Access to Public Information
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The High Court of Uganda held that a power company wholly owned by the state is a government agent and therefore power agreements to which it is a party are public documents subject to disclosure requirements. However, on the facts of the case it ruled that disclosure need not be provided because the organization that requested the information, an environmental rights NGO, had failed to prove that its members were citizens.
This case analysis was contributed by Right2Info.org
Greenwatch Limited, an environmental advocacy NGO incorporated in the Republic of Uganda, requested a copy of an agreement executed by AES Niles Power Limited (AESNP) and Uganda Electricity Board establishing a commercial monopoly over the sale of electricity in Uganda (the “Power Purchase Agreement”) from the Government of Uganda. The Power Purchase Agreement was executed as required by a prior agreement between the Government of Uganda and AESNP (the “Implementation Agreement”), with the Uganda Electricity Board operating as a statutory corporation wholly owned by the government and later renamed Uganda Electricity Transmission Company.
The government denied the request, stating that the Power Purchase Agreement contained technical and commercial secrets and therefore could be made available due to confidentiality concerns and the need to protect intellectual property. After Greenwatch commenced the action in the Kampala High Court pursuant to Article 41 of the Constitution, the government argued further that (1) Greenwatch is not a “citizen” under Article 41 of the Constitution with standing to commence the action; (2) the Power Purchase Agreement is not a public document within the meaning of the Evidence Act; (3) the Uganda Electricity Transmission Company is not a Government Agency or organ; (4) the information in question was not in possession of the state; and (5) assuming, for the sake of argument, that all of foregoing were true, the action was premature because no request had been made directly to the Uganda Electricity Transmission Company.
Although the court rejected each of the government’s arguments, it ultimately ruled that Greenwatch was not entitled to access to the Power Purchase Agreement because, despite it standing as a corporate citizen, “[n]o evidence ha[d] been adduced as to its membership” and its inclusion of Ugandan citizens. [paras. 31-32]
First, the court ruled that because the Power Purchase Agreement is incorporated by reference into the Implementation Agreement (a public document), and because the two must be read together, the Power Purchase Agreement must also be deemed a public document. By the same reasoning, the court also ruled that because the government was a signatory to the Implementation Agreement, its status as a party cannot be divorced from the Power Purchase Agreement. Next, the court ruled that Greenwatch’s lack of prior request made directly to the Uganda Electricity Transmission Company was inevitable because of the secrecy of the agreements in question; and the action, therefore, was not premature. Regarding the issue of whether the Uganda Electricity Transmission Company is a government agency under Article 41 of the Constitution, the court applied a “totality of the circumstances” test in concluding that the company was an agent of the government in its function to ensure that power was available to the people of Uganda. [paras. 26-28] Further, the court ruled that the state does not have to be a party to an agreement for an agreement to be in possession of the state, the important factor being “possession in whatever capacity occurring”. [para. 25] Finally, the court compared Articles 41 and 237 of the Constitution to make a distinction between “persons” and “natural persons” to resolve the issue of Greenwatch’s standing to bring the action as a citizen of Uganda. [paras. 30-31] Because Article 41 does not explicitly restrict the definition of citizen to natural persons, Greenwatch qualified as a corporate citizen; the court ruled, however, that it was not entitled to the Power Purchase Agreement because no evidence was adduced to confirm that Greenwatch’s members consisted of Ugandan citizens. [paras. 31-33]
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