{UAH} Legal and political dynamics of the ‘Asian Question’
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Asians while enroute to Mombasa Port for their onward journey to India after then president Idi Amin expelled them in 1972. courtesy photo By Oloka-Onyango
In Summary
After the expulsion of Asians from Uganda in 1972 by the Idi Amin regime, the group lost businesses in the country, although they would regain some after 1986. But Oloka-Onyango explores the various challenges the Asians face and provides tentative answers.
It is believed that Afro (as opposed to Asian)- Ugandans or 'Ugandasians' fall between two extremes—either we are very welcoming and hospitable, or we are very hostile, cruel and xenophobic.
As with all stereotypes, I think that we fall somewhere between the two, although we are much better known for the bad things we have done (the Uganda Martyrs, Idi Amin, and the Anti-homosexuality Bill, for example) than for the good (Uganda Waragi, the Bwola dance, and Jose Chameleon).
The crucial question is, what brings out these extremes? Are these inherent traits that mark out the Ugandan psyche and character or are they aberrant historical accidents?
In my opinion, the way in which a society responds to issues lies as much in the place of the law and the policies we adopt as it does in the manner in which politics influences both. In other words, bad consequences result from the bad choices that governments make, some of which—like the Ugandan Asian expulsion—have been disastrous.
However, it is my contention that the laws and policies adopted by the post-Amin governments—especially the NRM—have done little to resolve the Asian Question. As a matter of fact, that have added calamity to disaster.
Let me start my presentation on law politics and policy with a little story I came across in one of the local dailies. Titled, 'Lawyers Question CMI's Detention of Top Executive,' the article read as follows: 'Lawyers representing the jailed executive secretary of the Departed Asians' Properties Custodian Board (DAPCB) have written to the Minister of Finance, Syda Bbumba, and other government agencies, asking for his release.
The three-page letter by Lt Bernard Tumwesigire's lawyers dated March 11, claims the murder allegations against him represent "absolute witch-hunting at its best." The article led me to slightly change the focus of my research and hence my presentation today should really be titled: "Uganda's Next Financial Scandal after the OPM: A Lament for the DAPCB in the Post-Repossession Era".
My main concerns though, remain the broad issues of law, policy and politics, with particular attention paid to the issues of government accountability and transparency, which have been at the core of the so-called 'Asian Question' in Uganda since 1972.
I would, therefore, pose 10 questions and provide some tentative answers for consideration:
1. What happened to the DAPCB? As a teenager growing up in the aftermath of the 1972 expulsion, our lives were dominated by the Custodian Board, and yet today, we hear nothing of it, even though it is the largest owner of property in the country.
Under the 1972 law through which it was created, the DAPCB was designated as a trustee/caretaker over the expropriated Asian property. The 1982 Expropriated Properties Act (now Cap.87) sought to manage those properties in accordance with sound principles of transparent management and democratic governance.
The DAPCB trusteeship was in respect of two broad categories of people, i.e. the expelled Asians (citizen and non-citizen), and the Afro-Ugandan population. Under the law, a trustee has the obligation to both report and to account for its activities: has this ever been done?
2. My findings illustrate that the DAPCB has been riddled by problems of gross mismanagement, legal shenanigans, and even outright fraud and embezzlement.
3. Evidence for the above is extensive, but goes back to the time the Board was established. In November, 1991, a Select Committee of the National Resistance Council (NRC) chaired by Hon. Nkalubo-Wasswa made the following observations:
(a) The Ministry of Finance has contributed to the very slow process of taking of decisions with regard to the Management of the Custodian Board and to the disposal of the properties, and
(b) The Ministry of Finance has helped to cloud accountability by not demanding and ensuring that efficiency and transparency is maintained by the staff of the Custodian Board.
In view of the above observations, the Committee recommended that the responsibility to supervise, direct and guide the DAPCB, '…be removed from the MOF and transferred to the Ministry of Lands, Housing and Urban Development.'
More than 18 years later, on May 15, 2009, reporting on a Special Audit he conducted, Auditor General John Muwanga highlighted the following major problems with the DAPCB:
(i) Irregular meetings of the Board (in fact for a period of ten years, i.e. 1997 to December, 2008) the Board did not meet at all;
(ii) Throughout this period there has not been any systematic handover of Board documents, property, etc.
(iii) Although provided by S.2 of the Assets of Departed Asians Act, 1973, the DAPCB does not have an Assets Register: "As a consequence, I was unable to verify the properties repossessed (4,063), sold (1,676) and unsold (3,266)";
(iv) Since 1999 no financial statements have been prepared, preventing the AG from carrying out a statutory audit;
(v) Illegal disposal of properties under the influence of 'high ranking government officials.'
(vi) Lack of verification of payments by GoU to several Indian nationals, stateless Indians and Indians of British nationality, and
(vii) Improper property valuations and insider purchases.
Neither the earlier recommendations, nor any of the later ones have ever been implemented. In light of this, and given our concern with the larger picture, the following are additional pertinent questions to be asked:
4. What documentation exists on:
a. The initial number of properties that were the subject of Amin's decrees of 1972 and 1973?
b. What is the different categorization of that property between those which were REPOSSESSED; those which were SOLD, those which were COMPENSATED, and finally (and perhaps most importantly for our discussion today), those which were UNCLAIMED or UNSOLD, as per Section 9 of the EPA.
5. What are the outstanding claims for compensation, i.e. where government sold these properties and former owners returned to claim compensation? With regard to the latter:
a. How much money has been paid out in compensation?
b. To whom was it paid and for what?, and
c. What are the outstanding claims remaining?
6. What is the envisaged place of the sitting Custodian Board tenants (who are in the main black Ugandans), who have an equitable interest in these properties and who are usually tossed around and ignored by the different government interventions, which focus much more on the owners of the property and not those who may be in possession of it?
7. Why have there been moves to privatize DAPCB without either carrying out a comprehensive accounting, archiving and data-basing of its extensive property portfolio or without consideration of the different possible alternatives that can be pursued, and especially given the dismal record of privatization that we have experienced?
In this connection, how come DAPCB properties have been transferred in contravention of an injunction against any sales imposed by the Inspector General of Government (IGG) only a few years ago?
8. In light of the recent process of computerization of the original documentation on registered land and properties by the Ministry of Lands, is there a process in place to especially mark the DAPCB properties?
9. The Asian Question has always been a plural one; in other words, there is more than one class or category of Asian Ugandans.
However, the main focus and concern of all governments (right from the colonial period to Obote 1, Amin, through to Obote 2 and now under Museveni) has always been on those who were privileged—either to dispossess or disenfranchise them, or to further enrich or privilege them. What about those Asians Ugandans who are not privileged? I am thinking specifically of those in the Diaspora who may still have a legal interest in these properties but who have been denied information about or access to them to date, and who have been the victim of both those local Asian Ugandans who have monopolized the process as well as its benefits, together with those government officials who have an interest in retaining obscurity in the matter? [and finally]
10. What roadmap or policy has government put in place with regard to the future of the DAPCB (which was set up by law and has quite clearly failed in its role as trustee)?
These questions must be asked because the post-repossession Asian Question can be summed up as one of an abject lack of transparency and accountability to those to whom the DAPCB was created as trustee, i.e. both Afro and Asio-Ugandans. As we speak, the situation at the Custodian Board is one in which there is an existing contract for an Executive Secretary who's services have not been terminated, but who has been prevented (since his March, 2011 trumped arrest) from accessing the offices of the Board. In other words, there has been an Egyptian-style coup d'etat at the DAPCB, but the 'Morsi' has not been legally removed from office.
Conclusion
The issue of the DAPCB has never been given the appropriate discussion and resolution it deserves and yet it has massive implications for the issue of accountable governance, democratic citizenship and social inclusion. Although a trustee, the operations of the Board have excluded those who are supposed to be the primary beneficiaries of its operations, i.e. the Ugandan citizenry—of all races—as well as those others who suffered on account of the implementation of a policy which was manifestly discriminatory.
Therefore, there is a need as a matter of urgency to:
(i) Immediately harmonise and implement the outstanding recommendations of the various investigations that have been conducted over the years to review the issue, but particularly the 2009 report of the Auditor General;
(ii) Reconcile the various conflicting legal and policy decisions that have been adopted which have prevented a democratic resolution of the issue and which offend the basic principles governing the supremacy of the 1995 Constitution (Art.2), the national interest (Art.8A), the rights of minorities (Art.36), and the right to property (Art.26).
(iii) Provide immediate and transparent accountability for all the relevant affairs of the DAPCB since inception to date, especially concerning the status of the UNSOLD properties which remain in the hands of the Board under a cloud of fraud and misappropriation;
(iv) Bring to account the various technical and political officers who are responsible for the mess that the DAPCB has become, and
(v) Give final resolution to the issue by passing a law which brings this matter to closure.
Of course, while these are issues specific to the DAPCB, they reflect a much wider crisis confronting this country. It is the crisis of institutional collapse and decay; it is the crisis of unbridled corruption and administrative vice by which the current State in Uganda is captured, and finally, it is the crisis of governance that is the hallmark of a failed state. And that is the larger picture.
This is a Commentary at the Asian African Association (AAA) of Uganda Panel Discussion on August 6, 2013
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