NEW TWIST IN BASAJJABALABA MARKETS CASE AS SSEMAKADDE FILES CROSS-APPEAL IN SUPREME COURT
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By Joel Mugabi
Just a few days to September 30, the date the Supreme Court has set to deliver its judgement in an appeal in which outspoken lawyer Isaac Kimaze Ssemakadde of Legal Brains Trust (LBT) Ltd challenged a ruling by the Constitutional Court in a case involving controversial city businessman Hassan Basajjabalaba, the youthful city lawyer has filed a cross appeal.
In March 2020, majority of Constitutional Court judges ruled in favour of Ssemakadde and ordered Basajjabalaba, Haba Group and its subsidiaries – Victoria International Trading Company, Sheila Investments, Yudaya International Limited and the First Merchant International Trading Company – to refund Shs142bn extended to them by Government. But Ssemakadde appealed the ruling in the Supreme Court of Uganda, saying the Court judgement was a sham, soft on commercial banks, Basajjabalaba and agencies that were supposed to prevent loss of taxpayers’ money, a clear sign of “the lukewarm attitude of Judiciary in combating corruption” and simply a “declaratory slap on the wrist of the corrupt.”
Now, after the Supreme Court, the highest in the land announced it would deliver its ruling next week, Ssemakadde has filed a cross appeal on September 24, indicating the issues he wishes the bench to determine, which he believes the lower court ignored. As was the case in his previous applications in this case, the cross-respondents are: Hassan Basajjabalaba, Haba Group (Uganda) Ltd, Victoria International Trading Company Ltd, Sheila Investments Ltd, Yudaya International Ltd, First Merchant International Trading Co Ltd, Bank Of Uganda, Syda Bumba, Khiddu Makubuya, Prof Emmanuel Tumusiime-Mutebile, United Bank Of Africa (Uganda), Orient Bank Ltd, Bank Of Baroda (Uganda) Ltd, Tropical Bank (Uganda) Ltd, and the Attorney General Of Uganda, in that order.
Ssemakadde and his LBT want the judges of the Supreme Court to determine whether the learned Justices of the Constitutional Court failed to provide effective remedies in the circumstances of the case before them when they failed to nullify the impugned guarantees and/or letters of comfort after making a finding that the same had been issued in contravention of the Constitution; failed to order United Bank of Africa (Uganda), Orient Bank Ltd, Bank of Baroda (Uganda) Ltd, and Tropical Bank (Uganda) to refund monies received on the strength of the guarantees and/or letters of comfort found to be unconstitutional; further failed to specify the clear amount to be compensated yet it was admitted in the pleadings and affidavit evidence of the four commercial banks; and also failed to impose personal liability on former finance minister Syda Bumba, former Attorney General Khiddu Makubuya, and BoU Governor Prof Emmanuel Tumusiime-Mutebile.
LBT cross-appellants also want effective remedy. “With great respect, we submit that the lower court breached the rule of law, when it denied the cross-appellant effective remedies, effectiveness of justice, and effectiveness of having had recourse especially to the Constitutional Court,” reads the cross appeal in part. “In the premises, the impugned remedies are of little use, illusory. Accordingly, we implore this Court to re-appraise the affidavit evidence that was before the lower court and reverse that court’s findings if, as herein urged, it is of the view that those findings were wrong in relation to ‘redress’ or ‘effective remedy.”
One of the arguments Ssemakadde and fellow LBT cross-appellants have further insisted on is that banks lent out money on the strength of unconstitutional and hence non-existent guarantees, meaning that their loans were to that extent unsecured. They further assert that the loan monies had to be recovered from the respective borrowers, and not the taxpayers of Uganda. They want the highest court in the land to compel the four commercial banks to “return taxpayers’ money illegally drawn from the CF [Consolidated Fund] and given to them.”
They also argue that the Constitutional Court erred when it referred the file to the High Court with orders to ascertain the exact amount of money to be recovered on behalf of the taxpayers of Uganda yet the face value (quantum) of each unconstitutional guarantee or letter of comfort – through which taxpayers’ money was siphoned from the CF – was clearly admitted by the commercial banks in their respective pleadings and affidavits.
LBT further submitted that had the Constitutional Court not evaded its duty to “scrupulously examine the impugned conduct” of Bbumba, Makubuya and Mutebil, it would have found that these were individuals on whom the Constitution had placed enormous trust obligations, which they failed to uphold by participating, as they did, in the identified unconstitutional or ultra vires actions and abuse of mandate.
“In failing to impose meaningful consequences upon these high-ranking officers of state, these ‘wrongs’ – of which the State and people of Uganda were ‘victims’ – went unremedied. Hence the final remedy of the lower court was of little use, in terms of promoting accountability and other important constitutional values.”
The cross-appellants further noted that although the claim for interest on monies that the four commercial banks “unconstitutionally solicited and obtained from the CF,” as well as monies owed to the Attorney General was well pleaded and prayed for in the petition, the Constitutional Court “did not make any reasoning as to why such interest was denied.” They have appealed to the Supreme Court to declare that “this failure to give a specific and sound reason was an injudicious exercise of discretion.”
“The common thread in all the respective decisions is that the only reason the cross-appellant was denied costs, and indeed made to pay its costs, was because it raised a public interest matter. Hence according to the lower court, instituting a public interest matter is punishable,” added Ssemakadde’s LBT in their cross-appeal. (For comments on this story, call, text or whatsapp us on 0705579994, 0779411734, 0200900416 or email us at firstname.lastname@example.org).