(PLEASE FORGIVE THE FORMATTING ERRORS):
The Hon. Frank Tumwebaze
Minister for the Presidency and
Minister in Charge of Kampala Capital City
Re: SUBMISSION OF TRIBUNAL REPORT
Pursuant to Section 12 of the Kampala Capita City Act, 2010 which empowers the Honourable Minister of Kampala to constitute a tribunal to investigate allegations against the Lord Mayor of Kampala Capital City and the same having been duly constituted;
We the undersigned hereby submit the Report of the KCCA Tribunal 2013 detailing the findings of the recently concluded investigations into the aforesaid matter.
……………………………………………………….. Hon. Lady Justice Catherine Bamugemereire Chairperson
……………………………… Mrs. Joska Ocaya Lakidi Member
……………………………… Mr. Alfred Oryem Okello Member
The Tribunal’s Instruments of Appointment
The Report of the KCCA Tribunal (2013) Page 4
SUBMISSION PAGE ……………………………………………………………………………………………………………………. 3 THE TRIBUNAL’S INSTRUMENTS OF APPOINTMENT ………………………………………………………………………. 4 THE TRIBUNAL TERMS OF REFERENCE …………………………………………………………………………………………. 7 ACKNOWLEDGMENT …………………………………………………………………………………………………………………. 8 ACRONYMS………………………………………………………………………………………………………………………………. 9 EXECUTIVE SUMMARY …………………………………………………………………………………………………………….. 10 BACKGROUND ………………………………………………………………………………………………………………………… 24 METHODOLOGY OF THE INVESTIGATION …………………………………………………………………………………… 25
Matters of procedure…………………………………………………………………………………………………… 27
Complaints by the Respondent’s lawyers on the right to cross-examine witnesses ……………… 29 The Lord Mayor’s personal appearance and subsequent departure …………………………………… 30 Service of process in the course of Tribunal Proceedings ………………………………………………….. 31 Witness appearance guidelines …………………………………………………………………………………….. 32 The Lord Mayor’s right to appear and to be represented by Counsel …………………………………. 33 The return to The Tribunal of Lord Mayor and his lawyers……………………………………………….. 34 The Tribunal’s witnesses ………………………………………………………………………………………………. 35 Summary of witnesses received by the tribunal ………………………………………………………………. 35 Preliminary points of law ……………………………………………………………………………………………… 37
Whether the matters being investigated were still under parliamentary probe…………………… 40 THE LAW ON THE GROUNDS OF THE PETITION…………………………………………………………………………….55
Abuse of Office……………………………………………………………………………………………………………. 55
The Public Officer ………………………………………………………………………………………………………… 56 The meaning of arbitrary ……………………………………………………………………………………………… 57 Prejudicial Conduct ……………………………………………………………………………………………………… 59 Incompetence …………………………………………………………………………………………………………….. 60
Misconduct or Misbehaviour ………………………………………………………………………………………… 62
ANALYSIS OF EVIDENCE……………………………………………………………………………………………………………. 66
Abuse of Office……………………………………………………………………………………………………………. 66
The First Particular under Abuse of Office ………………………………………………………………………. 66 Finding on Abuse of Office ……………………………………………………………………………………………. 78
The Report of the KCCA Tribunal (2013) Page 5
The Second Particular under Abuse of Office………………………………………………………………….. 79
Finding on the allegation of politicization……………………………………………………………………….. 88
The third Particular under Abuse of Office ……………………………………………………………………… 89
Finding of the Tribunal …………………………………………………………………………………………………. 95
The Fourth Particular under the ground of Abuse of Office ………………………………………………. 97
Finding on Abuse of office – petitioned meetings ………………………………………………………….. 111
Incompetence ………………………………………………………………………………………………………….’113 Finding on incompetence – failure to convene ordinary Authority meetings …………………….. 124
The Second Particular under Incompetence ………………………………………………………………….. 127 Finding on the complaint of failure to sign minutes ……………………………………………………….. 145 The Third Particular under the ground of Incompetence ………………………………………………… 147 Finding on the failure to accord importance to Standing Committees………………………………. 168 Misconduct or Misbehaviour ………………………………………………………………………………………. 171
Finding on the use of abusive words by the Respondent ………………………………………………… 180 Finding on Misuse of Authority Information………………………………………………………………….. 181 Finding on failure to heed technical advice and directives ………………………………………………. 191
CONCLUSION………………………………………………………………………………………………………………………… 192 PER CURIAM …………………………………………………………………………………………………………………………. 193 Going forward- Election of the Mayor of Kampala Capital City ………………………………………… 202 Portrayal of City Mayor Scenarios………………………………………………………………………………… 210 LIST OF PETITIONERS’ WITNESSES……………………………………………………………………………………………. 211 TECHNICAL AND TRIBUNAL WITNESSES……………………………………………………………………………………. 211 RESPONDENT’S WITNESSES ……………………………………………………………………………………………………. 211 CATALOGUE OF DOCUMENTS …………………………………………………………………………………………………. 211
The Report of the KCCA Tribunal (2013) Page 6
The Tribunal Terms of Reference
The Tribunal Terms of Reference were as follows:
1. To determine its procedure, rules for its own guidance, conduct, and management of proceedings before it including summoning of witnesses;
2. To investigate the allegations against the Lord Mayor of Kampala Capital City as contained in a Petition by the Councillors of the Kampala Capital City Authority particularly allegations of:
(a)Abuse of office;
(c) Misconduct or misbehaviour;
(d)Failure to convene meetings of the Authority
without reasonable cause (sic);
3. To determine whether there is a prima facie case for the removal of the Lord Mayor under Section 12 (1) other than Section 12 (1) (d) of the Kampala Capital City Act, 2010;
4. To submit a report to the Minister for the Presidency who is also in charge of Kampala Capital City, including any record of proceedings, within sixty days from the commencement date of 14th June 2014.
For various reasons and circumstances beyond the Tribunal’s control, an extension of time was sought, initially for thirty days and again an additional sixty (60) days were granted to enable the Tribunal complete its investigation and prepare this report
The Report of the KCCA Tribunal (2013) Page 7
The KCCA Tribunal (2013) would like to thank our Secretariat, the Legal Teams of the Parties and all persons who supported the entire investigatory process and withstood endless hours of hard work. The Tribunal in particular thanks, Mr. Daniel Rutiba and Mr. Titus Kamya Lead Counsel and Co Lead Counsel respectively. Mr. Robert Kirunda (Secretary to the Tribunal) and the Tribunal Secretariat staff including Mr. Julius Sseremba et al. Further we are grateful to our security personnel led by Sergeant Atuyambe whose surveillance and alertness ensured that we were physically and/or psychologically safe. Last but by no means the least, we are thank the management and staff of Metropole Hotel Kampala for the hospitality offered to us during this entire period. We were adequately housed and catered for. Finally we thank God, the All- wise, All-knowing and Almighty, in whom we live and move and have our being and through whom all things hold together.
The Report of the KCCA Tribunal (2013) Page 8
ACA Anti Corruption Act 2009
AG Attorney General
C.E.O Chief Executive Officer
DACCA Drivers and Car Owners and Conductors
ACD The Anti Corruption Division of the High Court of Uganda
DP Democratic Party
DPP Directorate of Public Prosecutions
FDC Forum for Democratic Party
IGP Inspector General of Police KACITA Kampala City Trader Association KCCA Kampala Capital City Authority KCCAct KampalaCapitalCityAct2010 LC Local Council
NRM National Resistance Movement
PW Prosecution Witness r Rules/Regulations
RW Respondent Witness/Witnesses S Section
SG Solicitor General
TOR Terms of Reference
TW Tribunal Witness
UTODA Uganda Taxi Operators and Drivers
The Report of the KCCA Tribunal (2013)
ED Executive Director
P Prosecution Exhibits for example P2 means Prosecution Exhibit Number Two
R Respondent’s Exhibit/s for example RO1 means Respondents Exhibit Number One
Hon. Frank Tumwebaze, the Minister of the Presidency, who is also the Minister in charge of Kampala Capital City, received a Petition from Seventeen (17) councillors of the Kampala Capital City Authority (KCCA) on 15th May 2013. The Petition set out grounds upon which the Councillors sought the removal of Mr. Erias Lukwago from his position as Lord Mayor of Kampala Capital City. The allegations levelled against the Lord Mayor were; abuse of office, misconduct or misbehaviour and incompetence.
On receipt of the Petition, the Hon. Minister conferred with the Attorney General (AG). After ascertaining that the requirements of Section 12 of the Kampala Capital City Act, 2010 were met, the Minister, in consultation with the Chief Justice, constituted a Tribunal to investigate the allegations contained in the Petition. The Tribunal members were Honourable Lady Justice Catherine Bamugemereire, Mrs. Joska Ocaya-Lakidi and Mr. Alfred Okello Oryem.
The Report of the KCCA Tribunal (2013) Page 10
The Terms of Reference of the Tribunal, in addition to setting out a time-frame of two months for its operation1, specified that a decision was to be reached as to whether the Petition’s assertions could support a prima facie case for the removal of the Lord Mayor.
The Tribunal further noted that the Petition seeking the removal of Mr. Erias Lukwago from his elective position of Lord Mayor of Kampala Capital City, was a matter of great public interest which had created an atmosphere of collective euphoria within sections of the population of Kampala. The sheer gravity and the far reaching ramifications of this exercise compelled the Tribunal to subject the evidence adduced before to such rigour and care as akin to the standard ordinarily applied to election petitions. Indeed whilst the he standard of proof applied by the Tribunal was not beyond reasonable doubt as required in criminal cases it was a lot higher than proof on a balance of probabilities which is the accepted standard of proof in cases of a civil nature such as this one.
The Tribunal noted that some provisions of the KCC Act, relating to the process of the removal of the Lord Mayor, are
1 Unforeseen developments led to the extension of the Tribunal’s time.
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couched in Criminal Law terms but remained aware that the proceedings to remove the Lord Mayor are governed by principles of natural Justice and, where applicable, civil procedure.
The Tribunal, subject to the provisions of the KCC Act, developed its own rules of procedure followed in its investigation. These were adopted on 14th June 2013 during a consultative, pre-hearing meeting attended by the Petitioners, the Respondent’s team of eight lawyers, some members of the technical team of KCCA, the press and the public. Also, both the Petitioners’ and the Respondent’s teams agreed on a managed calendar that was to be followed over the course of the Tribunal proceedings.
Notably though, the Tribunal’s mandate was contested in Erias Lukwago v. the A.G and Anor Miscellaneous Cause No. 281 of 2013. In this suit, the Respondent and his lawyers challenged the legality of the Tribunal and applied for an order to quash all of its proceedings. In his Ruling on the matter, the Hon. Mr. Justice Vincent T. Zehurikize agreed with the Respondent and his lawyers that the ground of “failure to convene two consecutive meetings” be struck out in strict enforcement of Section 12 (1) (e) of the KCC Act but
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that other than that the Tribunal was at liberty to continue its work unfettered.
The Tribunal, in its investigative quest, adopted a delicately- managed balance of both the inquisitorial and adversarial approaches of evidence gathering (the latter generally being a preserve of practice in the Common Law system). Both oral and written witness statements and Exhibits as well as audio and video recordings were received in evidence by the Tribunal. It was not imperative on the Tribunal to attempt to establish a burden of proof that was “beyond reasonable doubt”. Instead, the Tribunal, as required by law, merely sought to establish if there existed a prima facie case for the removal of the Lord Mayor in light of the Petitioners’ allegations.
After evaluating the grounds raised by the Petitioners, the body of evidence adduced to support either side’s contestations as well as the submissions of the lawyers, the Tribunal established its findings which are briefly explained hereafter.
Concerning the allegations of abuse of office, the Tribunal established that the Lord Mayor, in writing a letter (tendered
The Report of the KCCA Tribunal (2013) Page 13
as Exhibit P1), indeed incited the public against paying taxes. He did so in abuse of his office. Hence, a prima facie case was made out in respect of this allegation.
Nonetheless, the Tribunal did not find sufficient evidence to support the accusation that the Lord Mayor engaged in other acts of inciting the public. In particular, the Petitioners failed to establish a causal link between the activity of cleaning Kampala, which had been sanctioned by the Uganda Police, and the unfortunate destruction of property, merchandize and death of innocent citizens of Kampala as alleged in the petition. Accordingly, the Tribunal determined that no prima facie case had been made out against the Lord Mayor in respect of this allegation.
In the matter of appointing and recalling representatives,
the Tribunal found that the Universities and Tertiary Institutions Act provided, in no uncertain terms, that representation of KCCA on the Boards of the respective institutions would be undertaken by councillors elected by the Authority. The evidence on record indicated that the Lord Mayor, without approval or election by the Authority, unilaterally appointed, recalled and replaced representatives to Makerere University and Mulago Nursing School. This
The Report of the KCCA Tribunal (2013) Page 14
was unlawful, illegal and in abuse of his office. For that reason, a prima facie case was made out against the Lord Mayor in respect of this allegation.
Regarding the failure to convene petitioned meetings according to the provisions of Item 1 (2) of the Fourth Schedule of the KCC Act, the Tribunal concluded that there were several occasions when more than one third of KCCA’s 34 councillors petitioned the Lord Mayor to convene special meetings to discuss specific agenda items. On many occasions, the Lord Mayor refused or failed to convene the petitioned meetings. In such instances, the Lord Mayor either changed the agenda items unilaterally without assigning any reason, or he based his refusal to convene meetings upon frivolous reasons as the evidence on record shows. By so doing, the Lord Mayor acted unlawfully, illegally and in abuse of his office. Consequently, a prima facie case was made out against the Lord Mayor in respect of this allegation.
The councillors also complained against the Lord Mayor’s failure to accord due importance to Standing Committees and failed to renew their mandate. The essence of this complaint was pleaded as the fourth particular under the ground of Abuse of Office and as the fifth particular under
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the ground of Incompetence. Although the above particulars were presented under different heads and grounds, the Tribunal found these two complaints to be related. Consequently, it chose to deal with them together under the ground of incompetence.
The Tribunal established that it was the Lord Mayor’s duty to cause the committee reports to be presented to the Authority and either be adopted or rejected. Any concerns about the competence of these reports could only be raised in the Authority meeting. The Tribunal found no evidence in writing or otherwise to suggest that the Respondent as the Political head of the Authority took leadership in this regard.
The failure to consider Standing Committee reports prejudiced the operations of the Authority. It was not in dispute that Standing Committees are an indispensable component of the governance of the Authority. The Tribunal also established that it was not in dispute that since 24th June 2012 to-date, a period in excess of one year, Standing Committees had been neither been operational nor in existence.
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The Tribunal found that the Respondent did not assign any importance to the work of the committees or the tabling and adoption of their reports. Indeed, the Tribunal found that the Respondent failed to accord importance to the functions of the Standing Committees and to cause them to be reconstituted after they expired. The Tribunal concluded that incompetence, on Respondent’s part, is the only plausible explanation for this failure. Therefore, the Tribunal determined a prima facie case against the Lord Mayor on the two allegations of failure to accord importance to Standing Committees and the failure to reconstitute them upon their expiry.
On the matter of “failure to convene meetings”, the Tribunal determined that the KCC Act does not expressly draw a distinction between special meetings of council and meetings of the Authority. The Tribunal concluded that, for all intents and purposes, a special meeting is a meeting of the Authority.
Whereas the councillors accused the Lord Mayor of the failure to “convene ordinary Authority meetings to transact business of the Authority” preferring special/crisis Authority meetings instead, the Tribunal found a multiplicity of extenuating developments that contextualized
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the status quo. Among the reasons for this were: the failure of the Lord Mayor to issue notices for these meetings; the failure of the technical staff to attend Business Committee meetings thereby leading to lack of Order Papers; the failure of the councillors to attend Authority meetings thereby causing the meetings to abort on account of lack of quorum; and boycotts and walk-outs by councillors from convened meetings which led to their abortion on account of lack of quorum.
In view of the extenuating circumstances, the Tribunal could not attribute the failure to convene ordinary meetings, in accordance with Section 12 (1) (e) of the KCC Act, solely to incompetence on the part of the Lord Mayor. Consequently, a prima facie case was not made out against the Lord Mayor in respect of this particular.
On the allegation against the Lord Mayor, for “failure to sign minutes”, the Tribunal found the reasons given by the Lord Mayor (such as the explanation about clerks being withdrawn and minutes needing corrections first) untenable in light of the fact that the Authority had passed a resolution authorizing the Lord Mayor to sign them in the presence of two councillors. The Lord Mayor offered a litany of excuses for not signing the minutes.
The Report of the KCCA Tribunal (2013) Page 18
Minutes of meetings that were exhibited proved that even when a resolution to treat minutes as a true copy was adopted, the minutes had not been signed. Even when the councillors delegated authority to the Respondent to sign minutes from the comfort of his office, he still did not do so.
The notices for meetings constantly had no agenda item for consideration, confirmation and signing of minutes of the Authority. The Tribunal established that even when it was listed as an agenda item, confirmation of minutes was omitted except on two occasions. The Tribunal could not find any substantive justification for this especially since the Respondent never originated any correspondence about the alleged absence of Authority clerks or the absence of minutes. Despite a query, about unsigned minutes, raised by the Auditor General in his report (Exhibit P44 (3)) and the admonition to expeditiously handle the matter, this was not done.
It was clear to the Tribunal that the Respondent did not accord the signing of minutes the importance the law accords it under Item 3 para. (2) of the Fourth schedule of the KCC Act. The Tribunal notes with great concern the
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effects of the failure to sign Authority minutes. The effect is not only limited to the failure of the Authority to have any binding record but also the failure of the implementation of some programmes of the Authority designed to deliver services to the citizens of Kampala. Nothing can explain the failure of the Respondent to sign and validate the minutes of the Authority other than sheer incompetence on his part.
The Tribunal defined incompetence as the routine failure to perform a duty or function expected of a person possessed of skills to perform those functions when compared to other similarly- placed individuals. Accordingly, a prima facie case was made out against the Lord Mayor in respect of this allegation.
About allegations of misconduct, particularly concerning the accusation that the Respondent carried out persistent attacks on technical staff and used abusive language, the Tribunal found the evidence, in their support, insufficient. Equally wanting was the evidence of the alleged storming of City Hall. Therefore, a prima facie case was not made out against the Lord Mayor in respect of this allegation.
About the wilful misuse of information accessed by the Lord Mayor, by virtue of his office, to misinform the public and
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propagate lies against officers of the Authority the Tribunal found this accusation well-founded. The Tribunal assessed, in detail, the submissions of witnesses regarding the Respondent’s publicization, via a press conference, of the Auditor General’s Management letter (tendered as Exhibit P3) knowing full-well that it was an incomplete commentary on the Authority.
Although some issues, in that letter, such as the matter of Julius Kabugo2, who held two jobs in two Parastatals at the same time, as well his dearth of qualifications to warrant his post as Deputy Director, Treasury Services of the KCCA, were not rebutted by Management during the Tribunal proceedings, it was unacceptable for the Respondent to have taken this document to Parliament as if it were a final position of matters in the Authority. Eventually, the Tribunal determined, the Auditor General’s ultimate position, Exhibit P44 (3,) was contrary to the Respondent’s ill-conceived, improper and alarmist treatment of the Management letter.
2 The Tribunal further notes, in Exhibit P3, that five employees in the transitional team, who were offering full-time service to KCCA, during the transitional period of 1st March 2011 to 30th June 2011 and earning full, normal pay allowances, continued to earn from the URA payroll until their deletion in 2011/2012 financial year. The five officers earned UGX 78,470,000 from KCCA for the above period. These officers were listed in Appendix C on page 97. One of these officers was Julius Raymond Kabugo who earned UGX 30,264,000 from 17th March 2011 up to 30th June 2011. These matters must have been alarming to the Respondent at the time, in the absence of a contrary explanation and going by his lack of financial information due largely to his poor working relationship with the Executive Director and the mutual suspicions the two held against each other.
The Report of the KCCA Tribunal (2013) Page 21
The Tribunal agrees with the councillors that however alarming the information the Respondent discovered was, he ought to have resolved the matter through the proper channels. The Tribunal considers that it was irresponsible of the person of the Lord Mayor to disseminate the contents of the Management letter beyond the environs of the Authority. Indeed the Tribunal construes the manner in which the Lord Mayor handled the Management letter as misconduct since, in his defence, he admitted to knowing what it was. For that reason, a prima facie case was made out against the Lord Mayor in respect of this allegation.
Concerning the allegation, of failing to heed technical, legal and administrative advice, the Tribunal determined that the KCC Act, despite not being clear on who actually heads the Authority, is emphatic about the Respondent being accountable to the Minister for Kampala. The Tribunal notes that the Respondent himself admitted to this together with RW5 Sulaiman Kidandala. It was not then explicable to the Tribunal why the Respondent ignored Ministerial Directives that were issued to him (such as Exhibit P5).
The Report of the KCCA Tribunal (2013) Page 22
While the advice of the Technical Staff was not necessarily binding on the Lord Mayor, he had a duty to implement Ministerial Directives. The Tribunal faults the Lord Mayor’s failure or refusal to implement Ministerial Directives and determined it as Misconduct on his part. Consequently, a prima facie case was made out against the Lord Mayor in respect of this allegation.
In conclusion the Tribunal distilled all the evidence presented before it and distinguished matters that had been proven from those that had not. Matters that were not proved have been clearly pointed out and the Respondent duly exonerated thereof. Similarly, allegations that were proved were also identified and evaluated against a high standard of proof. Having carefully listened to arguments from both sides and considered all the evidence presented in respect of the three grounds of the Petition raised by the Councillors, the Tribunal found that the three grounds of; Abuse of Office, Incompetence and Misconduct/ Misbehaviour were proved and a prima facie case for the removal of the Lord Mayor from office was established.
The Report of the KCCA Tribunal (2013) Page 23
On 15th May 2013, Hon. Frank Tumwebaze, the Minister of the Presidency (who is also the Minister in charge of Kampala Capital City), received a Petition lodged by 17 councillors of the Kampala Capital City Authority (KCCA). The Petition set out a number of grounds on the basis of which the councillors sought the removal of Mr. Erias Lukwago from his position as Lord Mayor of Kampala Capital City. There were essentially three allegations levelled against the Lord Mayor, namely:
i) Abuse of office;
ii) Misconduct or misbehaviour; and iii) Incompetence.
Upon receipt of the said Petition, the Hon. Minister, conferred with the Attorney General (AG) and having satisfied himself that the requirements of Section 12 of the Kampala Capital City Act, 2010 (hereinafter referred to as the KCC Act) were met, appointed a three-member Tribunal (hereinafter referred to as the KCCA Tribunal or the Tribunal) in consultation with the Chief Justice to investigate the grounds of the Petition. The Tribunal
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members were Honourable Lady Justice Catherine Bamugemereire, Mr. Alfred Okello Oryem and Mrs. Joska Ocaya-Lakidi.
The Terms of Reference of the Tribunal were to investigate the grounds of the petition in order to determine whether there was a prima facie case for the removal of the Lord Mayor.
METHODOLOGY OF THE INVESTIGATION Matters of Process
The Terms of Reference (TOR) of the Tribunal clearly indicated that the Tribunal would determine its procedure, rules for its own guidance, conduct, and management of proceedings before it including summoning of witnesses.
The TOR also specified a time-frame of two months within which the investigations were to be completed. As earlier indicated, unforeseen developments called for an extension of this deadline by (Ninety) 90 days.
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The Tribunal engaged the legal expertise of Lead Counsel, Mr. Daniel Rutiba and Mr. Titus Kamya, as Co-Lead Counsel. The duo led the examination of all the witnesses with the exception of the Lord Mayor and his witnesses. In addition the Lead Counsel assisted the Tribunal to ensure the recording of witness statements as well as the filing and annotation of all evidence adduced.
Initially, the Tribunal’s preference was the inquisitorial approach to investigation which would typically extract all the desired information in a non-obtrusive style. However as the investigation unfolded, the parties increasingly adopted an adversarial approach which the Tribunal had to manage closely in order to keep the proceedings on course and clearly-focussed on the TOR. Further, the Tribunal was mindful of the abrasive nature of adversarial inquiries and therefore acted firmly to protect witnesses from apparent threats and harassment during cross-examination. Indeed, on several occasions, the Tribunal intervened in the examination of vulnerable witnesses by steering the proceedings into a less confrontational style.3 In the end,
3Linda Rothstein and Robert A Centa (200) in ‘Factum Commission Counsel’, Inquiry into Paediatric Forensic Pathology, Ontario in which the role of Lead Counsel or commission counsel is discussed to some measure. This paper also quoted Justice Dennis O’connor (2003), The Role of Commission Counsel in a Public Inquiry, 22 Advocates’ Soc J No. 1 9-11.
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the approach was a hybrid of the adversarial and inquisitorial methods.
Matters of procedure
From the onset, the Tribunal adopted its own Rules of Procedure to be followed in the investigation, subject to the provisions of the KCC Act. On 14th June 2013, the Tribunal commenced its work with a pre-hearing meeting attended by the Petitioners, the Respondent’s team of eight lawyers, some members of the technical team of KCCA, the press and the public.
The pre-hearing thrashed out the ground rules to govern the investigation through consultative engagement. The parties, in attendance, mutually consented to a managed calendar in order to facilitate a fair, speedy and inexpensive investigation.
In the intervening period, the Respondent and his lawyers filed a suit against the Tribunal which was registered as Miscellaneous Cause No. 281 of 2013. In the suit, the Lord Mayor and his legal team contested the structure of the KCC Authority, the set-up of the Tribunal and its legality. Further still, he challenged the rules of procedure that had been adopted by the Tribunal and prayed for Court to quash
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the proceedings of the Tribunal and indeed the entire investigation.
In his ruling the Hon. Mr. Justice Vincent T. Zehurikize did not grant the reliefs sought. However, he agreed with the Respondent and his lawyers that the ground of “failure to convene two consecutive meetings” be struck out in strict enforcement of Section 12 (1) (e) of the KCC Act. He further ruled that although the KCC Act required consultation with the Attorney General, the decision to set up a Tribunal lies with the Minister alone. He further noted that the Tribunal had adopted the procedure of serving the Respondent with all the evidence tendered at the Tribunal’s proceedings and ruled that a similar process be undertaken for the rest of the investigation. In addition, the Hon. Mr. Justice Zehurikize ruled that, at all material times, the Tribunal should remain in control of the proceedings to avoid an abuse of the process calculated to delay or derail its work, bearing in mind that the Applicant should be accorded a fair hearing. The judge further ruled that even if the Tribunal determined that a prima facie case had been established against the Respondent Lord Mayor, he could not be removed from office without a fully- constituted Authority.
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Use of opening statements
The Tribunal adopted the use of opening statements whose intention was to summarize each party’s case. Mr. Kiwanuka Kiryowa, who represented the Petitioners, made opening statements that were admitted to the record. The Respondent’s lawyers, led by Caleb Alaka and Medard Sseggona, declined to do the same.
Complaints by the Respondent’s lawyers on the right to cross-examine witnesses
The Respondent’s lawyers expressed reticence about being part of the proceedings, on 20th June 2013, while their client (the Lord Mayor) was allegedly under house arrest. The Tribunal investigated and found the claim not to be true4.
4 The Tribunal, in full view of the public present in the room, adjourned for fifteen minutes to enquire into the Lord Mayor’s alleged house arrest. The police authorities explained that their deployment at the Lord Mayor’s home was intended to ensure that the crowd that was likely to gather and follow him would abide by the law. The Police offered to ensure that if the Lord Mayor chose to attend the proceedings of the Tribunal, he would not face any hindrances on the way. The Lord Mayor arrived to find the Tribunal in the process of hearing a witness. He was advised he would be heard after the witness had concluded their testimony. He rejoined that he had to seek medical attention and hastily left. He appeared again a month later.
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The Respondent’s lawyers also protested being “denied” the “right” to cross-examine each witness. The rules of procedure adopted at the commencement of the Tribunal’s investigation stated that only Lead Counsel of the Tribunal was mandated to do so. However, the Tribunal subsequently clarified and stated that the Respondent and his lawyers could put further questions to witnesses over and beyond those asked by the Lead Counsel, if they so wished, provided that in such event the Respondent sought leave of the Tribunal. The Respondent’s lawyers did not agree with this position; indeed they walked out of the proceedings and publicly, on national television and denounced the Tribunal.
The Lord Mayor’s personal appearance and subsequent departure
Immediately after his lawyers walked out of the proceedings, the Respondent appeared in person before the Tribunal and requested to address it immediately despite the fact that there was a witness on the stand. The Lord Mayor was advised that he would be allowed to address the Tribunal once the witness had found a convenient stage to stop at. This proposition was not acceptable to the Lord Mayor. So,
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he stormed out of the premises and made no effort to communicate with the Tribunal. Indeed he neither sought an adjournment nor did he apply to stay away from the proceedings for any reason.
The following day 21st June 2013, the Tribunal addressed the Respondents’ concerns and streamlined the process of cross- examination which had become contentious. The Tribunal ruled that the parties’ lawyers could, with leave of the Tribunal cross- examine witnesses. However, the Respondent and his lawyers did not return to the proceedings until the ruling of the Hon. Mr. Justice Vincent Zehurikize had been delivered. Having received the evidence after every sitting of the Tribunal, the Lord Mayor possessed an almost contemporaneous record of proceedings and consequently cross-examined the witnesses of his choice.
Service of process in the course of Tribunal Proceedings
Following the walk out of the Respondent and his lawyers on 20th June 2013 and their non-attendance of some of the proceedings, the Tribunal directed its Secretariat to serve the Respondent’s lawyers a copy of all its records and evidence compiled as and when it got admitted to the record. Attempts by the Tribunal clerk to serve the
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Respondent through his lawyers were not successful because they declined to accept service asserting that they had no instructions to do so. They advised that the Lord Mayor be served with these personally. Even that was difficult as the Respondent on more than five occasions declined to acknowledge service5.
Witness appearance guidelines
On 2nd July 2013, four councillors of the Authority, in the company of Hon. Moses Kasibante, a Member of Parliament, made an unscheduled appearance before the Tribunal. Their two lawyers, Jude Mbabaali and Richard Lumu, communicated how the councillors had a matter of urgency to present. When allowed to speak, they asked the Tribunal to terminate its proceedings immediately. They claimed that
5 On 27th June 2013, a Process Server from the Tribunal approached the Lord Mayor at the High Court to effect service of evidence from the Tribunal. The Lord Mayor expressed willingness to receive the evidence but indicated that he would do so after the proceedings. After the proceedings, the Lord Mayor left in the company of his lawyers without receiving the documents that had been intended for service. On 28th June 2013, the Process Server from the Tribunal approached the Lord Mayor, again, at the High Court, where he had gone to attend the continuation of the hearing of his application for Judicial Review. The Lord Mayor received the documents but indicated his stamp was at his Parlour at City Hall. He offered to acknowledge service when he went to his office advising the Process Server to wait for him at City Hall. The Process Server waited for four hours. The Lord Mayor neither returned to City Hall nor acknowledged service of the evidence. On 1st July 2013, the Tribunal served the Lord Mayor additional evidence from the hearings of the previous week. He was also served with a copy of a letter inviting the Technical Team of KCCA to testify before the Tribunal. The Lord Mayor, who was not at his parlour at City Hall, instructed one of his personal assistants to acknowledge receipt of the letter but not the evidence. Instead, Lord Mayor asked the Process Server to, henceforth, effect all subsequent service at the law offices of Lukwago & Co. Advocates where the Lord Mayor remains a partner. Whenever the Process server served evidence from the Tribunal, the Lord Mayor received the documents but declined to acknowledge service.
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the Attorney General’s opinion had rendered the Tribunal unconstitutional and therefore illegal. The Tribunal declined their proposition because the Attorney General did not in fact opine as they alleged. Nonetheless the Tribunal welcomed them to appear as witnesses if they so wished. However, the councillors, the Member of Parliament and their lawyers stormed out of the Tribunal.
The Tribunal reiterated that any councillor who wished to testify for, or against, the petition needed to liaise with the Lead Counsel. The Lead Counsel would ensure that their statements were recorded and that the councillors were scheduled to testify. Notices to the effect were also disseminated.
The Lord Mayor’s right to appear and to be represented by Counsel
At all material times, the Tribunal was alive to the Respondent Lord Mayor’s right to attend the proceedings and/or to be represented by counsel. Although the Tribunal had no formal explanation for his continued absence, the public hearings continued. On various occasions, however, the Tribunal emphasized the Respondent’s right to be present in person or through his advocates.
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By the end of the Petitioners’ case, the Tribunal had listened to 21 witnesses including all the 17 Petitioners, two councillors who were not among the petitioners, the Clerk to Council and the Executive Director of the Authority.
The return to The Tribunal of Lord Mayor and his lawyers
Following a number of attempts to serve them with hearing notices, the Respondent and his counsel returned to the Tribunal on 22nd July 2013. The Respondent, unlike all other witness, declined to make a written statement opting instead to offer oral testimony before the Tribunal.
The Respondent and his counsel also sought and received permission to cross-examine all the witnesses who had appeared before the Tribunal and given evidence. They also requested and were availed the record of proceedings; they were granted time to peruse it and prepare for cross-examination. In addition, it should be noted that the Lord Mayor did exercise the right to recall witnesses.
After his oral testimony, the Respondent called nine witnesses who were altogether marked RW1 to RW10. His witnesses were equally cross-examined by the Petitioners’
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counsel. During this cross-examination, however, one of these witnesses – RW6, Mubarak Munyagwa – declined to answer questions in cross-examination in spite of the Tribunal’s admonition to do so. Once the Tribunal had clarified that he had not only declined to answer one question but all questions that would be put to him, a decision was made to expunge his entire evidence from the record.
The Tribunal’s witnesses
Owing to various issues that arose in the course of hearing both sides of the Petition, the Tribunal on its own motion heard the evidence of three witnesses. These included Mr. Peter Mulira, a senior advocate of over forty years standing at the bar, who had been involved in the ground work that led to the enactment of the KCC Act. The other was Dr. Ian Clarke, the Mayor of Makindye Division, who shed light on the relationship between division urban councils and how they operate in light of their relationship with the Authority; and Hon. Mrs. Florence Kintu, a Member of Parliament and former Chairperson, LCV, Masaka Municipality, who testified that there was no need for acrimony between the Executive Director and the Lord Mayor and urged them to work together.
Summary of witnesses received by the tribunal
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Below is the summary of witnesses who appeared before the Tribunal:
• The Petitioners called 19 witnesses in support of their Petition. They were referred to as PW1 to PW 19. It should be noted that two of these witnesses were councillors of the Authority but non-Petitioners;
• The Tribunal then heard two witnesses from the technical wing of KCCA referred to as PW20 and PW21 i.e. the Clerk to the Authority and the Executive Director respectively;
• The Lord Mayor who was also the Respondent (RW 1);
• Nine witnesses called by the Respondent referred to as RW2 to RW10 (the evidence of RW6 was expunged from the record because he declined to answer questions in cross-examination); and
• The three Tribunal witnesses who were referred to as TW1 to TW3.
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Preliminary points of law
In his written response to the petition, the Respondent indicated that he would raise a number of preliminary objections. In broad terms, the Respondent contended that the petition was incompetent, frivolous and vexatious. In particular, the Respondent raised the following objections:
1. That the proceedings were a nullity ab-initio on the following grounds:
(a)That the Authority was not fully constituted.
(b)The Minister had not made Regulations to guide the Tribunal as required under Section 82 of the KCC Act.
(c) The petition was not served as required by law.
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(d)The Instrument of appointment of the Tribunal was not gazetted as required by law.
(e)The matters being investigated are still under parliamentary investigation.
(f) The mandatory consultation with the Attorney General and the Chief Justice was not complied with in accordance with the law.
2. The Petition is incompetent on the following grounds:
. (a) The petition was submitted to the Minister and forwarded to the Attorney General without supporting documents as required by law.
. (b) The photocopy of the petition was served onto the Respondent by the Tribunal without supporting documents/Annexure as required by law.
. (c) The petition contains unexplained erasures.
(d)The establishment of the Tribunal offends the Kampala Capital City Act in so far as the Minister has not enacted the Regulations guiding the procedure of removal of the Lord Mayor from Office.
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3. The Respondent stated that the Tribunal had no power to make Rules for the better carrying into effect of the provisions of the Act.
4. The Respondent further stated that the Particulars of the charges in the petition were not sufficiently brought out with clarity and certainty. The Respondent contended therefore that he found great difficulty in understanding and answering the charges. According to the Respondent, the charges offended Article 28 of the Constitution and would embarrass his defence.
The Tribunal reserved its ruling on the objections with the intention of giving its full reasons in this Report. In addressing these objections, the Tribunal however notes, that some of these objections have been overtaken by events. When the Respondent’s objections were not addressed at this stage, the Respondent sought redress from the High Court by way of judicial review in Lukwago Erias v The Attorney General & Anor Miscellaneous Cause No 281 of 2013. A ruling was delivered in this case touching upon some of the preliminary objections. In that regard, this Tribunal shall be guided and bound by the High Court
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decision. There is therefore no need for the Tribunal to pronounce itself on those preliminary objections raised in the Respondent’s defence that were dealt with by the High Court. Here below were some of the other objections not handled by Miscellaneous Cause No 281 of 2013.
Whether the matters being investigated were still under parliamentary probe
We note that the Petition before the Tribunal was against the Lord Mayor while the petition before Parliament is against the Executive Director and not the Lord Mayor. The two Petitions are unrelated. On the contrary, the proceedings before the Tribunal are pursuant to the provisions of section12 of the KCC Act. The Tribunal finds that the proceedings in Parliament are not a bar to these proceedings.
During the course of these proceedings, a number of matters of law were raised by the Respondent’s counsel which we have addressed as here below:
Whether the Tribunal was bound by the Attorney General’s opinion
Mr. Medard Segona Counsel for the respondent in his submission before this tribunal argued that the Attorney General had evaluated the three grounds and his
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conclusion was that the three grounds were not sustainable to support a Petition for the removal of the Lord Mayor.
According to Mr. Lubega Segona the Attorney General also opined that the only ground he could possibly suggest was failure to conduct two consecutive meetings within the provisions. He further argued that pursuant to Article 119 of the constitution of the Republic of Uganda, the Attorney General’s opinion has been held to be binding on all organs and departments of the state including the Ministry responsible for Kampala. He contended that it binds the Ministry, the Minister responsible for Kampala, the Executive Director and indeed the Tribunal. To buttress his argument, he implored the Tribunal to follow the case of Bank of Uganda v. Banco Arabe Espanol Supreme Court Civil appeal No. 1 of 2001 which was cited with approval in Severino Twinobusingye v. the Attorney General
Having carefully considered the arguments presented by counsel for the Respondent, the Tribunal is not persuaded that this Tribunal is bound by the opinion of the Attorney General as the Tribunal is not a Government department. The cases cited by counsel for the respondent do not state that a Tribunal or court of law is bound by the Attorney General’s opinion. Whereas the members may be appointed by the Minister in consultation with the Chief Justice, they are independent from the Executive arm of Government and perform a quasi judicial function. The Tribunal cannot
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therefore be bound or directed by the Attorney General in his opinion.
Whether new evidence adduced outside the pleaded particulars in support of the grounds of the petition was admissible
Hon. Medard Sseggona raised this objection on behalf of the Respondent. He invited the Tribunal not to consider any evidence that had not been specifically pleaded in support of the grounds set out in the petition. He sought to rely on the case of Macharia v Wanyoike and others 1972 (EA) 264 where the court held that a pleading does not contain material facts required, it only refers to them.
He further contended that the Petitioners testified on matters outside the Petition. He argued that a number of issues that had been submitted upon and evidence led by the Petitioners were matters which were not pleaded in the Petition. He further argued that Justice Zehurikize’s ruling was construed elastically by the Petitioner’s counsel beyond its four corners. He invited the Tribunal to take guidance from the provisions of Section 12(5) of the KCC Act, particularly the last four words. It reads as follows:
“The minister shall evaluate the petition in consultation with the Attorney General and if satisfied that there are sufficient grounds for doing so, shall within 21 days from receipt of the petition constitute a tribunal consisting of a Judge of the High Court or a
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person qualified to be appointed as a Judge of the High Court as chairperson and two other persons all of whom shall be appointed by the minister in consultation of the Chief Justice, to investigate the allegations.”
He submitted that it can only be an investigation of those grounds in that petition and nowhere beyond. He pointed out those areas which had been canvassed and were not part of the petition, namely:
2. Failure or refusal to convene a statutory meeting to consider
3. The failure to cause the minutes of the Authority to be
confirmed and signed.
4. Appointment of councillors to governing councils of universities
and other institutions.
In regard to the laws on un-pleaded matters, the Hon. Medard Sseggona invited the Tribunal to apply, with modifications, the law on departure from the pleadings. He argued that under the ordinary Civil Procedure Rules, the applicable provision would be Order 6 rule 7 of the Civil Procedure Rules. The import of the rule is that a
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party is bound by his pleadings and cannot be allowed to depart from his pleadings and seek to adduce evidence not pleaded. He cited the case of Inter Freight Forwarders Uganda v. Africa Development Bank (1990-94) EA p. 117, a decision of the Supreme Court of Uganda where it was held that the system of pleadings is necessary in litigation. It operates to define and deliver with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which, the court will be invited to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory pleadings before the trial and which the court will determine at the trial. In that case the court held that:
“ if for the above reason the plaintiff didn’t plead that the defendant was a common carrier, I think that he can’t be permitted to depart from what has clearly been his case as he stated in the plaint and claim that there was evidence proving that the defendant was a common carrier”.
Counsel for the respondent further submitted that a party is bound to prove a case as alleged by him and is covered in the issues framed and these are outlined. He will not be allowed to succeed on a case not set up by him or be allowed at the trial to change his case or set up a case inconsistent with what he alleged in the pleadings except by way of amendment of pleadings.
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He contended that the opportunity of amending of pleadings was
not available to Petitions. He relied on the case of Joseph Mutyaba v Kisekka Sub County Local Council III Masaka Misc. App. No. HCT-06-CV-MA- 0027-2000 where Hon. Justice Wangututsi held that one cannot
amend a Petition once it is submitted. In that particular case, related to the removal of the LC3 Chairperson of Kisekka Sub- county of Masaka, where an amendment was allowed by the Tribunal and the High Court quashed those proceedings on the basis that the amendment was inapplicable.
Counsel for the Petitioners, Mr. Kiryowa Kiwanuka, submitted in response that this issue was discussed by the High Court in a matter in which the respondent was a party. He further contended that the High Court had found that this Tribunal could receive all evidence for or against the Petition. He contended that the Lord Mayor and his lawyers had an opportunity to test, challenge and controvert that evidence in cross-examination.
We have carefully evaluated the submissions of both counsels on this matter. In the case of Joseph Mutyaba v Kisekka Sub County Local Council III Masaka Misc. App. No. HCT-06-CV-MA-0027-2000 Justice Wangutusi held that:
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“I have perused the first notice that was passed over to the Tribunal. It was a rumble on the sample. It lacked certainty. It did not set out the particulars of the charge properly. The charges were not sufficiently specific, to enable the applicant prepare his defence. The charges did not bear sufficient particularity as to give the applicant a fair opportunity to contradict the statements that were prejudicial and therefore would not have enabled the applicant to sufficiently know what were the cases against him”.
In the Mutyaba case the Judge made reference to Section 15(2) of the Local Government Act which is couched in a similar language to Section 12 (3) of the KCC Act. Section 15 (2) of the Local Governments Act provides;
“for purposes of removing the Chairperson under subsection (1) other than under paragraph (1) (e), a notice in writing signed by not less than one third of all the members of the council shall be submitted to the speaker”
. a) Stating that they intend to pass a resolution of the council to remove the Chairperson on any grounds set out in subsection (1)
. b) Setting out the particulars of the charge supported by the necessary documents where applicable on which it is claimed that the conduct of the Chairperson be investigated for the purposes of his removal.
The above Section mutatis mutandis is similar to Section 12(3) of the KCC Act which states:
(3) for purposes of removing the Lord Mayor or Deputy Lord Mayor under subsection (1) other than under sub section (1)
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(d), a petition in writing signed by not less than one third of all the members of the Authority shall be submitted to the Minister-
. a) Stating that the members intend to pass a resolution of the Authority to remove the Lord Mayor or Deputy Lord Mayor on any of the grounds set out in (1);
. b) Setting out the particulars of the charge supported by the necessary documents, where applicable, on which it is claimed that the conduct of the Lord Mayor or Deputy Lord Mayor be investigated for purposes of his or her removal.
According to Justice Wangutusi, in Joseph Mutyaba’s case, the provisions of Section 15(2) of the Local Governments Act are mandatory.
It is the Tribunal’s finding that, in this matter, the case of Joseph Mutyaba v Kisekka Sub County Local Council III Masaka (supra) is factually and legally distinguishable from the Petition at hand because in that case the respondent was not given ample time to respond and was denied his right to counsel when he requested for time to instruct other counsel. In addition, the Petition was amended when it was already before the Tribunal and the proceedings were in their initial stages. The case was also decided under the Local Government Act. However in the Petition before this Tribunal, all three grounds of the Petition were sufficiently pleaded in the Petition. The Respondent was given sufficient time to prepare, file and present his defence. He was allowed
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at all material times to attend the proceedings and have representation of counsel. The Petition was left intact and procedural formalities complied with.
Secondly, there is no law that requires evidence in support of a Petition to be pleaded as proposed by Counsel for the Respondent. In any event, the Civil Procedure Rules are applicable with modification to these proceedings and the Tribunal cannot lock out evidence it deems relevant to the Petition without any legal basis. Counsel for the Respondent himself must have been alive to this fact when he invited the Tribunal to apply the Civil Procedure Rules with modifications.
We further note that the issue of un-pleaded particulars was ably dealt with in Hon Justice Zehurikize’s judgment in the case of Erias Lukwago v. the A.G and Anor, (supra) where he ruled as follows;
“On the issue of Annexure to the petition I wish to state that such documents are some of the pieces of evidence in support of the petition…
I also observe that by his letter of 17/06/2013 referred to by Counsel for the Applicant, Mr Robert Kirunda Secretary to the Tribunal communicated to the Applicant that the required annexures were contained in the documents served upon his team. He pointed out that the Tribunal had not had access to the replay of the WBS Television
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Morning Flavour Programme. In his affidavit in reply of 25/06/2013 paragraph 13 he averred that on 18/06/2013 the Applicant’s Lawyers were served with the WBS recording. This shows that the Applicant is in possession of the required Annexure.
There is nothing in the Act to the effect that all the evidence must be available at the time of submitting the Petition to the Minister. Instead the Tribunal is mandated to investigate the allegations in the petition. There is no doubt that in the process the tribunal will receive more evidence in support of the grounds in the petition. It may also get evidence exonerating the Lord Mayor. That is the purpose of an investigation. What is important is that the Applicant is afforded ample opportunity to controvert all the evidence brought against him,
A thorough and fair investigation cannot be limited only to the Annexure accompanying the petition. There are no legal or logical reasons to fetter the tribunal’s hands in conducting an investigation into the allegations contained in the petition. Apart from the inclusion of a new ground which must be struck out I find that the rest of the charges are properly before the tribunal and capable of being investigated by it”. (Emphasis added)
In construing the above ruling, it is clear that the Judge applied a generic and purposive approach to statutory interpretation in order to give effect to the provisions of the law. By stating that there are no logical reasons to fetter the Tribunal’s hands in conducting an investigation into the allegations contained in the Petition, the court clarified that an investigative Tribunal has a wider range or scope of gathering all necessary evidence in support of or against the Petition during its inquiry.
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In summary, the Tribunal finds that all evidence adduced by the Petitioners was strictly in support of the grounds of the Petition which are abuse of office, incompetence and misbehaviour. On the other hand, the Respondent had occasion to contradict evidence adduced by the Petitioners and cross-examined the Petitioners and their witnesses on matters he had concerns of. Indeed the Respondent even led evidence in rebuttal to these allegations. The Tribunal therefore finds no merit in the objections and they are accordingly overruled.
THE LAW ON THE STANDARD OF PROOF
The law on the standard of proof required for the evaluation of the evidence adduced before the Tribunal is stipulated in Section 12 (8) of the KCC Act, 2010. The section prescribes the required proof for the removal of the Lord Mayor to be the establishment of a prima facie case. It provides in the relevant part that:
“(8) if the Tribunal determines that there is a prima facie case for the removal of the Lord Mayor or the
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Deputy Lord Mayor under subsection (1) other than subsection (1)(d), then if the Authority passes the resolution supported by the votes of not less than two – thirds of all members of the Authority, the Lord Mayor or the Deputy Lord Mayor shall cease to hold office.”
For most civil claims, a claimant must present a prima facie case to sustain a claim. The claimant must produce sufficent evidence on all the elements of the claim to support and shift the burden of rebutting the evidence presented by the claimant to the respondent. According to Black’s Law Dictionary (8th Ed), a litigating party is said to have a prima facie case when the evidence, in his favour, is sufficiently strong for his opponent to be called to answer to it. A prima facie case then is one that is established by sufficient evidence and can only be overturned by rebutting evidence adduced by the defendant’s side. It establishes a legally- required, rebuttable presumption.
In that sense, a prima facie case is generally understood to rely on
a flexible, evidential standard that measures the effect of evidence
as meeting or tending to meet the proponent’s burden of proof on a
given issue (Bell Atlantic Corp v. Twombly, 550 US 554(2007); and Swerikiewicz v. Sorema N.A 534 U.S. 506(2002); Hernandez v. New York, 500
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According to Wade & Forsyth (2009), Administrative Law 246, even if the language of the Act or regulation has a criminal flavour sometimes, speaking of offences, charges and punishments, the standard of proof remains a civil standard.
In Regina v. Hampshire County Council Ex parte Ellerton  1 WLR 749, McCullough J declined to grant a judicial review of the decision of the Fire Authority. On appeal it was held that disciplinary proceedings under the Fire Services (Discipline) Regulations, 1948, notwithstanding that the regulations were couched in the language of the criminal law, were domestic and not criminal proceedings. Therefore, since it was not subject to any express provisions in the Fire Services Act 1947 or the Regulations, the appropriate standard of proof in those proceedings was the civil standard on a balance of probabilities. However, the standard was flexible and was higher or lower according to the nature and gravity of the offence.
The East Africa Court of Appeal, as it then was, in Ramanlal Trammbaklal Bhatt v. R  E.A 332 stated that a prima facie case cannot be one that might merely be possibly
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thought sufficient to sustain a conviction. A mere scintilla of evidence could not suffice nor could any amount of discreditable evidence. A prima facie case must mean one where a reasonable Tribunal, properly directing its mind to the law and evidence, could convict if no explanation is offered by the defence.
In order to establish or disavow a prima facie case, the Tribunal evaluated the evidence adduced by the Petitioners against the Respondent. Whereas in criminal cases the onus lies, throughout, on the prosecution to prove the case against the accused person beyond reasonable doubt, that burden of proof is not applicable in the present case.
The Tribunal notes that the KCC Act does not expressly set the standard of proof in determination of the merits of a Petition under Section 12. However, Section 12 (8) of the Act requires the Tribunal to determine if a prima facie case has been made out against the Lord Mayor in accordance with the above jurisprudence. The Tribunal further notes that the Petition seeks removal of Erias Lukwago from his elective position of Lord Mayor of Kampala Capital City. There is no doubt that this is a matter of great public interest that has created an atmosphere of collective euphoria within sections of the population of the capital
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city. The nature, gravity and repercussions of the matter therefore call for greater sensitivity and heightened degree of proof in similar fashion to election petitions.
Consequently, the Tribunal has adopted a standard of proof that falls between the one applied in criminal cases which is beyond reasonable doubt but which is higher than a balance of probabilities which is the standard of proof set for cases of a civil nature.
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THE LAW ON THE GROUNDS OF THE PETITION
Abuse of Office
Although provided for in the KCC Act, this ground is neither defined nor are its tenets stipulated. Black’s Law Dictionary (8th Ed) defines Abuse of Office as a departure from legal or reasonable use in dealing with a person or thing.
Section 11 (1) of the Anti-Corruption Act (ACA) describes the circumstances under which abuse of office is deemed to have taken place thus:
‘A person who being employed in a public body, or a company in which government has shares, does or directs to be done an arbitrary act prejudicial to the interests of his or her employer or of any other person, in the abuse of the authority of his or her office, commits an offence
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and is liable on conviction to a term of imprisonment not exceeding seven years or a fine not exceeding one hundred and sixty eight currency points or both.’
In Uganda v Mugisha High Court Criminal Case NO.150/2010 it was held that the offence of Abuse of Office contrary to Section 11(1) ACA is committed when the office holder acts, or fails to act, in a way that constitutes a breach of the duties of that office.
In such a case the Prosecution must prove that:
1.The accused was an employee of a public body;
2.The accused performed the arbitrary act;
3.This act was in abuse of his authority; and that
4.The arbitrary act was prejudicial to the interests of his employer.
The Public Officer
Lord Mansfield in R v. Bembridge (1783) 3 Dog K.B 327 cited with approval in Attorney Generals Reference No. 3 of 2003  (1) QB 73 described a public officer as one:
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“Having an office of trust, concerning the public, especially if attended with profit by whomever and in whatever way the officer is appointed.”
In R v. Whitaker (1914) KB 1283, such a person was referred to as:
“A public office holder who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of funds provided by the public”
A public body, according to Section 1(a) of the Anti Corruption Act the ACA, includes Government and any department, services or undertaking of the Government.
The Tribunal acknowledges that KCCA is administered by the Authority on behalf of the Central Government.
In the proceedings, the Tribunal observes, counsel for the Petitioners demonstrated that the Lord Mayor discharged duties that the public was interested in and that he was paid out of funds provided by the public. It was not contested whether he is a public officer. In the absence of that contention, the Tribunal’s finding indeed is that he was a public officer.
The meaning of arbitrary
Black’s Law Dictionary defines “arbitrary” as depending on individual discretion rather than set rules of procedure. In Uganda v. Gregory Mugisha Criminal Case No. 150 of 2010 (Anti
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Corruption Division – ACD), the word arbitrary was defined as follows:
“The word arbitrary when mentioned brings out synonyms such as something being illogical, capricious, irrational or erratic. An officer’s actions may be said to be capricious and therefore arbitrary.”
In Kassim Mpanga v Uganda SCCA No. 30 of 1994 reported in  KALR 55, the accused in spite of the knowledge of set conditions went ahead and acted in breach of these conditions. He was held to have known that what he was doing was wrong. The act was held to be arbitrary.
The arbitrary act or omission must be done wilfully. Wilful connotes:
“Deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not.”
The Tribunal sought to establish whether the acts done by the Respondent were committed in abuse of his office.
According to Black’s Law Dictionary (8th Ed), abuse is a departure from legal or reasonable use in dealing with a person or thing. The Oxford Advanced Learner’s Dictionary
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(7th Ed) defines abuse, to mean the unfair or wrongful use of power or knowledge.
To sustain abuse, as an allegation, the facts complained about must be prejudicial to the rights of the public body. The word prejudicial was defined in Uganda v. Gregory Mugisha (supra) as an act that is harmful, detrimental, damaging or injurious.
A right is an interest recognized and protected by law respect of which is a duty but disregard of which is a wrong (See Ignatious Barungi v. Uganda [1988-1990] HCB 68 and Matovu v. Uganda Criminal Appeal No. 9 of 2011 and Uganda v. Francis Atugonza High Court Cr. CS 37 of 2010.
The Tribunal sought to resolve whether, on a balance of probabilities, the respondent, being in the employ of a public body, had committed, or directed to be done, arbitrary acts prejudicial to the interests of his employer.
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Incompetence is defined by Black’s Law Dictionary (8th Ed) as, “a lack of ability or fitness to discharge a required duty…” Farazmand, in his article6, “Administrative Ethics and Professional Competence: Accountabilities and Performance under Globalization” states that incompetence refers to the inability to properly and effectively perform a given function. He observes that otherwise technically- competent leaders and managers often produce unacceptable and even tragic outcomes when they fail at the ethical level. From hiding minor mistakes and taking home office supplies at one end, to acts of omission or commission that endanger the well-being and lives of innocent citizens; as with administrative evil, ethical failures occur along a scale. Ethical failures at the far end of the range literally render managers and leaders incompetent (unable or unwilling to act on behalf of people in need of their help).
6 Farazmand, A., “Administrative Ethics and Professional Competence: Accountabilities and Performance under Globalization,” in the international Review of Administrative Sciences, vol. 68 (1), pp. 127 – 143.
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Farazmand’s description of incompetence is to a large extent acceptable in as far as it refers to what he calls the inability of technically-competent leaders and managers to perform. While the importance of ethics cannot be overstated, the point of departure from Farazmand’s description is his implied nexus between what he terms as failure to perform and unethical behaviour. It is possible for a leader to fail to perform despite having strong convictions about ethics.
In Collins v. Faith School District, South Dakota Supreme Court 1998 SD 17, 574 N.W.2d 889 it was held that a person who habitually fails to perform his work with the degree of skill or accuracy usually displayed by other persons regularly employed in such work is incompetent.
From the above jurisprudence, the Tribunal finds that incompetence is the routine failure to perform a duty or function expected of a person possessed of skills to perform those functions when compared to other similarly placed individuals.
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Misconduct or Misbehaviour
Russel on Crime (12th Ed, 1964) states that where a public officer is guilty of Misbehaviour in office by neglecting a duty imposed upon him either at Common Law or by Statute, he commits a misdemeanor and is liable to indictment unless another remedy is substituted by Statute. The liability exists whether he is a Common Law or statutory officer; and a person holding an office of important trust and of consequence to the public under letters patent or derivatively from such authority is liable for not faithfully discharging the office.
Lord Widgery CJ held that “Misbehaviour in a public office is a Common Law offence that entails the deliberate failure or wilful neglect, without reasonable excuse or justification, of a public officer to perform a duty which he is bound to perform by Common Law or Statute” see R v Dytham  QB 722 at 727,  3 All ER 641 at 644, CA.
On the other hand, misconduct was defined in Halsbury’s Laws if England as follows:
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“A public officer commits the common law offence of misconduct in a public office if acting as such, he willfully neglects to perform his duty and/or willfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse.”
Black’s Law Dictionary (8th Ed.) defines Misbehavior as a dereliction of duty, unlawful or improper behavior. It is not necessary that there exist an element of dishonesty for misbehaviour to be construed but the misconduct impugned must be calculated to injure the public interest so as to call for condemnation and punishment R v Dytham  QB 722 at 727-728,  3 All ER 641 at 644.
Lopes, L J in Pearce v. Foster (1885) 15 Q13D 114, held that:
“if a servant conducts himself in a way inconsistent with faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in carrying of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or the reputation of the master and the master will be
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justified, not only if he discovered at the time, but also if he discovers it afterwards, in dismissing the servant.”
While in the case of R v. Bowden (1995) 4 ALLER 505, it was held that the Common Law offence of misconduct in public office must be applied generally to every person who was appointed to discharge a public duty; in the case of R v. Llewellyn–Jones (1968) 1 QB, it was held that to constitute the offence of misbehaviour, there must be some element of dishonesty involved. Misconduct is therefore distinct from misbehaviour with the
Justice P.K Mugamba, in Uganda v. Francis Atugonza High Court Anti- Corruption Division CR.CS 37 of 2010, noted that, in the United States, misconduct in public office is said to occur where in the capacity as a public officer, the officer does an act that he knows exceeds his lawful authority or that he knows is forbidden by law to do so in official capacity. What is more, Justice Mugamba stated, at a minimum, an indictment for official misconduct, must allege facts that would show the public official an identifiable statute, rule or regulation and demonstrate how the public officer exceeded his lawful authority. All this is intended to show that a
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person should not be held responsible for conduct which he cannot reasonably understand to be proscribed.
The Tribunal decided that the following elements of the ground of Misconduct must to be proved:
1. That a person holds a public office or an office of trust;
2. That the person’s conduct is inconsistent with the faithful discharge of duty;
3. That the conduct is without reasonable excuse;
The Tribunal adopts the above positions with respect and shall apply them accordingly.
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ANALYSIS OF EVIDENCE
Abuse of Office
Under this ground of the petition the councillors set out several complaints against the Respondent Lord Mayor.
The First Particular under Abuse of Office:
The allegations against the Lord Mayor in the first particular were that the Lord Mayor had intentionally and wilfully engaged in acts of public incitement against payment of city dues, which not only impeded, sabotaged and undermined the Authority revenue collection efforts, but also put KCCA staff in harm’s way.
Five Councillors of the Authority gave evidence in support of this Particular. The Councillors who gave evidence included the following: Bruhan Mugisha Byaruhanga (PW1), Hope Tumushabe, Adam Kibuuka, Abubaker Serwamba and Bernard Luyiga. Their written statements were admitted under oath during the proceedings and they relied on Exhibits P1, P21 (1) and (2) and P24 (1), (2) and (3). Bruhan
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Byaruhanga, the Lead Petitioner in his evidence which was in similar terms to the other four witnesses stated that the Respondent had undermined his role as Lord Mayor when he instructed Division Urban Mayors to stop the assessment and collection of trading licences. See letter Exhibit P1. Bruhan further stated that the KCC Act in s11 (a) gives the Lord Mayor the mandate to advise the Division Administrations (sic). Bruhan Byaruhanga further stated that by authoring Exhibit P1, the Lord Mayor had ill-advised the Division and Urban Councils and thereby violated the provisions of s50 (3) of the KCC Act which mandated the Authority to collect Trading Licenses.
Councillors Hope Tumushabe, Adam Kibuuka, Baker Serwamba and Bernard Luyiga each stated that whereas the letter mentioned a new trade licensing structure, they as the KCCA Authority Council had not deliberated on such a structure and had not made any resolutions regarding the same. Adam Kibuuka further stated that the Lord Mayor singularly enforced a resolution made in a Parliamentary debate. Further that the Lord Mayor, based on a Parliamentary debate, advised that it was irregular to assess city dues before due consultation with stakeholders.
Councillor Hope Tumushabe testified that the Lord Mayor directed the Division and Urban Council Mayors to stop the collection of trading licenses until the review process had been completed by Parliament. Councillor Serwamba then
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stated that the law clearly gave the mandate to the Authority to collect trading licenses and that there had been no instrument amending or repealing that law. The councillors in unison stated that the action of the Respondent amounted to abuse of his office. Their evidence was not rebutted in cross-examination.
In reference to the Lord Mayor’s conduct, Councillor Serwamba emphasised the need for responsible behaviour since it is believed and perceived by the electorate that what they say as elected leaders, amounts to law. He further stated that the Lord Mayor’s directive was sent to the Division Urban Council Mayors and to the business community. The other members who were copied this letter included Kampala City Traders Association (KACITA) which is an umbrella organization of the business community in Kampala. It was the Petitioners’ evidence that the communication cascaded to the people who carry on business within Kampala District. As a result, some business people declined to pay the dues there by leading to a revenue shortfall from the projected forty five billion to thirty million.
The consequences were not limited to the fall in the revenue of the Authority. Officers of the Authority who were mandated to conduct the assessment of trading licenses
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faced resistance and hostility, were beaten, insulted, harassed and often were put in harm’s way. Besides there was no legal instrument to give effect to the new structure that was referred to in the Lord Mayor’s letter. The Authority neither sat nore resolved to prohibit the business community from paying trading licenses or dues. The councillors also referred to s50 (1) of the KCCA Act and testified that the Authority may levy, charge collect and appropriate taxes in accordance with any law enacted by Parliament under Article 152 of the Constitution.
Bruhan testified that the letter which stopped the process of assessment and collection of dues was in contravention of s50 (1) of the KCC Act.
The Executive Director of KCCA responded to the Lord Mayors letter and advised that as long as the law which empowered KCCA to raise revenue through the collection of trading licenses was still operational, and had not been revoked by Parliament, the Authority had the mandate to collect trading licenses until the law was revoked. See Exhibits P 21 (1) and P21 (2)
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The Petitioners further raised three points for the Tribunal’s attention;
i) That the city cannot operate without taxes
ii) That the Authority had the responsibility to levy and collect taxes from tax payers
iii) That the Respondent as former Member of Parliament knew or ought to have known this.
Bernard Luyiga pointed out that it was ironical that the Lord Mayor’s office whose petty cash budget is financed by the KCCA treasury at a rate of UGX2,300,000/= (Two million three hundred thousand shillings) a week, would obstruct revenue collection. In essence, Luyiga argued that the Lord Mayor was fighting against the very institution that finances him. According to Bruhan, it was a sign of the incompetence for the Lord Mayor to write such a letter given the fact that the Lord Mayor knew or ought to have known that revenue collected in the city was grounded on a statutory instrument in force; Statutory Instrument No. 2 of 2011, The Trade and License (Amendment Schedule) Statutory Instrument 2011 made under s30 (3) of the Trade Licence Act. Bruhan further stated that although a review process was underway, the Hon. Amelia Kyambadde had issued a press release on 1st of November 2011 to confirm to the
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public that the previous statutory instrument would remain valid until a new SI would come into force.
The Petitioners contended that by the Lord Mayor writing such a letter, he was inciting the public against payment of the Trade Licenses which were still in force. They argued that they were not aware of any jurisdiction in the world where a law ceased to be enforced simply on account of the fact that that the said law was under review.
The councillors further noted that the Lord Mayor wrote the letter on the 25th of July 2011 after passing the Authority budget with full knowledge that trade licenses constitute one of the main sources of funding for the Authority. In their view, the Lord Mayor’s action amounted to incitement and sabotage. Here is what Councillor Hawa Ndege had to say about the incident,
“He presided over a meeting on 24th of June that approved the budget and that specific budget had estimates for Trade Licenses as presented by management; the same person, after saying, “we are passing this budget with a total sum of about 18 billion to be collected from Trade Licenses”, comes after about 1 month, you write a letter misleading the public (sic).”
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Councillor Luyiga attributed the above conduct of the Lord Mayor to incompetence on his part, who he pointed out was earning a hefty income for no work done. Here once again is an excerpt from the verbatim recording of Luyiga’s evidence,
“The Lord Mayor is well facilitated with about UGX 300 million so far gone in salaries UGX 300 million towards his car, about UGX 600million towards other allowances such ad imprest, airtime, housing allowances and about 100 million in travel allowances and my Lord I have evidence. His office is well facilitated and this money comes from the local revenue mainly according to the Authority budget. And as of today, KCCA has spent about 1.5 billion on the office of the Lord Mayor only (sic).”
In his defence, the Respondent stated that under s11 (1) (g) of the KCC Act, he is enjoined to give guidance to Division Administrations. The Lord Mayor testified that Trade and Industry Minister Amelia Kyambadde had suspended the licenses as a result of his Petition to Parliament, as shown in the exhibited Hansard(s) R79 (1), dated 4th November, 2009 and R79 (2) dated 8th July, 2011, on Trade Licenses.
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In cross-examination, he admitted that the Authority administers the City on behalf of the Central Government, that he was answerable to the Minister for Kampala and that he did not answer the Minister’s letter but had responded by calling a meeting. He further admitted that it was not irregular to collect lawful taxes. The Respondent testified that he wrote Exhibit P1 on 25th July2011 and that Exhibit P24 (2) came into force on 1st January 2012. Both of these Exhibits referred to the rates payable for Trade Licences. He said he wrote a letter to stay the process because Parliament was at the time probing the matter of trade levies.
The Respondent admitted that he was paid by tax payers. He also admitted that the Trade Ordinance Bill had not been passed. In re- examination, he testified that Trade Licenses are not about raising revenue but regulating trade. He told the Tribunal that the pronouncement to stop the levy was made by the Minister publicly at Nakivubo Stadium and that the government subsequently reduced trade license fees by 25 percent. Lord Mayor stated that he had tried to harmonize the licensing regime in the city, as one charged with monitoring the city’s development under the KCC Act, by tabling the Trade Ordinance Bill which was yet to be passed by Parliament.
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The position of the Lord Mayor on petitions to Parliament was in part supported by the RW10 Hon. Betty Nambooze who stated in her evidence that indeed five (5) Petitions, regarding KCCA, had been brought to Parliament by among others, the Respondent, some of which were outstanding and some of which had been disposed of. She further stated that once a committee report is adopted on the floor of Parliament, it becomes a resolution of Parliament.
Nambooze testified that Parliament had issued a directive to KCCA to stay all policy matters which had not yet been sanctioned by the Authority. She further testified that KCCA had not heeded the directive despite a joint statement issued, by the Respondent and the Executive Director on the 6th March 2012. The two had, among other things, promised to work together for the good of the city. She referred extensively to the exhibited Hansard.
In cross-examination, Nambooze admitted that the directives of Parliament are only advisory and not mandatory in nature. She testified that it was a good practice to honour Parliamentary resolutions stating that
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Parliament had powers of the High Court when requiring witnesses to appear before a committee of Parliament.
Nambooze admitted that Parliament does not have injunctive powers. She further testified that it was not illegal or irregular to collect revenue from Trade Licenses. She stated that in order to amend the law, Government initiates the process by tabling amendment bills. Alternatively a private members’ bill may be tabled on recommendation of Parliament. She insisted that Hon. Amelia Kyambadde made a commitment before Parliament to suspend the law relating to Trade Licenses pending a review by Parliament but admitted that the regulations can only be amended by Statutory Instrument. She read the Minister’s response, on page 41 of Exhibit R 79 (2), in which the Minister apologized for her earlier remarks regarding the promise to suspend the regulations tendered as Exhibit P24 (1).
She agreed that Exhibit P1, the letter on taxes sent by the Respondent, on the 25th July 2011, would be irregular if the regulations had not been suspended.
On re-examination, she said it was critical to consult widely with stakeholders before introducing a new tax regime. She added that by irregular, she meant it was not right to enforce a law as it is whilst a review process was ongoing.
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Mr. Kiryowa Kiwanuka, the counsel for the Petitioners submitted that the Lord Mayor’s conduct had a negative impact on revenue collection. To support his contention, he relied on s6 and s7 of the KCC Act submitting that they provide for the composition and duties of the Authority among which is monitoring the collection of taxes. Together with s11 (1) (e), the Lord Mayor is enjoined to provide lawful guidance under s11(i) g.
He further contended that it was not in dispute that the Lord Mayor issued Exhibit P1. He also referred to the evidence of PW 13 Abubaker Sserwamba who, in his oral and written evidence, testified that by issuing Exhibit P1 the Lord Mayor was saying that taxes should not be collected and was thereby abusing his Authority.
Mr. Kiwanuka further contended that the Authority did not sanction the Mayor’s communication to the public regarding tax collection. Mr. Kiwanuka further submitted that the Lord Mayor said he relied on the Minister’s guidance. However, at the time Exhibit P1 was written, Exhibit P.24 (1) and P.24 (2) which regulated computation of rates were already in place. It was therefore counsel’s contention that
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as long as the law was in operation and had not been revoked by Parliament, KCCA had the mandate to collect the taxes. According to him, Exhibit P.21 (1) and (2) by the Executive Director and the Permanent Secretary respectively clarified this position but the Lord Mayor did not change his position or correct it. Until 1st January 2012 the law had not changed. The law continued to be applicable six months after the Respondent’s pronouncements.
Mr. Kiwanuka also relied on the evidence of RW10 Betty Namboze and asserted that even if a Ministerial Statement had been made in Parliament, it did not constitute an amendment to the law, hence the Lord Mayor acted arbitrarily and in abuse of his office to issue contrary pronouncements.
Mr. Kiwanuka further submitted that what the Lord Mayor had done was untrue or in contravention of a resolution of the Authority. Mr. Kiwanuka further contended that the Lord Mayor’s statement in his letter constituted falsehoods when he claimed that the Minister had stayed the collection of taxes. He further argued that the Lord Mayor’s letter was written after the Minister’s Statement had clarified that she had not suspended the collection of taxes. Mr. Kiwanuka further submitted that the Lord Mayor though Head of the Authority had advised the Division Mayors not to follow the
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law. His summation was that this was the highest form of abuse of office.
The Tribunal noted that the Hon. Medard Sseggona did not make any specific submission on this matter
Finding on Abuse of Office
The Tribunal finds that it is not in dispute that the letter, Exhibit P1, written by the Respondent was addressed to and served on various parties who interpreted it to mean that payment of taxes was suspended. In fact, RW8 Issa Sekitto, the KACITA spokesperson, admitted having received the letter and stated that on the basis of the said letter KACITA did not pay taxes for two years. The Tribunal agrees with RW10 Hon. Betty Nambooze and TW3 Hon. Florence Kintu who stated on oath that Parliamentary resolutions were merely advisory and not mandatory in nature. We also agree that Parliament had no injunctive powers. Moreover, the taxes complained about in Exhibits P24 (1) and (2) were gazetted Statutory Instruments with the force of law. Any lawful change to them had to be made by amendment, through established channels, not by public proclamation in a football stadium or mere letters written by unauthorized persons.
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It is unconscionable to envisage the idea advanced by the Lord Mayor that if a law is under review or that if a law is bad, it should be arbitrarily suspended in the manner he chose to do. If accepted, the Lord Mayor’s position would set a dangerous precedent. Consequently we are convinced beyond doubt that there is compelling evidence against the Lord Mayor to show he acted not only beyond his mandate but also acted unilaterally in suspending the payment of trade dues. We find that when the Lord Mayor chose to fight the assessment and payment of Trading Licences within Kampala City, he did so arbitrarily and in abuse of his office.
The Second Particular under Abuse of Office
The second particular under the ground of abuse of office by the Respondent was framed in the following terms:
“That the Lord Mayor engaged in divisive acts and incited people under the cover of monitoring KCCA programs, which acts resulted in destruction of property, merchandise, and led to the suffering and death of innocent citizens of Kampala.”
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Councillors Adam Kassim Kyazze, Achan Joyce Ondoga, Hope Tumishabe, Hawa Ndege and Bernard Luyiga in their written and oral evidence stated that the Respondent engaged in divisive and inciting acts, under the cover of monitoring KCCA programs, which acts resulted in destruction of property and merchandise and led to the suffering and death of innocent citizens of Kampala.
Youth councillor Adam Kyazze relied on Exhibit P11 and testified that, on 21st January 2012, the Lord Mayor wrote to the Inspector General of Police (IGP) requesting for police protection. He claimed that he planned to visit KCCA programmes and carry out cleaning activities around Kisenyi in general but specifically Nakivubo channel and Kafumbe Mukasa Road.
Kyazze indeed testified that as the Lord Mayor he was entitled to inspect projects going on around the city and to receive police protection in the process. He further stated that, it was not uncommon to find the Lord Mayor joined by other political activists like Dr. Kizza Besigye during such visits. He further stated that on one of the numerous occasions a scuffle ensued in which people lost their property and a police officer, named Ariong, was killed.
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Kyazee as indeed all the petitioners claimed that an incident of this nature happened on 26th January 2013, the day when the nation celebrates the NRM Liberation day. The Petitioners expected the Lord Mayor to attend the NRM celebrations. Councillor Adam Kyazze recounted as follows:
“…if you are elected to lead people in a city like Kampala, you are
supposed to know the people you are going to lead. Kampala is a city that has many people on the streets doing nothing and with any type of incitement you can get numbers as quickly as possible. So when the Lord Mayor went to that area he knew that he would get people there, he would get people to run along with him, he could get people that are not satisfied with some of the things may be because of not being well informed and he used this day knowingly that it is a liberation day and it is a national day celebration as a leader he was supposed to be attending the celebrations being organized because KCCA receives invitations for this particular national day celebrations. So by inciting the public this led to him a person in the office of the Lord Mayor, he was abusing his office. For the Authority the image generated was that the public is confused up to now. Their image as leaders in this great city is not good because people take their ego first…If a person is elected he is not made a small god but with more responsibility to lead others so with the Lord Mayor knowingly that he is well supported in such areas, he used this advantage to cause chaos and this was wrong.” (sic)
There were four issues raised by Adam Kyazze (PW2) in this verbatim quote. That the Lord Mayor took advantage of the low income and densely populated area like Kisenyi where
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he agitated and fired up crowds of dissatisfied and excitable people. Kyazze further said thus in his evidence as quoted verbatim:
“For the ‘staffs’ of KCCA, you see it on the news, they are attacked, they are beaten they are abused because they are not given direction by the people who are supposed to guide them so their image in the public is like they are going against the wish of the Lord Mayor which is not true. Exhibit P11 was copied to so many leaders in the city including: Speaker of Parliament; Minister for Presidency and KCCA; All leaders of Political parties and civil society organizations; Deputy Lord Mayor; All MPs Kampala; Resident Commissioner; All Authority Councillors; All Mayors; Executive Director and other members of staff; Commandant Metropolitan police; and All local leaders.”
The above quote underscores the allegation that the Lord Mayor as the Head of the Authority used the authority of his office and his political biases to politicise every action of the KCCA. The councillors testified that the Okugogola letter written by the Lord Mayor was copied to a cross section of leaders, including the technical staff and was an invitation to attend a public function in parallel or as an alternative to the National celebration which to take place at the same time.
Bruhan, Kyazze and Hawa Ndege were all agreed that the letter created a negative view of the Authority and that the Respondent did not act in good faith when he wrote the Okugogola letter. In their opinion, this showed that the National celebrations were of no consequence to the Lord
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Mayor. The councillors expressed the belief that the Lord Mayor as the political head of Kampala was under obligation to attend the National liberation celebration on the 26th of January.
Hawa Ndege was less forgiving and told the Tribunal that the Respondent was liable for Misconduct. Part of her testimony in her perception of the Lord Mayor is laid out thus:
“When the Lord Mayor, in pretence to go and monitor the KCCA projects, for example roads, he begins to engage himself in an act and involves himself with the members of 4GC. The New Vision of the 25th October 2012 reported that when the Lord Mayor sat in a vehicle with Dr. Besigye in the pretext that he is going to monitor the road construction in Ntungamo. They could not understand why the Lord Mayor calls Dr. Besigye to go and monitor projects. Our responsibilities are to monitor projects but expect the Mayor to engage members of physical planning committee, members of engineering and services, members of internal audit committee to move with them into the field so that such members can get what they report to their committees and come up with meaningful recommendation as to whether such money that we giving contractors to construct roads for us has value for money.”
Councillor Hawa Ndege raised the issue of pretext meetings and gatherings. Her evidence was that the Lord Mayor used these meetings to drum up support for opposition leader Kizza Besigye. Without mincing words she stated that the
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Lord Mayor made it his goal to discredit government programmes.
Councillor Hope Tumushabe testified that the Lord Mayor asked the Authority to carry out a cleaning exercise in the city. She stated that she had cautioned the Lord Mayor not to involve Opposition political leaders in goodwill community activities of this nature. She further wondered why he always involved Dr Besigye in council activities yet it is they, the councillors who ought to supervise the cleaning of the city. She further stated that against her better judgment she attended the meeting but had to look for safety when a stampede broke out.
Councillor Ndege described this behaviour as misconduct, incompetence and abuse of office on the part of the Respondent since he was sabotaging the very organization that he heads as a political leader. She also pointed out that some politicians, particularly the Lord Mayor, had opposed almost everything that KCCA management did or set out to do.
“Almost everything that management does, the Lord Mayor has opposed and this one he is doing it simply
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because he fears that may be the NRM is winning because of their achievements.”
She cited the Respondent’s opposition to the construction of Wandegeya market. She added that it was after the market vendors themselves invited KCCA to break the old market that the development of the new market took off even without the Lord Mayor’s support.
Hawa further pointed out that the Lord Mayor opposed the construction of the USAFI market. She added that he had been heard on several occasion saying that that market could not benefit vendors and that the market was just a wastage of tax payer’s money. In her view the Lord Mayor was not a developmental person.
She further pointed out that the Lord Mayor also opposed the development of Ttula road, one of the major Urban Division Roads. She recalled a time when Councillors went to supervise the road and were almost beaten up. She stated that she was not accusing the Respondent of mobilizing goons but pointed out that he makes statements which incite the crowds. She stated thus:
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“He has even been against the construction of Lubigi channel which channel is helping today with floods that have been disturbing the people of Bwaise for such a long period of time.”
Hawa also testified that the construction of the new taxi park, which the Lord Mayor vehemently opposed, until management used force of course, was about to be completed (hitherto completed) and was to be a new accomplishment of the Authority.
In Councillor Ndege’s view, the politics and over politicization (sic) of issues in Kampala hampered service delivery. She also prayed that the Tribunal recommends that the KCC Act be amended to, among others; create the office of the Speaker because some of the challenges “arise from the conflict of interest of the Lord Mayor when he is the one presiding over the Authority”. She also prayed for an audit of the Lord Mayor’s performance vis a vis the money dispersed to him in the last two years.
Councillor Luyiga Bernard supported the prayer to audit the Lord Mayor’s performance vis a vis the money dispersed to him in the last two years. He added that while huge sums
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were spent on the Lord Mayor, he frustrated payment to the Local Councillors. He explained that, although their payment was budgeted for, no resolution was passed by the Authority, which the Respondent heads to sanction the payment.
“Yet my bitterness with that is he is well facilitated my Lord. Travels, he moves wherever he wants, he is given a car as you know it very well, he has about 7 staff that are paid, he has escorts you know. So he is well facilitated but all this money comes from local revenue but them he is the very same person who wants to be facilitated very well, he wants to live a posh life he is the same person frustrating the efforts of KCCA to generate revenue so I wonder. Why should we go back home with salaries which are not worked for. So I feel by the Lord Mayor being facilitated, so far 1.5 billion my Lord as we talk and I state it very clear and I am sure on this, 1.5billion so far for the last two years yet there is no actual work on ground which you can show that you have done this. I think it is a disservice to the people of Kampala my Lord.”
Councillor Luyiga accused the Respondent of always playing the sympathy card and for politicising every activity. He appeared particularly irked by the way the Lord Mayor used his power. He was also the only witness Councillor who attempted to quantify in economic terms how much money might have been spent on the Respondent.
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The Tribunal noted that no specific submissions were made addressing the above Particular. The tribunal will therefore arrive at its finding based on the evidence adduced.
Finding on the allegation of politicization
The Tribunal finds that the Lord Mayor has a duty to mobilize the population of Kampala to clean the city, among other activities, and when he does so he cannot be said to be inciting the public. In the same breath, the Lord Mayor cannot be compelled to attend National celebrations or to schedule his political leadership activities around public holidays.
Although it is not unreasonable to expect an elected Lord Mayor of Kampala Capital City to attend National celebration, the Lord Mayor cannot be compelled to attend public functions; neither should he be prevented from scheduling alternative programs during national holidays. Notwithstanding the above findings, the evidence on record does not show how the activity of cleaning Kampala, which had been sanctioned by the Uganda Police, led to the destruction of property, merchandize and death of innocent citizens of Kampala as stated in the Petition. Whilst these regrettable events may have occurred, the evidence on
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record does not make a causal link to the Lord Mayor’s actions. The allegation is therefore not proved.
The third Particular under Abuse of Office
The third complaint of the councillors under the ground of abuse of office was that
The Lord Mayor appointed, recalled and replaced representatives to institutions of Higher learning without approval of the Authority.
Councillor Madina Nsereko was the key Petitioner on this issue but the other witnesses included Bruhan Mugisha Byaruhanga, Godfrey Asiimwe, Sarah Muwayire, Abubaker
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Serwamba and Bernard Luyiga. They relied on Exhibits P20(1) and (2), and 23(1) and (2). Councillor Madina
Nsereko and Godfrey Assimwe stated that the Lord Mayor wrongfully used the authority of his office to nominate, appoint and later recall and replace councillors on boards of Institutions of Higher Learning at will and without subjecting the process to a vote as provided for by law.
PW7 Councillor Madina Nsereko gave the example of Councillor Muwanguzi who was appointed to represent KCCA at Mulago Nursing Training School without approval of the Authority and that of Councillor Bernard Luyiga whom the Respondent nominated and the Authority approved but which latter appointment the Respondent unilaterally cancelled. PW14 Councillor Bernard Luyiga, the subject of Councillor Madina Nsereko’s testimony, confirmed that the Authority had retrospectively unanimously elected him as a representative to Makerere University in line with s38(1) (g) and 38(2) of the Universities and other Tertiary Institutions Act 2003. He further stated that to his utter consternation and that of the some Authority members, the Respondent, on 21st March 2013, wrote another letter appointing yet another councillor in the names of Bumali Mpindi. That the cancellation of his appointment in a letter dated 19th April 2012 was done
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without the consent and approval of the KCCA Authority members. He added that this was irregular under s38 (2) of the aforesaid Act because the tenure of his appointment was four (4) years and that cancellation of his appointment should have been done with the approval of Authority councillors and for a reasonable cause. Exhibits P20 (1) and (2) were tendered in proof of this allegation. During the cross-examination of the Petitioners and their witnesses, matters regarding appointments were not canvassed.
In his defence in chief, the Respondent did not comment on this particular neither did he cross examine Councillor Madina Nsereko on the allegation of arbitrary appointments of councilors to Universities and Tertiary Institutions. However, during cross- examination, the Respondent admitted writing Exhibit 23 (1) to the University Secretary, Makerere University. He also admitted writing Exhibit P23 (2) to withdraw Luyiga as the representative. He also acknowledged the contents of page 8 of Exhibit P13 as the minute on the appointments and said it was correct. When referred to s38 (3) of the Universities and Other Tertiary Institutions Act, he stated that he exercised his discretion in the matter. He further stated that he wrote the letters as Lord Mayor though the position he took was not approved by the Authority. Further that he did not communicate to the Authority his appointments. He added that he
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“appoints and then communicates”. The Respondent was not re- examined on this but his lawyer did state in his submissions that the matter of appointments to institutions was not a particular in the petition and that it should not have been brought up and argued and that arguing this particular offended the rules of practice.
Counsel for the Petitioners submitted that the Lord Mayor appointed and removed councillors who served in Tertiary Institutions without approval of the Authority and in abuse of his office. He cited the University and Tertiary Institutions Act which provides for election of representative by the council. In particular, s. 38(3) of the Act provides that all elected persons shall hold office for four years. He contended that the representative of the Authority should have been conducted by election as provided for under the Act. and that Exhibit P23 (1) proved that on August 28th 2011 the Lord Mayor had, without participation of the Authority, appointed Bernard Luyiga to Makerere University.
In Mr Kiryowa’s view, the decision by the Lord Mayor to appoint Councillors to Tertiary institutions was an arbitrary
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act. He further submitted, that the Respondent may argue that the appointment of councillors was eventually unanimously agreed upon but that he was wrong because the Mayor had already effected the appointments and that the Authority could not purport to approve his nominations then elect retrospectively and moreover this was not done in all cases. Counsel further contended that the Lord Mayor was exercising power arbitrarily which power he did not have.
Mr. Kiryowa referred this Tribunal to the Interpretation Act Section 24 and argued that the power to appoint is subject to limitation to remove. In his view, only the Authority could exercise this power. He further submitted that the Lord Mayor by Exhibit P23 (2), without the participation of the Authority, removed Councillor Luyiga and that this was illegal. Further that the Lord Mayor by Exhibit P20 (1) appointed another person to replace Luyiga. He added that the Lord Mayor acted in a manner prejudicial to the interests of the Authority by disregarding the law. He contended that this conduct constituted abuse of office and was contrary to the Law.
Counsel added that the provisions of the law and the Universities and Other Tertiary Institutions Act are brought
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into play by s5(4) of the KCC Act and maintained that under s38(3) of the University and Tertiary Institutions Act, “all elected and appointed members other than students shall hold office for 4 years, and shall be eligible for re-election.” . He contended that the Lord Mayor should have conducted an election of Universities and Tertiary Institution representatives. Counsel therefore argued that there was no election and that when the Authority followed the Lord Mayor, who by law was required to lead the Authority, he led them into an illegality.
In reply, Hon. Medard Sseggona, Counsel for the Respondent, submitted that the complaint regarding the appointment of councillors to governing councils of universities and other institutions was not pleaded. He contended that it is not a particular of abuse of office or any other charge in the Petition. He argued that you could not prove a particular which had not been pleaded. He further contended that the person who was stated to have been injured by this decision, Councillor Benard Luyiga was not a Petitioner; he never complained.
Counsel Sseggona argued in the alternative that even if Luyiga’s appointment or nomination to the University Council was referred to as illegal, it had not been contested
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and only his withdrawal had been referred to as illegal. He further argued that even then his withdrawal had not been complained about in the Petition and so it remained an un-pleaded matter.
Finding of the Tribunal
The Tribunal finds that the appointment, recall and replacement of councillors to boards of universities and other tertiary institutions is regulated by the Universities and Tertiary Institutions Act. The relevant sections of that law appear as follows:
38. (1) There shall be a University Council for every Public University consisting of the following members ⎯
(f) one member of the District Council elected by the District Council in whose jurisdiction the
Public University is situated;
(3) All elected and appointed members other than the representative of the students shall hold office
for four years and shall be eligible for re-election.
(5) The office of a member of the University Council shall become vacant ⎯
(a) upon death;
(b) Upon ceasing to be a representative of the particular office or body by virtue of which that
person became a member of the University Council; (c) Upon resignation of a member; or
(d) Upon being adjudged Bankrupt or of unsound mind
Section 38(1)f of the Act provides that representation of District Councils to the boards of the respective institutions shall be by election. In interpreting the meaning of District Council, KCCA is construed to be the body in whose
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Jurisdiction the Public University is situated and therefore KCCA is therefore entitled to representation.
There was no contention about this fact. What became contentious was the manner in which the members to the councils were appointed. The law does not empower the Mayor or Chairman to appoint representatives. It vests the power to elect representatives in the District Council or in this case the Urban Authority.
In the present case, the evidence on record overwhelmingly proved that the Lord Mayor, without approval or election by the Authority, unilaterally appointed, recalled and replaced representatives to Makerere University and Mulago Nursing School. The Tribunal finds the view that no single piece of evidence captures the Respondent’s attitude to his position as Lord Mayor more succinctly than this one. There is no doubt that when the Lord Mayor appointed, recalled and replaced the affected councillors in the haphazard, upside down manner detailed in this report, he did so in abuse of his office.
We as a Tribunal find that when the Lord Mayor singularly appointed and removed councillors from Universities and
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other Tertiary Institutions he did so arbitrarily, to the prejudice of KCCA and in abuse of his office.
The Fourth Particular under the ground of Abuse of Office
The fourth complaint of the councillors under the ground of abuse of office by the Respondent was that
The Lord Mayor in the performance of his duties failed, refused and or neglected to call Special Meetings when Petitioned for by the Authority councillors under s11 (2) and supported by the fourth schedule 1 (2) of the KCC Act.
Councillors Bruhan Mugisha Byaruhanga, Adam Kassim Kyazze, Apollo Mugume, Hawa Ndege, Abubaker Serwamba, Bernard Luyiga, Margaret Tumwesigye and Emmy Babirye, in their written statements and testimonies before the Tribunal, accused the Respondent of abusing his office when he failed or refused to convene mandatory special meetings petitioned by councillors under the Fourth Schedule of the KCC Act. The councillors relied on Exhibits
P2(1), P(2), P2(3), P7 and P27. The Petitioners’ case was that the Respondent’s attitude towards these petitioned
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meetings was, at best, hostile. Councillors Adam Kyazze and Emmy Babirye stated that the Lord Mayor interpreted these Petitions to be an infringement on his authority and an affront on his person. They further stated that the Lord Mayor questioned whether it was an attempt by the councillors to upstage him and made the point to remind them that he was not a mere councillor but rather that he is the Lord Mayor. They further stated that he was very enamoured by these Petitions.
Councillor Adam Kassim Kyazze particularly cited the day the Lord Mayor made the above remarks as a day when the Lord Mayor was overcome with anger and even swore in Arabic something he had never heard the Lord Mayor do before. The councillors explained that the Lord Mayor threw a temper tantrum and was so visibly agitated that the councillors, including Abubaker Serwamba and Godfrey Asiimwe, attempted to calm him down but in vain. In their words the Lord Mayor was ‘too hot to be cooled’ (sic).
According to Councillor Adam Kyazze, the councillors’ pleas to convene a meeting were not heeded because the Respondent was reportedly too angry with the perceived disrespectful councillors that he did not call any meeting for up to six months. The Petitioners maintained that it was
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their right to request the Lord Mayor to convene meetings once they gathered enough signatures and had quorum. The councillors particularly sought to set up meetings to address crises such as the take over and management of taxi parks which on one occasion caused a gridlock in the city. The councillors stated that the Lord Mayor, on several occasions, particularly on 29th November 2012 and 11th February 2013 declined to convene Authority meetings when requested.
Councillor Bruhan, Adam Kyazze and Emmy Babirye complained that the Lord Mayor did not give any reason for his failure or refusal to convene the meeting regarding their ‘first Petition’ of 29th November 2012, yet, in the law, it stated that, “the Lord Mayor shall, if Petitioned convene the meeting”. They further complained that following the ‘second Petition’ of 11th February 2013, he had written back telling the councillors that the matter in respect of which they petitioned for a meeting was before Parliament. He did not cite any law that stopped him from convening a meeting when the matter was before Parliament. In the councillors’ view, the Lord Mayor blatantly refused to call the meetings.
Councillor Apollo Mugume relied on Exhibit P2 (2) as one such Petition which the Lord Mayor decided to ignore. He
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testified that on this occasion, there were urgent matters that the Authority needed to attend to. The matters were revenue collection; takeover of the management of the taxi parks; and motions to set up the logistics and disciplinary committees for the Authority.
The councillor added that previously, an association named UTODA7 had been in charge of the collection of revenue from taxi parks on behalf of the Authority but following the expiry of its contract, Court had directed KCCA to take over the management vide Miscellaneous Cause No. 16 of 2012, Mayambala Mustafa and Others Versus Kampala Capital City Authority. Following the Decision, KCCA management proposed to take over collection of taxi fees. A figure of Uganda Shillings 120,000/= was proposed by the joint Standing Committee of internal audit and revenue collection.
The issue of taxi fees levy was an urgent matter which was why the councillors petitioned the Lord Mayor to call an Authority meeting. The Lord Mayor never respected that Petition and, almost a year later, KCCA lost a case because the fee of Uganda Shillings 120,000 was never agreed upon
7 UTODA – Uganda Taxi Operators and Drivers Association
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or ratified by the Authority. Councillor Mugume stated that had they been in agreement, KCCA would not have lost in Court. The Court had found that the fee KCCA collected was not authorised and approved by the Authority. A minute extract by the Council would have sufficed.
Councillor Mugume blamed the Lord Mayor for the loophole because the Lord Mayor declined to call a meeting petitioned to close this matter and instead encouraged some of the taxi drivers to sue the very Authority he leads. The councillors accused the Lord Mayor of sabotage and incompetence. Councillors Hawa Ndege, Bernard Luyiga and Margaret Abubaker Sserwamba testified in similar terms on these matters.
When Councillor Margaret Tumwesigye and Babirye Emmy testified in respect of this complaint they accused the Lord Mayor of abusing his office. They further testified that the Executive Director of KCCA (the ED) had authored Exhibit P27 indicating a shortfall in revenue collection. In that letter the ED stated that a shortfall in revenue collection had been experienced during the first quarter of the financial year July – September 2012. She quantified the shortfall in
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revenue collection as 35.5 percent amounting to Uganda Shillings 188,330,589 against a target of Uganda Shillings 14,283,440,730. This reduced the revenue performance to 65.5 percent.
According to the ED, this trend had continued into the next quarter as seen from the collections registered in the first week of October 2012. She reminded the councillors that the Authority had a projected revenue of Uganda Shilling 75.5 billion to finance a number of activities in the work plan. However at the current levels of performance, there was a risk of not implementing a number of critical activities such as garbage collection, de-silting of drainage channels, casual labour wages, salaries, security and fleet management.
Consequently, the ED and her team were to scale down funding of activities funded from the Non-Tax Revenue Budget including advertisements, foreign travel, training, workshops, monitoring and inspection costs, meetings, non-critical assets, goods, services and equipment, among others. This was done so as to redirect the available limited financial resources could to the most critical areas. The
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councillors considered this to be a serious and urgent matter.
Councillor Babirye’s pointed out that if the trend continued KCCA would degenerate into a form akin to the previous KCC, which was characterized by poor lighting, inadequate garbage collection and runaway littering of the streets all of which has since been controlled under the new Authority structure. She did not make an effort to obscure her sentimentality when she that stated,
“we are lucky that … when the Executive Director came, she introduced a system whereby garbage trucks collect garbage from our areas while other workers sweep the areas in all parishes, in all streets, on all streets, there are workers who work there. So if this garbage is not collected and the casual labourer workers are not paid their wages, that means we may go back during that time of the former KCC.”
Councillor Tumwesigye pointed out that the Lord Mayor was very irritable and agitated. The Mayor had scoffed at individuals who attempted to force his hand to convene meetings. He affirmed that nobody could direct him. He
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stated that ‘he is the leader of the Authority voted by 200,000 people.’ He added that the Lord Mayor vowed never to call for a special meeting petitioned by the Councillors.
Councillor Babirye attributed the Lord Mayor’s hard stance to infighting at KCCA. Although in her evidence she generally agreed with the testimony of other witnesses Babirye broadened the analysis by introducing the dimension of dysfunctional relationships among key players of the Authority which plagued the institution.
She stated that as councillors, they had initially tried to address the problem of infighting at KCCA through informal meetings with the office of the Lord Mayor. She further stated that they made effort to engage him and discuss and the prevailing situation using a light touch approach. However, the Lord Mayor’s countenance would suddenly change at the suggestion of calling meetings as a means of addressing intrigue at the Authority. In Babirye’s view; “It was as if he had a hidden agenda.”
Councillor Babirye added that discussions with the Lord Mayor commenced as soon as the councillors realised that a
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breakdown of relationships was crippling work at KCCA. She added that the councillors also opened up communication channels with the ED and tried to persuade her to meet the Lord Mayor. Indeed a meeting was arranged close to his office. The ED honored the invitation but the Lord Mayor whose office was located close to the meeting room refused to attend the meeting. Babirye described their reconciliation efforts in the following words:
“I don’t know if you know where the Executive Director’s office is, and where the Lord Mayor’s office is. You have to come out of a very tall building because ED sits on a floor which I won’t mention, she sits upstairs. She had to come down, there is a sort of garden which she had to cross to enter the Mayor’s parlour a sign that she had bent low. Because she wanted the institution to move, but just a person who was supposed to move from like here to here, failing to enter the negotiation room, and yet the other one came from upstairs, she had to cross the Mayor’s gardens to his office that was also a sign of seeing that we wanted the Authority to move. We even went to the Minister, I can’t even count the times and we told him to intervene, the Minister called the Lord Mayor I think he never went there. The Minister wrote a letter telling him to stop the politicking I think that letter is on the file. When you look at the reply of the Lord Mayor, he used big words which I can’t even remember because I don’t have the letter right now.”
In his defence, the Lord Mayor stated that he was the one who had exclusively given notices for meetings petitioned by at least one third of the councillors and that it was lawful for councillors to Petition him to convene meetings. He agreed that he is duty-bound to call petitioned meetings. He
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said he had rephrased the agenda of the petitioned meetings but admitted not having consulted the councillors when changing the agenda contending that he was free to rephrase agenda items. Referring to Exhibit P2 (2), he admitted that he had not called the petitioned meeting. In respect of Exhibit P2 (3), he admitted that he did not call the petitioned meeting because they had agreed in an informal meeting, with the councillors, not to call the meeting on account of some challenges.
Mr. Kiwanuka, counsel for the petitioners submitted that the Fourth Schedule, paragraphs 1 and 2, of the KCC Act provides in clear terms that “the Lord Mayor may at any time convene a special meeting of the council and shall call a meeting within 14 days, if requested to do so in writing, by one-third of the members of the Authority.”
Counsel further submitted: “He may call a special meeting at his discretion any time. But if requested to do so by the councillors, he shall call that meeting within 14 days. He does not have discretion in the matter. However in utter disregard of this provision of the law, the Lord Mayor deliberately refused to convene the special meetings that had been duly requisitioned by the councillors.”
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Counsel Kiwanuka cited Exhibit P2 (1), a petition by the councillors dated 20th February 2012 signed by 23 councillors, twelve (12) more than the required number. Revenue collection was the first item on the agenda. The second item was takeover of management of taxi parks and the third one was motion to institute an Authority disciplinary committee. That was the agenda sent by 23 councillors. The Lord Mayor received this petition on 24th February 2012 but in abuse of his office and contrary to the law, the Lord Mayor deliberately failed, refused and/or neglected to convene the meeting.
Counsel argued that although the Lord Mayor testified that he had called the special meeting, by notice of 28th February 2012, in response to the requisition by Exhibit P14 (15), the agenda was different. The agenda for this meeting was Authority prayer; Communication from the Lord Mayor; Reactions; break down on performance of 2011-2012 Authority budget; Revenue Collection; Strategy for improvement of standards of taxi industry; and Establishment of a councillors’ disciplinary committee.
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Counsel submitted that the Lord Mayor did not respond to the requisition of the meeting Exhibit P2 (1). Instead, he called another meeting with his own agenda. When cross examined whether the agenda was the same in the meeting he called, the Lord Mayor testified that, whereas the agenda was different in phraseology, there was no law which prohibited him from adjusting an agenda of a meeting requisitioned by the councillors. Counsel submitted that this highhandedness constituted abuse of office.
Mr. Kiryowa further submitted that in respect of convening the council meeting, the Lord Mayor had stated that the meeting had been frustrated by the existence of an opinion prepared by the Solicitor General (SG) Exhibit P50 (1). Counsel pointed out:
“The Lord Mayor concedes that the opinion was given by the Solicitor General, and as long as the opinion of the Solicitor General was in place, the Executive Director, who is the one mandated to advise the Authority is bound by that opinion and so was the Authority including the Lord Mayor.”
He cited the case of Bank of Uganda v. Banco Arab Espanol, Supreme Court Civil Appeal No.1 of 2001 to support his submissions. Counsel Kiwanuka explained that, in that case, the Supreme Court was very clear that the authorities of Government are bound by the opinions of the SG. He also
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referred to the second requisition for a special meeting Exhibit P2 (2) dated 29th November 2012. This was a requisition by 19 councillors, 8 more than the required number. The Lord Mayor received this petition on 29th November 2012. This was very crucial because the councillors were requesting for a special meeting to receive and approve committee reports as well as quarterly work plans for the different directorates.
Counsel Kiwanuka submitted that, on this occasion, the Lord Mayor neither wrote back nor did he attempt to change the agenda. He simply disregarded the petition.
The third requisition Exhibit P2 (3) was dated 11th February 2013. It was made by 23 councillors. Mr. Kiwanuka emphasized that the number of people who requisitioned for the meetings showed that the majority who constituted the Authority were interested in these meetings. He added that that on each occasion, the number of councillors was not just the bare minimum required by law but the majority of the Authority councillors. On this occasion twenty one (21) councillors petitioned the Lord Mayor seeking for election of Standing Committees, among others.
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Mr. Kiwanuka submitted that the Lord Mayor in abuse of his office, on 20th February 2013, had written back in his letter stating:
“My office shall liaise with Parliament to establish as to when the probe would be concluded and seek further guidance on these and other matters affecting the smooth running of the Authority, and I will get back to you in due course.”
Mr. Kiryowa further submitted that the pending probe before Parliament did not in any way justify the crippling of the operations of the Authority. He submitted thus:
“It is not a statutory bar. It is not an injunctive order. These are two separate entities. The Authority’s work cannot be crippled by the probe.”
Counsel Kiwanuka cited the evidence of RW8 Honourable Betty Nambooze, and TW13 Honourable Florence Kintu who both agreed that the pending of a matter before Parliament does not bar the continued conduct of the business of the Authority. He pointed out that TW3 Honourable Florence Kintu had in fact testified in respect to Exhibit R64 that this
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was only a request to stay proceedings but that it was not injunctive. He pointed out that the Lord Mayor in his own testimony had conceded that he disregarded the provisions of the law in respect to the special meetings and used manipulative schemes to frustrate the operation of the law. Mr Kiryowa submitted that this was the greatest manifestation of abuse of office.
Hon. Medard Sseggona for the Respondent submitted that there were four petitions for special meetings by the councillors. He contended that all four petitioned meetings were called by the Lord Mayor but boycotted by the councillors. He conceded that there were variations in the agenda of the called meetings from the agenda in the petitioned meetings but argued that those variations were not substantial.
Finding on Abuse of office – petitioned meetings
The Tribunal finds that the provisions of the KCC Act in Item 1 (2) of the Fourth Schedule are very clear on the role of the Lord Mayor with regard to calling special meetings. Upon receipt of a petition for a special meeting signed by at least one third of all the councillors, the process is governed by law. The law in mandatory terms requires the Lord
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Mayor to convene a special meeting to attend to those items set out in the agenda contained in the petition. It is common knowledge that KCCA has 30 out of the 34 envisaged councillors and that, on several occasions, more than one third of those councillors petitioned the Lord Mayor for special meetings to discuss specific agenda items.
After a careful consideration of all the evidence adduced by both sides before the tribunal, we are satisfied that the Lord Mayor did not call the meetings petitioned by the Councillors. The Tribunal finds that a prima facie case has been made out that when the Lord Mayor, on all the material occasions, refused or failed to convene the petitioned meetings, or changed the agenda items unilaterally, or without assigning any reason, or upon frivolous or vexatious reasons, as the evidence on record shows, he did so arbitrarily to the prejudice of the KCCA and therefore in abuse of his office.
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The councillors accused the Lord Mayor of incompetence as a separate ground of their Petition. They set out several Particulars of this ground as shown below:
First Particular under Incompetence
The Lord Mayor failed to convene ordinary Authority meetings in order to transact the business of the Authority and instead preferred to convene special or crisis meetings thus contravening Section 12 (1) (e) of the KCC Act
The Petitioners relied on the testimony of 19 councillors.8 They also relied on Exhibits P8, P9, P10 (1-23), P13, P14 (1-25), P15, P16, P17, P28 (1-2) and P29 (1-3). In giving their evidence, the witnesses made both oral and written statements in support of this particular. In all their statements, the witnesses decried the manner in which the Respondent called, convened and conducted meetings.
8 PW1 Bruhan Byaruhanga Mugisha, PW2 Adam Kassim Kyazze, PW3 Joyce Achan Ondoga, PW4 Godfrey Asiimwe, PW5 Apollo Mugume, PW6 Hope Tumushabe, PW7 Madina Nsereko, PW8 Adam Kibuuka, PW9 Sarah Naiga Muwayire, PW10 Zahrah Luyirika, PW11 Angella Kigonya, PW12 Hawa Ndege, PW13 Abubaker Serwamba, PW14 Bernard Luyiga, PW15 Margaret Tumwesigye, PW16 Alfred Ntambazi, PW17 Hajat Hamida Namukasa, PW18 Daudi Lwanga and PW19 Emmy Babirye.
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PW4 Godfrey Asiimwe testified that the Respondent failed to comply with the KCC Act and the schedules thereto. He further testified that the Respondent failed to convene meetings as provided for under the Act and that he issued notices for meetings without order papers. The witness relied on the following notices: the Notice of 29th December 2011 for the ordinary meeting of 18th January 2012, the Notice of 5th May 2012 for the ordinary meeting of 30th May 2012, and the Notice of 5th May 2012 for the meeting of 6th June 2012.
He further testified that the Respondent preferred to convene special meetings as opposed to ordinary meetings. It was his testimony that these meetings had very many items on the order paper that should have been handled in the ordinary meetings convened after a 14 days’ notice. This position was variously backed up by various petition witnesses including PW1 Bruhan Mugisha Byaruhanga, PW2 Adam Kassim Kyazze, PW3 Joyce Acan Ondoga, PW6 Hope Tumushabe, PW8 Adam Kibuuka, PW12 Haawa Namugenyi and PW15 Margaret Tumwesigye.
PW12 Hawa Namugenyi testified that the Respondent preferred to call special meetings at his own time and in pursuit of his own interest. She testified that during those
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meetings the Lord Mayor refused to give the councillors a chance to amend the agenda and present their views and committee reports.
PW13 Abubaker Serwamba testified that the Respondent, without advancing any reasons, did not call a meeting to discuss the business of the Authority between 19th October 2011 and 13th June 2012. PW15 Margaret Tumwesigye testified that as a result of failure to convene mandatory meetings, there was an enormous backlog, of Authority business, pending clearance.
PW 17 Hamidah Namukasa Nsubuga, in her testimony, stated that she felt marginalized by the Respondent’s preference for special meetings which excluded what she described as “normal Authority issues”. She further stated that meetings were never concluded, and had a crowded agenda because special meetings should have handled matters of an urgent nature. She testified that as a result, the meetings were long and almost all agenda items were carried forward to the next meeting. She stated that in actual sense these meetings ended up being, “resumed and resumed and resumed…”
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PW18 Daudi Lwanga also took issue with the Respondent’s failure to call mandatory meetings as a result of which no services had been rendered to his community since special meetings called by the Respondent could not handle matters affecting his community.
PW5 Apollo Mugume’s complaint was a little different. While he agreed with the rest, on the failure to convene mandatory meetings, he stated that the Respondent did not confirm and adopt Rules of Procedure discussed and agreed on in the Authority. As a result, Local Government rules Exhibit R78 continued to apply. Consequently, the Respondent who was supposed to be impartial doubled as both Lord Mayor and Speaker; this allowed him to descend into the arena by moving motions and even deliberating on matters being discussed contrary to Rule 21 (2) of the Local Government Regulations which the Authority had adopted.
Some non-Petitioners also testified namely, PW11 Angella Kigonya, PW14 Bernard Luyiga, PW20 Reuben Kamoga and PW21, the ED. Their evidence supported the Petitioners’ case. PW11 stated that mandatory meetings were not called for two years. PW14 agreed that from May to August 2011, October 2011 to January 2012 and January 2012 to April, 2012, at least one mandatory meeting should have been
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held in each, respective period. He stated that in a period of over two years, at least eight mandatory meetings should have been held.
PW20 Reuben Kamoga appeared as a Senior Clerk Assistant in KCCA to give technical evidence. He testified that the proceedings in the legislative arm were not properly conducted. He added that since the Authority was constituted, on 20th May 2011, seven special meetings had been called before the ordinary meeting of 19th October 2011. He further stated that the Notice of 29th November 2011 for a meeting scheduled on 18th January was issued without an order paper, Exhibit P14 (12), just like the Notices for the ordinary meetings slated for 13th June 2012 and 20th June 2012, respectively.
He also added that the Lord Mayor, in response to a Petition by the councillors dated 20th February 2012, issued a notice with a different order paper contrary to the request by the Petitioners, Exhibits P2 (1) & P14 (15).
Mr. Kamoga further testified that, on the 11th of January 2012, the Respondent issued another notice for a special meeting scheduled for 17th January 2012 without explaining why the date proposed earlier had been changed. He also testified that three Notices for ordinary meetings were issued on 5th May 2012 for the 28th, 30th and 6th June 2012
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respectively only for the notices of 28th and 30th May 2012 to be revoked by one of the three Notices dated 17th May 2012. See Exhibits P14 (16), P14 (17), P14 (18), P14 (19), P14 (20).
In addition he stated that there should be at least one Authority meeting in each quarter and that since taking office, the Respondent should have convened eight meetings.
Both PW20 Reuben Kamoga and PW21 the ED testified that since 20th May 2011, the Respondent had convened only two ordinary meetings of the Authority in contrast to 13 special meetings of which two lacked quorum.
In cross-examination, PW21 the ED admitted that the budget Exhibit P26 was passed in a special meeting yet passing a budget was a routine matter which should have been handled in an ordinary Authority meeting. She also agreed that the election of Standing Committees was approved in a special meeting but added that the situation was an emergency. Indeed she acknowledged receipt of Business Committee meeting notices but could not confirm whether the meetings took place but said that she had received reports of Business Committee meetings.
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In his defence, the Respondent did not agree with the Petitioners’ assessment about his conduct in calling and convening meetings. He stated that the culture of convening special meetings was created by the Petitioners and that the nomenclature of ordinary meetings is “something of his creation” and not a creature of the Statute. He added that the first special meeting of 20th May 2011 was called by the Petitioners and that he had received a Petition on 30th April 2011. He added that all 30 councillors turned up for the meeting. See Exhibit R13.
The Respondent stated that he found the procedures for calling ordinary meetings impractical. He further stated that sometimes he issued short notices like two-day notices because the matters were urgent. He gave the example of the meeting of 2nd June 2011 where the councillors moved a motion to adjourn meetings to 13th June 2011. The Respondent testified that the Authority had adopted the standard Rules of Procedure of Local Governments Exhibit R78. He stated that his Notices had order papers attached Exhibit P14 (2).
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The Lord Mayor singled out Madina Nsereko for frustrating the attendance of his meetings by councillors who routinely met in her office to consider whether or not to be a part of the Respondent’s meetings Exhibit R25. He explained that Business Committee meetings were convened on notice but that some meetings were disrupted, such as the one where Councillor Bernard Luyiga entered the room with an armed man. See Exhibit R28 (A), R 28(B) and Exhibit P14(12). The Respondent further stated that the first objection by the ED to the Notices he had issued was on 16th January 2012. He added that he replied to the ED’s objection which the latter acknowledged receipt. The communication exchange was tendered as Exhibits P14 (13), R29 (A), R29 (B), R29 (C) and R29 (D). He further testified that at a meeting of 20 NRM councillors at Ivy’s hotel, Wakaliga, which the Respondent had convened, the councillors passed a resolution to call three ordinary Authority meetings.
In cross-examination, the Respondent stated that he was 100 percent blameless for the problems at City Hall. He agreed, when referred to page 4 of Exhibit P13, that in the meeting of 19th October 2012 he had stated that the 14-day notice period was unconscionable. He further stated that this was before the ED ever gave any opinion on matters concerning meetings.
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He admitted that the special meetings were called four months before the first ordinary meeting but added that efforts to prepare for the Authority meeting had been frustrated. When asked why he had not suspended the requirement to call a Business Committee according to rule 15, by invoking rule 4, he said he was aware of the provisions of rule 4 on suspension of notice but insisted that the rule could only be invoked in special meetings but that it was not applicable to ordinary meetings.
He also explained that the meeting convened on 18th January 2012 had no quorum but the one of 13th June 2012 had quorum. He further stated that some meetings he called were revoked by the ED. See Exhibits P14 (16) – (18) and R34 (1) – (2). The Respondent stated that he was advised by the ED to issue one notice. He clarified that the ED never attended the meeting at Ivy’s Hotel.
Mr. Kiwanuka Kiryowa submitted for the Petitioners that incompetence is failure to do what you are expected to do. He further submitted that rule 1(1) of the Fourth Schedule of the KCC Act requires the Lord Mayor to convene ordinary meetings at least once every three months.
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Counsel also submitted that the Lord Mayor knew the importance of mandatory Authority meetings and even claimed to have given them the nomenclature of “ordinary meetings”. He pointed out that the Lord Mayor was at all material times alive to the requirement to call the ordinary meetings.
Counsel added that the specific allegation by the Petitioners, in regard to incompetence, was failure to convene ordinary Authority meetings to transact business of the Authority, preferring special Authority meetings contrary, to s12 (1) e of the KCC Act. This section refers to failure to convene two consecutive meetings of the Authority without reasonable cause.
Counsel for the Respondent Hon. Medard Sseggona submitted that the Petitioners were the first to call for a special meeting and that the order paper spoke for itself. He contended that they could not turn around and say, “special meetings were only for one item”, even if it was the Lord Mayor who had advised them to Petition.
Hon. Sseggona accused the Petitioners of being hypocrites. He further submitted that the position of the Lord Mayor
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that convening ordinary meetings was onerous is correct because the first meeting could not have been ordinary because there was no Business Committee. He cited Exhibit P26 at page 47 and pointed out that Councillor Mpindi Bumali is the one who proposed two special meetings. Hon. Sseggona added that the councillors had agreed on special meetings in good faith. Therefore, there was no failure to conduct Authority business as a result of special meetings. He averred that the Act does not prohibit the convening of special meetings and failure to call ordinary meetings is not a ground for removal of the Mayor under s12 (1) (e) of the KCC Act. He argued that one cannot bring a ground as a Particular of the same ground because they have different ingredients. It was his contention that doing so embarrasses the defence.
He contended that regarding the notice period of 14 days, the position of the Lord Mayor on special meetings was confirmed by the Attorney General and that there was no evidence of incompetence on record because it is not true that the Lord Mayor did not call meetings. He argued that Black’s Law Dictionary defines the word “convene” as to cause to assemble. In his view, the Lord Mayor called many meetings and had no duty to mechanically force attendance. He cited the meeting of 19th October 2011 which was an ordinary meeting that the members attended but walked out
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when the issue of the Deputy Lord Mayor came up. The Lord Mayor could not compel councilors to come back when they opted not to attend meetings. Hon. Sseggona concluded his submissions by arguing that the Petitioners failed to call independent witnesses while the Respondent called credible witnesses.
Finding on incompetence – failure to convene ordinary Authority meetings
The Tribunal finds that, under the KCC Act, the Lord Mayor is required to convene at least one ordinary meeting of the Authority every three months. The word “to convene”, as used in the Act, means to “cause to assemble”. The Act does not expressly draw a distinction between special meetings of council and meetings of the Authority. Therefore, for all intents and purposes a special meeting is a meeting of the Authority.
The councillors accused the Lord Mayor of failure to convene ordinary Authority meetings to transact business of the Authority preferring special/crisis Authority meetings contrary to s.12 (1) (e) of the KCC Act. It is clear that, for
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the period 19th October 2011 to 13th June 2012, no Authority meeting was convened by the Lord Mayor. The evidence on record shows that there were various reasons for this including the failure of the Lord Mayor to issue Notices for these meetings; failure of the technical staff to attend Business Committee meetings thereby leading to lack of Order Papers; failure of the councillors to attend Authority meetings thereby causing the meetings to abort on account of lack of quorum; and boycott and walk-outs by councillors from the meetings also causing the meetings to abort on account of lack of quorum.
In the circumstances, the Tribunal cannot attribute the failure to convene ordinary Authority meetings solely to incompetence of the Lord Mayor, although indeed the Lord Mayor exhibited a measure of incompetence. Such a finding would be unfair, unjust and inconsistent with the evidence on record.
The evidence on record shows that the Respondent convened numerous special meetings, some on his own motion and others upon being petitioned by the councillors. The Respondent by his own admission stated that he preferred special meetings to ordinary meetings on the basis that the fourteen days’ notice required to convene ordinary
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meetings was unconscionable. Under the KCC Act, the routine business of the Authority is conducted during the ordinary meetings while emergency matters are to be handled in special meetings. Further, the agenda of the ordinary meetings is set by the Business Committee as mandated by the law while the agenda for a special meeting is set by whoever initiates it. The evidence on record, however, shows that there was a fusion of both routine and emergency matters on the agenda of both the ordinary and special meetings convened. It is worth noting that while this was not the ideal situation, some Authority business was transacted in the meetings that were held. The budgeting process for the financial year 2012/2013 is a good example.
All in all the Tribunal cannot determine a prima facie case against the Lord Mayor and indeed one was not made out in the first particular.
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The Second Particular under Incompetence
The second Particular pleaded by the councillors under the ground of incompetence related to what they called
The deliberate failure to conduct Authority meetings to their logical conclusion, a condition that resulted in no single record of binding Authority minutes
Thirteen Councillors gave evidence In-Chief9 and relied on Exhibits P2 (2), P8, P9, P14 (1-23), P17, P25 and P26. It was their complaint that the minutes of all Authority meetings were never confirmed or signed as required by law. It is also noted that some of the Petitioners including all the non- Petitioners as well as technical witnesses were cross examined although a few of them were not.10
9 Bruhan Mugisha Byaruhanga, Adam Kyazze, Godfrey Asiimwe, Apollo Mugume, Madina Nsereko, Adam Kibuuka, Muwayire Sarah, Zahrah Luyirika, Angella Kigonya, Bernard Luyiga, Margaret Tumwesigye, Alfred Ntambi and Hajat Hamidah Namukasa
10 PW1 Bruhan Byaruhanga Mugisha, PW2 Adam Kassim Kyazze, PW6 Hope Tumushabe PW8 Adam Kibuuka, PW10 Maala Zahrah Luyirika, PW11 Angella Kigonya, PW12 Hawa Ndege, PW17 Hajat Hamidah Namukasa, PW20
Reuben Kamoga and PW21 Mrs. Jennifer Musisi (ED).
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In cross-examination, PW11 Angella Kigonya admitted that the meeting referred to in Exhibit P9 was boycotted but she insisted when referred to page 36 that she never walked out. She was shown agenda five which she agreed covered approval of minutes. PW20 Reuben Kamoga denied being a relative of the ED. He stated that the Respondent had never requested him to take minutes to the Lord Mayor for signing.
Both PW1 Bruhan Byaruhanga and PW2 Adam Kassim Kyazze stated that the Respondent was to blame for the unsigned Authority resolutions. PW1 also stated that without binding minutes it was difficult to implement Authority resolutions. In cross-examination, PW1 Bruhan Byaruhanga stated that the minutes of the Authority were not invalid just because they were not signed. He agreed that councillors were duty-bound to attend all Authority meetings. When referred to Exhibit P10(19), the meeting of 7th November 2012, he admitted that the minutes were not brought because on that day the Clerk had been withdrawn.
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PW2 testified that meetings to follow up resolutions of the Authority were left hanging by the failure to sign approved minutes. PW2 referred to item 3(2) of the Fourth Schedule of the KCC Act, which provides that the minutes must be submitted to the Authority for confirmation at its next meeting and that when so confirmed the minutes shall be signed for by the Lord Mayor and at least one councillor in the presence of the members present at that later meeting.
PW4 Godfrey Asiimwe agreed and added that even after these meetings had been held the Respondent had failed to sign minutes of both special and ordinary meetings.
PW8 Adam Kibuuka stated that he was surprised when the Respondent failed to sign minutes despite several reminders while PW10 Maala Zahrah Luyirika wondered why the Respondent had failed to sign minutes for two years with no justifiable cause. PW13 Abubaker Serwamba testified that the Respondent’s meetings, such as the one held on 23rd August 2011, were never concluded. PW17 Hamidah Namukasa stated that the Respondent’s failure to sign minutes and resolutions hindered implementation of Authority resolutions.
PW20 Reuben Kamoga, Clerk to the Authority, while referring to Exhibits P8, P9, P13, and P26, added that minutes were by law required to be confirmed at the next sitting of the Authority and The Report of the KCCA Tribunal (2013) Page 129
signed by the Respondent and at least one councillor in the presence of the Authority and that this had never been done. He added that although the ordinary meeting on 13th June 2012 was convened and resumed on 18th, 20th and 22nd June 2012, business was not concluded, particularly that of receiving, confirming and signing previous Authority minutes.
Finally PW21, the ED, testified that the minutes of all the said Authority meetings were neither confirmed nor signed as required by law.
In his defence, the Respondent Lord Mayor stated that meetings were deferred because items discussed were not concluded. He testified that no one opposed the decision to adjourn. He further testified that his Notices, such as Exhibit P14 (2), had order papers attached. He further stated that in the meeting, of 2nd June 2011, they had discussed the status report and made a resolution. He referred to a number of matters as being urgent, such as budgeting, restructuring, KCCA properties.
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The Lord Mayor gave a general description of the role of the Business Committee. He testified that this committee was charged with various responsibilities including: coordinating items for the Agenda which were then produced in the Order Paper, handling out logistical issues, such as Authority schedules, and business matters.
He further added that, under Rule 15 of the standard rules Exhibited as R78, the Respondent had the discretion to amend the Order Paper although the order of business under the same rule was to be determined by the Business Committee. In this specific case, he referred to two items that were added to the Order Paper namely, the procurement of KCCA seal and the election of Standing Committees. He testified that as chairperson of the Business Committee, he invited the ED to attend the meeting but she failed to do so. See Exhibits R18 and R21.
The Respondent added that under Regulation 7 of the Local Government (Financial and Accounting) Regulations, the functions of the Respondent included proposing policy. He stated that in the meeting, of 24th June 2012, there was an item on election of committees. He added that rather than attending in person, the ED sent a representative to the meetings.
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Referring to the statutory meeting of 19th October 2011, the Respondent stated that the Notice had an agenda and that three items were covered. He further stated that the minutes of previous meetings were brought for consideration and adoption and that two councillors including Zahrah Luyirika were nominated to witness the signing. The Respondent added that it was not possible to sign minutes before corrections by the Clerk and that, for this reason, the Authority had unanimously resolved that he would not sign the minutes. See Exhibits R24 and R27, Exhibit P14 (9), Exhibit P26 pages 128 and 129.
The Respondent blamed the councillors for their lack of cooperation. He stated that whenever councillors had disagreed with his suggestions he conceded. He pointed out the issue of the election of the Deputy Lord Mayor, where he conceded but that the councillors had still moved out.
In cross-examination, the Respondent accepted that it was not in accordance with the law to sign omnibus minutes. He explained that a meeting was deferred to 13th June 2011 but that the Clerk “did not capture the councillors’ suggestions” on that date. When asked about the meeting of
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13th June 2012, he accepted that he remembered it. When referred to the Order Paper (Exhibit P14 (23)), he stated that the minutes were not signed because they had not been submitted. See Exhibits P8, P13, at page 9, P26
The Respondent denied being incompetent and/or bogging down Authority business. However, he admitted that the absence of a technical officer had nothing to do with minutes. He stated that the Authority had allowed him to take minutes to his office by delegation. He further stated that he had signed a minute extract authorizing the ED to procure Imperial Hotel as the venue for considering the Budget on 25th June 2012. He insisted that the minutes were not sent to him for signature. See Exhibit P9 pages 35-36.
In re-examination, the Respondent clarified that neither the councillors nor the ED had objected to the decision of the Authority to sign the minutes in the Lord Mayor’s parlour rather than in an Authority meeting. The Respondent added that the said minutes were not submitted to him for confirmation until 19th October 2011. Even then the minutes were not signed and therefore they had “resurfaced” on the Order Paper/Agenda in subsequent meetings such as the one on 23rd October 2012 and 07th
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November 2012. He further added that the meeting on 7th November 2012 had compelled the technical team to produce minutes for signing but the clerks had been withdrawn. The Respondent also went to great length to explain how clerks were withdrawn and how minutes had to be corrected before he signed.
RW2 Amooti Nyakana, RW3 Hajarah Nakate, RW4 Joyce Ssebugwawo and RW5 Sulaiman Kidandala, the Deputy Lord Mayor testified in support of the Respondent in this regard. RW2 stated that as a co-opted member of the Authority, being an Urban Division Mayor, he felt the allegations against the Respondent were uncalled for. He further stated that there was no induction course for all parties. He pointed out that the Respondent was very tolerant in his meetings and that that is why they went on for a long time. He also added that councillors sometimes became rowdy in meetings. He pointed out that the councillors wanted matters added to the Order Papers while seated in council. He stated that some meetings were abandoned but that the majority of councillors attended meetings except when advised otherwise. He testified that he had attended at least 15 Authority meetings. On cross- examination, he testified that conducting business without confirmed minutes was not odd. Although this particular
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witness did state that in his Division, minutes and resolutions were always signed.
RW3 Hajarah Nakate testified that the supervisor who was supposed to take minutes to the Respondent did not do so. She further testified that no minutes were signed in the Authority as no minutes were submitted to the Respondent. RW4 Her Worship Joyce Sebugwawo testified in cross-examination that she was an ex-official Authority member. She stated that she signs minutes in her Division during ordinary council meetings. She further stated she had advised the Respondent to sign minutes but he had said minutes “could not be seen”. She was adamant that minutes should be signed in ordinary council meetings. On re-examination, she said she never saw the clerk present minutes to the Respondent for signing. She said had the minutes been presented, the Respondent would have signed.
RW5 Sulaiman Kidandala stated that every meeting is independent and should have minutes. He further stated that, on 19th October 2011, the Authority had received a collection of minutes from eight meetings but that they had to be corrected and that is why they were not signed. He added that the Clerks were incompetent and that a senior
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clerk, Takan, had been interdicted. He stated that Takan and Kamoga had produced different sets of minutes. In cross- examination, he was referred to the minutes of the meetings of 9th July 2011 and 19th October 2011 where resolutions were passed to the effect that the minutes were a true record of proceedings. He also added that he understood the consequences of minutes not being confirmed. He admitted, when referred to Exhibit P9 on page 35, that there had been no resolution to take minutes to the Respondent’s office. In re-examination, Mr. Kidandala said that the minutes of 19th October 2011 should have been corrected but that it was not practical to sign minutes that were not yet a true record. He further stated that the minutes were not brought back for signing.
Mr. Kiwanuka, Counsel for the Petitioners, submitted that, under Item 3 of the Fourth Schedule, the minutes were supposed to be confirmed at the subsequent meeting, signed by the Lord Mayor and witnessed by at least one councillor in the full view of all members present. Counsel further submitted that the Lord Mayor had failed in three forms.
Firstly, he argued, the Lord Mayor had failed to place approval of minutes of previous meetings on the agenda.
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Secondly, he had failed, after confirmation had been done, to sign and have one councillor witness the signing. Thirdly, he had failed to sign minutes in the full view of all councillors present.
Counsel contended that the Lord Mayor conceded grave dangers associated with unsigned minutes. He further added that it was not disputed that there was not a single signed minute.
In his submissions, Mr. Kiwanuka pointed out that RW3 Nakatte had testified that the Lord Mayor never asked for the minutes. He referred to the agenda for meetings of 13th June 2011, 21st June 2011, 24th June 2011, 13th July 2011, 23rd August 2011, 7th September 2011 and 14th September 2011, none of which had approved minutes. As a result, Mr. Kiwanuka, added all their minutes were sent for approval on 19th October 2011. See Exhibit P13 page 9. Moreover, he further added, it had been resolved that the minutes be approved and adopted and that Bernard Luyiga and Zahrah Luyirika were to witness the signing of the minutes. He pointed out that this did not happen.
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Mr. Kiwanuka further submitted that it was against the law and contrary to good practice to confirm the minutes of several meetings in one sitting and that doing so was incompetence. He pointed out that in spite of all the above, the minutes had not been signed. He further added that the Lord Mayor’s argument that the minutes had to be taken back to the clerk, corrected and brought back was ridiculous because the minutes could have had endless mistakes. He observed that the resolution of councillors had been for the minutes to be signed, corrected and the amendments reflected in the minute book. See Exhibit P8 page 3.
Mr. Kiwanuka also submitted that it was bad practice to start new business when previous matters had not been concluded. He further submitted that this had happened in KCCA all the time. He argued that the only explanation the Lord Mayor had was that the discussion of the Budget was a priority for the Authority. Counsel submitted that Exhibit P14 (23) which called for this meeting had nothing to do with the Budget. Mr. Kiwanuka further submitted that the Lord Mayor told lies when he said that and that in fact it was not possible to have discussed the Budget without the minutes showing important matters at KCCA.
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Counsel submitted that there was no resolution indicating that the minutes were to be signed in the Lord Mayor’s office. Mr. Kiwanuka pointed out that there was another meeting on 23rd October 2012 but that the minutes were still not on the agenda despite evidence of councillors raising the issue of signing of minutes. He further submitted that it was untenable for the Lord Mayor to argue that the minutes were not signed because they were not presented. He contended that this confusion arose from the incompetence of the Lord Mayor and that this was the last time the issue of minutes was discussed.
Mr. Kiwanuka further contended that by letter Exhibit P15 the ED gave legal guidance that the minutes needed to be signed and that the Lord Mayor had done nothing. He further reiterated that there was no explanation offered, by the Lord Mayor, for his failure to sign the minutes for the last two years. He concluded that the actions of failure to conduct meetings to their conclusion and to follow up matters was all due to the incompetence of the Lord Mayor.
Counsel for the Respondent, Hon. Medard Sseggona submitted
at length on the petitioners allegation that the Respondent had failed to sign minutes. He referred to Rule 15 of the Standard Rules of Procedure for Local
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Governments in Uganda which stipulates the work of the Business Committee. He submitted that this included the duty to prepare the agenda for meetings. He pointed out that the first Business Committee meeting to prepare an agenda for the ordinary meeting had been held on 2nd July 2011. He further submitted that this meeting had not been attended by the ED yet she is the custodian of the minutes. He further submitted that in his view, the technical staff expected the Lord Mayor to pick the minutes by himself. He further submitted that the councillors had also walked out of a meeting before the reports and minutes could be considered. He then added that the Respondent could not be blamed since he had called these meetings and thereby discharged his burden.
Hon. Sseggona further added that the minutes for another meeting held on 19th October 2011 had been exhibited. He explained that the Order Paper, for this meeting, showed that approval of minutes had been planned. He added that the approval of minutes took long because a practice of considering minutes on a quarterly basis had been adopted.
Hon. Sseggona further added that all the evidence indicated that a number of councillors walked out when the matter of the Deputy Lord Mayor came up for discussion and the
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meeting was aborted as a result. He referred to the statement of Hajarah Nakate and, basing on this evidence, argued that the ED, having kept custody of the minutes, had owed a duty to the Authority to give progress reports.
Hon. Sseggona pointed out that PW20 Kamoga had testified that every time the ED was not ready with the minutes, she would abscond. Note: Although this appears to be Hon. Sseggona’s understanding of Kamoga’s evidence, the Tribunal finds that the facts and evidence do not seem to bear him out.
Regarding the issue of a former clerk to the Authority, Hon. Sseggona’s submission was that David Takan had been subject to investigations over Authority minutes. During Takan’s interdiction, Kamoga took over as Clerk to the Authority. Counsel further submitted that it was Kamoga’s testimony that no minutes of the Authority were signed because the minutes had disappeared. (Note: In the Tribunal’s opinion, this issue of disappearance of minutes was a matter of contention because the evidence appears to suggest that there were two versions of minutes; a situation that led to a police investigation).
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Counsel submitted at length on the interdiction of Takan who had been Clerk to the Authority. He particularly pointed out that failure to produce Takan as a witness had the inference of showing that his evidence was unfavourable to the Petitioners’ case.
Hon. Sseggona cited the Fourth Schedule of the KCC Act which provides that the ED shall cause minutes to be recorded and kept in an approved form. He argued that notwithstanding the resolution that the Respondent could sign from his office, there was no evidence that the minutes were ever submitted to the Lord Mayor’s office for signature. He also argued that in view of the circumstances around the minutes, investigations, the Police, the DPP and the absence of Takan, it was not safe for the Lord Mayor to sign the minutes outside the Authority.
In Hon. Sseggona’s view, the Lord Mayor had no intention to frustrate the Authority and his action was limited to preparing the Order Paper, which he did.
In Hon. Sseggona’s view, the duty and function of the Lord Mayor, regarding meetings, was to issue notices. Relying on
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Exhibit R31 (c), he argued that the ED had called the meetings illegal for the reason that they had not been called in a manner she prescribed. He further added that this was clearly faulty advice which had misled councillors to boycott meetings. He relied on the evidence of TW1 Peter Mulira who stated that, in his view, the opinion of the AG was binding. Hon. Sseggona made the argument that technical advice was not binding on the Lord Mayor.
Hon. Sseggona also contended the Lord Mayor was not incompetent because he was able to reconcile the councillors in a meeting at Ivy’s Hotel. As a result of this, the Respondent had issued several notices for ordinary meetings. Hon. Sseggona went on to argue that the councillors could then not turn around and question why he called several meetings when they had been jointly agreed upon. He referred to Exhibits R33 (1), (2), (3) and R 33 (5) and R 34 (1) and (2). It was his submission that there were several resumed meetings subsequently. He further argued that it was not true that resumed meetings are the same meeting. He explained the purpose of these meetings had been to discuss business of the Authority. Hon. Sseggona further contended that it was wrong to visit all failure on the Lord Mayor.
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According to Hon. Sseggona, it was no longer possible to hold ordinary meetings without the Business Committee whose duty it was to set the agenda. He pointed out that the Business Committee is comprised of chairpersons of Standing Committees.
Hon. Sseggona stated that not every misapplication of the law constitutes abuse of office or incompetence. He further stated that the question of whether the Lord Mayor ever made a mistake was prejudicial but that, even if he had made any mistake, it did not amount to abuse of office, incompetence and misconduct because the evidence showed that a series of special and ordinary meetings had been called by the Lord Mayor.
Hon. Sseggona submitted that there were no valid reports up to 4th July 2012 and that they had not been adopted because the committees were non-existent. He relied on Exhibit P9 to show that the Lord Mayor called for the Committee Reports and cited the evidence of PW20 Kamoga to argue that the reports and minutes were not submitted. He further contended that the Lord Mayor could not be blamed for the boycott of meetings by councillors. See Exhibit P4. He explained that PW2 Adam Kyazze had submitted a Petition and walked out. He added that Exhibit
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R59, which was authored by the ED, was another of the advisory letters giving legal guidance on Authority meetings and submission of committee reports. Counsel argued that his client was just as frustrated with the breakdown of affairs at City Hall and had, as a result, petitioned Parliament. In the end, Hon. Sseggona adopted the opinion of the AG on the councillors Petition before the Tribunal in its entirety.
Finding on the complaint of failure to sign minutes
The Tribunal finds that the evidence on record shows that the minutes of the Authority had been considered and approved by the Authority. The Authority expressly considered the matter of signing the minutes and passed a resolution authorizing the Lord Mayor to sign them in the presence of two councillors. The Lord Mayor offered a litany of excuses for not signing the minutes. He went to great length to explain how clerks were withdrawn and how minutes had to be corrected before he signed. He added that, in any event, the minutes were not brought to him for signature.
The Tribunal finds none of the Respondent’s reasons to be tenable. Minutes of meetings that were exhibited show that
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even when a resolution to treat minutes as a true copy was adopted, the minutes were not signed. Even when, according to the Respondent, the councillors delegated authority to allow the Respondent sign minutes in his office, they were not signed. Nothing explains the failure of the Respondent to sign and validate the minutes of the Authority other than sheer incompetence on his part. The notices for meetings constantly had no agenda for consideration, confirmation and signing minutes of the Authority and when it was there, the item of confirmation of minutes was omitted except on two occasions. There can be no justification for this especially since the Respondent never originated any correspondence about the alleged absence of authority clerks or absence of minutes. Even when the matter was raised in an Authority meeting by, among others, PW2 Adam Kyazze, the Respondent did not accord the signing of minutes the importance the law accords it under Item 3 para. (2) of the Fourth Schedule of the KCC Act. The Auditor General in his report tendered as Exhibit P44 (3) raised the matter of unsigned minutes as a query and advised the authority to expeditiously handle the matter. This was not done.
The Tribunal notes with great concern the effects of the failure to sign Authority minutes. The effect is not limited to failure of the Authority to have any binding record but also
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to the situation where some programmes of the Authority, designed to deliver services to the citizens of Kampala, could not be implemented. Unsigned minutes are therefore a matter of grave importance. The Tribunal therefore finds that a prima facie case has been made out to show that the Lord Mayor was incompetent when he failed to sign Authority minutes with the result that there is no binding record of the Authority.
The Third Particular under the ground of Incompetence
In the third particular on incompetence, the councillors complained against the Lord Mayor’s failure to accord due importance to Standing Committees and to renew their mandate.
The essence of this complaint had been pleaded as the fourth particular under the ground of Abuse of Office and as the fifth particular under the ground of Incompetence. Although the above particulars were presented under different heads and grounds, the Tribunal found these two complaints to be related. Consequently, it chose to deal with them together under the ground of incompetence.
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For ease of reference, under the ground of Abuse of office by the Respondent, the fourth particular was framed as follows:
“That the Lord Mayor failed to recognise and accord importance to the standing committees of the Authority as provided for under the KCC Act 2010 on the basis that he since he no input in their deliberations there was no need for them to present their reports. Committee reports were thus been brought before a fully constituted Authority meeting.
Under the ground of incompetence, the councillors in their fifth particular also complained that: “as the Head of the Authority, the Lord Mayor did not show any concern for the standing committees so much so that even after their mandate expired the Lord Mayor did not make any efforts to have them reconstituted .”
All the 19 councillors led by Bruhan Byaruhanga Mugisha accused the Lord Mayor of failing to accord importance to the Standing Committees and to renew their mandate by convening a meeting to conduct elections of committee chairpersons and members.
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The Petitioners’ evidence and that of the non-Petitioners who testified in support of the petition is similar. PW1 Bruhan Byaruhanga Mugisha stated that under s16 (3) (a) – (f) and s16 (8) of the KCC Act, the functions and one-year tenure of Standing Committees are provided for as well as their renewal. He further stated that these committees have the core function of overseeing the performance of directorates and the presentation of reports to the Authority on a quarterly and annual basis. It was his testimony that the mandate of these committees had expired in June 2012.
He further testified that efforts by councillors to petition the Respondent about this matter as well as directives of the line Ministers on the same had not been met with cooperation. He tendered in Exhibit P2 (3).
In cross-examination, Bruhan Byaruhanga stated that he served on the Education and Social Services Committee between 24th June 2011 and 24th June 2012. He added that there was no requirement for committee reports to be signed and that in any case this did not render the reports ineffectual. When questioned on Exhibit R17, a letter dated 14th July authored on the ED’s headed paper, he denied holding a title of chairperson of chairpersons. He pointed out that he signed the letter on behalf of chairpersons of Standing Committees. He further testified that the ED
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interacted with Authority members through written letters. He admitted that the ED interacted with Standing Committees but denied that this compromised the committees’ oversight role. He further admitted that they had complained about absence of technical officers in Authority meetings. He agreed that he had attended the Authority meeting of 23rd October 2012 referred to in Exhibits P9 and 10(19). He further agreed that in that meeting minutes had not been brought because the Clerk was withdrawn.
PW2 Adam Kassim Kyazze explained that the absence of Standing Committees created an oversight vacuum and denied the councillors the right to oversee work done by management. PW3 Joyce Ondoga Achan testified that committee recommendations were supposed to be brought to the Authority meeting called by the Respondent in order to be adopted as resolutions and that the 10 Standing Committees should have been in operation. PW3, having been the chairperson of the Revenue Collection Standing Committee, explained how the most contentious levy, the taxi fees, was arrived at in a meeting of all stakeholders from KCCA, DACCA11 and UTODA. She further explained that a joint committee report had been prepared for
11 DACCA – Drivers and Central Conductors Association
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approval but that because the Respondent never called an Authority meeting, management went ahead to implement the Report. She testified that because the Authority did not formally adopt the report, the Authority lost a case on 10th April 2013 and as a result forfeited billions of shillings in uncollected revenue in April and May 2013. She added that the respondent mobilized taxi operators to pay only UGX 70,000 as opposed to UGX 120,000 which she said was prejudicial to the interests of KCCA. PW5 and PW6 were of this same view.
PW4 Godfrey Asiimwe stated that Standing Committee reports were submitted under Rule 73 of the Standard Rules of Procedure of Local Governments in Uganda which had been adopted by the Authority. PW5 Apollo Mugume stated that committee reports had not been submitted to the Authority for the last two years. PW8 Adam Kibuuka testified that the failure to submit Standing Committee reports had created a backlog of committee reports since no single report of any committee had been adopted.
Although her testimony in chief did not differ from all the other witnesses, in cross-examination PW10 Zahra Maala Luyirika admitted receipt of a letter date 26th September 2011, from the Respondent, which required her as
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chairperson of the committee of Public Health and Environment to expedite and forward committee reports. She stated that the said reports were supposed to be prepared by clerks. Similarly, PW 17 Hamidah Namukasa denied that the committee members had been paid allowances adding that they were willing to work even without pay. She stated that there was no requirement to sign committee minutes but that what they signed was the attendance register. She further added that it was the legal people (sic) who brought the directorate reports to the committees and that committee members did not participate in preparation of the directorate reports.
PW11 Angella Kigonya testified that the Respondent had not taken any initiative to have the Standing Committees renewed while PW12 Hawa Ndege explained that committees would do most of the work of the Authority. PW13 Abubaker Serwamba insisted that by failing to re-constitute these committees, the Respondent had become a stumbling block to the development of the Authority. In cross-examination, he acknowledged that, in his capacity as the chairman of the committee on Administration and Human Resource Management, they had had discussions with technical members in the discharge of their work. PW14 Bernard Luyiga wondered why the Respondent had refused to heed advice from the ED and the directives from two Ministers to,
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among other things, constitute Standing Committees necessary for the efficient running of the Authority.
PW16 Alfred Ntambazi stated that he felt disenfranchised as a committee chairman because he had been denied an opportunity to articulate issues and submit reports from his now defunct, Physical Planning Committee.
PW18 Daudi Lwanga, a member of the internal Audit Committee, explained that as a result of failure to re-constitute Standing Committees, all issues in their committee were sabotaged. PW19 Emmy Babirye observed that the Respondent did not even call a single meeting to consider and approve committee reports and resolutions after 24th June 2011 until they expired on 24th June 2012. She said that committee resolutions on matters of job stimulus by the Gender, Community Services and Production Committee, of which she was the chairperson, had been prematurely resisted by the Respondent in his letter dated 13th June 2013.
The technical witnesses PW20 Reuben Kamoga and PW21 Mrs. Jennifer Semakula Musisi (the ED) also gave extensive oral and documentary evidence before the Tribunal
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regarding this matter. PW 20 Reuben Kamoga testified that he was a clerk to the Authority. He further testified that the ordinary business of the Authority and the directorates depended on the existence of the Standing Committees. He informed the Tribunal that the agenda of 24th June 2011 had been prepared without an item of the election of Standing Committees. He added that this special item was moved and passed on the floor. He testified that the Lord Mayor issued schedules for committee meetings of September 2011 and January 2012 whereon the Lord Mayor appended his signature. See Exhibit P22 (1) and (2)
PW20 told the Tribunal that on 19th October 2011, during the ordinary meeting, Standing Committee reports had not been adopted. He stated that on 13th June 012 an ordinary meeting had been called where an item on the agenda included presentation and consideration of committee reports. However, he further stated, the reports were never presented for adoption. He also added that the meeting on 13th June 2012 was adjourned to 18th June 2012, 20th June 2012 and later to the 22nd June 2012. He further added that the committee reports were however never discussed and adopted by the Authority.
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In cross-examination, Reuben Kamoga stated that there were five Standing Committees. When referred to the meeting in Exhibit P9 he admitted that management never presented their reports. He further admitted that he had never been requested by the Respondent to present minutes for signing.
PW21, the ED testified that the work and activities of each of the directorates is overseen by a Standing Committee which is constituted by the duly-elected members of the Authority. She further testified that the tenure of a Standing Committee of the Authority is one year according to s16 (8) of the KCC Act. She explained that in accordance with the requirements of s16 of the KCC Act, each of the directorates prepares their respective quarterly performance reports for submission to the Standing Committees through the Clerk to the Authority.
The ED added that Standing Committees had been constituted in the Authority meeting convened and presided over by the Lord Mayor on 24th June 2011 but that their statutory tenure had since lapsed. She further added that under the KCC Act, the technical team interacts with the Authority through the Standing Committees who have the responsibility to present the reports of the directorates to
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the Authority. She testified that during financial year 2011/2012 when the Standing Committees were duly constituted, the directorates prepared their reports which were discussed and subsequently integrated in the committee reports. Unfortunately, no meetings were convened by the Lord Mayor for these reports to be put on the floor of the Authority for consideration.
The ED testified that she knew that the councillors petitioned the Lord Mayor to have the reports of the Standing Committees placed on the floor of the Authority for consideration but that this was not done. She further testified that the mandate of the Standing Committees had expired on or about 24th June 2012. She stated that for the whole of financial year, 2012/2013, no Standing Committees of the Authority were constituted at all. In her testimony, she pointed out that each of the directorates dutifully complied with the statutory obligation to compile a quarterly performance report detailing activities carried out by them during the reporting period. The ED explained that quarterly reports are submitted to the Standing Committees under s16 (3) (c) of the KCC Act. She further explained that it is a function of the said committees to make reports to the Authority on a quarterly and annual basis. The reporting mechanism failed because the Authority never sat even once to consider a committee report and later due to the failure
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to constitute Standing Committees. See Exhibit P13 and P31 (1), (2), (3).
In cross-examination, the ED admitted that Standing Committees had been approved in a special meeting. She stated that the election of committees was a routine matter normally handled in ordinary Authority meetings. She testified that she had presided over the election and that it was legal for her to do so. She further stated that the committees were legal but had only been constituted in a special meeting because it was an emergency. She added that the Standing Committees had signed minutes but that committee reports were not signed. The ED further added that the Respondent had not instructed committee chairpersons not to sign committee reports. See Exhibits 8, 9, 13 and P16 (2).
In his defence, the Respondent stated that he disagreed with the ED over the role of Standing Committees. The Respondent further stated that under s11 (1) (e) of the KCC Act, he was the “nerve centre” of the Authority on policy matters. He added that under Regulation 7 of the Local Government (Financial and Accounting regulations), policy formulation was his role. He stated that the ED had over-stepped her role when she interacted with the committees
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without his knowledge. See Exhibits R17, R17 (a) and R17 (b) and Exhibit P26.
The Respondent stated that the core function of Standing Committees was to oversee the directorates. He further stated that these committees were meant to check excesses of management but that these committees had become integrated into management and that the ED drew their terms of reference. He added that even the Business Committee meetings meant to workout logistic matters like schedules were often not attended by the ED. See Exhibit R18.
The Respondent cited one instance in which the Business Committee meeting requested the City Advocate for a copy of the budget; he stated that it had not been availed. He added that as a result, the meeting had not resolved the problem of giving guidance on facilitation of Standing Committees (sic).
In cross-examination, the Respondent insisted that Standing Committees had no power to make policy but admitted he could not sit on a Standing Committee. He agreed that the Authority cannot properly operate without
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Standing Committees but stated that it was wrong to say that the directorates present plans to the committees. He added that reports from the committees go to the Authority and that these reports are supposed to be quarterly. He further added that sometimes the technical team was needed for clarification.
When questioned about letters regarding minutes and reports of Standing Committees Exhibited as R40 (1) – (2), the Respondent stated that reports are supposed to be made to him but unfortunately, the committees had not complied with this requirement. He admitted that he did not have a monopoly over policy making adding that, under the Act, his office liaised with the ED’s office. The Respondent further admitted that he could not work without Standing Committees. He testified that Exhibits P31 (1), (2), and (3) were memos on quarterly report but insisted that he did not know about them. When referred to Exhibit P26, the Respondent testified that the mandate of Standing Committees had lapsed on 24th June 2012. He insisted that it was not necessary to place the item of Standing Committees on the order paper developed in the Business Committee meeting of 12th June 2012 because they were busy with the budget. He said that adjourning the meeting of 25th June 2013 was meant to deal with the budget.
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The Respondent admitted that the agenda for the meeting of 13th June 2013 Exhibit P8 did not include Standing Committees. He added that by 13th June 2012 the committees were still valid and insisted that he had taken steps to renew the Standing Committees’ mandate thereafter. He further stated that the Business Committee could not do its work because Standing Committees were not working. He denied that he was incompetent and that he had bogged down the Authority. See Exhibit R25. He added that the levy of Uganda Shillings 120,000 recommended by the joint Internal Revenue and Audit Committee had since been declared illegal by Court.
In defence of the Respondent RW5 Sulaiman Kidandali, the Deputy Lord Mayor, stated that committees like the Audit and the Internal Revenue Committees were fused with directorates instead of overseeing them. He further stated that Standing Committees were the “kitchen” of the Authority. He added that the Authority submits business that it initiates or has not exhausted to Standing Committees. RW5 further added that Standing Committees were compromised and did not do their work independently. He further stated that the committees did not make reports. RW5 gave an example of the Public Health Committee which
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was supposed to look at hospitals and make reports but did not do so. He pointed out that committee reports had been produced but had not been discussed in the Authority since they were not signed. He further stated that, in the meeting of 19th October 2011, no Standing Committee reports were adopted because of the contentious issue of the appointment of the Deputy Lord Mayor.
In cross-examination, RW5 admitted that he was a member of the committee on Public Health and Environment. He said that their committee did work, made a report and got sitting allowances. He stated that they submitted reports to the Authority but that their reports were not discussed. RW5 further admitted that there were no Standing Committees, after 24th June 2012, to review bills of ordinance and that the Authority could not pass bills without them.
RW5 added that the authority had never had a meeting to sanction the Uganda Shillings 120,000 taxi levy and that he only saw it in a press statement. RW5 also stated that he was not aware of the meeting between UTODA, DACCA and the joint Internal Revenue and Audit Committee but that he had asked the committee to explain the press statement in an informal meeting in the chambers but added that they
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had not done so. He pointed out that it was wrong to review only the taxi element and that the Authority should have reviewed the entire public transport component instead.
RW9 Mayambala the chairman of DACCA, an association of taxi drivers testified in support of the respondent. He stated that they (DACCA) had complained about the taxi Levy of Uganda Shillings 120,000. He further stated that, under UTODA, they had paid inter alia UGX 4,500 per day and a sticker fee of Uganda Shillings 20,000 per month. He stated that the rate of Uganda Shillings 120,000 had been passed, not by the Authority, but by the joint Revenue and Internal Audit Committee which had been appointed in the interim with a disproportionate number of UTODA members. He further stated that this committee commenced collection of the taxi levy on 12th March 2012 and set up road blocks, impounded vehicles and arrested drivers for non-payment of the taxi levy of February and March, 2012. RW9 pointed out that Court had subsequently declared the fee illegal and that he supported the bill of ordinance Exhibit R69.
In cross-examination, RW9 stated that he had proposed a monthly fee of Uganda Shillings 100,000 provided DACCA retained Uganda Shillings 40,000 to cater for members. He agreed that KCCA implemented DACCA’s proposal for the monthly fee. He also stated that apart from the monthly fee,
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DACCA had also made proposals for daily fees but denied that this made them similar to UTODA. RW9 further stated that he had learnt of the Uganda Shillings 120,000 levy, for the first time, over the radio, from the KCCA spokesperson Peter Kaujju. He added that KCCA had taken over the management of the parks on 31st January 2012. He denied attending the meeting of the joint Committee of Internal Revenue and Audit in spite of the fact that he had signed the attendance slip. He stated that the officials who attended that meeting were merely purporting to represent DACCA and had ceased to be members by 6th February 2012.
When cross-examined further, he responded that he could not remember a number of things including executive members who attended meetings or their numbers. He also denied knowledge of the meeting of the DACCA Executive Committee on 14th February 2012, Exhibit P.73 and 18th February 2012, Exhibit P.74. He stated that the drivers had refused to work with UTODA but insisted that he never attended any meeting with KCCA and that there were no DACCA representatives on the interim Committee. However, he admitted signing a letter about the joint committee with UTODA and DACCA’s resolution to withdraw its members from the joint committee.
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Mr. Mayambala agreed that he sat in a meeting chaired by Mayor Kalumba, the Divisional Mayor of Nakawa, on the 14th February 2012, about a merger between UTODA and DACCA, Exhibit P73. He further agreed that Luwagga Abbey, Sematimba Yasin were still members of DACCA by 6th February 2012. He admitted signing the letter dated 5th March 2012 and attending a joint committee meeting once.
He further admitted that he did not know why the taxi levy was illegal until he had gone to DACCA Lawyers. He agreed that the UTODA fees, including daily, sticker, medical and book fees amounted to Uganda Shillings 215,000 exclusive of the variable mileage fee. He further agreed that KCCA levied a single official taxi levy payable in banks. On re-examination, RW9 stated that Uganda Shillings 40,000 was a lot of money which could buy buses for DACCA.
Mr. Kiryowa Kiwanuka, the Counsel for the Petitioners invited the Tribunal to rely on the evidence of Abubaker Serwamba who had testified that it was a practice that reports were not signed until they had been debated in the Authority meeting. Counsel contended that there was no law that stated that the reports could not be presented to the Authority until signed. He further relied on the evidence of Bruhan Byaruhanga who like Councillor Serwamba
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testified that there were no regulations that required chairpersons of Standing Committees to sign the reports. This was unlike minutes which by law had to be signed. Counsel further added that this evidence was not founded on any clear legislation thereby allowing unsigned reports to be debated by the Authority. He added that it was consequently not a requirement of the law for the Authority headed by the Lord Mayor to discuss only signed committee reports.
Mr. Kiwanuka Kiryowa further submitted that the item of committee reports appeared on Exhibits P.14 (5) and (6) and that the Authority had planned to discuss committee work but that this was never so. Counsel underscored the importance of Standing Committee to the efficient running of the Authority. He contended that one wondered what work the Lord Mayor had expected to be done in the absence of adopted Authority reports of Standing Committees. He further submitted that after 19th October 2011 the Lord Mayor did not reinstate the item of Standing Committee reports onto the agenda. Counsel further averred that no other meeting discussed committee reports until 13th June 2012 when the item once gain appeared on the agenda. See Exhibit P14 (22). Counsel furthered submitted that despite the resumed seven sittings of the meeting of
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13th June 2012 committee reports as an item was never discussed.
Counsel for the Petitioners further submitted that the committees expired amidst these many resumed meetings yet the Respondent as the head of the Authority and Chair of Authority meetings did not seek to renew their mandate. Mr. Kiwanuka contended that this was incompetence on the part of the Lord Mayor.
Mr. Kiwanuka further submitted that in Exhibit P16 the ED had written to the Lord Mayor to constitute Standing Committees but that he had refused. He pointed out that on 29th November 2012 the councillors had requisitioned the Lord Mayor to set up Standing Committees but the latter did not comply. Counsel added that in Exhibit P5 the minister had written a letter to the Lord Mayor instructing him to convene a meeting to constitute Standing Committees but he had not heeded the instructions. Counsel further contended that there was no justifiable reason as to why a leader would fail to arrange a meeting to have committees constituted yet they were important. The Lord Mayor was thereby incompetent and guilty of gross misconduct.
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Mr. Kiwanuka further submitted that all of the above implied either a lack of appreciation of the importance of these committees or the failure to prioritize their importance as mandated by law or deliberately frustrating and failing the appointment of Standing Committees. He pointed out that even after the councillors had petitioned the Respondent to hold a special meeting to constitute the Standing Committees he had failed to do so. He added that guidance from the ED and the Minister in respect to this matter had not been heeded and hence there were no Standing Committees.
On the failure to adopt Standing Committee reports by the Authority, Counsel further contended that whereas the Respondent had issued schedules for committee meetings of September 2011 and January 2012 whereon he appended his signature, Standing Committee reports were not adopted during the ordinary meeting of 19th October 2011. He pointed out that during the ordinary meeting of 13th June 2012 there had been an item on the agenda for the presentation and consideration of committee minutes but the reports were not considered. He further pointed out that during the resumed meetings of 18th, 20th and 22nd June
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2012, the reports were not called for, presented to or adopted by the Authority.
Hon. Sseggona Medard submitted for the Respondent that the Lord Mayor had issued a schedule for committees to work. He also submitted that Exhibit R 40 (1) was a memo to the clerk by the ED directing the signing of committee reports but that this contradicted Councillor Abubaker Serwamba who had testified that the committees do not sign reports. Hon. Sseggona pointed out that the ED had stated that the reports had to be signed since unsigned reports were of no legal effect. He further pointed out that at the time the reports were still with the ED and no blame could be attributed to the Lord Mayor.
Finding on the failure to accord importance to Standing Committees
The Tribunal finds that the reports of the Committees were not signed by their chairpersons. The Respondent in his defence advanced this as the reason why he did not cause the consideration and adoption of the reports to be put on the
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Order Paper for the Authority meetings. However, the Tribunal finds that it was the duty of the Respondent to cause the committee reports to be presented to the Authority and either adopted or rejected. The issue of lack of signatures could have been discussed in the Authority meetings. There is no evidence in writing or otherwise to prove that the Respondent, as the Political head of the Authority, took leadership in this regard.
The Tribunal further finds that given the centrality of Standing committees to the life of the Authority, the failure to consider committee reports prejudiced, immobilised and fatally injured the Authority rendering it a lame duck. It is not in dispute that Standing Committees are an indispensable component of Authority business because of their peculiar statutory functions under s16 of the KCC Act. Standing Committees play an oversight role over the Directorates of the Authority and hence would have provided the much needed checks and balances. RW5 Sulaiman Kidandala and the Respondent underscored this fact in their evidence. It is our finding that Standing Committees were in existence for one year between 24th June 2011 to 24th June 2012. It is also not in dispute that since 24th June 2012 the said Committees ceased to exist. All witnesses agreed that Standing Committees were supposed to make recommendations in form of reports
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which were forwarded to the Authority for debate and adoption.
There is no evidence on record to remotely suggest that the Respondent assigned any importance to the work of the committees or the tabling and adoption of their reports. On the contrary, the tribunal is convinced that there is sufficient evidence on record to show the Mayor did not make any deliberate efforts to give life to the Standing Committees. There is overwhelming proof that he convened several Authority meetings before and after the expiry of the Standing Committees including the ordinary meeting of 13th June 2012, the resumed meetings of 18th June 2012, 20th June 2012 and 22nd June 2012 but neither the committee reports nor the extension of their mandate were discussed. The special meetings that followed on 13th November 2012 and 29th November 2012, convened by the Respondent, did not address the issue of special meetings. Petitions called for by the Councillors regarding the issue were squarely ignored.
The Tribunal notes that the Standing Committees were constituted in a special meeting of the Authority in the first place although this should not have been
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the case. The constitution of these Standing Committees was ordinary day to day business of the Authority and should have been handled in an ordinary meeting. In spite of the mundane nature of their existence, the Lord Mayor failed and or neglected to reconstitute the Standing Committees whether by special or ordinary meeting.
Consequently, the Tribunal finds that a prima facie case has been made out that the Respondent failed to accord importance to the functions of the Standing Committees and to cause them to be reconstituted after they expired. There is no plausible explanation for this failure other than incompetence on his part.
Misconduct or Misbehaviour
Under this ground of the petition, the councillors accused the Lord Mayor of:
(i) Persistently and constantly labelling Authority Technical Staff and Councillors as corrupt. That he allegedly stated that Councillors had been bribed by the KCCA Executive Director;
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. (ii) Failure to heed technical, legal and administrative advice pertaining to the management of the Authority, contrary to s9(g) of the KCC Act; and
. (iii) Use of abusive, uncivilized and unethical language during Authority meetings and in the media to wit, he referred to Authority members as myopic and the Councillors were further aggrieved that the Lord Mayor thought that the President of the Republic of Uganda equally narrow minded.
For ease of reference, the evaluation of the evidence relating to Particulars (i) and (iii) under this ground of Misconduct or Misbehaviour were handled as one whole.
Councillors; Hawa Ndege, Bernard Luyiga, Bruhan Byaruhanga Mugisha, Godfrey Asiimwe and Sarah Muwayire relied on Exhibits P5, P6, P 21, P27 (1) and (2). They testified through their written statements and oral testimonies that the Lord Mayor was guilty of both Misconduct and Misbehaviour.
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Misbehaviour or Misconduct is a ground for impeachment of the Lord Mayor. If indeed a prima facie case was made out on either Misbehaviour or Misconduct, and indeed any other ground under s.12 of the KCC Act, the Lord Mayor could be removed. Due to the dire consequences such a finding would have on the position of the Lord Mayor it was necessary to accord this case the seriousness it deserved.
In this complaint, the councillors accused the Respondent of politicizing KCCA programmes thereby causing public disorder and frustrating development programmes and service delivery by KCCA. They also accused the Respondent of embarrassing the Authority by use of abusive language, intimidation of councillors, disruption of court proceedings at City Hall, as well as undermining the Authority’s technical wing through the press.
PW1 Byaruhanga testified that around February, 2012, the Respondent, by virtue of his office, had accessed a Management letter from the Auditor General’s office with some audit queries on KCCA for the year 2010/2011. He relied on Exhibit P3. He stated that the Lord Mayor called a press conference in his parlour involving most of the media houses in which he informed them that the KCCA Executive Director was corrupt and that she had misused funds, paid
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hefty salaries to the transitional team and hired incompetent junior staff.
Bruhan Byaruhanga further stated that the Respondent Lord Mayor wilfully invaded City Hall in a manner that culminated into eight suspects and two convicts escaping which he said was in contempt of court. Further still, the witness stated that the Respondent was fond of using abusive language in meetings such as “narrow-minded”.
PW2 Adam Kassim Kyazze and Hope Tumushabe accused the Respondent of politicizing Authority activities.
PW3 Joyce Ondoga Achan stated both in her written and oral evidence that the Respondent intimidated councillors by interrupting their submissions. Her evidence was that the Respondent had politicized each and every activity in KCCA. Like Bruhan had testified earlier, Achan also stated that the Respondent pretended to go out for monitoring KCCA programmes but instead, involved himself in political activities such as “walk to work” and “4GC”. She further testified that at these meetings the Lord Mayor would then
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criticize the very government programmes which he was supposed to implement.
PW8 Adam Kibuuka stated that the Respondent had insulted councillors and threatened to go constituency by constituency to inform their electorates that the councillors are fighting him and that they should be impeached or recalled.
PW10 Zahrah Maala Luyirika testified that the Respondent and his aide, Deo Mbabazi, “attacked and abused the magistrate at City Hall Court and caused the prisoners to escape”. She further testified that the Respondent mobilized hooligans who normally sat in the gallery to shout down and sometimes beat councillors. She gave the example of Councillor Margaret Tumwesigye who was beaten by the Respondent’s brother a one Swaibu who was among the hooligans. Tumwesigye confirmed this in her testimony. This position was also corroborated by the evidence of PW12 Hawa Ndege who also testified that, at one time, one of the hooligans beat up a councillor called Margaret Tumwesigye and even locked her in the toilet. She also contended that indeed, the Respondent was fond of using abusive language during authority meetings. She stated that she was personally dubbed “narrow-minded” by the Respondent.
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PW13 Abubaker Serwamba agreed with Hawa’s testimony stating that the Respondent never respected anybody in the Authority. He further stated that the invasion of City Hall Court by the Respondent, where eight suspects and two convicts, escaped amounted to Misconduct and Misbehaviour.
Lastly, PW21 Jennifer Musisi stated that the Respondent politicizes even matters such as staff recruitment. She stated in her evidence that, sometimes, the Respondent had acted to the outright embarrassment and against the interest of the Authority such as when he stormed the City Hall Magistrates Court while it was in session and disrupted proceedings.
She testified that, in December 2012, the Respondent petitioned Parliament alleging falsehoods against her and her management team such as mismanagement of public funds, irregular payment and wrongful award of contracts which Parliament concluded had no merit for lack of evidence.
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She further testified that the Respondent opposed the Authority’s reconstruction and redevelopment of Wandegeya market and actually filed proceedings in court to stop the project which again were dismissed for lack of evidence. It was her testimony that the Respondent also opposed the reconstruction of the New Taxi Park, an Authority initiative. She further stated that on another occasion, the Respondent on the basis of an unsigned Management letter Exhibit P3 from the office of the Auditor General called an impromptu press conference where the Respondent falsely and maliciously accused the ED of financial impropriety and self– enrichment out of public funds.
In his defence, the Respondent Lord Mayor, referring to Exhibit P3, the Management letter, testified that he had always been denied access to information including financial information and records. The Lord Mayor did not deny that he took Exhibit P3 to Parliament where it was handled by the Local Government Committee. The Lord Mayor further stated that the document was not confidential and that his comments were only based on its contents. He further stated that as one accountable to his electorate, he took the document to Parliament and also to the Authority.
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The Respondent, referred to the questionable qualifications of some of the transitional team – such as Julius Kabugo – who had been employees of the Uganda Revenue Authority and Kampala Capital City Authority at the same time, and took issue with both the individuals and their qualifications. The Lord Mayor raised concern about lack of competence of KCCA staff, illegal payment of overtime allowances and double payments. The Respondent asserted that his statements were generally true save the accusations, about storming City Hall Court, which he insisted were false.
About the storming of the City Hall court, the Lord Mayor stated, in his defence, that the allegation was a rumour. His version of the events was that he was in his office when “court users spilled over to the Lord Mayor’s parlour”. He stated that he found the floor strewn with merchandise, tomatoes and motorcycles. He further stated that he suspected people were soliciting bribes and that he had not been consulted about the use of the facility by the Magistrate. His evidence was that he told his assistant to handle the situation. That, he claimed, was all he knew about the events at the City Hall Court.
Concerning abusive language, the Lord Mayor stated that the allegations were frivolous, vexatious, lackadaisical,
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malicious, politically-engineered and intended to malign his person. He added that the record does not show that he insulted anyone.
In cross-examination, the Lord Mayor stated that he knew Exhibit P3 was a Management letter which raised audit queries. He admitted that Exhibit P44 (3), the Audit Report, did not refer to the audit query and that indeed the issues in Exhibit P3 did not appear in the final Audit Report. The Respondent also admitted that he did not write to the Auditor General to seek clarification over matters raised in Exhibit P3.
RW4 Her Worship Joyce Sebugwawo, who attended Authority meetings as an ex-officio member, corroborated this position when she denied that the Respondent used abusive language. Instead, she stated, it was councillors like Bernard Luyiga who were very noisy in Authority meetings.
Hon. Medard Seggoona submitted on behalf of the Respondent that all the minutes of the Authority had been presented and that these constituted the primary evidence from Authority meetings. He further submitted that
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nowhere in those minutes did the alleged statements appear. Hon. Sseggona averred that, on the face of those minutes, the Respondent did not refer to anybody as myopic. About the matter of the Respondent’s moodiness he stated, “…I do not know what kind of microscopic examination this person would use to determine the mood.”
Hon. Sseggona argued that the Lord Mayor did not abuse the President by referring to him as narrow-minded. He added that there was no evidence to show that the President was offended or that he had complained.
Finding on the use of abusive words by the Respondent
The Tribunal finds the evidence against the Respondent in respect of use of abusive words weak and open to many interpretations. It is the Tribunal’s view that the Respondent’s use of allegedly abusive words such as “narrow-minded”, as stated by the Petitioners is not supported by evidence.
Similarly, the Tribunal having carefully considered evidence adduced in support of the allegation that the Lord Mayor
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stormed City Hall fell short of the standard of proof required. Whilst it is not in dispute that on the material day a fracas took place near the City Hall Magistrates’ Court, the incident was not properly investigated by the relevant State agencies. Indeed, the Tribunal notes with displeasure that the Agency responsible for prosecution in this country did not give investigation into the fracas the attention it deserved he importance it deserved. More should have been done to establish the veracity of the allegations.
Consequently, the Tribunal rules that the Petitioners failed to prove that the Lord Mayor disrupted Court Proceedings and aided Prisoners to escape.
Finding on Misuse of Authority Information
We now turn to the allegation leveled against the Lord Mayor by the councillors, against the Lord Mayor for wilful misuse of information accessed by virtue of his office. The information was contained in a Management Letter prepared by the Auditor General Exhibit P3. The Lord Mayor is alleged to have used the contents of the Management Letter to misinform the public and propagate lies against officers of the Authority. Councillors Bruhan Byaruhanga Mugisha and Godfrey Asiimwe relied on the Management letter of the Auditor General, to support this allegation. According to them, the Respondent was well aware of the import of a Management letter. The Lord Mayor knew that a
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Management Letter was not final but went ahead to call and address a press conference to which he used as a platform to level allegations against officials of the Authority as well as forwarding to Parliament issues raised in the document.
The Respondent disputed these accusations. He referred the Tribunal to pages 28 to 30 of the Management letter to support the assertion that some members of the transitional team were overpaid and lacked requisite skills. PW21 stated that the set up of the KCCA Transitional Team was cleared by the Auditor General in his report Exhibit P44 (3). It is noted that the extract of the press statement was not exhibited in Court.
Equally, the Management letter had raised the issue of staff competence which was also alluded to by the Lord Mayor. There is no doubt that staff competence is a matter of concern that ought to be addressed. For instance, the Management Letter raised a concern about a one Julius Kabugo who was alleged to have held two jobs at the same time, one with URA and another with KCCA. There was no evidence to show that the Authority’s Management responded to the allegations from the Authority’s Management team, even basic issues such as the double employment of an individual in two distinct parastatals.
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Similarly, the Authority leadership did not respond to the claim that Kabugo was not qualified to hold the position of Deputy Director, Treasury Services of the KCCA. The Tribunal did not find evidence to show that the Authority’s leadership made effort to rebut them.
The Tribunal further notes, in Exhibit P3, that five employees on the transitional team, who offered full-time service to KCCA during the transitional period of 1st March 2011 to 30th June 2011, and earned full pay, allowances, continued to earn from the URA payroll until their names were deleted in 2011/2012 financial year. The five officers collectively earned UGX 78,470,000 from KCCA for the above period. A list of the names of the five officers was submitted to the Tribunal and exhibited. One of the officers was Julius Raymond Kabugo who earned UGX 30,264,000 from 17th March 2011 up to 30th June 2011 yet his name was deleted from the URA payroll on 11th September 2011 having been served as a management consultant for 3-4 months. While it is true that these matters were eventually cleared by the Auditor General, it is understandable that in the absence of a contrary explanation, the matters raised concern to the Respondent at the material time. This was aggravated, escalated and worsened by the information gap which was largely due to the Lord Mayor’s poor working relationship and mutual suspicions with PW21- the ED
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Further, the councillors complained that the Lord Mayor upon accessing the Management letter went out to the media and used the information to malign the technical staff and dent the image of KCCA.
The Tribunal finds that whilst the contents of the Management Letter could have raised concerns to the Lord Mayor he ought to have addressed this matter through the proper channels. It was irresponsible of the person of the Lord Mayor to disseminate the contents of the Management letter beyond the confines of the Authority. In his defence, the Lord Mayor admitted that he knew that he was disseminating information from a management letter. Having carefully considered the matters raised above, the Tribunal construes the manner in which the Lord Mayor handled the Management letter as misconduct.
Second Particular of Failure to Heed Advice
The second Particular of Misconduct or Misbehaviour was failure to heed. The councillors alleged that the Lord Mayor failed to heed technical, legal and administrative advice pertaining to the management of the Authority, contrary to s.19 (g) of the KCC Act.
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In proving this Particular, the Tribunal heard the evidence of thirteen witnesses12.
The evidence of the said witnesses was to the effect that the Respondent failed to heed advice from technical staff as well as the Minister. PW1 Bruhan, in particular, stated that the Respondent ought to have taken technical and legal advice from the ED, pertaining to the management of the Authority, in accordance with s19 (g) and s79 of the KCC Act. The evidence of all the other ten 10 witnesses was in much the same terms. The witnesses relied on Exhibits that included letters and memos from the Executive Director, Directives from the Minister, and Opinions from the SG and the AG. All these documents were marked as Exhibits P5, P15, P16 (1, 2), P17, P32 (1, 2), P59 and P60. The witnesses were cross- examined on these issues and their evidence did not vary in material particulars.
12 PW1 Bruhan Byaruhanga Mugisha, PW2 Adam Kassim Kyazze, PW4 Godfrey Asiimwe, PW5 Apollo Mugume, PW6 Hope Tumushabe, PW7 Madina Nsereko, PW9 Sarah Muwayire, PW11 Angella Kigonya, PW 13 Abu Baker Serwamba, PW 15 Margaret Tumwesigye PW16 Alfred Ntambazi, PW17 Hajati Hamidah Namukasa Nansubuga, PW18 Daudi Lwanga, PW18 Emmy Babirye and PW21 Jennifer Musisi.
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PW21 Jennifer Musisi particularly testified and outlined in great length the advice she had offered to the Lord Mayor and the Directives the Minister had given to the Respondent. The advice related to correspondence regarding Authority meetings and submission of reports to the Authority. She also alluded to advice given to the Lord Mayor concerning the re-constitution of Standing Committees and re-election of their members as well as the consideration and approval of Standing Committee minutes and reports.
During cross-examination and re-examination, the ED confirmed that the opinions of the SG and the AG were binding on the Authority. She further confirmed that the opinion of the SG dated 15th February 2011 was received before the opinion of the Attorney General dated 27th July 2012. She also testified that her advice was always given in light of the advice she had received from both the SG and the AG. It was the ED’s testimony that the Lord Mayor did not heed the advice.
In his defence, the Respondent testified that in instances where he thought the advice was lawful, he did not challenge the ED. The Lord Mayor cited the example where the ED advised him concerning reconstitution of Standing
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Committees. He further testified that the implementation of the ED’s advice on Standing Committees required guidance on the matter of “facilitation” of these committees and yet funding was not forthcoming. He referred to an exchange of communication with the ED that was tendered as Exhibits R26 (a) to (c), R29 (a) to (c), R31 (b) to (d) and R44(1) to (3) to show his disagreements with her on matters relating to the interpretation of special meetings, functions of the Directorates, Standing Committees and budgetary matters.
In cross-examination, the Respondent stated that on one occasion, he took the ED’s advice to issue one notice instead of multiple notices calling for ordinary meetings. See Exhibit R34 (1) to (2). The Respondent admitted having received Directives from the Minister including Exhibit P5 dated 4th April 2013 and agreed that he was answerable to the line Minister. Further the Lord Mayor stated that the opinion of SG was advisory and denied defying the line Minister’s Directives. He testified that when he received the Minister’s letter dated 4th April 2013, he called a meeting.
The Lord Mayor stated that the ED never acknowledged him as Head of Authority even in her evidence at the Tribunal. The Lord Mayor stated that he is the President of Kampala. He further stated that his goal in seeking election was to
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become Lord Mayor and Head of the Authority. He acknowledged that the ED was the Legal Advisor to the Authority. He further stated that s5 (4) of the KCC Act was misconstrued by the ED. He explained that the ED misunderstood her roles outlined in s19 of the KCC Act. For instance, he stated, the ED was required to present budgets to the Authority but not to determine priorities. On the other hand, the Lord Mayor asserted that under s11 (e), it was his office that was empowered to determine the Authority’s development strategies as Head of the Authority.
In support of the Respondent, RW5 Sulaiman Kidandala testified that the ED portrayed herself as Head of the Authority by hosting dignitaries. He testified that it was the Respondent’s statutory duty to host foreign dignitaries that by playing that role, the ED had aggravated the tensions between herself and the Lord Mayor. Kidandala further stated that the ED had never acknowledged the Respondent as Head of the Authority. He emphasized the importance of hierarchy in the Authority.
RW5 admitted, in cross-examination, that the Respondent is answerable to the Minister and Central Government. He further testified that the Executive Director is the C.E.O of the Authority.
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In his submissions, Mr. Kiwanuka Kiryowa, counsel for the Petitioners, argued that s11 (2) of the KCC Act requires the Lord Mayor to heed advice. However, despite being given advice, the Lord Mayor did not heed it, an act that prejudiced the Authority. In his submissions, counsel for the Petitioners relied on the evidence of the ED. He submitted that the problems at City Hall were a result of Misconduct on the part of the Lord Mayor. He highlighted some of these problems to include: the absence of Standing Committees, failure to sign minutes, and the unscheduled discussion of the budget.
It was his contention that the problems at the Authority would not have occurred had the Lord Mayor heeded the ED’s advice and the Minister’s Directives. For instance, Mr. Kiwanuka submitted, the Lord Mayor had failed to call a meeting to elect and appoint Standing Committees. He further submitted that under s16 of the KCC Act, Standing Committees were supposed to oversee the work and activities of directorates. It was his contention that the Lord Mayor had also failed to heed advice to convene a meeting to consider committee reports, the establishment of the Physical Planning Committee, and the devolution of duties to the Divisons. He invited the Tribunal to consider Exhibits P17; P32(1) and (2); 37(4) and (5), 50(1) and P56.
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Mr. Kiwanuka further submitted that where advice was given in accordance with the law and the Respondent did not agree with it, the Respondent was to take responsibility if the Authority was prejudiced. The Lord Mayor was therefore responsible for the consequences from the failure of Directorates to submit quarterly reports to Standing Committees, an activity that was not carried out due to the absence of Standing Committees.
In addition, Mr. Kiwanuka submitted that because of the Lord Mayor’s actions, the Authority had failed to perform its duties thereby necessitating the Minister for Kampala to invoke the provisions of s76 of the KCC Act. That section empowers the Minister to issue Directives on policy and general development of Kampala. Some of the Minister’s interventions were: the establishment of a Physical Planning Committee to deliver services to the people; authorization of the levy and the collection of the taxi park monthly charge of Uganda Shillings 120,000 for each car. Mr. Kiwanuka thus invited the Tribunal to find that the Lord Mayor, on these and other occasions, failed to heed technical legal and administrative advice.
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Hon. Medard Ssegona for the Respondent did not submit much, on this complaint, but pointed out that Exhibits R67, R68 and R69 were proof of the manner in which the Lord Mayor handled the matter of the Ministerial Directives.
Finding on failure to heed technical advice and directives
The Tribunal finds that the KCC Act is not clear as to who heads the Authority. Sections 6, 11 and 19 of the KCC Act create a dichotomy in leadership. However, it is clear under the Act that the Respondent is accountable to the Minister for Kampala. The Respondent himself admitted to this as did PW5 Sulaiman Kidandala. It is therefore not clear why Ministerial Directives to the Lord Mayor, such as Exhibit P5, were ignored. While the advice of the technical staff is not necessarily binding on the Lord Mayor, he had a duty to implement Ministerial Directives. The Tribunal finds that a prima facie case was made out that the Lord Mayor failed or refused to implement Ministerial Directives. This was Misconduct on the part of the Lord Mayor.
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In conclusion, the Tribunal distilled all the evidence presented before it and distinguished matters that had been proven from those that had not. Matters that were not proved have been clearly pointed out and the Respondent duly exonerated thereof. Similarly, allegations that were proved were also identified and evaluated against a high standard of proof. Having carefully listened to arguments from both sides and considered all the evidence presented in respect of the grounds of the Petition raised by the Councillors, the Tribunal established that there exists a prima facie case, for the removal of the Lord Mayor from office.
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This section of the report was necessitated by the fact that some of the witnesses, on either side of the Petition, as well as the Tribunal’s own witnesses, invited the Tribunal to consider the broader aspects that affect the running of the Authority. There were also issues that arose, in the evidence, that were of concern to the Tribunal. While these did not affect the analysis of evidence, they were of such grave concern to the Tribunal that they have been enunciated hereunder:
1. The Tribunal adopted its own Rules of Procedure; these were explained to the parties at the pre-Hearing session. During the pre–Hearing, the Respondent’s lawyers committed to working with the Tribunal to achieve a fair, just and expedient result. They also agreed to consult the Tribunal for guidance in the event that they found any of the Tribunal’s Rules of Procedure unfair or unclear or overbearing. That notwithstanding, the Respondent and his lawyers elected to sue the Tribunal and sought to rely on the said rules as evidence to make their case against the Tribunal.
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In our considered view a more expedient resolution could have been achieved by simply writing to the Tribunal or by seeking audience with the Tribunal to address any concerns that the Respondent’s Team had with the Rules. A Tribunal of this nature is “hemmed in” by statutory time restraints that are best managed by avoiding the multiplicity of legal processes.
Having said so, the Tribunal notes that stakes in this matter are high; hence, the Respondent was well within his rights to take whatever lawful course of action he deemed necessary to access and attain justice.
However, the wider issue to consider here arises from the decision of the Court in Miscellaneous Cause 281 of 2013 where the Hon. Mr. Justice Zehurikize stated as follows: ‘On whether the 2nd Respondent was properly joined in this application, I do agree with Counsel for the Applicant that this issue is a matter of controversy in the High Court. There are conflicting decisions as pointed out by Counsel.”
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Indeed although the learned Judge went on to state that he thought it was good practice to join the decision maker with the Attorney General the question remains: is it good practice to sue a judicial body (even if it is a quasi-judicial one) and does this case not set a bad precedent in that regard?
In matters that are of a purely “Administrative nature” it is not uncommon to sue the decision maker whether it be the Local Government or the City Authority or even the Minister. In this case however a Tribunal was a quasi-judicial body which was ad hoc in nature with no legal personality. Should a Tribunal of this nature be sued? We think not.
2. The Minister’s failure and delay to establish or ensure the functionality of the relevant instruments and organs of the Authority is a matter of concern in the running of the Authority. At the time of the investigation, the Metropolitan Physical Planning Authority had not been established while some of the organs of the Authority that had been established were not fully functional.
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3. It is imperative that the functionality of these institutions be considered as a matter of urgency. That these organs have never been established after over two and a half years alone was of grave concern to the Tribunal.
4. The Tribunal found the way the KCC Act was written problematic. This has been the “breeding ground” for the polarization caused by incessant clashes between the Technical personnel and the political players. This is best exemplified by the failure to agree whether the ED or the Lord Mayor is the Head of the Authority.
Ms. Jennifer Musisi testified that this was a matter before the Courts while the Respondent Lord Mayor maintained throughout his testimony that he is the Head of the Authority. This confusion actually arises from a reading of Sections 6, 9, 11, 17, and 19 of the KCC Act. There is need to amend the law so as to make it clear on where the responsibility, accountability and decision making power lies. Presently, the Act creates the ED as one power centre and the Lord Mayor as another. Nonetheless, the Tribunal still maintains the position that the law, in its
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present state, is actionable; its present challenges do not justify the stifling of performance of the leaders’ obligations under the Act.
5. It was also noted by Mr. Peter Mulira, one of the Tribunal’s witnesses, that many of the problems noted and highlighted in this report could have been avoided if there had been Statutory Instruments in place to regulate and govern the performance of certain functions or the operationalization of certain sections of the KCC Act. The Tribunal holds the same view. The Minister should ensure that Statutory Instruments are put in place to give effect to the relevant sections of the KCC Act.
6. In terms of governance and accountability, the central role of politicians in the operations of the Authority came to the fore. Concerns about the role played by politicians was manifested a two-faced bearing. On the one hand, the politicians are mandated to play an oversight role, in the way the Authority is run, such as through the work of Standing Committees and the signing of minutes that give legal and binding effect to the decisions of the Authority. Indeed the Respondent presented
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evidence of some meetings that were boycotted by councillors. This conduct must be condemned. To this extent, the Petitioners were not entirely blameless in their behaviour.
The Tribunal also noted that the Division Mayors seemed to interpret their role as only relating relate to management or oversight over funds. This perspective is worrisome. As TW2 Dr. Ian Clarke, a Division Mayor, testified, the job of Division Mayors ought to be about influence and service delivery.
7. On the other hand, the Tribunal observes that it is important for the Technical Team at the Authority to realize that, under the present legal regime, the political wing was provided to offer “checks and balances” of their work. But the symbiotic relationship between the technical and political wing of the Authority as envisaged in the KCCA Act can only thrive if each side takes firm and deliberate steps to facilitate dialogue and engagement. That is the only way services will be delivered to the end user.
The alternative to the proposition above makes a sad reading. The Tribunal was not satisfied with the
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explanations given for the following litany of shortcomings; why were the reports of the Contracts Committee not published, why were clerks or other technical staff withheld or otherwise recalled from Authority meetings, why were incompetent staff whose names are well known recruited. We believe that these as well as other matters not listed above should urgently be addressed by the Technical Team.
The Tribunal submits that the most significant share of oversight over the Technical Team seems to be vested in Standing Committees whose reports were never debated. This was a missed opportunity for the Authority to hold the Technical Team to a higher standard. Both the technical and political sides of the Authority’s leadership do well in realizing that the Act makes their existence symbiotic.
8.Politicians ought to remember that the Authority administers the city on behalf of the Central Government. As such, an approach where politicians mismanage information (as in the case of publicizing Management letters) from or relating to the City and the Central Government, or do not take an interest in the role of the Auditor General in
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ensuring that there was accountability (but simply condemn the absence of a Public Accounts Committee), is irresponsible.
9. It is equally important to note that while politicians are not legally-bound by the opinions of the SG, bodies like the KCCA are. Politicians would do well in recognizing the fact that all institutions of Government including KCCA are bound by the AG’s and SG’s opinions, which they must adhere to. They would do well in familiarizing themselves with the workings and procedures of Government and public administration.
10. The Tribunal also noted with concern the fact that the ED did not copy some correspondence to the Lord Mayor. The reasons for this were not clear to the Tribunal. In the absence of cogent considerations, it is advisable that this practice be stopped in order to engender some benefit in promoting transparency and removing suspicion. Needless to say, this issue was well-articulated by the Head of Public Service.
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11. The Tribunal was not overly concerned with the legal status of the Kampala District Land Board (KDLB). However, the evidence on record suggests that the manner in which the same was closed down was improper and arbitrary. If photographs brought to the Tribunal were to be believed, it was not clear to the Tribunal why the personnel that executed the task seemed to ignore the fact that the documents that were allegedly taken forcefully were sensitive public documents. Personnel charged with the custody of public information could have handled the situation in a more amicable and formal manner.
12. Under the law, the Authority has the power and duty to devolve some functions to the Divisions. The Tribunal found no evidence of devolution and received complaints from some witnesses regarding the failure of the Authority to devolve functions to the Divisions. Consequently, there is a centralization of power at the Authority and almost no direct responsibilities for which the implementation would rest on the Division Urban Councils. It was clear that these Division Urban Councils have a role to play as was demonstrated in the budgeting process and the rebranding exercise.
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The Tribunal strongly recommends that the duty of the Authority to devolve some function to the Divisions be executed.
13. The Tribunal received divergent views on the role of politicians in running the City including propositions to remove politicians from the Authority. While this certainly raises questions of possible disenfranchisement, there is legitimacy in consideration of the fact that the presence of politicians in the Authority is a position of constitutional dispensation. What is clear to the Tribunal is that the City must be well-run with cohesion between the politicians and technocrats.
Going forward- Election of the Mayor of Kampala Capital City
The Tribunal proposes that the KCC Act be amended to provide for a City Mayor who, although elected by the people, will be inclined less towards politics and more towards service delivery. The discussion on the role of politicians in the city has focused on two major approaches:
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(i) Where the electorate votes the City Mayor and his removal is only by way of a Tribunal such as this one; and
(ii) Where the Central Government takes over the Capital City and runs it without involvement of the electorate. The idea behind this suggestion is to have a City Mayor with pivotal role of oversight with influence whose main goal is service delivery.
The first approach is, to some people (as TW1 Mr. Mulira testified) untenable and should be replaced by the second. However, the second is discredited on the basis that it disenfranchises the voters and people of Kampala in so far as they have a constitutional right to express themselves on the governance of Kampala Capital City.
The Tribunal is mindful of prevailing discourses about adopting a system from one of the major cities in the world such as London, Johannesburg, Washington DC13 or Mexico
13 Voting rights of citizens in the District of Columbia (also known as Washington DC) differ from the rights of citizens in each of the 50 U.S. states. The United States Constitution grants each state voting representation in both houses of the United States Congress. As the U.S. Capital, the District of Columbia is a special federal district, not a state, and therefore does not have voting representation in the Congress. The Constitution grants the Congressexclusive jurisdiction over the Districtin “all cases whatsoever.” In the United States House of Representatives, the District is represented by a delegate who is not allowed to vote on the House floor but can vote on procedural matters and in congressional committees. DC residents have no representation in the United States Senate. As a result of the Twenty-third Amendment to the United States Constitution, adopted in 1961, the District is entitled to three electoral votes in the election of the President of the United States. The District’s lack of voting representation in Congress has been an issue since the Capital’s foundation. Numerous proposals have been introduced to change this situation including legislation and constitutional amendments, returning the District to the state of Maryland and making the District into a new state. All proposals have been met with political or constitutional challenges and there has been no change in the District’s representation in the Congress.
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City14. One of the propositions the Tribunal heard was to consider restoring a system where the City Mayor is for all intents and purposes, a first among equals or a first among aldermen.15 This system is not particularly appealing because it defaults back to a form of “class” system where only a particular section of the population will have the chance to contribute to the running of the city. It is important to note, however, that Uganda has its own peculiarities on the political and governance realm that necessitate an indigenous solution.
The Tribunal proposes a third approach. A hybrid that merges the need for a Lead Politician who is driven by the need for service delivery but whose origins are in the electoral system. Under this approach, the City Mayor would be chosen from among the five mayors of the Division Urban Councils. This system derives its legitimacy from two
a Federal District or distrito federal. It is not new to have Mexico City as the power centre. Centralization and consolidation of power around Mexico City continued throughout the days of the Spanish colonization and even after Mexico came under the Institutional Revolutionary Power, the PRI. As a matter of fact Mexico was for the larger part directly under the Central Government and administered by the President through or a ‘Regente,’ a Regent. It is towards the end of the 20th Century, and after a lineage of hundreds of such ‘gobernadors’, governors or mayors that Mexico saw its first universally-elected Mayor in 1997. In part the earthquake that flattened Mexico in 1985 also brought forth a desire for more democratic representation and new city structures.
Power has always been centralized around Mexico City since the prehistoric days of the Aztecs. Mexico City is also known as
15 The Alderman is an English usage for what is now a city council. The term is still used in Adelaide, in the US cities of Chicago, Michigan and Wisconsin. Councils can still create honorary aldermen, often a reward for long service. This award is used much more often in Northern Ireland than in England or Wales. Northern Ireland councils may additionally designate a quarter of their councillors as aldermen.
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major points: firstly, it would still give way to a City Mayor who was ultimately elected by the people since the five positions are filled by way of election by universal adult suffrage; secondly, from the testimonies of all the Division Mayors, that appeared at the Tribunal, their Division Councils appear to be free from strife. So, it is possible to have a Mayor at the Division level who understands leadership “at the centre”.
There would be a number of options on how this would work as discussed below:
1. Once the Division Mayors and councillors are elected, they would constitute a college that elects a Mayor from among the five Division Mayors. This Mayor would serve as the Chairperson of a board-like structure. This means that the calibre required at the level of Division Mayor would need to be capable of availing five potential candidates for the City Mayor position. Kampala would still end up with a Mayor ultimately elected from among the people’s representatives.
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2. Once the City Mayor is elected, from among the five Division Mayors, as explained above, he or she would relinquish their seat at the Divisional level and remain “above the politics”. The intention of this approach would be to ensure that the Mayor is not drawn into the political fray; this would help them focus on service delivery and the harmonization of the relationship “with the centre”. The Mayor would then be charged with playing an oversight role in respect of the work of the Technical Team.
Upon the Mayor’s departure from his Seat at the Divisional level, the Deputy Mayor at the Division would automatically become the Division Mayor. A Mayor in this case would still be entitled to a five-year term.
It remains important that the role of the City Mayor should be “insulated” from politics and corruption. Moreover it should not be a full-time, careerist job. The Mayor should be an accomplished and respected citizen who should not be inclined to derive a sense of status and undue self-importance from this office.
3. Another possible scenario is where the Mayor is “a leader of a smaller group of representatives” whose
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duty it is to hold the Technical Team, at the Authority, “in check. This small group could, for instance, comprise of a small number (such as two or three) councillors from each Division Urban Councils and the Executive Director as an ex officio member.
In this case, the Mayor is not unlike the Chairperson of a Board of Directors of a large corporation whose role remains “semi-active” even though he or she remains truly responsible for the well-running of the city. The approach proposed emphasizes the quality of managerial experience when considering the Division Mayors from whom a Mayor may be chosen.
A well-thought-through and comprehensive framework constituting any of the above suggestions would need to be put in place to avoid the ambiguities and lacunae present in the current Act. Some points to note in this respect are:
a. It may be imperative to add to the qualifications needed to become Division Mayor, and in turn Mayor. Such persons may need to be subject to a more rigorous set of criteria including requirements such being of high moral integrity and proven managerial qualifications and experience, among
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others. The Tribunal notes that the benefits of a rotational system where the Mayor comes “from within” fosters the nurturing of future leadership talent. However, the stakes in the management of the Capital City are high and necessitate the institution of higher standards for anyone interested in being part of its leadership.
b.Clear criteria on how one becomes Mayor and the necessary timelines of the process must be put in pace. For instance, it may be provided that, if for some reason there is failure among the Division Mayors, or the Electoral College discussed above, to elect a Mayor within thirty (30) days from the election of Division Urban Councils and Mayors, the Central Government would then have the right to choose from among the elected Division Mayors. This protects the interests of the voting population but also ensures that politics does not polarize the choice of a Mayor for the city.
c. There is need to define, more clearly, the roles that the Mayor under this new system would have. If the system of Standing Committees presently provided for in the Act is to be maintained, it should be clear
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enough what role the Mayor plays in respect to their operation and how their (the Standing Committees) constitution fits in the larger management structure of the city.
d. Clearly defined roles of the Mayor should not take away any of the current functions of the Executive Director that are clearly and explicitly stated in the current KCCA Act and which ought to be retained.
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