CRIMEwww.newvision.co.ug

16Sunday VISION, June 28, 2015

A portrait of Bakirirahakye taken in the 1990s

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

‘STOLEN’ LAND FIGHT THAT WENT ON FOR 43 YEARS

C|S|ISUNDAY

Frail, 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 fi 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,

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 offi cer (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

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’.

The minister’s directive also confi ned 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 fi 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 fi 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

Bakirirahakye’s home

CRIMEwww.newvision.co.ug

17Sunday VISION, June 28, 2015

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

COURT SYSTEM CREAKING AT THE SEAMS

CRIME | SUSPENSE | INTRIGUE

OTHE

R VOICES: WHAT 35 FAMILIES SAYrecently, after 23 years abroad, Butagira was shocked to fi 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 court’s 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 fi nal stages. We are about to get the judgment,” Ndibarema says.

Perhaps, Bakirirahakye’s 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 Bamwine’s attention when he asked judicial offi cers to tell him some of the oldest cases in the legal system during an event he presided over in Mbarara in May.

“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.

Although Bamwine could not tell the cause for the delay of Bakirirahakye’s 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 fi 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 Uganda’s court system is ‘a scandal’.

“Many people have been on remand for fi ve years and above and others are entitled to appeals, but their fi les are missing. Who is responsible for that? That is a scandal,” he adds.

Bakirirahakye’s case is among hundreds of matters which have been in country’s 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 fi 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 fi 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 confi ned 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.

ACCORDING to statistics from the judiciary, the number of cases stuck in the country’s 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 offi cers on contract basis to purge the legal system of case backlogs.

According to the proposal, acting judges who will be hired for a two-year contract subject to renewal depending on one’s 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 benefi ts. We need about 20 acting judges and in fi ve years we will not have the case backlog,” Gadenya adds.

The Minister of Justice and

Constitutional Affairs, Kahinda Otafi ire, 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 fi 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.”

MUGUME 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 offi cer 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 Amin’s 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 fi 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.

Bunyagi’s son, Wilson, 50, who was appointed by the 35 families as their chairman, says Baguma and other offi cials from the lands ministry inspected the land under contention

before the title was cancelled. “Some of the offi cials in the land registry testifi ed 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

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