Ugandan Judge Orders Release of Key Document on Bujagali Dam

22 November 2002

Ugandan Judge Orders Release of Key Document on Bujagali Dam. Relying on the open government clause of the Ugandan constitution, a top Ugandan judge Nov. 12 ordered the release of a key document about a controversial dam project that the Ugandan government and the World Bank declined to disclose. More …

Judge Rejects Government Claims. In ordering disclosure of the document, Judge Egonda-Ntende rejected government claims that the group was not qualified to sue under the constitution and that the government was not really a government document. More …

Environmental Group Analysis PPA. The International Rivers Network (IRN) commissioned the Prayas Energy Group, a policy analysis organization based in Pune, India, to review the PPA. More …

Ugandan Judge Orders Release of Key Document on Bujagali Dam

Relying on the open government clause of the Ugandan constitution, a top Ugandan judge Nov. 12 ordered the release of a key document about a controversial dam project that the Ugandan government and the World Bank declined to disclose.

The Power Purchase Agreement, whose very existence the Ugandan government denied during the court proceedings, defines the business arrangements relating to a controversial River Nile dam project. Critics of the so-called Bujagali Dam, which is funded by the World Bank, argue that the commercial terms misstated the benefits of the electric-generating dam.

Greenwatch Limited sued the Ugandan government to obtain the Power Purchasing Agreement (PPA). The Ugandan nongovernmental organization, represented by Kenneth Kakaru, contended that disclosure was required under Article 41 of the Ugandan constitution.

Ugandan High Court Justices FMS Egonda-Ntende concurred, and ordered the document released.

A subsequent analysis of the document, performed by the International Rivers Network and released Nov. 20, contended that "Ugandans will pay hundreds of millions of dollars in excessive power payments if the World-Bank-financed Bujagali Dam proceeds according to plan." The group also recommended that all similar factual and technical documents for projects seeking Bank funding should be released.

The Bank has approved $225 million in funding for the project, but in June 2002 a Bank inspection panel issued a highly critical report and the funding was suspended in July.


Judge Rejects Government Claims

In ordering disclosure of the document, Judge Egonda-Ntende rejected government claims that the group was not qualified to sue under the constitution and that the PPA was not really a government document.

During the litigation, the government argued that disclosure of the PPA would impair the economic credibility and sovereignty of Uganda. The PPA was executed by AES Nile Power Limited, the project contractor based in Arlington, Va., and the Uganda Electricity Board, whose successor is the Uganda Electricity Transmission Company Ltd.

When the court asked the Ugandan government to produce the document for the court, "However, that was not to be," commented the judge in his ruling. Instead, the Attorney General wrote back to say "that the document did not exist," recounted the judge. The environmental group, which had already obtained the document informally from Parliament, then supplied a copy to the judge.

The government argued, in part that the document was not a public document, but Judge Egonda-Ntende noted that Ugandan Minister of Energy and Mineral Development Syda Bbumba had signed the "Implementation Agreement" for the dam project on behalf the government. The Power Purchasing Agreement and the Implementation Agreement. "are so intertwined that one can not comprehend the full import of the Implementation Agreement without reading and digesting the Power Purchasing Agreement," the judge said in determining that the PPA is by incorporation part of the Implementation Agreement.

The judge also rejected arguments that the government was not a party to the PPA, countering that the government had possession of the PPA. The Constitution refers to "information in possession of the state," and the judge said, "What is important is possession of the information by the state."

He also turned down the government’s contention that the Uganda Electricity Transmission Company is not a state agency. After again noting that the document was in the government’s possession, the judge determined that the company is "an agent of the government in ensuring that power is available to the people of Uganda."

Because the government did not allege that exceptions to disclosure in the Constitution to protect state security and sovereignty should be applied, the judge said he assumed that those grounds of defense "were abandoned.’

Finally, Egonde-Ntende decided that the environmental group rejected the government’s argument that Greenwatch Limited was not a "citizen" qualified to bring such a suit. He argued that that as a limited liability company under Ugandan law the group could own land and held "a corporate citizenship" giving it standing to sue.

The judge’s ruling is available at freedominfo.org in both Word and PDF formats.


Environmental Group Analysis PPA

The International Rivers Network (IRN) commissioned the Prayas Energy Group, a policy analysis organization based in Pune, India, to review the PPA.

The analysis found that the capital cost of the project is "excessively high." It also contended that "a number of unusual requirements will be detrimental to Uganda." In particular, the study said the Ugandan government will have to make yearly payments of up to $132 million for the project (and not $111 million as claimed in the World Bank’s Project Appraisal Document and the PPA)." The study also alleged that the Bank published misleading or wrong information on issues related to the PPA.

IRN is recommending against continued funding for the project.

The independent review of the Bujagali PPA and the new report on the international experience with private power projects and PPAs are also available on IRN’s website at http://irn.org/programs/bujagali/bujagalippa-review.pdf (review of Bujagali PPA) and http://irn.org/programs/bujagali/bujagalippa-background.pdf (report on international experience). The actual Bujagali PPA is available at http://irn.org/programs/bujagali/bujagalippa.pdf.

By Toby McIntosh

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ABOUT IFTI WATCH

In this column, Washington, D.C.-based journalist Toby J. McIntosh reports on the latest developments in information disclosure in International Financial and Trade Institutions (IFTI).
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