PAR­LIA­MENT vs EX­EC­U­TIVE: The bat­tle of the Pub­lic Pri­vate Part­ner­ships Bill

By: REA­GAN WA­MA­JJI

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 NebandaSpeaker 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.

public-private
Parliament and the Executive seem to be stuck to their guns on what each of them wants. We wait to see who will eventually give way to the other.

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.