The law of the jungle
August 21, 2013 by Rwema IT Webmaster 1 Comment
PRESIDENT KAGAME'S CRUSADE TO CONFISCATE RWANDA'S MAJOR COMMERCIAL CENTER:
Legal opinion
By: Charles Kambanda
The Union Trade Center (UTC) is Rwanda's largest shopping mall. UTC Ltd. Is the sole owner of UTC mall; Tribert Rujugiro Ayabatwa is UTC Ltd. major shareholder. The mall is valued at $20 million (USD); it is the major commercial center in Rwanda. Tribert Rujugiro Ayabatwa was the major single local funder of the guerrilla war that brought Kagame to power. Tribert Rujugiro Ayabatwa was also the major local investor in Rwanda after the 1994 until he fell out with Kagame. The Rwanda National Prosecuting Authority on August 19, 2013 ordered a freeze on Rujugiro and his wife's bank accounts, citing an "ongoing criminal investigation."
Kagame does not spare his foes. The General will stop at nothing to punish anybody or group that challenges his grip on power. Kagame's cosmos is divided into two realities; his supporters (friends) who can preserve him in power and "enemies" who must be physically, morally and/or psychologically destroyed. The ruthless General has enacted draconian laws that sustained his child-like cosmos.
Kagame's sinister moves to confiscate the multimillion dollar mall to enrich his private business empire after his major donors have turned off the tap.
Pursuant to Organic Law no. 28/2004 0f 13/12/2004 – the law concerning the Management of Abandoned Property [property without owners] – Kigali City Abandoned Property Management commission ordered UTC L Ltd. to present the following documents to the commission: (1) UTC Ltd building land title, (2) a list of UTC Ltd shareholders and their respective shares, (3) UTC Ltd loans and/or mortgage agreements/contracts with all UTC Ltd. creditors, (4) loans and/or mortgage payment schedule(s), (5) the details of how UTC Ltd manages its personnel and, (6) details of how UTC Ltd spends its money.
Aside the unconstitutional nature of law no. 28/2004 0f 13/12/2004, by assuming powers over UTC Ltd.'s property, the Kigali City Abandoned Property Management commission erred in law and fact.
Kigali City abandoned property management commission has no power(s) over issues that touch and concern UTC Ltd. property
A corporation is a legal person. A corporation is resident in the jurisdiction where it is incorporated. A corporation's life-span extends from its incorporation date to dissolution. A corporation has a right to own property; real and personal. Article 2, section 4 of Organic Law no. 28/2004 defines "abandoned property [property without legal owners] as all real and personal property which was previously owned by a person (s) who is/are now unavailable because: (a) the owner(s) died and there is no legatee or heir to inherit that property, (b) the rightful owner is in exile for different reasons, (c) the owner lives in a foreign country for different reasons.
UTC limited corporation is incorporated in Rwanda. UTC Ltd. is a Rwandan tax payer. UTC Ltd. has its management. UTC Ltd. is the sole legal owner of Union Trade Center building located in Kigali city which the Kigali City Abandoned Property Management commission seeks to manage as "abandoned property." UTC Ltd. has never been dissolved (UTC Ltd. Is not unavailable Article 2 of law no. 28/2004). UTC Ltd. resides (still incorporated) in Rwanda; it is not in exile.
Because the UTC Ltd. is incorporated in Rwanda and it is the sole owner of UTC build located in Kigali and the commission is mandated, under Article 11 of law no. 28/2004 of 13/12/2004, to manage "abandoned property", the commission has no power(s) over UTC Ltd property; real or personal.
A corporation is a legal person, distinct and separate from its shareholders and/or Directors
Corporation veil protects a corporation from being affected by omission and/or acts of its shareholders. Corporate veil might be pierced through a civil court process when (i) the shareholders use the corporation to defraud its creditors, (ii) the shareholders and/or Directors use the corporation to engage in illegal acts, and (iii) the corporation has no independent mind, existence and will. Where a criminal issue is involved, the 2003 Rwandan constitution, Article 17, as amended to date, provides that "Criminal liability is personal". There is no criminal liability by association.
UTC Ltd. is incorporated; it is responsible for its own liabilities and assets. UTC Ltd. is NOT a personal property of its shareholders and/or Directors; UTC Ltd. is not "res". Assuming that the "abandoned property" management commission had powers over UTC Ltd. building, because the commission is not a civil court, the commission can't pierce UTC Ltd. corporate veil because piecing corporate veil is a prerogative of courts of law. In addition, suppose that the commission had powers over UTC Ltd. property, and the commission was investigating a criminal issue, the 2003 Rwandan constitution obligates the State not to hold UTC Ltd. liable for its shareholders' criminal acts, if any, because criminal liability is personal.
All the documents Kigali City Abandoned Property Management commission ordered UTC Ltd to produce for the commission's review pose very serious rational public policy and constitutional issues
The State has a registrar of companies and land title registry
Conclusive evidence of incorporation is the State's registry of companies. Likewise, the only proof that a land title is recorded is the State's land title record. The founding document for any corporation is the certificate of incorporation/articles of incorporation. This document bears all details about shareholders and shares. A certificate of incorporation is the only contract between a corporation and the State. At incorporation, the State retained UTC Ltd. certificate of incorporation. For which reasons should the State ask a citizen to produce a document which is in the State's custody? In the same way, the State should not be asking UTC Ltd to produce its land title because the State has UTC Ltd land title(s) in the office of the registrar of land titles.
If UTC Lt is suspected of forging the certificate of incorporation and/or its land titles, there are relevant criminal laws and procedures for the State to follow. However, in all criminal cases, the State must prove each element of the crime beyond a reasonable doubt. The 2003 Rwandan constitution Article 19 provides that "Every person accused of a crime shall be presumed innocent until his or her guilt has been conclusively proved …" The State cannot ask the accused to produce evidence for the accused to prove his innocence.
The State has no rational basis to inquire into the details of a private individual's loans and/or mortgage agreements with private creditors.
Acquisition of property is embedded in the right to own property. UTC Ltd.'s loans and/or mortgage agreements with creditors, if any, are private agreements which the State cannot manage. Except where the State is a party or the State is a third party beneficiary and the State third party beneficiary rights have attached, the State has no interest in those private agreements; the State cannot initiate any investigation into such contracts. Under the 2003 Rwandan Constitution Article 17, "nobody can be imprisoned for liabilities arising from commercial contracts". Accordingly, the State cannot investigate commercial contract parties' obligations and duties. Interpretation of, and disputes about, commercial contracts are litigated in civil courts. Where a criminal issue arises, the party complaining to the State has to produce the underlying agreement. Likewise, the State cannot investigate loans/mortgage payment schedules between individuals. Where a debtor defaults on loan and/or mortgage payment, the contract/agreement itself, contracts law and other relevant civil laws determine the course of action, including foreclosure.
UTC Ltd. might have loans and/or mortgage agreements with creditor(s). UTC Ltd. does not owe money to the state in form of loans and/or mortgage. The State is not a third party beneficiary of any commercial agreement between UTC Ltd. and any creditor. There is no legal basis for the State to review loans and/or mortgage agreements between UTC Ltd and its creditor(s), if any. Consequently, Kigali City Abandoned Property Management commission has no legal basis to compel UTC Ltd. to present its loans and/or mortgage agreements and payment schedules for the commission to review.
If any UTC Ltd. creditor has filed a criminal case complaint with the police/prosecutor and government is involved in criminal investigations against UTC Ltd., the party complaining must produce the underlying agreement/contract to police/prosecutor. If UTC Ltd. was a criminal suspect, government would be barred from asking UTC Ltd. to collect evidence for its prosecution.
The State's order that UTC Ltd. submits a statement on its personnel management style is inconsistent with contemporary private business human resources management practices and theories
Human resources management style for private corporations, like UTC Ltd., is an internal organizational issue except if any criminal issue is involved. UTC Ltd. is not involved in a business joint venture with the State. UTC Ltd. is not a government agent. UTC Ltd.'s internal issues are not in any way State actions. UTC Ltd. Has not offered to hire the State as its human resources management consultant. For which reason should UTC Ltd. explain to the State how it manages its workers? Did the State acquire UTC Ltd.? If UTC Ltd. human resources management was in anyway criminal, asking UTC Ltd. to provide such statements would tantamount to asking the UTC Ltd. to incriminate itself, contrary to the 2003 Rwandan constitution.
The State's order that UTC Ltd. presents to the commission a detailed explanation of how UTC Ltd. spends its money is utterly unconstitutional and an unprecedented threat to private investment in Rwanda
A corporation is a legal person. UTC Ltd., like its shareholders, has a right to own property; real and personal. Disposal of property is embedded in the right to own property. Article 29 of the 2003 Constitution of Rwanda provides that "Every person has a right to private property, whether personal or owned in association with others …" Article 200 of the 2003 Rwandan Constitution provides that "The Constitution is the supreme law of the State. Any law which is contrary to this Constitution is null and void".
UTC Ltd. and its shareholders are at liberty to dispose of their personal and real property. If UTC Ltd. or its shareholders are under criminal investigations, requiring UTC Ltd. or its shareholders for a statement of how they spend their private property is flagrant violation of their constitutional right to own property. Whatever the powers and/or the source of such powers behind this insane demand by the State, to the extent the demand violates UTC Ltd.'s constitutional right to own property, the State demand is null and void under Article 200 of the 2003 Rwandan constitution as amended to date.
Conclusion
of On its face, the Kigali City Abandoned Property Management your commission has no powers over UTC Ltd. property because UTC Lt resides in Rwanda and has never been dissolved, consequently, UTC Lt. has never 'abandoned' its property as provided for by Rwanda's Organic Law no. 28/2004 of 03/12/2004. All the documents Kigali City Abandoned Property Management ordered UTC Lt. to produce pose very critical rational public policy and constitutional issues; UTC Ltd.is not obligated to present any such documents because doing so will be facilitating the commission in its methodical move to violate the 2003 Rwanda Constitutions which each citizen is under legal duty to protect. General Kagame's rule by the law as opposed to rule of law will be his unfortunate "legacy". The General's disastrous determination to undermine Rwanda's public institutions' independence for his own personal interests is unparalleled. However, confiscating citizens' property has undesirable consequences for the political, social and economic future of the nation. On top of entrenching endless conflicts among Rwandans, the owners of such confiscated property will have to be compensated for all economic and non-economic losses occasioned by Kagame's illegal decisions. Does Kagame care about Rwanda as a nation?
Edited and Submitted by: Jennifer Fierberg.
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