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Sunday VISION, June 28, 2015

CRIME

www.newvision.co.ug

C|S|I STOLEN LAND

SUNDAY

FIGHT THAT WENT

ON FOR 43 YEARS
F

A portrait of Bakirirahakye taken in the 1990s

rail, disillusioned and bedridden

now, David Bakirirahakye has
been involved in a legal battle for
the last 43 years. Bakirirahakye
accuses 35 families of encroaching on his
land in 1982.
So, when the case came up before
Justice Duncan Gaswaga at Mbarara High
Court in May, the 75-year-old did not
attend the proceedings.
He has been bedridden for almost two
years now. Bakirirahakye has no idea what
transpired in the temple of justice when
his case was brought before a judge for the
rst time in many years.
His lawyer, Frank Butagira, relayed to
him over a phone what had transpired
before Justice Gaswaga adjourned the
matter to September. Bakirirahakye can
hardly remember what he was told.
Bakirirahakye, who now suffers from
memory loss, can barely narrate the
history of the case and the events which
occurred before matter wound up in court.
I really do not want to take you
through the history of the case because I
do not think what I will give you will be an
accurate record. I advise you go to court
for a correct record, he says.
When Bakirirahakye bought the 452
acres of land from Capt. John Busingye in
1982 at sh10,000, his dream was to use the
expansive land to embark on commercial
agriculture.
A few months later, a group from 35
families, including John Ruyaga, the father
of the foreign affairs permanent secretary,

Bakirirahakye is awaiting
the court decision in
September that will define
his fate. Pascal Kwesiga
writes

hilly land covers the Rugyerera, Ruhunga

Central, Ruhunga II and Gaitemba cells.
In 1990, the encroachers were arrested
for trespassing and disobeying the court
order. However, they petitioned the then
state minister for lands, Baguma Isoke, to
stop Bakirirahakye from throwing them off
the land upon their release.
Baguma directed that the families
should stay on the disputed land after
establishing that the land title Busingye
handed to Bakirirahakye after purchasing
the land was fraudulently acquired.

Bakirirahakyes home
James Mugume, descended on the land
in Ruhunga village, Rubaya sub-county in
Mbarara district.
The families claimed ownership of
the land. Although he had a land title
which he obtained from Busingye after
purchasing the land, Bakirirahakye was
shocked to learn from encroachers that
they had lived on it until the late 1970s,
when an army ofcer (Busingye) who
served under president Idi Amin, drove
them off the land at gun point.
The Mbarara Chief Magistrates Court
issued an order directing the encroachers
to vacate the land, but they refused. The

he ministers directive also

conned Bakirirahakye to a
piece of land measuring less
than two hectares on which he
had built a house, while the encroachers
were allowed to access the remaining 452
acres.
My dream was destroyed. I have not
been able to look after my wife and family
as I had planned when I bought this land,
Bakirirahakye says.
He then sued the Attorney General and
the encroachers.
When he led the case in Mbarara High
Court in 1990, Bakirirahakye thought
justice would be served swiftly. It turned
out to be the opposite.
This was a clear cut case. I do not
know why it delayed, but I am told we
have few judges and many cases, he says.
Butagira, one of the rst lawyers
Bakirirahakye engaged in his bid to
reclaim his land, says he last handled the
case in 1992, before he left the country the
same year. When he returned to Uganda

Wilson Bunyagi (in

a yellow T-shirt)
with his parents,
Tereza Kobugyenyi
and Simon Bunyagi
standing on part
of the land claimed
by Bakirirahakye.
The family is part
of 35 households
claiming ownership
of the same land

17

CRIME

www.newvision.co.ug

Sunday VISION, June 28, 2015

They told me there is a case which has
been in our system since the 1980s. I expressed
my disappointment and told them that case
and other old cases in our system were an
embarrassment to the judiciary, Bamwine says.

recently, after 23 years abroad, Butagira was

shocked to nd out that the old man was still in
court over the same matter.
I cannot tell what really happened, but the
truth is that it has been in court for so long. So,
when I returned, this old man re-engaged me,
he says.
Butagira and Grace Ndibarema, the principal
state attorney who is representing the Attorney
General and the 35 families, have both closed
their case and are waiting for the courts ruling
in September.
However, some of the witnesses for the
two parties have also since died. Some of the
heads of the 35 families have died and the
case has been taken up by their children and
grandchildren.
It is one of the oldest cases in our system,
but it has now reached the nal stages. We are
about to get the judgment, Ndibarema says.
Perhaps, Bakirirahakyes case would not
have reached at this stage now, had it not been
for the intervention of the principal judge,
Yorokamu Bamwine.
The matter was brought to Bamwines
attention when he asked judicial ofcers to tell
him some of the oldest cases in the legal system
during an event he presided over in Mbarara
in May.

OTHER

Bakirirahakyes
wife, Grace,
pointing to the
land covering
an entire hill in
the background
which they
accuse 35
families of
grabbing from
them

VOICES: WHAT 35 FAMILIES SAY

UGUME is sympathetic
to Bakirirahakye for his
current health status.
The land was sold to him
by a soldier (Capt. Busingye)
and he (Bakirirahakye) did
not know the army ofcer had
grabbed the land. He is now
weak and many witnesses have
died, he says.
Mugume is optimistic that
the case will soon be disposed
of, since Mbarara now has a
senior resident judge. I had
suggested that the matter
be solved amicably between
the parties but that failed.
The lands ministry found that
Bakirirahakye was given a fake
title and it was cancelled, he
adds.
Simon Bunyagi, 76, says
Capt. Busingye fenced the
entire 183 hectares after
driving all the 35 families
off the land in 1970s during

president Idi Amins regime.

We were on this land since
the 1960s and I have no doubt
Bakirirahakye knew the land he
was buying had encumbrances.
He has lost and we have lost as
well because a big part of the
land has never been cultivated
due to legal issues, he adds.
Bunyagi was part of the
seven people Bakirirahakye
sued in his rst case seeking
to get encroachers off the
land in 1982. Three of the
seven people, John Tibinyeba,
Erifazi Kashugi and Sezaria
Rwankangi have since died.
Bunyagis son, Wilson, 50,
who was appointed by
the 35 families as
their chairman, says
Baguma and other
ofcials from the
lands ministry
inspected the land
under contention

before the title was cancelled.

Some of the ofcials in the
land registry testied for us in
court, he adds.
He says the people now
claiming ownership of the land
have increased because the
children from the 35 families
have independent homes. I
think we are now about 100
families. We are
all waiting for
justice from
court and
we have big
plans for this
land, Simon
says.

Tereza Kobugyenyi
is part of 35
households
accused

lthough Bamwine could not tell the

cause for the delay of Bakirirahakyes
case, he says there are several
factors to account for the delays in
dispensing justice.
Sometimes it is lawyers, the parties involved
and the courts. We are trying to nd a solution
to this and we have cleared many cases, he
says.
Some lawyers blame the delays on judges.
City lawyer, Kamaragi Kabiito, says the delay in
dispensing justice by the Ugandas court system
is a scandal.
Many people have been on remand for
ve years and above and others are entitled
to appeals, but their les are missing. Who is
responsible for that? That is a scandal, he adds.
Bakirirahakyes case is among hundreds of
matters which have been in countrys court
system for many years.
COST
Bakirirahakye cannot remember the number of
lawyers who have handled the matter and the
money he has spent on it so far.
I cannot nd all the payment receipts I was
issued with for the services of the witnesses and
lawyers I have engaged and other payments,
he adds: The nancial impact the case has had
on my family can be estimated from the animals
and property I have sold to cover costs.
Bakirirahakye plans to compute the costs after
the case has been disposed of.
As long as the case is still in court, I will
continue spending money. My children are
living in different places. They did not study
because this problem ruined plans for my
family, Bakirirahakye says.
However, Bakirirahakye, who migrated
from Ruhinda in Mitooma district to Mbarara
in 1980s, because land had been heavily
fragmented in the former, still hopes to be
granted justice.
I will give the land to my children because I
can no longer utilise it, he adds.
His wife, Grace, says their children were not
raised under a peaceful environment.
There can never be peace when your
children cannot visit the neighbours. They
destroyed our fence and took over our land,
she says. The land we have been conned to all
those years is small. You cannot plant crops for
domestic use and sale on this small land. That
is the kind of life we were condemned to and
we do not know when it will come to an end,
Grace adds.

COURT SYSTEM CREAKING AT THE SEAMS

ACCORDING to statistics from the

judiciary, the number of cases stuck
in the countrys court system was
172,000 as of March 2015. Of these,
25,000 are civil matters before the
High Court, 8,500 are capital offences,
4,500 are before the Court of Appeal
while 80 are in the Supreme Court.
This means the number of cases
in the higher courts is 3,8080, less
than a quarter of the cases in the
court system. Most of the cases are in
magistrate courts.
There are 2,485 land cases,
2,543 interim applications and 362
miscellaneous causes in unsettled
land matters in the court system.
The 2014 statistics from the
judiciary show that the average
number of days it takes the courts to
dispose of a criminal matter is 692

days (close to two years). It takes 1,347

days for a land case, 318 for a family
matter and 832 for a civil case. In the
Court of Appeal, a civil case takes an
average number of 1,029 days and
664 for a criminal case.
A case takes an average of 105 days
in the Commercial Court and 609 in
the Anti-Corruption Court. It takes an
average of 573 days for a case to be
disposed of in the central region, 407
in the north, 354 in the west and 755
in the east, according to statistics.
The chief registrar of the courts of
judicature, Paul Gadenya, says ideally,
civil cases should take at least two
years, one year for a criminal case and
six months for petty cases.
WHAT IS BEING DONE?
The Judiciary, Gadenya says, has

pitched a proposal to Government

to hire acting judges from retired
justices, lawyers and judicial ofcers
on contract basis to purge the legal
system of case backlogs.
According to the proposal, acting
judges who will be hired for a twoyear contract subject to renewal
depending on ones performance, will
handle old cases, while the existing
judges handle new cases.
Cases will be allocated to them
and they have to clear the cases for
their contracts to be renewed. It is
cheap because acting judges are
not entitled to pension and terminal
benets. We need about 20 acting
judges and in ve years we will not
have the case backlog, Gadenya
adds.
The Minister of Justice and

Constitutional Affairs, Kahinda

Otaire, backs the proposal: This is
a good method of clearing cases and
Government is considering it.
According to the deputy Chief
Justice, Steven Kavuma, the
Government should increase the
number of High Court judges from 51
to 82, from eight to 11 at the Supreme
Court and from 12 to 32 at the Court
of Appeal to deal with the case
backlogs.
Efforts are also underway to
increase magisterial areas from 39
to 89 as well as raising the number
of grade one magistrates to 250. The
judiciary is also promoting mediation
and plea bargaining as an alternative
dispute resolution mechanism and
small claims procedure.
We also want the Chief Justice to

limit interim applications. For instance

there are more interim applications in
land matters than the real cases. We
have also embarked on a recruitment
drive to ll some of the vacant
positions, Gadenya adds.
Due to limited staff, over a half
of the 46 chief magistrates who
would be running courts upcountry,
are currently serving as registrars
in High Court and heads of High
Court divisions. Others are running
departments in the Supreme Court
and Court of Appeal.
This has a big implication on the
case backlog because these registrars
were removed from courts, Gadenya
says. The chief magistrates in various
parts of the country double as High
Court registrars, this leaves them with
limited time to concentrate in court.

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