Monday, October 29, 2012
Expunging the Ghost of Resource Curse from Africa: Institutional capacity building, Transparency and Accountability in Oil and Gas Governance as Vehicles of Sustainable Development for Uganda.
This brief seeks to critically examine whether Uganda will benefit from the exploitation of Oil and Gas resources. The discovery of such a vital resource has fuelled the hope of accelerated economic growth, and correspondingly, prosperity for the country. Such expectations can be traced in President Yoweri Kaguta Museveni’s assertion on 9th October, 2012 during the Independence jubilee speech that; “Uganda will in the next 50 years turn into a ‘first World’ Country.’’ Unfortunately, as some case studies from many resource-rich countries have shown, natural resources like Oil and Gas can be more of a curse than a blessing if mismanaged, and consequently, impede development instead of being a boom to the economy. In attempting to analyze this phenomenon in the Ugandan context, I will highlight the prospects and challenges facing the Oil and Sector Governance/Management in Uganda, and give some suggested alternative policy reforms and recommendations that can be helpful to enable Uganda avoid the oil curse and its negative consequences. For purposes of discussion, this paper will mainly center on the aspects of prudent resource management, capacity building, transparency and accountability as the key ingredients to sustainable and equitable resource exploitation and development. Introduction Oil can be defined as crude petroleum oil and other hydrocarbons which are produced at the wellhead in liquid form and the liquid hydrocarbons known as distillate or condensate recovered or extracted from gas, other than gas produced in association with oil and commonly known as casing head gas. In some instances, the term oil is defined so as to include natural gas. Country profile. The Republic of Uganda is a small land locked country in East Africa sandwiched between Kenya, Tanzania, Rwanda, the Democratic Republic of Congo and the South Sudan. She enjoys membership to the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA) as regional bodies, and the African Union (AU) as a Continental body. History and Development of Oil & Gas in Uganda The hunt for oil in Uganda dates back to the early 1920s, when a British geologist named E.J. Wayland documented the presence of hydrocarbons in the Albertine Graben. This initial discovery was followed by preliminary well-drilling in 1938, but was halted in the wake of World War II and its aftermath. (The most that was done in the 1940s and 50s was the drilling of a few shallow wells for stratographic purposes.) In the years following independence, the political turmoil that engulfed Uganda rendered the pursuit of oil dormant until the 1980s, when the country acquired aeromagnetic data across the entire Graben region. The aeromagnetic surveys, which were taken between 1983 and 1992, produced a ray of hope. They identified five sedimentary basins in the country, not only in the Albertine Graben, but also in Lake Kyoga, Hoima, Lake Wamala, and Moroto-Kadam. Geologists in Uganda’s Petroleum Exploration and Production Department engaged in extensive subsequent ground surveys, which revealed the Albertine Graben as the basin most primed for oil exploitation. The Albertine Graben is located in western Uganda, covering the districts of Masindi, Kibale, and Hoima. The Graben, which forms the northernmost part of the western arm of the East African Rift Valley, is situated along the Ugandan-Congolese border, and stretches northward to Uganda’s border with South Sudan. Over the past decade, the Ugandan government has signed contracts with a number of international companies to engage in preliminary exploration and testing. The most visible of these firms is Tullow Oil, which recently consolidated its hold over a handful of oil-rich concessionary blocks in the Graben. In March 2011, Tullow signed contracts with Total S.A. of France and CNOOC Ltd. of China, each of which acquired a one-third interest in exploration areas 1, 2, and 3A. While oil production is still a couple years away, at peak capacity the combined areas are expected to produce approximately 200,000 barrels of oil per day. Among the more lucrative oil fields in the Graben are the Maputa and Waraga, which have an estimated 100 to 400 million barrels of oil, the Giraffe 1, which contain at least 400 million barrels, and the Kingfisher in Hoima, which has approximately 500 million barrels of oil. The Legal, Administrative and Policy Framework on Oil and Gas in Uganda Constitution of Uganda (1995) as amended Article 244 of the Constitution provides that parliament shall enact laws regulating the exploitation and development of minerals and that such exploitation shall take into account the interests of individual land owners, local governments, and the central government. The constitution further states that all minerals are held by the government on behalf of the people of Uganda thus establishing the “public trust doctrine” Petroleum Laws and Policies On 30th January 2008, the cabinet approved the country’s National Oil and Gas Policy. This was intended to provide guidelines on the development of Uganda’s emerging oil and gas industry following the discovery of commercial prospects. The policy was designed to provide a roadmap for future petroleum legislation, while accounting for the various acts and regulations that provide the legal framework for the development and exploitation of oil and gas. In 2010, the Ugandan Parliament tabled the Petroleum (Exploration, Development, Production and Value Addition) Bill, 2010, which, once passed, will provide the principal legal framework governing the oil and gas sector. Other benchmarks can be found in the following existing and proposed Policies, Laws and regulations. The Oil and Gas Revenue Management Policy, 2012, The National Oil and Gas Policy for Uganda, 2008, Petroleum Exploration and Production Act 1993, Petroleum (Exploration and Production) Regulations, 1993, Uganda Mining Act 2003, Petroleum (Exploration, Development and Production) Bill, 2012, Petroleum (Refining, Gas Processing and Conversion, Transportation and Storage) Bill, 2012, Public Finance Bill, 2012 Environmental Laws and Policies The National Environment Management Authority (NEMA) is a semi-autonomous institution, established in 1995 under the National Environment Act CAP 153 as the principal agency in Uganda charged with the responsibility of coordinating, monitoring, regulating, and supervising environmental management in the country. NEMA advises various government agencies on environmental issues, and spearheads the development of environmental policies, laws, regulations, standards, and guidelines. Uganda has numerous laws designed to protect the environment. Among the more central legislation includes the following: The National Environment Act, The National Environment Management Policy for Uganda, The National Environment (Environmental Impact Assessment) Regulations, The National Environment (Waste Management) Regulations, The National Environment (Audit) Regulations Regulatory Bodies The promotion and regulation of the oil and gas sector was initially undertaken by the Ministry of Energy and Mineral Development through the Petroleum Exploration and Production Department (PEPD). Under the National Oil and Gas Policy, the Ministry will handle the policy aspects, while regulatory and commercial aspects will be handled by Petroleum Authority of Uganda (PAU) and the Uganda National Oil Company, respectively. The discovery of oil offers tremendous opportunities for Uganda. It also poses several risks if the country succumbs to what some analysts call the “oil curse” – or the diversion of revenues for development through mismanagement and corruption. Whereas oil and gas resources can be a huge blessing, in most instances, especially on the African continent, they have turned out to be the “Devil’s excitement.” Sustainable development has entered the lexicon of the oil and gas industry’s annual reports, trade literature, conference meetings and business councils, much as it swept through the environmental policy and economic development literature and communities over the last two decades. This full sweep reflects both the painful legacy of pollution and poverty too often left by the extractive industries in developing countries in the past and a beam of light pointing to a brighter future. Current Challenges to Oil and Gas Governance in Uganda Lack of transparency in the oil and Gas sector. The Government of the Republic of Uganda continues to hide the Production Sharing Agreements (PSAs) on flimsy grounds of “national security” and “trade secrets”. This not only causes suspicion and speculation of bad deals among the public, but also denies vital and accurate information to the public. Growing ethnic nationalism . Ethnic nationalism per se is not a bad thing, but it becomes an issue when some members prefer tribal interests over national goals. The Ugandan government seems to have mishandled the issue of what stakes will go to Bunyoro Kingdom since the oil resource is in their territory. Consequently, we have seen the traditional king of Bunyoro petitioning the National Parliament to put a case for Bunyoro’s claims. Endemic and systemic corruption has eroded public trust in the government. There have been claims that some senior ministers in Government received bribes from oil companies. Though these remain unsubstantiated allegations, they seemed to appeal to public sentiments drawing from past experiences in the CHOGM and Temangalo corruption allegations. This has greatly contributed to growing skepticism whether the oil money will be used for public benefit. This is made worse by the government’s failure to subscribe to the Extractive Industries Transparency Initiative. Inadequate well-trained local manpower. Due to the education gap, and lack of a proper and strong science and technology-based education system, Ugandans have not benefited much from the jobs available. The oil companies doing the exploration, and drilling are all foreign and come with expatriate staff that are well versed with the technical aspects of oil and gas industry. This skills gap confines Ugandans to small tasks that are mainly labour intensive. Cross-border conflict is another big challenge. Uganda’s oil reserves are off-shore and the Albertine Lake is shared between Uganda and Congo. Congo is perennially in conflict and a very highly militarized zone. This conflict can hamper production once it spills over. Reports have continuously indicated that Congo is a failed State incapable of providing security to its nationals, and the presence of roaming militia groups. Weak Legislative framework. Uganda currently, is in the process of law reform to come up with better and more comprehensive Laws to govern the oil and gas sector. However, some analysts have observed that Uganda’s existing and draft oil laws are inadequate and risk undermining prospects for the country’s future development. The government had promised to table the Petroleum (Exploration, Development and Production) Bill 2012 (the Upstream Bill) and the Petroleum (Refining, Gas Processing and Conversion Transportation and Storage) Bill, 2012 (the Mid-stream Bill). However, there are growing concerns that the Oil Revenue Management Bill, which was to lay out how the government uses money from oil sales has been abandoned. This is likely to jeopardize the effort of those seeking accountability from Government. Uninformed citizenry. Uganda ranks high among countries with the highest illiteracy levels. This has been a tragedy for the country since the people have not formed that level of critical thinking and reflection on national concerns and public policy. This makes them susceptible to gullibility and manipulation from the small political elite group that commands power and authority. There is also lack of proper demand for accountability from leaders and those who hold public resources in trust for the nation. Weak institutional capacity. Just like in the previous Act, there is no provision in the new Bills requiring parliament to give approval to oil contracts. While the National Gas and Oil Policy provides for an independent institution, the Petroleum Authority (with powers to regulate exploration, development and production, processing, transportation and storage of petroleum and gas in Uganda), the Minister responsible for petroleum activities has power to give directions in writing to the authority with respect to the policy to be observed and implemented, and the Authority must comply with those directions. The Minister also appoints members of the board of directors among whom he or she can appoint a chairperson; yet it is the same board that is mandated to oversee the operations of the authority. It further appears that there is no clear separation of roles and responsibilities between the board and the authority, because the board can, by instrument, delegate to an officer of the Petroleum Authority any of the powers, duties or functions of the board. There is no clear relationship between the office of the commissioners and the Petroleum Authority and the Ministry, and that by doing this, the Bill sets a risk that the system could create unnecessary duplication or bureaucratic delays, and multiply the potential for bureaucratic competition, corruption or mismanagement. “Parliament is remarkably absent across the different sections on institutional arrangements, licensing, development and production. Weak tax collection systems are another big challenge. Currently, a series of tax disputes are swirling around Uganda’s burgeoning oil sector, the results of which will have immense implications for any future government revenue, and, potentially, even the country’s investment climate. Given these disputes, the Government of Uganda is currently locked in a row with Heritage Oil over the legitimacy of the capital gains tax. In May 2011, arbitration commenced in London to resolve the dispute. This leads to extra public expense and delay any future licensing rounds for oil exploration in the country. Clampdown on human rights and freedoms. There is a renewed effort to clampdown human rights and peoples freedoms. This seems to be a reactionary move aimed at curtailing dissent from dissidents taking part in movements like “walk-to-work”. Such anti-human rights sentiments can be traced in proposed Laws like the Public Order Management Bill . The current draft gives overly broad discretionary power to the Ugandan Police to permit or disallow any “public meeting.” The bill defines such meetings as any gathering of more than three people in any public place where, for example, the “failure of any government, political party, or political organisation” is discussed. In all instances, organizers of such gatherings would be required to inform police in advance that a gathering is to take place, or face criminal sanction. Any spontaneous peaceful demonstration of more than three people would be a criminal act. This would even affect public gatherings meant to question the management of oil proceeds. Environmental degradation. Environmental management in Uganda is aimed at achieving National Objectives and Directive Principles of State Policy, that promote sustainable development and public awareness of the need to manage land, air, and water resources in a balanced and sustainable manner for the present and future generations. The high overlap between ecologically sensitive and biodiversity rich areas and the occurrence of exploitable hydrocarbons in the Albertine Graben poses a particular challenge for oil exploration and development in Uganda. The Albertine Graben is the most species rich eco-region for vertebrates in Africa and contains 39% of Africa’s mammal species, 51% of its bird species, 19% of its amphibian species and 14% of its plant and reptile species. On the other hand, the rate of biodiversity loss in Uganda is high and was calculated in 2004 to be 10-11% per decade or about 0.8% annually. The principle threats to biodiversity in Uganda persist including habitat loss, modification and alteration along with unsustainable harvesting, pollution as well as introduction of alien species. Dutch Disease. The economy is likely to promote the activities in the petroleum sector and boost the respective economic linkages. This may disorient the economy into a single commodity economy. Efforts to promote and maintain interventions in other sectors of the economy and other domestic revenue sources must be addressed. Tax evasion: This is a major challenge to revenue collection. Uganda’s fiscal system is a hybrid type consisting of four main features, namely Royalty, Production (Profit Oil) Sharing, State Participation and Corporate Income Tax. For the state to adequately benefit from produced oil and gas, each aspect of the fiscal system requires stringent administration. Fluctuations in the price of oil: Need for conservative estimates on price of oil in national budget assumptions. It is important to have a feature in the PSA to deal with extremely high oil prices, to avoid the reduction of governments take as oil prices increase (i.e., a regressive fiscal system). The PSA’s should allow revisions to be made to have a price-based royalty, or a royalty based on a combination of production volumes and price. Windows of New Hope A growing and more visible civil society in Uganda is a right step in the right direction. The Civil Society Coalition for Oil (CSCO) is a network of more than 40 civil society organizations that aim “to maximize the benefits to the people of Uganda from oil and gas discoveries by promoting social, economic and environmental sustainability in exploration and production activities.” The coalition was formed in February, 2008 when a number of NGOs convened to prepare comments on environmental impact assessments related to oil exploration and a proposed ‘early production scheme’ in the Kaiso-Tonya valley. Since then, CSCO has met frequently with oil companies and government departments to present a civil society perspective on oil and gas development. It has hosted numerous forums to share knowledge and promote discussion around oil issues, and has held training and capacity building workshops for member organizations and for community groups in areas of the country directly affected by oil exploration. In 2010, in association with UK-based NGO, PLATFORM, the coalition published a strong critique of production sharing agreements that the government of Uganda had signed with international oil companies. This influential document received wide attention and stimulated demands for greater transparency in the oil sector. In March, 2012, CSCO convened, together with the Parliamentary Forum on Climate Change, a meeting of MPs, activists and researchers to discuss two petroleum bills that had been tabled in parliament and passed to the parliamentary Natural Resources Committee for review. MPs who sit on the committee had the opportunity to hear and discuss analysis of the bills presented by CSCO members and partners. Influence of Social media cannot be underestimated. Oil and gas industry professionals are quickly realizing that Facebook and Twitter are not just for millennials or the consumer market. Respondents to a recent Microsoft and Accenture survey of oil and gas professionals stated that these social media tools can play a vital role in enhancing collaboration within critical oilfield initiatives, including project management, sourcing scarce resources and sharing health and safety advisories. These professionals also believe that new social media technologies can help stem the flow of intellectual knowledge from workers who are quickly hitting retirement age. Uganda is experiencing a deep penetration of this new mode of communication and information access/sharing. If well incorporated in oil revenue management in the next few decades, there will be easy information access, accountability from all the players and ease in gathering complaints, suggestion and feedback from the public. A shift towards a pro-people Parliament. The ninth Parliament has been credited by some political observers as a people-centered parliament in its oversight role unlike its predecessors which were mere rubberstamps for the executive arm of Government. According to the parliament watch bulletin report, a citizen –assessment of the first year of the 9th parliament released on Friday in Kampala by the Uganda governance monitoring group, (UGMP) the 9th parliament was rated high in terms of legislation and oversight scoring 60 percent. It was also highlighted that in its first session, the 9th parliament was very instrumental in protecting national interests such as the demand for transparency in the management of oil and other extractive resources in Uganda. Oil education and public sensitization programs through efforts of agencies like Africa Institute for Energy Governance (AFIEGO). This will in the long run help to build capacity of the people to participate in the making and implementation of energy policies to ensure equity and justice in development. An alert media is also a blessing. An active, knowledgeable press plays a critical role in helping the public and parliaments to engage in governance issues, enabling them to hold government and companies more accountable. However, in many resource-rich countries, journalists lack the information and skills to report and write in depth on oil, gas and mining. Recognizing these challenges, there have been media training programs within the fraternity in Ghana and Uganda to promote effective, consistent media oversight of oil, gas and mining. The programs seek to increase the number and quality of print, television and radio stories, and develop training tools that are self-sustaining in these countries and replicable in others. There is also new hope in the will to enact new legislation to cover the existing gaps in the sector. This has been demonstrated by the changes made in the 2010 Petroleum (Exploration, Development and Production) Bill and most of the recommendations by Civil Society Organizations on such 2010 Bill have been incorporated into the 2012 Bills. For example, the 2010 Bill has since been split into two Bills: (i) The Petroleum (Exploration, Development and Production) Bill 2012 (Bill No. 1) for upstream petroleum activities and (ii) The Petroleum (Refining, Gas Processing and Conversion, Transportation and Storage) Bill 2012 (Bill No. 2) for midstream petroleum activities. These are efforts necessary to realize a sober legal framework for the oil and gas industry. Training of staff through schemes like the Tullow Oil scholarship. The Tullow scholarship scheme was established to build capacity of Ugandan nationals to support and participate in the early phases of oil production. The post-graduate studies focus on disciplines in petroleum geosciences, petroleum geology, structural geology, sedimentology and other petroleum related courses. "This whole scheme is about developing potential - the potential that Tullow sees around it in Africa every day. Developing local talent for the oil industry makes good business sense for us, and it makes sense for oil producing countries to develop talent beyond oil. This is a great opportunity for anyone who has thought about this and wants to make a real contribution to the future of their country." Aidan Heavey, CEO of Tullow Oil Plc Recommendations and Alternative policy suggestions I would advocate for the release of the Production Sharing Agreements into the public domain, and more transparency within the sector/industry. Only the transparency of commercial, financial, and environmental matters can permit the public to judge the efficacy and soundness of these agreements. The tendency to keep such vital contracts secret prevents the country from developing a coherent functioning legal system and also sets a bad precedent for future contracts as it would almost inevitably serve as a model for companies in other sectors. I also agree with Mr. Mr Emmanuel Tumusiime-Mutebile that Good public policy decisions are more likely to be taken and implemented if they are a product of well-informed public policy debates; debates which involve public officials, the academic community, the business sector and civil society. Establish oil trust funds. This is particularly attractive in the wake of the past high and volatile oil prices and new oil discoveries. Some objectives of oil trust funds have been to combat commodity price volatility, currency appreciation, inflation, and dependency on oil revenues. Other objectives have included a desire to pay for social and economic development, provide financial resources for future generations, and provide an incentive for prudent financial management by putting revenue away for later use. Create stabilization funds managed by the Central Bank. This is a percentage of income that is set aside for national financial reserves and national emergencies. It may be used to stabilize a country’s economy during particularly volatile periods. Stabilization funds have also been used to spur development in non-oil sectors of a country’s economy. Capacity building in the sector. The importance of identifying and producing the types of technical skills required by the oil industry and the rest of the economy cannot be underestimated. National curricula need to be revisited in light of the oil discovery. The importance of bridging research and policy for the oil sector should be emphasized. Investing in other sectors especially those where Uganda enjoys competitive advantage, for instance Agriculture and Tourism. I would emphatically advocate for increased funding of such sectors so as to complement the oil and gas sector, and widen the export base. Oil is finite and cannot accommodate each and everyone in the country. There is need for sustained food production and engagement of all the other vital sectors so as to curtail the Dutch disease. Conclusion By and large, Oil production offers great economic advantages to Uganda-both directly and indirectly, through the windfall of the numerous economies of scale that accrue from the sector. However, for the resource to be useful and beneficial in a sustainable manner, there is need for sober planning and prudent financial management. This will require great effort from all the various stake holders in the public sector, private sector, civil society, media, local communities, and a well-informed citizenry that can hold those in positions of responsibility accountable so as to ensure proper and equitable management of the proceeds from oil and gas. The government should not only promote activities in the petroleum sector as this may disorient the economy into a single commodity economy. Efforts to promote and maintain interventions in other sectors of the economy and other domestic revenue sources must also be addressed. As a catalyst of economic growth, the country needs a well-articulated national development agenda that is not only well-known and deeply ingrained on the heart of government, but also citizens as well. Selected References Primary Sources National Legislature Constitution of Uganda, 1995 (as amended) Petroleum Exploration and Production Act 1993 Petroleum (Exploration and Production) Regulations, 1993 Uganda Mining Act 2003 National Policies National Oil and Gas Policy for Uganda, 2008 Petroleum Exploration and Production Act 1993 Bills of Parliament Petroleum (Exploration, Development and Production) Bill, 2012 Petroleum (Refining, Gas Processing, Conversion, Transportation and Storage) Bill, 2012 Public Finance Bill, 2012 Secondary sources Text books A Manual of UK Oil and Gas Law, 109-110 (1977) Articles Advocates Coalition for Development and Environment; UNDERSTANDING THE TAX DISPUTE: HERITAGE, TULLOW, AND THE GOVERNMENT OF UGANDA (Authored by Angelo Izama and Hashim Wasswa Mulangwa) Emmanuel Tumusiime-Mutebile: Oil revenue management, Oil Revenue Management Seminar, Kampala, 27 February 2012. Jacqueline Lang Weaver; Sustainable Development in the Petroleum Sector, IUCN Environmental Policy and Law Paper No. 47, The World Conservation Union (2003) Jenik Radon; How to negotiate the “right” petroleum contract (UNDP Discussion Paper No.6) Muhwezi, et.al, (2009). Crafting an Oil Revenue-Sharing Mechanism for Uganda: A Comparative Analysis, ACODE Policy Research Series, No. 30, 2009. Kampala. Internet sources http://www.independent.co.ug/cover-story/5427-parliament-to-pass-weak-laws-on-oil (last visited 22nd October, 2012) http://www.observer.ug/index.php?option=com_content&view=article&id=19310:view-point-bunyoro-wont-be-silenced-on-oil&catid=36:letters&Itemid=62 (last visited 20th October, 2012) www.oilinuganda.org/civil-society-coalition-for-oil (last accessed 20th October, 2012) www.tullowoil.com (last visited 27th October, 2012) N.D Laws 1953, Ch.227 3(4), N.D Century Code 38-08-02(8) (2d Repl. Vol. 1980) A Manual of UK Oil and Gas Law, 109-110 (1977) http://www.acode-u.org/ugandaoil.html The policy goal is to use the country’s oil and Gas resources to contribute to early achievement of poverty eradication and create lasting value to society A term adopted from Juan Pablo Pérez Alfonzo, Venezuelan politician and one of the founders of OPEC. Jacqueline Lang Weaver; Sustainable Development in the Petroleum Sector, IUCN Environmental Policy and Law Paper No. 47, The World Conservation Union (2003) View Point: Bunyoro won’t be silenced on oil (http://www.observer.ug/index.php?option=com_content&view=article&id=19310:view-point-bunyoro-wont-be-silenced-on-oil&catid=36:letters&Itemid=62) A series of documents tabled before the floor of Parliament by Hon. Gerald Karuhanga and others showing bank transfers of large amounts of money to two ministers: Sam Kutesa of Foreign Affairs and Hillary Onek, then of Energy and Mineral Development. According to the documents, Kutesa had been paid by Tullow Oil 17m Euro under a company called East African Development Limited registered (EADL) in Nairobi. Onek had been paid 6.0m Euro to his account with the Emirates Bank in Dubai. It is ironic that subscription to the ETI is provided for under Objective 6 of the National Oil and Gas Policy for Uganda, 2008 http://www.independent.co.ug/cover-story/5427-parliament-to-pass-weak-laws-on-oil International Alert; Oil and Gas Laws in Uganda: A Legislators’ Guide (May 2011report) Advocates Coalition for Development and Environment; UNDERSTANDING THE TAX DISPUTE: HERITAGE, TULLOW, AND THE GOVERNMENT OF UGANDA (Authored by Angelo Izama and Hashim Wasswa Mulangwa) For instance clause 14 of the POMB gives the minister powers to declare some places unfit for public meetings of more than 25 people. This clause seeks to reinstate the position of S. 32 of the Police Act which was ruled unconstitutional by the Constitutional Court in Muwanga Kivumbi Vs A. G. Section. 32 gave powers to the Inspector General of Police to prohibit a public meeting if he/she thought it was necessary for public safety. Court was of the view that this was a limitation on the rights to freedoms of assembly and association. Human Rights Watch; Uganda: Draft Public Order Law Would Violate Rights The 1995 Constitution of the Republic of Uganda. www.oilinuganda.org/civil-society-coalition-for-oil Chris Van Dyke and Craig Hodges, Facebook for the Enterprise: the oil and gas industry goes social (Microsoft) New Vision; ‘’Ninth Parliament better than previous – report’’ Publish Date: Aug 27, 2012 “The media has a key role to play in governance issues, but they sometimes report in a way that creates an impression that there is anarchy in Uganda as far as oil is concerned. I implore the media to invest time and money to understand the intricacies of the oil industry, to avoid misinforming the public.” Francis Kamulegeya, Senior Country Partner at Price Waterhouse Coopers (www.oilinuganda.org) www.tullowoil.com Jenik Radon; How to negotiate the “right” petroleum contract (UNDP Discussion Paper No. 6) Governor of the Bank of Uganda Emmanuel Tumusiime-Mutebile: Oil revenue management, Oil Revenue Management Seminar, Kampala, 27 February 2012. Muhwezi, et.al, (2009). Crafting an Oil Revenue-Sharing Mechanism for Uganda: A Comparative Analysis. ACODE Policy Research Series, No. 30, 2009. Kampala. Pg. 40 Supra, note 24
This analysis to address the principles upon which exemption from limitation in civil proceedings may be claimed. Whereas the rules of civil procedure and Limitations should be complied with, as a general rule, just like many other legal principles, there are exceptions. Such provisions under the Limitation Act, Chapter 80 and The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Chapter 72 Laws of Uganda should be complimentary to the relevant provisions in the Civil Procedure rules. Their purpose is to aid the judicial process as handmaids of justice, and not to stifle and impede the course of justice with unfair procedural technicalities. It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Limitation refers to statutory rules limiting the time within which civil actions can be brought. Thereafter, a potential plaintiff is barred and may no longer bring his action. Litigation will automatically be stifled after expiry of a prescribed length of time irrespective of the merits of a particular case. Statutes of limitations are in their nature strict and inflexible enactments. Their overriding purpose is interest reipublicae ut sit finis litum, meaning that litigation shall be automatically stifled after fixed length of time, irrespective of the merits of the particular case. The Public Policy behind the statute of Limitation [of England] has been clear since 1603. A time must come when the defendants can relax and known that actions against them are time barred. It has been observed that; "...the statute of limitation is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitations is entitled, of course, to insist on his strict rights." Where a period of limitation is imposed, it begins to run from the date on which the cause of action accrues. But, where a Plaintiff pleads facts from which a reasonable inference can be made that the suit is not time barred, then the issue of limitation is a triable issue which can only be determined after hearing the evidence on the matter. The Civil Procedure rules oblige this court to reject a plaint in a number of circumstances, which include, where the suit appears from the statement in the plaint to be barred by any law (including the Limitation Law ). This is the general rule. Consequently, courts have enforced it to the letter in most instances. For instance, in Iga vs. Makerere University , the appellant sued the respondent in tort for damages for personal injuries, the action having been filed outside the limitation period for such an action. It was held that the claim was barred by the Limitation Act and therefore could not be entertained by the court. The above position of the Law postulates the general rule. However, just like in most scenarios under the Law, to every general rule there are exceptions. In Uganda, judicial power is derived from the people and courts are enjoined to deliver justice with undue regard to technicalities. Furthermore, statutory provisions enshrined in Sections 21-25 of the Limitation Act and Sections 5 and 6 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act also expressly provide for exceptions to the strict application of the statutory Limitation period. However, courts have no inherent jurisdiction to enlarge time once set out by statutes of Limitation since time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with The exceptions are discussed hereunder; Disability This means;- 1. The inability to perform some function; an objectively measurable condition of impairment physical or mental (insanity, minority, etc) 2. Incapacity in the eyes of the law. When a suit is filed outside the limitation period, the plaint should show the nature of disability or exception. A person is deemed to be under a disability while he is an infant or of unsound mind. From the authorities, these two categories are not exhaustive. It has been defined to mean and include any incapacity whatever that would hinder a person from performing a required act. Therefore, a person on remand facing a criminal charge has been held to be under disability to institute a suit. That is why in cases of unlawful detention and false imprisonment, the Limitation period begins to run after the release of the plaintiff. The short and long of this exception is that that to be incapacitated is to be rendered physically or mentally incapable of taking the action required. Acknowledgement and part payment is the other exception to the strict application of the statutory time Limitation provisions. This is provided for under section 22 of the Limitation Act. Subsection 4 thereof provides that where any right of action has occurred to recover any debt or other liquidated pecuniary claim and the person liable or accountable therefore acknowledges the claim or makes any payment in respect of the claim, the right shall be deemed to have occurred on and not before the date of acknowledgement or the last payment. The effect of the above provision is that such acknowledgement of the debt or payment rekindles the time which had otherwise expired. Courts have also held that this specific section applies to governments and scheduled corporations. This exception was invoked in the decision of the Commercial Court of Uganda in Greenland Bank (In Liquidation) v Dr. Apuuli Kihumuro & Anor where a preliminary objection was raised to the effect that the suit was time barred because according to the plaintiff’s pleadings, the defendants operated an account; they over drew it; and a sum of Shs.68, 104,587- was outstanding, and further that according to the pleadings, the last amount is indicated on the statement of Account as having been withdrawn on 6/10/95. That a demand was made in 1999 but a suit was not filed until 2003. Therefore, it was counsel’s contention that the cause of action accrued to the plaintiffs in 1999 when a demand for payment was made and the defendants ignored it. Accordingly, it was the view of counsel that when the plaintiffs filed the suit in 2003, the same was not time barred. In resolving this, Justice Yorokamu Bamwine remarked that; “The plaintiffs have pleaded the defendants’ purported acknowledgement of a debt in para 4 (e) of their plaint. Assuming this to be the case, then S. 24 of the Limitation Act appears to be applicable. Under that law, where any right of action has accrued to recover a debt or other liquidated pecuniary claim and the person liable or accountable thereafter acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of acknowledgement or the last payment. Since the plaintiffs have pleaded the fact or the alleged act of acknowledgment of a debt by the defendants, this now makes it a triable issue.’’ In his holding, he observed that Generally speaking, a debt is repayable when it is due. And that date becomes the date when the cause of action arises. Coming specifically to Bank Law, the Court was of the view that a banker cannot recover a dormant overdraft more than six years after the last advance. For purposes of this case, this appeared to have been 6/10/95. This was taken as the date when the last over draft was extended to the defendants. A suit filed after more than 6 years would fail unless a demand for payment is on record to have been made in between. In the instant suit, the last overdraft was extended to the defendants in 1995. A demand was made for its payment in 1999. The suit would only have been time barred if, in 1999 no such demand had been made and the suit was filed after 2001. For this reason alone, the learned judge accepted Mr. Sembatya’s (for the plaintiff) argument that the suit is maintainable against the defendants. The effect of acknowledgment or part payment of a debt or other liquidated sum is that time which had started to run against the creditor may be stopped and made to start a fresh by an acknowledgment of liability or by a part payment made by the debtor. If a debt is acknowledged, it is immaterial that the amount of debt claimed is disputed in the acknowledgment. Fraud and mistake are the other exceptions to the general rule to strict application of Limitation as discussed above. Fraud implies some act of dishonesty. It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. Fraud, however, is a conclusion of law. If the facts alleged in the pleading are such as to create a fraud it is not necessary to allege the fraudulent intent. The acts alleged to be fraudulent must be set out, and then it should be stated that these acts were done fraudulently, but from the acts fraudulent intent may be inferred. Fraud by its very nature is an illegality, and Court of law cannot sanction what is illegal and illegality once brought to the attention of the Court, overrides all questions of pleadings, including any admissions made thereon. Circumstantial evidence suffices to prove fraud. On the other hand, mistake applies only where the mistake is an essential ingredient of the cause of action, where the statement of claim sets out the mistake and its consequences and prays for relief from the consequences. The right of action is for relief from the consequences of a mistake. It seems to me that this wording is carefully chosen to indicate a class of action where a mistake has been made and has had certain consequences and the plaintiff is seeking to be released from those consequences. The above provision extends the limitation period where the plaintiffs action is for relief from the consequences of a mistake and time begins to run from the time when the plaintiff discovered the mistake or could with reasonable diligence have discovered the mistake. Courts have also adjudicated on the issue of fraudulent concealment. Concealment or omission perse is not an element of fraud. There should be a fraudulent intent to conceal or omit. For instance, fraudulent concealment has been defined, in relation to an action to recover property, as designed fraud by which a person, knowing to whom the right belongs, conceals the circumstances giving the right and by means if such concealment enables himself or some other person to enter and hold property. By and large, a Court cannot conduct its business without a code of procedure. The relation of rules of practice to the work of justice is intended to be that of a handmaid rather than mistress, and should not defeat the noble cause of justice. The Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case. BIBLIOGRAPHY Constitution of The Republic of Uganda, 1995 (as amended) The Civil Procedure rules The Limitation Act, Cap. 80 Laws of Uganda The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Chapter 72 Laws of Uganda Text Books Harlsbury’s Laws of England 3rd Ed Vol. 24 Musa Ssekaana & S. N. Ssekaana; Civil Procedure and Practice in Uganda, Law Africa Walter Blake Odgers; Odgers on Pleading and Practice. Ninth edition, Stevens & Sons, Ltd. 1926 Oxford Dictionary of Law 7th Ed; Oxford University Press, Page 328, ISBN9780199551248 Musa Ssekaana & S. N. Ssekaana; Civil Procedure and Practice in Uganda, Law Africa: Page 69 ISBN 4200006200 . His Lordship Justice Berko in In the matter of an application by Mustapha Ramathan for orders of certiorari, prohibition and injunction, Civil Appeal No. 25/96 Supra, 3 the application was in fact made on 25th day of April 1996. That was obviously more than six months after the Minister’s order or decision. Uganda is a former British Protectorate that applies principles of the English Common Law by virtue of the reception clauses in the 1902 Order in Council Salmond & Heuston on the Law of Tort 21st edition at page 558 Lord Greene MR in Hilton vs. Steam Laundry (1946) 1 KB 61 at page 81 Eridad Otabong vs. Attorney General, S.C. C.A. 6/1990, (1991) ULSLR 150 Sayikwo Murome vs. Yovani  HCB 68, Odoki J, as he then was Order 7 Rule 11 (d)of the Civil Procedure Rules In Uganda, the Law governing the subject matter is the Limitation Act, Cap. 80 Laws of Uganda, and The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Chapter 72 Laws of Uganda  1 EALR 63 The spirit behind Article 126 (e) of the Uganda Constitution, 1995 as amended Uganda Revenue Authority Vs. Uganda Consolidated Properties (1997 – 2001) UCL 149(Justice Twinomujuni ,JA) Blacks Law Dictionary’s (7th Edition) p. 474 [Emphasis mine] H. J. Stanley & Sons Ltd Vs Said Narrow Zakor (1963) E.A. 565. Where a plaintiff wishes to rely on any exemption to the periods of limitation it must be specifically stated in the pleadings. If it is not the plaint should be rejected as held in Iga Vs Makerere University (1972) EA 65. Section 21, Limitation Act and section 5, Civil Procedure and Limitation (Miscellaneous Provisions) Act Eridad, Otabong Waimo vs Attorney General SCCA No. 6 of 1990 David Oruk & Others vs Attorney General HCCS No. 2 of 1996 K. Patel v/s Uganda Revenue Authority HCC-00-CC-CS-0014-2003 National Pharmacy Ltd v/s K.C.C  HCB 246, and Sour Fap Farmous,RZ "Pro Met" Belgrade Fransuska 61-65, & Anor v/s Attoney General [1997 -2001] UCL 396 (HCT-00-CC-CS-0790-2003)  UGCommC 62 [accessed via http://www.ulii.org/ug/judgment/commercial-court/2006/62] J.K. Patel v Uganda Revenue Authority - HCT-00-CC-CS-0014-2003 (Yorokamu Bamwine, J) Halsbury’s Laws of England, 3rd Edn; para 594 at p.300 Waimiha Saw Milling Co. Ltd v. Waione Timber Co. Ltd.  A.C 101, Lord Buck master, at page 106 B EA Timber Co Vs Inder Sigh Gill (1979) EA 463, Forbes, VP at page 469 and Order 6 rule 3 of the Civil Procedure Rules Makula International Ltd vs His Eminence Cardinal Nsubuga and Anor HCB 11, Court of Appeal of Uganda Suleman Vs Azzan (1958) EA 553 Philips Highs Vs Harper (1954) QB 411 Pearson J at page 119 Andrew McGee’s Limitation Periods 2nd Ed pages 337 – 338 Hermezdas Mulindwa and Another v Stanbic Bank (u) Ltd (HCT-00-CC-CS-0426-2004) Lameck N. Mukasa, J Harlsbury’s Laws of England 3rd Ed Vol. 24 para 631 page 318 Quoting Collins, M. R in Re Coles and Ravenshear  1 KB 1 at page 4
Wednesday, October 10, 2012
Some Considerations on the Intellectual Property Legal Framework of Uganda: Enhancing an Exhaustive Industrial Properties Act
Does the Industrial Properties Bill (IPB) address Traditional knowledge as a branch or sui generis Intellectual Property (I.P), or should it be included, in light of the on-going debate at the WIPO (World Intellectual Property Organization) level? Another related point that could also be handled separately is: Can Traditional Knowledge be considered as prior art in opposing patent applications? Can we look at how India has gone ahead with the Digital library data base for its traditional knowledge as a fall back in addressing existing traditional aspects as prior art oppositions to patent applications? - It has been successful in opposing such applications in the U.S as well as in Europe. How adequately does the IPB provide for computer software as I.P? There does not appear to be any other Ugandan legislation that addresses the issue, including the new Cyber laws which are more focused on protecting the utilitarian aspects of Cyber space as opposed to the processing of I.T. The Copyright legislation gives very little provision over I.T and should not be left to handle I.P in I.T all by itself. Does the IPB address cross border measures on enforcement/infringement? Does it consider East African Community legislation which is considered superior to national legislation from member states? How adequate are the provisions on defenses to Patent infringement in the IPB? Does it address Invalidity; misuse; laches; equitable estoppel or term limit as part of the defenses? Trademarks are considered in some jurisdictions as part of Industrial Property under I.P legislation. How has the Bill addressed this since the Trademark Law is also separate and still new in Uganda (though also lacking in many respects)? How does the Bill address Industrial designs? Does it also consider them as Patentable or are we still stuck with the colonial U.K Designs Protection Act of Uganda?, Can we analyze provisions on patentable subjects, effectiveness of third party patent applications, parallel importing and compulsory licensing. Do the aforementioned provisions take full advantage of the TRIPS flexibilities? Can we pick references from key IP benchmarks from TRIPS agreement, the Doha Declaration, the Paris, Bern Conventions and any other relevant treaties or conventions to inform our local I.P Legislations? Silver Kayondo firstname.lastname@example.org
The most surprising thing I found in the Pew report is the lack of context and deeper understanding about African beliefs, traditions, norms and practices exhibited by the researchers/authors. One would be forgiven for thinking that the Pew report is just like any of those decontextualized and cultural-insensitive reports and documentary accounts from agencies like Human Rights Watch, Invisible Children and a host of other western agencies and “missionaries” who are here to “liberate” Africa from war, ignorance, poverty, diseases, hunger, and barbaric beliefs! For instance, on page 23 of the Report, on Chapter 3, under the sub-title “Traditional African Religious Beliefs and Practices”, the “experts” on African religion wrongly (or perhaps ignorantly) assert that; “The continued influence of traditional African religion is also evident in some aspects of daily life. For example, in 14 of the 19 countries surveyed, more than three-in-ten people say they sometimes consult traditional healers when someone in their household is sick.” (Paragraph 4) This shows a very narrow and simplistic, if not ignorance about African religion, traditions, norms and traditional beliefs. Traditional healers are not agents of traditional African religion! These are men or women skilled in harnessing local medicines (herbs, roots, soil, etc) to cure some tropical diseases! They spend most of their time in the bushes looking for traditional native medicine for diseases and ailments, and use some of those conctions and mixtures (some of which are even used in pharmaceutical industrial processes) to cure diseases like boils, wounds, pregnancy complications, and so many other ailments. This is hard to grasp for a western observer, who is unfamiliar with how Africans treated their diseases before the interaction with the white man, and his medicine (pills, injections, ointments, gels, etc), but these are medicines that preserved the lives of our grandfathers-who enjoyed longer lifespans compared to us (the modern generation)! The Pew report suffers from what most reports about Africa suffer from: lack of context, and deeper understanding of the non-obvious about Africa's lives, rich culture and customs. In preparing this survey, the Pew Forum sought the counsel of scholars with “expertise” in sub-Saharan Africa. Peter Lewis, associate professor and director of African Studies at Johns Hopkins School of Advanced International Studies, served as a special adviser to the project. They also received invaluable assistance from Amaney Jamal, assistant professor in the Department of Politics at Princeton University and a Pew Forum consultant on global Islam, and Timothy Samuel Shah, senior research fellow at the Institute on Culture, Religion and World Affairs at Boston University and a Pew Forum consultant on global Christianity. Many others advised in the conceptualization and development of the survey, and Teresa Cruz e Silva, Center for African Studies, University of Eduardo Mondlane, Maputo, Mozambique; Stephen Ellis, African Studies Centre, The Netherlands; Tibebe Eshete, Michigan State University; Christopher Fomunyoh, National Democratic Institute for International Affairs; Rosalind Hackett, Department of Religious Studies, University of Tennessee, Knoxville; Ogbu Kalu (deceased), McCormick Theological Seminary; Gina Lambright, Elliott School of International Affairs, George Washington University; Peter Mandaville, Department of Public and International Affairs, George Mason University; David Maxwell, School of History, Keele University; Ali Mazrui, Institute of Global Cultural Studies, Binghamton University, State University of New York, the list goes on and on! The “experts” are those enlisted from Michigan, New York, Tennessee, etc and not the Old African who knows more about our beliefs-largely because they are “illiterate”, uncertificated and cannot articulate these issues or rise defence for their beliefs in English! The “knowledgeable” are those who co-ordinate programs in “African Studies” from designated African Study Centres, and not those who practice African traditional beliefs, norms and cultures, nay those who have attained traditional or informal training from the encyclopedia of traditional Afrikology! The report also fails to distinguish between which Traditional African Religion Practices are “evil” and which ones are not. Admittedly, practices like child sacrifice, twin murders, etc are evil in the Christendom sense, but some rituals like seeking curative herbs and traditional medicines from traditional healers (as distinguished from the juju man, or witch doctor) are not evil or unchristian! Practices like communal bonding beer parties and participation in rituals like naming new-borns according to ancestors (for preservation of family ties, and lineage) are not evil, or pagan! Unfortunately, such misconceptions and prejudices about African culture, coupled with lack of understanding, and a deeper ignorance about norms, traditions and beliefs are in most cases the basis for analysis of Africa and her people, and the biased judgments like; “Christianity in Africa is millions of miles wide, but inches deeper!” from petty Christianity portrayed by so many “deep expert theologians” of the West with a lot of emphasis on dogma (form as opposed to substance).
Sunday, October 7, 2012
Critique of the Industrial Properties Bill, 2009 (Uganda) and Policy recommendations for Intellectual Property Law Reform
Table of Contents List of Abbreviations and Acronyms General Background Justification for reform in Industrial Property Legislation Introduction Analytical Assessment of Key provisions of the Bill and Policy options Recommendations Conclusion LIST OF ABBREVIATIONS AND ACRONYMS ARIPO Africa Regional Industrial Property Organization COMESA Common Market for East and Central Africa EAC East African Community GATS General Agreement on Trade in Services GATT General Agreement on Trade and Tariffs ICT Information and Communication Technology IPRs Intellectual Property Rights TRIPS- Agreement on Trade-Related Aspects of Intellectual Property Rights UNCST Uganda National Council for Science and Technology URSB Uganda Registration Services Bureau WIPO World Intellectual Property Organisation WTO World Trade Organisation General Background The Republic of Uganda, a small land locked country in East Africa (sandwitched between Kenya, Tanzania, Rwanda, the Democratic Republic of Congo and the South Sudan) signed the agreement establishing the World Trade Organisation (WTO) in April 1994, and ratified the same in October the same year thus being legible to become one of the founder members of the WTO. She also enjoys membership t the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA) as regional bodies, and the African Union (AU) as a Continental body. The WTO, upon inception, set up to do its work (encouraging free trade practices) among its member countries. In pursuit of this, it [WTO] makes agreements that seek to encourage free trade, fair and honest dealing among WTO member countries. One of such agreements is the “Agreement on Trade-related Aspects Of Intellectual Property Rights” (hereinafter called TRIPS Agreement), created interalia, with a desire to reduce distortions and impediments to International trade, and taking into account the need to promote effective and adequate protection of Intellectual Property Rights (IPRs), and to ensure that measures and procedures to enforce IPRs do not themselves become barriers to legitimate trade. Justification for reform in the Industrial property legislation. Uganda currently pursues a National Development Plan hinged on the need for sustainable Growth, Employment, and Socio-Economic Transformation for Prosperity. One of the ways to achieve this is through having a sound and well-articulated Intellectual Policy legal framework. Unfortunately, owing largely to her colonial history, the present existing legal framework comprising of old and archaic English Law like the UK Designs (Protection) Act , the Patents Act and the Uganda National Council for Science and Technology Act do not support the socio-economic realities that have happened in Uganda since Independence and with the ratification to the TRIPS Agreement. TRIPS is a WTO agreement that was negotiated in the Uruguay Round of negotiations from 1986 to 1994 by the members of the WTO (80% of the world’s nations and the vast majority of the world’s trading nations) that sets out certain rules regarding intellectual property rights. Once the member countries agreed to the provisions, it became an official agreement of the WTO that must be ratified by member country governments in their own parliaments. The effect of this was to create a world standard of intellectual property protection. Agreements ratified by the WTO set out certain minimum standards; member countries reserve the right to go above and beyond the provisions of the agreements as long as domestic legislation does not controvert the conditions set out by the WTO agreements. The purpose of the TRIPS agreement is to establish a uniform set of rules across the globe that would provide adequate standards of protection for intellectual property and provide greater predictability and stability in international economic relations. At this point it is important to note that the TRIPS agreement applies to all forms of intellectual property: from copyrights to trade secrets, however, this paper will focus on the TRIPS agreement as it relates to Uganda’s Industrial Property Bill, 2009. The regulation of intellectual property rights has not always been of primary importance in the international arena. In the latter half of the twentieth century, the proliferation of high-technology devices, and the means to reproduce them at low relative cost, has made it essential to preserve an environment that encourages innovation. Industries that invested heavily in research and development, such as the information technology industry, were seeing their work pirated by other companies and sold for a fraction of the price offered by the inventors. This created an environment that was more profitable to “second-movers” as opposed to first-movers and thus heavily discouraged innovation. Before the enactment of the TRIPS agreement, international intellectual property rights were governed by the Paris Convention on the Protection of Industrial Property which was first drafted in 1883. It was widely recognized in economic and commercial circles that the Paris Convention was inadequate to address modern issues of concern in industries such as information technology and biotechnology: there were few rules dealing with patents, no minimum period of patent protection, and no mention of the exclusive rights of patent-holders. The TRIPS agreement was the modern-day solution to this problem; it took, as its foundation, the provisions of the Paris Convention and the majority of the provisions of the Berne Convention for the Protection of Literary and Artistic Works. To this foundation, the TRIPS agreement added several other specifications that addressed the inadequacies outlined above. Any nation that wanted to take part in the World Trade Organization was obliged to amend its intellectual property legislation to meet the guidelines set out in the agreement, thus creating a uniform international standard of protection for intellectual property rights. The provisions of the TRIPS agreement range from the plain to the controversial. Included in its terms is a minimum period of patent protection of twenty years from the date of filing for a patent. Significantly, the TRIPS agreement also invalidates the use of process patents by declaring that patent protection on a process extends to the product of that process. In addition to these provisions, the TRIPS agreement sets out two mechanisms that deal with international public health crises: compulsory licensing and parallel imports, issues of enforceability, and technology transfer from developed countries to the developing ones. Uganda, as a member to the WTO and upon ratification of the TRIPS agreement, assumed the responsibility to make its legal framework conform to the provisions of the TRIPS Agreement. Introduction Originally, Industrial Property had been understood to mean Patents, Trademarks, Industrial designs and Utility models. However, recently, technovations have been included within this ambit. A Patent is a Government grant of full and exclusive rights in the invention for a limited time to prevent others from selling, using or duplicating that invention. Trademarks are distinctive signs or indicators used by an individual, businesses, organisations or other legal entities to identify for consumers that the products or services on or with which that mark appears originate from a unique source, designated for a specific market, and to distinguish its products or services from those of other entities. Industrial designs are ornamental or aesthetic aspects that give an item or product a special or unique appearance for example colour, patterns, shape or surface. Utility models usually, are used to protect industrial innovations that are not as important as subjects of Patents. Whereas novelty is a great consideration in this aspect, inventive step is not. Finally, technovation refers to a solution to a specific technological problem proposed or suggested by an employee of a given firm or business entity for use by that firm within the scope of the work, trade or dealings of the firm in question but has not been used by the said firm. The TRIPS Agreement seeks a balance of rights and obligations between the private right, enumerated above, and the obligation “to secure social and cultural development that benefits all.” Article 7 declares that: “ . . . the protection and enforcement of IPR should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations.” Analytical Assessment of Key provisions of the Bill and Policy options In this part, I will analyze the key provisions of the Bill that I feel warrant attention. Firstly, Clause 3 seeks to establish the office of the Registrar. However, the same provision under (4), gives the Minister power to direct any officer to do any “act or thing”. This provision gives the Minister excess powers to influence the work of the registrar, and yet the registrar should have some independence and autonomy while discharging his/her functions. The Bill should expressly provide or such a number of Deputy Registrars or specific officers at the registry who can work with the guidance of the registrar, for instance Legal Officers. Furthermore, the office is established with no specified source of funding. This needs to be streamlined drawing from past and present experience where Government has created numerous departments which have been suffocated and rendered irrelevant and useless due to lack of operational budgets. Under Clause 5, the registrar is mandated to keep two separate registers for record purposes. The Bill should be modified to provide for online versions of the register to take full advantage of the ICT developments. This will also resolve problems resulting from poor manual record keeping leading to tedious inspection processes just like it is at the Registrar General’s office where information is kept in boxes and files piled in office. The same poor record keeping can be seen at the Lands Registry. Clause 8(3) (e) seeks to disregard plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes, and proposes exclusion of the said items and processes from patent protection. However, this provision should exclude natural substances, generic drugs and medicines from patentability so as to encourage reverse engineering, and development of natural substance/object medicines. Clause 8(f) should also be amended to provide for any other day after 1st January 2016, just in case there is adjustment to the time frame. Clause 14 deals with prohibition or restriction of applications for patents containing information prejudicial to security of Uganda or safety of the public. However, the Bill fails or omits to attempt and define or explain what “information prejudicial to security or public safety” entails. Clarity is one of the key canons of legislative drafting. Therefore, there is need to shed some light on the said provisions by way of definition or explanation so as to avoid arbitrary enforcement in the guise of “public security, or interest” once the Bill becomes an Act. Clause 28 (13) and (14) provide for “mail box provisions” concerning applications for pharmaceutical patents. Within the TRIPS flexibilities is the provision that during the transition periods, the LDC countries do not need to make provisions for ‘mail box’ pharmaceutical patent applications in accordance with Article 70.8 of TRIPS. This article requires countries that do not yet have patent regimes to allow applications for pharmaceutical patents to be filed, which would be granted once these countries enact patent protections by January 1, 2016. In the long run, this would potentially hinder access to cheaper and more affordable medicines thus prejudicing the majority poor population of Uganda. Therefore, these provisions need to be modified to the effect that that applications for pharmaceutical products should only be filed after 1st January 2016 or such other date as may be extended in the future. Clause 38 (1) (c) grants the applicant or owner of an invention, where the patent has been granted in respect of a “new use”, of putting the patented product or process into a new use without the prior authorization of the owner of the patent. This clause should be modified to exclude traditional knowledge and genetic resources from “new use” patents so as to accord maximum protection to indigenous knowledge and resources. Clause 38(2) should also be amended to include other ways of owner exploitation of benefits of a patent, for example “use and pay”, where third parties accrue some benefits from the patent and pay the owner for such benefit derived/enjoyed. Clause 43(2) deals with parallel imports. It is important that Uganda takes advantage of the Doha Declaration and its parallel decision regarding Paragraph Six of the declaration. This requires a number of steps, among which include: 1) in most cases, compulsory licenses issued by importing and exporting countries, 2) the importing country’s establishment of insufficient or no local manufacturing capacity in the specified pharmaceutical sector, 3) importer notification to the WTO of its intention to use the system detailing product(s) requested and quantities (accompanied by confirmation of insufficient manufacturing capacity and that a compulsory license is or will be granted), and 4) notification of the exporting country’s compulsory license to the WTO and the conditions attached. It should also be noted that parallel imports are also of particular importance in meeting public health needs since the pharmaceutical industry generally sets differential prices globally for the same medicine. Thus, parallel importation of a patented medicine from a country where it is sold at a lower price, will enable more patients in the importing country to gain access to cheaper drugs. Paragraph 5(d) of the declaration explicitly reaffirms members’ freedom to determine their own regimes for the exhaustion of intellectual property rights without challenge. Clause 44 (e) (1) provides that it is not a patent infringement to use the patented invention without an authorization of the holder to manufacture or export to another country a patented health care where the export of the invention addresses a health need identified by the other country where the product is either not patented in the third country. This provision should be amended to include a reason that; because adequate remuneration would have been paid to the patent holder in the exporting country. In Clause 45, Uganda recognizes patents granted by ARIPO. However, there needs to be a provision providing for a local and international search to test the validity of such patent- to double check just in case ARIPO granted it in error or without regard to some material aspects. On clause 60 (1) (a), concerning preconditions for grant of compulsory licences, the Bill does not provide a period within which to seek a voluntary licence. This needs to be secured. Some jurisdictions are seeking to establish a minimum period of six months. Clause 61 (1) should be amended to provide for administrative procedure leading to grant of compulsory licences to private third parties. The TRIPS Agreement does not require members to make the grant a subject of judicial procedure. There is need to bring this provision in line with full flexibilities provided by the TRIPS Agreement. Furthermore, clause 61(2) (e) talks of “equitable” remuneration, and yet Article 31 (h) provides for “adequate” remuneration. There is need to bring this provision in conformity with the TRIPS language to avoid misinterpretation. Under clause 66 (2), there is a drafting error. The opening line should read; “An order under subsection 1 shall remain in force…” 66(3) disregards payment of compensation to the owner, licence holder or anyone with interests in a patent. This Contravenes the TRIPS Agreement that provides for adequate remuneration. Clause 66(4) does not provide for an independent review prior to the Minister’s written order. This is likely to occasion injustice. The language of Clause 73 needs to be modified to read that and industrial design is registerable if it is new and original (not just new). Furthermore, in Part XIII (Industrial designs), the Bill does not address securing protection for textile designs as provided for under Article 25(2) of the TRIPS Agreement, and neither does it satisfy itself on duration of protection of Industrial designs as provided for under Article 23(6) of Trips specifying a period of at least 10 years. There is therefore need to take advantage of these TRIPS flexibilities. Clause 102 (8) needs to be amended to include partner States of East African Community so as to take advantage of the East African Common Market Protocol and the benefits that accrue therefrom, and the need for harmonization of laws and policies. Recommendations There is urgent need to implement the suggested reforms. I would propose immediate tabling, discussing and passing of the Bill so as to address deficiencies being caused by the existing inadequate legal regime. Training of the entire various stake holders like enforcement bodies would be a right step in the right direction to ensure effective capacity building. Establishing of effective, functional and well-networked databases at relevant departments like the National Council for Science and Technology. There is urgent need to pass a National Intellectual Property Policy to assist in establishing of key IP institutions. There is great cause to harmonize all the IP Laws and policies across the East African community member countries. Conclusion As it has been observed, the relentless march of intellectual property rights needs to be stopped and questioned. Developments in the new technologies are running far ahead of the ethical, legal, and regulatory and policy frameworks needed to govern their use. More understanding is needed –in every country- of the economic and social consequences of the TRIPS agreement. Many people have started to question the relationship between knowledge ownership and innovation. Alternative approaches to innovation, based on sharing, open access and communal innovation, are flourishing, disproving the claim that innovation necessarily requires patents. Promotion of Uganda’s responsibility to conform to International standards and obligations under TRIPS and any other treaties on Intellectual Property rights must be accompanied by well-articulated and defined measures that protect public interest concerns in areas of health [for scourges like HIV/AIDS, malaria, tuberculosis], nutrition, food and national security, community rights over traditional knowledge and environmental conservation programs and initiatives. REFERENCES Acts of Uganda Patents Act UK Designs (Protection) Act Uganda National Council for Science and Technology Act Journals Abbot, Frederick, (1998), “The enduring enigma of TRIPS. A challenge for the world economic system”, Special Issue Trade-Related Aspects of Intellectual Property Rights (TRIPS), Journal of International Economic Law, vol.1, No.4. Kumar, Nagesh, (1997), Technology Generation and Technology Transfer in the World Economy: Recent Trends and Implications for Developing Countries, The United Nations University, Institute of New Technologies, Maastricht. Reichman, J., (1996/1997), “From free riders to fair followers: global competition under the TRIPs Agreement”, New York University Journal of International Law and Politics, vol. 29, No.1-2. Other texts Anthony C.K Kakooza; The Civil, Administrative and Criminal Law standards in Intellectual enforcement in Uganda: The Good, the Bad and the Hoped-for Samuel Wangwe et al; Commission on Intellectual Property Rights country Case Study for Study 9: Institutional Issues for Developing Countries in IP Policy-Making, Administration and Enforcement in Uganda, Economic and Social Research Foundation, Dar es Salaam Tanzania *WTO Deals with the global rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably and freely as possible. (http://www.wto.org/ last accessed 1st October, 2012 4:30 pm) Cap. 218 Laws of UgandaCap. 216 Laws of Uganda Chapter 209 Laws of Uganda Article XVI.4 of the agreement establishing the WTO enjoins all member countries to ensure that all domestic/national Laws and regulations are brought to conformity with obligations under the agreement. Uganda Law Reform Commission Report on IPB, 2004 Patents Act, Cap. 216 Laws of Uganda Burundi Industrial Property Bill The UNDP "Human Development Report 1999", Page 73
Tuesday, October 2, 2012
This journal entry seeks to advance ways or mechanisms how the use of reason can be promoted in society basing on readings from John Finnis and Thomistic tradition. “Reason”, just like all indefinite concepts, is hard to define. It is better described, as connoting to a use of the human mental faculties in terms of logic, intuition, a premise of an argument, basis of an act or decision (practical reason) or a given set of beliefs and convictions (theoretical or speculative reason) On the other hand, “society” may be taken to mean a mass of people under the same territory, authority, sharing certain beliefs, culture, tradition, beliefs and social interaction. Throughout the web of the aforementioned works, one traces the concept of “practical reasonabless”, one of the core dissections of this paper. I will therefore humbly submit that in my humble opinion, use of reason can be promoted in the following ways. 1. Constant pursuit of knowledge (both formal and informal) through study, education, scholarship and all other relevant ways. This not only creates awareness about the individuals in a given society, but also exposes practices, cultures, and beliefs from other societies as well. This can create new ways of thinking to solve problems prevalent in a given society, and take full advantage of existing opportunities. 2. Evaluation and analysis of societal facts/phenomena (political, social, economic, cultural, etc) can also be a great avenue to stimulate the use of reason in a given society. This can be postured through observations, literal works, music, and all avenues that can be discerned by human reason. It is in a way, going beyond and unveiling the good, the bad, the folly, delusions, or the richness in a given society’s beliefs, habits, practices, norms, traditions, etc. This offers a challenge to existing ways/modes of doing things, or habits (reasonable and unreasonable) that tare prevalent in a given society and may influence rethinking of new strategies, suggestion of new solutions and attitudinal change. 3. Reason can also be promoted through upholding good. It has long been said that in human affairs and interactions, “good is to be done and pursued, and evil is to be avoided.” By creating a just system that rewards those who do good, and punishing those that do evil, and harm society, good reason and sanity are the emphasis. 4. Related to the above, human Law is also one avenue that can be exploited (if used justly) to influence and promote the use of reason in a given society. Finnis sees this as a means which both the leaders and the led/citizens see and believe in to be the rules for guidance. If the law (in Finnis’ understanding, what a law morally ought to be), has the same force on the both the leaders and citizens, then reason and sanity will be promoted with key emphasis on virtue, accountability and service of the “common good”. 5. Reason can also be promoted through formation of common and agreed upon moral and value principles to be observed by a certain society. These help form the core of a societal fabric through concern for others, fighting against self-interest, and promoting common interest. It has long been said that “good is to be done and pursued, and evil is to be avoided.” 6. Planning can also promote use of reason in a given societal setting. Rational plan of a society’s life, common objectives and resource utilization involves use of rational processes so as to effectively suggest concrete plans and proposals necessary to drive a given societal attain its societal goals, objectives, dreams and aspirations. A lot of societies world-wide have economic, social, and political development plans to buttress this assertion. 7. Reason can also be promoted through engagement of society members at various levels of project design, implementation and assessment. This would challenge them to think of new ways of improving on the weak department, and how to perfect the good ones. It is wise to engage the people in ventures that will expose those members to new experiences, new environments and trigger their mental faculties to find practical and reasonable solutions to deal with prevailing problems and challenges. 8. Finally, action is one of the most practical ways to stimulate and promote the use of reason. Action helps to determine new plans and thinking strategies compatible with new challenges, remedy deficiencies, system breakdowns and empower those engaged with confidence in their solutions (if plans and strategies are working and making systems better) In a nutshell, the above are some of the ways how use of reason can be promoted in society. Constant reasoning, through thinking, re-thinking, learning, re-learning and unlearning is a great tool to reach very practical and reasonable and intelligible choices, decisions, and solutions.
Saturday, September 29, 2012
In seeking to determine whether or not having a pilgrim’s perspective concerning one’s life on this earth has a positive or negative impact on one’s surrounding political environment, it is vital to attempt to define what “pilgrimage” is all about. It connotes to being in transit, on a long journey. In the deepest theological sense as obtained from the Christian perspective, it is about “being in this world, but not of this world.” It shows an element of a traveller who is on his way, but has not reached his/her final destination yet. It is not only a physical, but also a spiritual activity- a lifestyle to either live or leave. From the onset, I will argue that bearing a pilgrim’s outlook in regard to one’s journey while on earth has a very tremendous impact on one’s surrounding political environment. History is full of examples of courageous men and women pilgrims who have contributed invaluably in this regard. This is due to the following reasons. A pilgrim perspective makes one realize that he or she is answerable to a greater authority than earthly political leaders. In the Christian perspective, the earthly political establishments are under God’s authority, and He has enjoined them to do His will on earth. However, in case the said establishments act in a way that does not conform to His will, those with a pilgrim perspective have not only the duty, but also the obligation to advocate for sanity. The above point can be driven home by examples from the non-violence campaigns of Mahatma Ghandi, unarguably one of the greatest pilgrims in Britain-led India. He rose up to the great expectations of the day and advocated for Indian Independence, inspired non-violent civil disobedience movements, civil rights and championed for freedom not only in India, but across the world, and his legacy leaves on up to present day. Secondly, a pilgrim perspective to life gives one the humility to realize that his or her life on earth is just a means to a greater end (after life) and not an end in itself. Therefore, all that a pilgrim does on this journey is just in preparation of the greater life to come. In the Christian perspective, Jesus Christ uses a very challenging phrase, “the salt of the earth.” This ought to constantly remind Christian pilgrims of their role on earth-to restore saltiness (preservation). In Martin Luther King Junior, we see an example of a very inspirational Christian pilgrim who laid his life to take on the political powers of the day as he fought prevailing injustices of the day (mainly racism and the American-Vietnamese war). Using Non-violence activism, he managed to rally such a great following of fellow men and women who had understood the concept of pilgrimage on earth. (For example Jesse Jackson, James Bevel, James Farmer Junior, Mahalia Jackson to mention but a few) A life of pilgrimage gives one sense of purpose to be able to contribute positively to the rehabilitation of such a broken world. For instance, Mother Theresa was a very ardent preacher and practitioner of love without borders. She had observed that if we all loved (even when hurt by those we love), the world would be a better place to leave in. All these compassionate activities were based on her understanding that life was way much more than what we enjoy while on earth. If this can be practiced and upheld in the current local and global political environment, perhaps we could see fewer wars, less corruption, less injustice and reduced suffering for mankind. A life centered on pilgrimage makes one realize that his or her calling is about service to others, and not exploitation. One may not easily think of amassing material wealth that “will be eaten and consumed by moths and thieves”, but rather storing his or treasures in service of others for eternal reward. In Christianity, and human history, Jesus Christ offers a very perfect example of life of pilgrimage. He washed his disciples feet (a sign of service), and castigated the political class of the day for being unjust to the poor, orphans, widows and exploiting the needy. He lived a humble life-the son of man, who did not even have where to put his head! A pilgrim perspective towards earthly life gives one the boldness and courage to tackle injustice in a given political environment. By having a perspective about how things ought to be at the end of the journey, one is empowered to clear the way so as to reach his her final destination as a soldier who fought a good fight. The example of Martin Luther King Junior and his compatriots is a very humbling one. His conscience convicted him, and he believed in a cause-seeing the Negroes in America at equal status with the Whites. He believed that God’s will and wish for human beings transcended racial barriers. With this in mind, he set forth and rallied those who thought like him in Montgomery, Birmingham, Florida, Alabama, up to Washington DC in activism that would lead to a repeal of Racist Laws. He had believed in his pilgrim conscience that a man who breaks an earthly Law that conscience tells him is not right, does no wrong in the eyes of God. In “Beyond Vietnam”, Luther took on the then sitting Government for causing untold suffering and misery to the Vietnam people in what he termed as “history’s most cruel and senseless wars!” This is the true life of a pilgrim who had discovered that the human race is inextricably bound up in an intertwined strand of being, that when one of us directly suffers, all of us indirectly suffer. In a nutshell, having a pilgrim’s perspective concerning one’s life on this earth has a very tremendous impact on one’s surrounding political environment. However, it may come with very unbearable consequences (ranging from imprisonment to death), but when pursuing what is right and just (as opposed to political opportunism and manipulation of the people); it is worth paying the price.