A Tale of Uganda’s Forgotten Laws [opinion]

After passage in Parliament, some laws remain on the shelves without making a bite mark on society.

There are 16 such idle laws, passed in the last 10 years, according to a survey of data from the Uganda Gazette, the Uganda Legal Information Institute and policy statements of government ministries.

According to our survey of the 91 legislations passed since 2001, 16 are not operational. They include the Regional Governments Act, the Local Council Act, the Interception of Communication Act, and the Building Control Act.

On June 8 2006, the Local Council Courts Act was enacted, providing for the establishment of local council courts but has remained idle on the law books. For instance, there is nothing to show that a local council court has been established at every village, parish, town, division and sub-county level, as provided by the Act.

In 2010, Parliament passed the Regional Governments Act, which provides for the establishment of regional governments. But according to this financial year’s ministry of Local Government policy statement, there is no update on the implementation of the legislation. Similarly, there is no person who has been prosecuted under the Prevention and Prohibition of Torture Act.

Partial implementation

Our investigation further found that of the 16, nine legislations have been partially implemented. These include the Leadership Code Act, Physical Planning Act, Land Act, the Institution of Cultural and Traditional Leaders Act and Kampala Capital City Authority Act. In April 2010, the president assented to the Physical Planning Act that among other things provides for the making and approval of physical development plans.

However, Dr Amin Kiggundu, a member of the National Physical Planning Board says the Act has only been implemented partially.

“We have boards and committees as provided by the Act but we are yet to have the national physical development plan and the district physical development plans that are meant to guide the implementation of the law,” Dr Kiggundu said, adding that enforcement officers are also yet to be recruited.

Under the Land Act it is provided that there shall be a Land Fund, established to among others give loans to tenants by occupancy to enable them to acquire registrable interests, and used for purposes of resettling persons who have been rendered landless by Government action, natural disaster or any other cause.

Our investigation reveals that there is no update on the performance of the fund. In fact, in the last two or so financial years, no report has been made on the matter.

Baguma Isoke, the chairperson of the Uganda Land Commission, mandated to implement the fund declined to comment. However, officials from the ministry of Lands claim implementation of the Land Fund was postponed until funds are found. Besides there are no regulations to guide the implementation of the fund.

Why idle?

Dr Ronald Kakungulu Mayambala, a lecturer in the department of Public Law at Makerere University said “Some laws are not implemented because they are not a necessity to government… And this is the case for pro-human rights laws whose enforcement is left to private individuals,” he said.

Alternatively, Mayambala argues, inability on the part of the implementing agency can also impede the implementation of the law. “This can happen when the agency in question does not have financial resources or political ability to implement the law,” he said.

Our investigation found that lack of funds has impeded the implementation the Physical Planning Act, Land Act and the Local Council Courts Act. For instance, the Land Act needs at least Shs 1.7 trillion for the fund to be set up. Dennis Obbo, the spokesperson of the ministry. Housing and Urban Development said the ministry does not have the required funds. “The ministry’s resource envelope is constrained,” he said.

Jim Mugunga, the spokesperson of the ministry of Finance, Planning and Economic Development concedes there are a good number of legislations sitting idle due to lack of funds.

“Some of them require setting up boards and committees, which is extremely expensive,” he said.

Abused procedure

Under Article 93 of the constitution and Parliament’s Rules of Procedure, it is a requirement that a certificate of financial implication is issued by the ministry of Finance before a particular bill is tabled in Parliament. Mugunga says this requirement is meant to assess the impact of a proposed legislation on the budget and the possibility of implementing the respective proposed law without financial constraints.

If financial due diligence is done on the laws passed and a certificate of financial implication issued, why then are some laws not implemented due to lack of funds?

Rubaga South MP, John Ken Lukyamuzi, a member of the Parliamentary Committee on Rules thinks the ministry of Finance is not adhering to this procedural requirement.

“Granting a certificate of financial implication is a guarantee that the money is available or there is a possibility of finding it but practice has disproved that notion… ,” he said.

Mugunga, however, said that when the ministry of Finance issues a certificate of financial implication it does not necessarily define the shape and size of a particular legislation. He said if MPs create institutions that are expensive to operate they are to blame.

“We expect Parliament to be cautious when creating some bodies. They have to think about the type of bodies they create and the cost implication,” he said.

Beneath the known

Some keen followers of the legislative process think the origin of a particular legislation can also lay a bad foundation for its possible implementation. Ideally before a law is passed it is supposed to be backed by a sound broad policy framework and it has to be popularized to be understood. However, Abdu Katuntu, the Bugweri County MP and shadow Attorney General argues that laws, which are not implemented are not backed by clear policy positions.

“Those laws are either passed due to political rhetoric or as a fulfillment of international obligations,” Katuntu said.

Katuntu claims laws enacted for political reasons include the Land laws and Regional Government Act.

“The land laws were enacted to silence land tenants who had become politically costly to government while the Regional Government Act was a reaction to Buganda’s demand for federalism,” he said.

Making reference to laws like the Copy Rights and Neighbor Act, Building Control Act, Domestic Violence Act, Prevention and Prohibition of Torture Act and Anti Money Laundering Act, Katuntu argues that such laws which are about protection of human rights and fighting corruption are mostly influenced by external reforms but not government initiative.

“So when passed there is reluctance to implement them,” Katuntu argues.

Much as externally influenced reforms mean well for Uganda and in fact resonate with Uganda’s bill of rights, Katuntu argues that government does less to popularize them.

“How do you expect people to enforce their rights when they do not know that a particular right is protected by law?” he argues.

A recent survey by the Uganda Network on Law, Ethics and HIVAids revealed that eight out of 10 people don’t know about the existence of the Domestic Violence Act that prohibits unlawful domestic violence.

“This finding indicates that we cannot meaningfully implement it when those it seeks to protect are ignorant about its existence,” said Immaculate Owomugisha, a community engagement officer at Uganda Network on Law, Ethics and HIVAids.

Impunity

Prof Fredrick Jjuuko, a law lecturer at Makerere University argues that government’s reluctance to implement some laws is due largely to its none belief in the rule of law where it is not in its favor.

“They are not bothered with laws that seek transparency in government, yet they rush to implement such laws like the Public Order Management Act which restrict enjoyment of rights to assemble and public gatherings,” he said.

Jjuuko gives the examples of the Leadership Code Act, Anti Money Laundering Act and Kampala Capital City Authority Act as laws which have not been implemented because they check those exercising authority in government.

In 2010, the Supreme court in the matter of John Ken Lukyamuzi Vs Attorney General and Electoral Commission, ruled that the Leadership Code Act cannot be implemented without the establishment of an appropriate tribunal to listen to complaints from the IGG in cases of leaders not complying with the requirement of declaring their income, assets and liabilities. Since the ruling the executive has not introduced the amendments to the Act.

Implications

When laws are not implemented, Uganda does not only lose the resources that it allocates to facilitate their enactment, but also the objective of the legislation is not fulfilled.

“When the laws are not implemented the public loses more. For the case of the Physical Planning Act, we will end up with disorganization in respect of physical planning and land development,” Dr Kiggundu said.

Source : The Observer

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