated Properties Act Cap 87 and case law and if carried forward such action would only increase on the number of lawsuits likely to cause substantial financial loss to government,” the attorney general said.He added whereas Section 9 (I) (d) of the Expropriated Properties Act gives the minister power to repossess, sell or dispose of the property for failure by the former owner to return to Uganda in a period of 120 days, once the minister has issued a certificate of repossession, he has no power to cancel it.While quoting the ruling of Justice Mulenga in a case between Mohan Musisi Kiwanuka versus Asha Chand in a matter involving the expropriation of Departed Asian properties, the Attorney General said:“Mohan Musisi Kiwanuka versus Asha Chand SCCA Ms. 14 of 2005 which dealt in the certificate of purchase, Mulenga JSC held; “In providing, in section 19 of the Act, (now Section 5 of Cap 87 revised edn. 2000] that a person aggrieved by a decision made by the minister under the Act may appeal to the High court. Parliament did not expressly reserve in the minister, any power to review such a decision upon request by an aggrieved person. It only directed that such person should appeal to the High court. I am also unable to construe from the Act, that the minister retained any implied power to revoke his decision on the ground that it was made in error. In my view, to do so, would perpetuate the very uncertainties about ownership of the expropriated properties, which the Act was, intended to eliminate…”Accordingly, the attorney general said the power to cancel a certificate of repossession “exclusively vests in the High court.Four years ago, in 2018, the minister of Finance, Planning and Economic Development, Matia Kasaija, in a letter to the executive secretary DAPCB, dated May 23, 2018, on the management of the management of properties under the DAPCB, noted that the ministry of Finance and DAPCB need to continue respecting the rule of law.“Therefore, any orders of court must be complied with. Please note that any person not acting in compliance with the law, will be help personally liable for whatever actions contrary to the law,” the letter read in part.