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Mbabazi court award hits Shs21bn: Attorney General’s office looks for ways of scaling back costly damages
The Shs13billion court award granted to lawyer Severino Twinobusingye, known for representing Amama Mbabazi, in 2013 is probably the largest ever given out to an individual. He told The Independent recently that he has never received a single penny of it but he does not mind.
“Court awards do not rot. It has nothing to do with politics. It has to be paid. The longer it stays the better. I will get a handsome interest at the end,” he says.
He says he is not worried because the interest rate of the award keeps shooting up. “If you calculate it at the Bank of Uganda rate, it now stands at Shs21billion. So it is in the interest of government to pay it,” he says.
He explained that although after court ruled, the Attorney General filed an application to review the award downwards, it was too late. It was reportedly filed after three months, according to Twinobusingye.
The case is the most vivid example of the burden of court awards that the government is grappling with. It is also the most cited case since it was revealed that the government is planning, and in some cases already implementing measures to deal with the burden of court awards.
The Deputy Attorney General Mwesigwa Rukutana recently told the Legal and Parliamentary Affairs Committee that government liability in terms of court awards has risen from Shs249billion to Shs680billion in the last four years.
The courts have also faced criticism for the awards, with MPs and other government officials, for example, expressing disquiet with the Constitutional Court for the Twinobusingye ruling.
Twinobusingye was awarded the Shs13bn owing to a petition he filed stopping Parliament from asking ex-Prime Minister Mbabazi, and his cabinet colleagues Sam Kutesa and Hillary Onek to step down. The three were accused of taking bribes to facilitate transactions of oil companies in Uganda.
Some observers say Twinobusingye may never smell the money at all because of his association with the former Prime Minister. Others pin it down to the colossal nature of the award. But that is beside the point.
Cracking the whip
The Attorney General’s office, which has to bear the brunt of suits brought against government in such instances, says it is time to crack the whip on errant officers.
These are mainly accounting officers who cause the government financial loss when they or their departments are sued and the courts award costs and damages to successful petitioners. The AG wants such officers to shoulder the responsibility for the court awards by including the costs in their budgetary allocations.
Rukutana said civil servants, executive directors, commissioners, and other senior ranking government officials who cause government financial loss through their mismanagement could also face dismissal depending on the gravity of the matter.
The Solicitor General Francis Atoke reaffirmed to The Independent that this plan to transfer the costs to ministries, departments and agencies has been underway for close to a year since July 1, 2016 and will depend on circumstances of each case.
He said most cases involve breach of contracts, accidents, and unfair dismissal and explained that although his office usually writes a technical statement of defence to the responsible officer, they usually do not give back proper statements. Atoke says when the government ministries, departments, and other agencies involved take responsibility for the costs awarded; they might start acting more responsibly.
He says the logic is that once they incur losses, it will do away with the impunity with which some accounting officers operate.
“This process will help accounting officers understand the consequences of the actions of being in charge of a government department,” he said.
But the move has come under criticism with some observers saying it will not instil discipline or financial prudence unless it is backed with the threat of dismissal although this might create a vicious cycle of countersuits.
Sam Bitangaro, an MP on the Legal and Parliamentary Affairs Committee told The Independent that the proposal is unfair because under the principle of vicarious liability a principal can be liable for actions of an agent. He said some liabilities are not part of the MDA’s contracts.
But Wilfred Niwagaba, the Shadow Attorney General and MP for Ndorwa East, says the move could work as the MDA heads feel the pinch.
“If they don’t pay their suppliers because they have to pay these costs, it could be a wake-up call,” he said.
He added: “People have clamoured for payments over the years but we don’t seem to have an end in sight because of the lack of seriousness we have in government.”
But another lawyer who did not want to be named says “the issue of court awards is one government will have to deal with forever”.
“There are always like a million pending payments so if you have one, you need to ask yourself why the government should give you priority over others. So if you have, say, a Shs8 billion award, you will get six and do away with the other two to facilitate the transaction.”
He says there is a lot of connivance with the Ministry of Finance since it is the cashier. He added it could be the reason why the noose is being tightened on the ministry as a haven of bribery.
“When you are awarded costs, you make a payment schedule. The money is released in quarters so it’s inevitable that payments come in slowly by slowly.”
As a result, another lawyer whom The Independent spoke to says, the planned move will likely not make any difference. “It is a question of diversifying corruption networks. Even when you are going to get paid, you have to use connections with the Ministry of Finance if you want to get paid before others. It may not work because whatever money is paid out, government gets it from the Consolidated Fund.”
