The East African Court of Justice First Instance Division, today heard a matter seeking the determination of the Court on a case challenging the Memorandum of Understanding (MoU) that was signed between the Republics of Uganda and China to construct Kaluma Hydro Power Unit 600MW in Uganda.
The Applicant, Mr. Henry Kyarimpa represented by his Lawyer Mr. Mohamed Mbabazi asked the Court to find that the MoU signed by Uganda and China was an infringement of the provisions of the Treaty for the Establishment of the East African Community on fundamental principles of good governance, democracy and rule of law, Articles 6, 7 and 8 of the Treaty. He also asked the Court to interpret Article 38 (2) of the same.
Mr. Mbabazi submitted that there were court orders issued on 18 and 22 April 2013 by the Uganda High Court Nakawa and after those orders on 23 of the same month the contract committee went ahead and cancel all bids which according to the Applicant is a violation of the Treaty provisions. Among those court orders were for the Government of Uganda (the Respondent) to preserve the status queue (maintain the existing situation), ordering the award of the contract to the best evaluated bidder for the engineering, procurement and construction contract for 600MW Karuma Hydro Power and the status queue be maintained. Mr. Mbabazi said that none compliance by the Government of Uganda with the Court’s order is an infringement of the Treaty because the awarding of the contract was done outside the procurement process.
Mr. Bafirawala Elisha, Senior State Attorney and Mr. Richard Adrole State Attorney also Counsels for the Respondent urged that at the time when the High Court of Nakawa issued the order, there was no best evaluated bidder, there was no statute restraining the government from proceeding with the new procurement process and the Inspector General of Government (IGG) had issued a cancellation report to the Ministry of Energy and Minerals to stop the procurement process because it was allegedly riddled with bribery and corruption. He also urged that the government of Uganda not being satisfied with the High Court order mentioned above, it is in the process to of appealing.
Mr Adrole added that in a bi-lateral arrangement between the government of Uganda and China signed July 2013 does not touch the Karuma dam construction but other areas of development. He concluded that, Uganda therefore nullified the previous procurement process after investigations by the IGG and found out the process was not accurate and not recommended by the Ministry of Energy and Minerals of Uganda as well which led to the cancellation of the previous procurement process and now the government in the implementation of the new one.
He also said that Section 75 of the Public Procurement and Disposal of Public Assets Act (2003), gives powers to the procurement committee to reject any or all bids at any time prior to the award of the contract.
The Court will deliver the Judgment on notice.
The hearing came before Hon. Mr. Justice Jean Bosco Butasi, Principal Judge, Hon. Isaac Lenaola, Deputy Principal Judge, Hon. Dr. Justice Faustin Ntezilyayo, Hon. Lady Justice Monica Mugenyi and Hon. Mr. Justice Fakihi A. Jundu
Note to Editors:
Treaty for the Establishment of the East African Community
Article 6(d) Good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protect ion of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights
Article 7(2) The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.
Article 8 The Partner States shall:
(a) plan and direct their policies and resources with a view to creating conditions favourable for the development and achievement of the objectives of the Community and the implementation of the
provisions of this Treaty
(b) co-ordinate, through the institutions of the Community, their economic and other policies to the extent necessary to achieve the objectives of the Community and
(c) abstain from any measures likely to jeopardise the achievement of those objectives or the implementation of the provisions of this Treaty.
Article 38 (2) Where a dispute has been referred to the Council or the Court, the Partner States shall refrain from any action which might be detrimental to the resolution of the dispute or might aggravate the dispute.
About the EACJ:
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The High Court has its sub-registries in the National Courts in the Partner States.
Source : East African Community