PARLIAMENT vs EXECUTIVE: The battle of the Public Private Partnerships Bill
A face-off between Parliament and the Executive in Uganda is not uncommon. On numerous occasions the two have disagreed on policy, legislation and many other issues. For instance, in December 2012, the Speaker rejected Governments report on the death of former Butaleja woman MP, Cerinah Nebanda. Speaker Kadaga in her end of year (2014) speech urged the Executive to respect the Parliamentary calendar. However, a week after Parliament returned from recess in February this year, it went on recess again, so members of NRM could attend their retreat at Kyankwazi, effectively halting the work of parliament.
The battle lines between the two arms of Government have been drawn again, this time on the Public Private Partnership Bill, 2012. The Bill, which was passed by Parliament on 17th July 2014, provided for among other things, the Public Private Partnerships and Procurement procedures and types of PPP agreements.
The president, in exercise of powers granted to him by the constitution returned the Bill, together with the Finance (Amendment) Bill 2014, and the Excise Tariff (Amendment) Bill,2014. Article 91 sub-section (3)(b) of the Constitution of the Republic of Uganda reads thus: “The President shall, within 30 days after a Bill is presented to him or her, return the Bill to Parliament with a request that the Bill or a particular provision of it be reconsidered by Parliament.”
Clause 26(1) provides that an accounting officer shall not sign a public/private partnership agreement without the approval of Parliament. The President, in his letter, noted that Clause 26 (1)(7) and (8) of the returned Public Private Partnership Bill, 2012, would usurp the constitutional mandate of the Attorney-General to approve agreements in which Government is a party.
His other concern was that the parallel approval mechanism for PPP agreements will add another bureaucracy, which will cause inordinate delay in implementation of infrastructural projects and hinder investors who may consider not investing in infrastructure projects in Uganda as their business decisions will be subject to parliamentary approval.
In reconsidering the Finance (Amendment) Bill, 2014, Parliament compromised on the decision for UCC to retain revenue generated from levies on telecom companies. As for the Excise Tariff (Amendment) Bill, 2014, Parliament conceded to the President’s demands and upheld the 2% tax on Kerosene.
However, the Legislators overwhelmingly stood their ground on the Public Private Partnership Bill, 2012. The House adopted the minority report from the Committee on Finance, by Hon. Geoffrey Ekanya, Issiah Ssasaga, Jack Sabiiti and Hon. Odoo Tayebwa which among other things, recommended that Clause 26 of the Public Private Partnership Bill, 2012 as passed by Parliament be maintained and sent back to the President for assent without any changes.
Section (5) of Article 119 of the Constitution of the Republic of Uganda provides that, “Subject to the provisions of the Constitution, no agreement, contract, treaty, convention or document by whatever name called, to which the government is a party or in respect of which the government has an interest, shall be concluded without legal advice from Attorney-General, except in such cases and subject to such condition as Parliament may by law prescribe.”
The debate that ensured in Parliament on 2nd December 2014 saw Members from the political divide in support the original position of Parliament.
History is not entirely kind to the previous PPP agreements. The scandals that have marred some of these agreements are despicable, to say the least, for instance, the UMEME saga, AGOA, RVR Concession, Kananathan, Katosi road and Standard Gauge railway. Colossal sums of tax payer’s money have been lost in these botched deals, a telling justification for the need to subject future PPP agreements to parliamentary scrutiny and approval.
Members also disputed the President’s claim that Parliaments involvement would delay, and derail the said projects and programs. Hon. Kabakumba Masiko, noted that delayed implementation of some projects like Karuma Dam, Kigumba-Masindi-Hoima-Kyenjojo road, or even the attempted sale of Entebbe Airport, had nothing to do with Parliament.
Speaker Kadaga further noted that Parliament has always passed investor friendly laws , citing the Free zones Act, the Companies Act, the Mortgage Act, the Partnership Act and the Statutory Securities Act.
Members argue that because PPP agreements are financed in part by tax payers’ money, and loans for which Ugandans both current and future generations would pay interest for, there is need for their representatives to be involved. Hon. Muwaanga said, “We should be the last to relegate Parliament from the duties it takes as safeguard to avoid indebting the present and future citizens.
The Bill was returned to the President for assent without any changes. However, the President was not about to concede to Parliament. In a Letter to the Speaker, dated 7th January 2015, the President returned the bill to Parliament again citing his earlier concerns. He maintains that debating possible PPPs in Parliament would deter foreign investments in the country. The speaker sent the Bill to the Finance committee for reconsideration.
The battle lines have been drawn. The executive has played its last card. The Bill no longer requires the president’s assent to become law as provided for by Article 91 (5) of the 1995 constitution, on exercise of legislative powers. Will parliament concede the executive or stand its ground? How will the legislators react, with the odds in their favour and control in their hands? I guess time will tell.