Francis Atoke: We did research. I perused through Heritage’s Statement of Claim and my colleagues also did, identifying the problems at hand. I prepared, reviewed and perused through government’s statement of defence. I prepared and reviewed the counter claims; reviewed and perused government’s reply on jurisdiction. I also reviewed Heritage’s rejoinder on jurisdiction and IMF reports. In the tele-conferencing, we would have matrixes that we would go through to see if our documents would conform to our pleadings and also to the documents of the other parties to see whether we would make objections or not. I participated in the video-conference meetings. In those meetings, we had three jurisdictions. We had the Counsel in New York, Counsel in UK and Counsel in Milan who was an expert in arbitration. Mr Chairman, that was the role I played apart from the supervisory role, which I also played both here and in London.
Katuntu: Can you now answer Honourable Turyamuhweza’s question?
Atoke: What is the question?
Fred Turyamuhweza (Rujumbura County): Is there anything out of the ordinary that you did outside your duties as Solicitor General? That is what you should state.
Atoke: Yes, we participated because it was our work and we would not have participated if it was not our work. I don’t remember anytime in London when I went to bed before 3am while doing research.
Katuntu: We cannot judge that because we were not in London. Say this was an exceptional case; say that under ordinary circumstances as Solicitor General, I would do this, but because of the case, I did X, Y Z which literally is outside my terms of reference as SG. That is what we want.
Atoke: I did work beyond the time I was supposed to work. The Standing Orders give us eight hours [a day] to do our work but this work was extra-ordinary and we achieved it. We brought $434m to the coffers of government. It has never happened and this was one of the biggest cases we have ever handled unless someone has information to the contrary. We made a lot of research.
Katuntu: Is there any other case you know of where your officers do not do research?
Atoke: If it is an application for a temporary injunction, you do little research. But if it is an application in an International Tribunal, you have to study all cases to get precedent.
Katuntu: Is it also true that this particular amount of money was awarded to us by Tax Appeals Tribunal?
Atoke: Yes, but that was not final.
Katuntu: Can I have a clear answer to this? This particular amount of money, was it an award by the Uganda Tax Appeals Tribunal?
Atoke: The final award?
Katuntu: Answer the question. Was this an award by the Uganda Tax Appeals Tribunal? Because eventually, we are going to the Tax Appeals Tribunal and we know the history. URA raises an assessment; it is contested by Heritage. They pay the 30 per cent as the law provides and they file their contest in the Tax Appeals Tribunal. When they file their contest, they file the arbitration too and seek a stay of proceedings in the TAT until the Tribunal disposes of the matter. The TAT dismisses that objection. They appeal to the High Court before Lady Justice Bura. She also dismisses the appeal. Eventually the TAT makes the award. That process is all here and we know—the award you are talking about that you brought, you never brought it from London. That award was here. It was given by the TAT. However, in London, they contest what had already been awarded. Let us put all this in context. Make your submission in that context.
Atoke: As a lawyer, a matter is not resolved until the final award is given and the final award was given by the arbitral tribunal.
Katuntu: Did that Tribunal have jurisdiction over the matter in the Tax Appeals Tribunal?
Katuntu: Who gives the final award?
Atoke: Whoever is dissatisfied with the tribunal goes to High Court. But under the PSA, there was also a provision for arbitration.
Katuntu: Let us now proceed with the exceptional things you did.
Atoke: I did a lot of research. Whether it is being disputed, it is a fact we cannot run away from. It was argued by URA in the High Court and in the Tax Appeals Tribunal.
Katuntu: Did Attorney General’s Chambers participate in the Tax Appeals Tribunal?
Atoke: No. I did not, but I participated in the arbitration and if Uganda had not been represented, the proceedings would have been ex-parte and the consequences were going to be dire.
Katuntu: Can you give one reason why Uganda would not be represented when we pay you people to represent us?
Atoke: That is what I did.
Katuntu: That is your job. You are saying I perused, I drafted and so on. What did your lawyers do if the documents were actually drafted by you?
Atoke: We did it jointly.
Katuntu: From what you have submitted, you literally did everything. What did your external lawyers do?
Atoke: Our lawyers were the lead counsel.
Katuntu: But you said you were the lead counsel?
Atoke: The lead counsel of the Government of Uganda
Katuntu: You had two lead counsels?
Atoke: We had our own team.
Katuntu: And the AG Peter Nyombi?
Atoke: You see any work that is done by the SG under the directive of the AG is as good as done by the AG.
Katuntu: You want to put on record that it was Hon Nyombi who was the lead counsel.
Atoke: For purposes of interpretation, yes.
Katuntu: Using many words will not help us. Because you are saying you were the lead counsel when actually you had the AG. So you are claiming a role, which was not yours.
Atoke: Yes, the Attorney General was the Chief.
Katuntu: How much money did the Attorney General take to the external lawyer?
Atoke: Mr Chairman, yesterday, you directed me to come with the details on Tuesday [tomorrow]. So I have not addressed my mind to that.
Katuntu: So you have not computed?
Katuntu: Let the record capture that as of now, the Solicitor General cannot tell us how much the external lawyers were paid.
Moses Kasibante: [Rubaga North MP]: Mr Atoke, in your understanding, did you get the “handshake” (a reference for the President’s offer of the oil cash bonus) for doing your job well or doing extra-ordinary work for the government?
Atoke: The money that I got was in appreciation of what we did; doing the work well and achieving the target.
Kasibante: So you did the work you were supposed to do but very well?
Katuntu: Don’t you think this reward could cause uneasiness amongst your staff who were not rewarded. Because there are many State Attorneys who were involved in very difficult cases if you are talking about civil litigation. There are also many State Attorneys who were involved in very difficult assignments where they have got to work for long hours to achieve targets. But somehow a reward comes and they do not benefit.
Atoke: I think it causes uneasiness.
Katuntu: This has happened and I am looking at many departments including the department of Civil Litigation and the Department of Legal Advisory Services who are perusing through huge contracts, making opinions and so on. Are they so happy that you people handled this particular matter and you walked smiling all the way to the bank?
Atoke: After the reward, I raised it with the Permanent Secretaries. I even discussed it with the Head of Public Service. I said that we should look at a way of rewarding people in all cases.
Katuntu: Let us have the record clear. This one-off payment could have caused uneasiness?
Atoke: No, no.
Fred Turyamuhweza: Mine is a general question. I would like each of the members of the team to answer it. Considering that you are employed by government, you were also facilitated to carry out your mandate and did what you were supposed to do; had the President not rewarded you, would you have felt let down? Would you have complained?
Atoke: Under the Uganda Government Standing Orders, government is supposed to facilitate us to do our work. Government paid us to go there. We did not have any expectations of any reward. We just wanted to win the case, which we did, but when we were given a reward, we accepted it and it was proper.
Andrew Aja (Kabale Municipality): Did you report what you got to the IGG?
Atoke: I have not yet made my declaration. I have up to 31st March to make my submission.
Okello Bony Desales (Kole North MP): I am very sure you have drivers who were running up and down. Why is [it] that your drivers were not beneficiaries?
Atoke: Drivers’ work is not directly related to the arbitration. Their work was general. The drivers would claim allowance but the officers did not claim.
Katuntu: What is your role as Director, Legal Advisory Services, and what role did you play in this case? If there is anything exceptional, please say it?
Christopher Gashirabake (Director Legal Advisory Services): I am the Director of Legal Advisory Services charged with preparation and provision of legal advisory services to the government and related institutions. Drafting and perusal of all contracts by government and other institutions. I report to the Solicitor General. Arbitration is also under my docket and that is how the team in the Directorate of Legal Advisory Services together with other officers in the Ministry came to be on board. From the filing of the case in May 2011, the government team: URA, Energy Ministry and AG’s Chambers, came together to evaluate whether we had firm grounds; studying the claim by Heritage and evaluating whether their claim had sound legal basis and whether we should file a defence or allow it to go as claimed. Mine was quality assurance, you read through, take back to them. Tell them to plug loopholes here, plug loopholes there.
Katuntu: All those memorials were prepared by you people. What was the work of your external lawyers? From the record we have, we paid these people $10m. From what you are submitting, the entire process was done by you. What did we pay for?
Gashirabake: Their role was at international level; to look through our submissions and add or subtract. To ensure that they met international arbitration standards which was no mean work. This was team work.
Katuntu: We have heard about your team effort. We want your individual contribution?
Gashirabake: There was this constant communication between the government team and the external lawyers and I was constantly involved in this. There was comparison of what they had prepared and what we had prepared. They were doing research and we were also doing research. It is not that we were doing research and giving them to present. We were all doing research.
Katuntu: We are going to review what you are saying. I hope we are going to have a conversation with the external lawyers. Proceed.
Gashirabake: All this was extra-ordinary work. Drafting, perusing volumes and volumes of submissions is no mean work. There were also ethical considerations. Because at our level, we could have said that let them have their case.
Katuntu: Did you have that as an option?
Gashirabake: If we were not ethical.
Katuntu: I thought the government employs you and you have that senior position because you are ethical?
Katuntu: This Committee may find it difficult for a senior civil servant to say: “We had an option not to be ethical”.
Gashirabake: I said we maintained our ethical stand.
Katuntu: Did anybody offer any temptation to you?
Gashirabake: No sir.
Katuntu: Maybe the SG should also answer that question. Was there any instance when you were tempted by anybody?
Fred Ruhindi: None tempted me
Francis Mwijukye: (Buhweju County MP): Mr Gashirabake chaired the meeting that categorised. Here was a beneficiary chairing a meeting to categorise beneficiaries. He came out with a criterion that would place him under “core category”. Would you not think that was a conflict of interest?
Gashirabake: But as long as I met the criteria set by the meeting, from A-Z there is no conflict of interest at all.
Byandala: What is bothering me is how core people were left out and people like Allen Kagina, Jennifer Musisi and many others [were included]?
Gashirabake: I am not aware of any participant who qualified to be on this team but was not put on the list of beneficiaries.
Katuntu: Look at the first list generated by the meeting you chaired and look at the last list of beneficiaries. There are two different lists. And the names Hon Byandala is giving, ended up on your last list as core. And on the first list, they were not there?
Gashirabake: The letter by the then AG is 13th April 2015.The meeting that I chaired was 2nd June 2015.
Katuntu: Do you want to tell us that by the time Hon. Ruhindi wrote the letter, you had not discussed the list of beneficiaries?
Gashirabake: If they were ever discussed, I was not in that meeting.
Katuntu: Do you find it contradictory?
Gashirabake: No sir.
Katuntu: Maybe we go to Hon Ruhindi? Can you offer some clarification?
Ruhindi: When I assumed office, anyone who assumes office must get briefs from the officers about what is pending, urgent. And so I got briefs from officers. As a precedent, I had Personal Assistants. Four PAs. One from each division. I was briefed about this matter by Mr Martin Mwabustya. He generated me this letter. Apparently, this letter is very broad. And it does not categorise “ Non-core or core.”
What is your role.. what role did you play?
I am the Director of Legal Advisory Services charged with preparation and provision of legal advisory services to the government and related institutions. Drafting and perusal of all contracts by government and other institutions.
I report to the Solicitor General. Arbitration is also under my docket and that is how the team in the Directorate of Legal Advisory Services together with other officers in the Ministry came to be on board.
From the filing of the case in May 2011, the government team: URA, Energy Ministry and AG’s Chambers, came together to evaluate whether we had firm grounds; studying the claim by Heritage and evaluating whether their claim had sound legal basis and whether we should file a defence or allow it to go as claimed. Mine was quality assurance, you read through, take back to them. Tell them to plug loopholes here, plug loopholes there.
DAILY MONITORSolicitor General defends his Shs200m bounty in the oil cash