Court says land probe Abid-Alam arrest was illegal

It was illegal for the Land Probe Commission to order the arrest of tycoon Abid-Alam when he failed to comply with its directives, the Constitutional Court has ruled.

In November 2017, AbidAlam was arrested and detained at Wandegeya Police station in Kampala on orders of the commission chaired by Court of Appeal Justice Catherine Bamugemereire.

This followed a public hearing by the commission in regard to the 10,000 acres in Mubende district comprised of four separate certificates of title owned by AbidAlam.

During the public hearing in September 2017, residents said Abid-Alam was evicting them from the land yet they had been living on it since their birth. This prompted the commission to issue orders preserving the status quo on the disputed land and arrest of Abid-Alam.

Consequently, Abid-Alam, who claims that he acquired the land in 2001 and Mityana Farm Group Enterprises limited which was utilising the land for commercial farming petitioned the court, arguing the Land Probe Commission directives were in contravention of the Constitution.

Five justices of the court on Tuesday (September 1) unanimously ruled that it was illegal for the commission to issue status quo orders and an arrest warrant for Abid-Alam because it is a preserve of the courts of judicature. Chief Justice designate Alfonse Owiny-Dollo, Kenneth Kakuru, Frederick Egonda-Ntende, Christopher Madrama and Cheborion Barishaki wrote the judgment.

The judges noted that when the commission issued a warrant of arrest against Abid-Alam, it amounted to exercise of judicial power. According to the judges, all disputes relating to ownership, use, and access to land emanating from the Land Act, the Registration of Titles Act and any other law, where such a dispute is not resolved amicably, can only be determined by the courts of law.

"The petitioners alleged that the commission caused the arrest and detention of Abid-Alam yet the Director of Public Prosecutions (DPP) had not sanctioned the same. Even assuming it was true, it is not evidence of exercise of prosecutorial powers because the power to order arrest and detention is vested in the courts of law and not the DPP," they noted.

The court has awarded costs to Abid-Alam and Mityana Farm Group Enterprises who filed the suit against the Attorney General in 2017. Although the ruling is a sigh of relief to Abid-Alam, it could remain academic as the commission has since completed its work and submitted its report to the President.

The judges said the commission could not hide under the provisions of the Commission of Inquiry Act to justify Abid-Alam arrest, noting that the Constitution is supreme.

The judges also attacked section 9 of the Commission of Inquiry Act, which states that commissions have powers to summon witnesses, saying it amounts to the exercise of judicial powers, which is a preserve of the courts of judicature.

"While we agree that the Land Commission has quasi-judicial powers, these powers cannot be equated to that of the courts of judicature which are established by the Constitution," the court ruled.