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No more MoUs without my nod, Attorney General tells agencies
Attorney General Kiryowa Kiwanuka. He has emphasised the need to consult his office for MoUs to avoid unnecessary commitments and ensure legal compliance. Photo/File
What you need to know:
- Attorney General Kiryowa Kiwanuka announced that any partnership between government regulatory bodies and entities they regulate without his office’s authorisation is null and void and that non-compliance could result in criminal or civil liability.
The government chief legal officer has warned he will not authorise any partnership initiated by a government regulatory body and any entity they regulate.
Attorney General Kiryowa Kiwanuka, who spoke to this publication about his July 5 advisory on memoranda of understanding (MoU) between government agencies and commercial entities, foreign countries, and non-governmental organisations, said the move aims at saving government from unnecessary commitments.
“We are trying to discourage MoUs, which create commercial entities because they are normally short, inconclusive, the rights and obligations of both parties are not understood completely, so it becomes difficult to implement them,” he said in a telephone interview on Monday.
The Attorney General warned: “Any MoU that was earlier on entered into [between regulating bodies and entities they regulate,] without the authorisation of my office is null and void.”
Mr Kiryowa’s five-page circular reminded the agencies that Article 119(5) of the Constitution empowers him to issue legal advice on all agreements, contracts, treaties, conventions or any document by whatever name, to which the government is a party and has interest in.
“… reports or images of government officials signing MoUs with foreign or local entities appear in the social and mainstream media without this office having been consulted on the legality, appropriateness or necessity of such MoUs,” reads part of the advisory.
Dr Chris Baryomunsi, the ICT and National Guidance minister, in a rejoinder said the AG has all the powers to review any MoU. “He is not the one who endorses the issues but he goes through them to make sure they are compatible and in line with the law,” he said.
The advisory says any government ministry, department or agency (MDAs) or local government (LG) submitting an MoU preceding a commercial contract for review and clearance must indicate the specific provision of the law that provides for its execution, and Mr Kiryowa’s office will not advise where such clarity shall be absent.
Mr Kiryowa said his office shall not recommend the partnership of a regulatory body and a regulated private entity, except where there shall be a clear legal or policy reason to do so.
“….There is no legal basis or justification for a ministry, local government or any other statutory or regulatory authority entering into an MoU with a private entity that it is by law mandated to regulate or facilitate. Technically, such an MoU, whose purpose and effect is to create between the regulator and the regulated a non-arm’s length relationship, is unlawful,” he said.
The AG also warned against government agencies signing MoUs among themselves in order to assist each other in the performance of their respective mandates.
“The only exception to the above would be an MoU between one MDA/LG and another MDA/LG for the execution of works under Force Account Mechanism and/or Contracting Out, pursuant to sections 39(b) (i) and 95A of the Public Procurement and Disposal of Public Assets Act, 2003 (as amended) respectively,” the advisory directed.
Officials from Uganda Communications Commission (UCC), the regulator of telecommunication firms, said they are aligning with the AG’s guidance as they await guidance from their legal department.
“The MoUs we have in place are with other government agencies and departments like Bank of Uganda, the National Environmental Authority, among others, and they provide the framework for our engagement and collaboration with those entities ... especially where our mandates overlap and greatly depend on each other,” said Ms Rebecca Mukite, the UCC head of public and international relations.
The new guidelines also put a stop on investors signing MoUs with government entities before the actual contracts are signed.
Mr Kiryowa said none of the laws provide for execution of an MoU as part of the pre-contracting process. “We have come to the conclusion that the practice of entering into MoUs, especially with prospective contractors, is inimical to the letter and spirit of the tenets,” he warned.
“The investors need to be told the correct procedure, if you want to enter into a contract, we have clear rules that guide how an investor wants to come in. You can through a [Private Public Partnership] (PPP), or other methods and do the work there are sufficient laws for us,” Mr Kiwanuka told this newspaper yesterday.
He said an exception will be considered if the MoU with the prospective contractor is part of the prerequisite to access a given financing or where the President or Cabinet determines but with a view that the MoU is of strategic interest to the country.
His office, he said, will recommend a signature of an ordinary, non-treaty MoU with a foreign country (or a state agency of a foreign country) or an international organisation only where there is proof that the Ministry of Foreign Affairs has been consulted and has expressed no- objection.
“Any MoU entered into, whether with a foreign or domestic entity, without the prior advice or approval of this office shall be null and void. Further, non-compliance with the law may attract criminal and or civil actions [liability] against the breaching public official as previously observed by courts of law,” Mr Kiryowa warned.
