By KT Reporter
The Supreme Court has quashed a Constitutional Court decision that ordered businessman Hassan Bassajjabalaba to refund a sum of 142 billion Shillings in government compensation for the aborted lease of several Kampala markets, ruling that the lower court acted outside its mandate.
In a unanimous judgment authored by Justice Monica Mugenyi Kalyegira, the apex court held that the Constitutional Court “is not a trial court of fact but a court of original jurisdiction in constitutional interpretation,” and therefore lacked the authority to hear a petition that hinged on contested facts rather than purely constitutional questions.
“The spirit of the Constitution is such that questions for constitutional interpretation arise from pure questions of law,” Justice Mugenyi wrote, adding that the petition before the Constitutional Court required “a fact-finding mission … not within its domain.”
“Any interrogation of the constitutionality of the alleged actions or omissions ought to be preceded by and anchored in fact as opposed to supposition and conjecture. Where there are such contested facts, no recourse can be made to the Constitutional Court.”
The Supreme Court’s seven-member panel, including Chief Justice Alfonse Owiny-Dollo and Justices Lilian Tibatemwa-Ekirikubinza, Mike Chibita, Christopher Madrama Izama, Percy Night Tuhaise, and Catherine Bamugemereire, unanimously adopted Justice Mugenyi’s reasoning. Each party was ordered to bear its own legal costs.
Between 2000 and 2001, Bassajjabalaba, through five companies, Haba Group Ltd, Victoria International Trading Co. Ltd, Sheila Investment Ltd, Yudaya International Ltd, and First Merchant International Trading Co., won leases from the then-Kampala City Council to manage Nakasero, Shauriyako, St. Balikuddembe (Owino) and Nakawa markets, as well as Constitutional Square.
The awards triggered fierce protests from traders, forcing the government to cancel the leases and, citing commercial losses, compensated Bassajjabalaba and his companies with 142 billion Shillings drawn from the Bank of Uganda and backed by guarantees to several commercial banks. The payments were authorised by then Attorney General Khiddu Makubuya and Finance Minister Syda Bbumba, both of whom later resigned under threat of parliamentary censure.
In 2012, the advocacy group Legal Brain Trust, led by Uganda Law Society president Isaac Ssemakadde, petitioned the Constitutional Court. It argued that the compensation was unlawful and fraudulent, and successfully obtained an order compelling Bassajjabalaba and his associates to refund the money.
Fifteen respondents, including Bassajjabalaba, his companies, the Bank of Uganda, several commercial banks, and former senior government officials, appealed to the Supreme Court. They contended that the petition was essentially a dispute over commercial and public-finance transactions, not a constitutional interpretation question.
Justice Mugenyi agreed, describing the petition as a convoluted fusion of private commercial banking transactions and public finance processes laced with allegations of fraud and economic crime that required proof through evidence, not mere constitutional argument.
The Supreme Court’s decision restores the compensation to Bassajjabalaba and clarifies the limits of the Constitutional Court’s jurisdiction under Article 137 of Uganda’s Constitution. While questions of constitutional law remain within its purview, disputes grounded in contested facts must first be tested in ordinary civil or criminal courts.
The ruling does not bar future litigation over the controversial payouts but simply directs that any challenge must be filed in a court with proper fact-finding powers rather than before the Constitutional Court.
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