On July 30, the deputy Inspector General of Government (IGG), Raphael Baku, responded to Peter Muliraâ€™s earlier article on the powers of the IGG. This is the second and last part of Bakuâ€™s response.
The positions Mulira articulated in his commentary titled: â€œIGG has no power to investigate a minister,â€ which was published in the New Vision of July 24, have been ruled upon by courts of law in litigations where Mulira argued and lost in the following cases.
In the case of Kikonda Butema Farm Ltd v IGG (HCT-00-CV-MA-593 -2006), the Solicitor General communicated to the applicant (Kikonda Butema Farm Ltd) that the Government had approved compensation of over sh1b to the applicant in settlement of its claim. A cheque for sh500m was deposited in Bank of Uganda in the names of the Solicitor General for payment to the applicant as part payment. The IGG ordered the payment not to be made and it was stopped. Mulira, on behalf of the applicant, argued that the IGG did not have power to stop the payment. He sought for orders (of certiorari ) to quash both the report and letter communicating the order of IGG to stop payment. Justice Rubby Aweri Oplo, ruled: â€œI am of the view that this application cannot succeed for the reason that the act complained of were done within the jurisdiction of the IGG and in conformity with the law duly established. The respondent acted in good faith and in conformity with the functions of his office under the Constitution and the IGG Statute. Accordingly, this application lacks substance on all corners. It is, therefore, dismissed with costsâ€ (page 35). Mulira did not appeal this decision.
However, he concocted a constitutional petition based on the same facts and legal arguments. (petition No.18/06: Kikonda Butema Farm Ltd v AG). When the IGG applied to make a submission on the matter as Amicus Curie (friend of court) because it was not joined as a party to the proceedings, Mulira objected, arguing that the IGG was not a corporate body and so could not appear in court. Their Lordships held: â€œConsidering the provisions of the law we have set out in this ruling, we are satisfied that the applicant has capacity to sue and be sued. The preliminary objections raised by Mulira are accordingly overruledâ€ (page 7). He did not appeal.
Mulira raised the objection with respect to the legal capacity of IGG after he sued the IGG and lost the case in the High Court, where IGG was represented by legal officers of the Inspectorate.
On the substantive constitutional petition, the Constitutional Court held: â€œWe do not find that these are matters of form as Mulira submitted. They are matters of substance...... The petition as filed does not satisfy the requirements of our rules and no amount of amendment will cure the defects that have been raised by the respondent which we uphold. The petition would be struck out with costs to the respondentâ€ page 14. Again Mulira did not appeal this decision, but has filed a fresh constitutional petition No.4/2008. This time round, he cited the IGG as sole respondent and left out the Attorney General.
On both occasions when Mulira filed suits against the IGG and the Attorney General, he did so under non-existing laws, but court allowed the proceedings to go ahead in the interest of administering substantive justice. In HCT-00-CV-MA-593-2003, Mulira filed the application under Section 34 of the Judicature Act, Act 11 of 1967 when that Act had been repealed. Court observed: â€œThe learned counsel for the applicant conceded that the application was indeed lodged under a repealed lawâ€ but proceeded to hear it because â€œmodern principle of litigation demands that substantive justice should be dispensed readily without undue regard to technicalitiesâ€ p. 16.
In Constitutional Petition No.18/06, it is stated on page five: â€œMullra, learned counsel for the petitioner, opposed the preliminary objection. He conceded that the petition did not comply with the provisions of the Constitutional Court (Petitions and Reference) Rules, 2005 (5.1. No. 91/05) because he was unaware of their existence at the time he filed it.â€ At the end of the proceedings, the petition was struck out for failing to disclose any cause of action. Muliraâ€™s commentaries on law should, therefore, be taken with a pinch of salt.
By Raphael Baku
Mulira wrong on powers of IGG