Power lines in Kampala. In April, the Minister of Public Service, Mr Muruli Mukasa, had withdrawn the National Tribunal which particularly seeks to merge the EDT and the Tax Appeals Tribunal to form the National Tribunal as the supreme tribunal in the country. photo/FILE
The entry to the Electricity Disputes Tribunal (EDT) offices at Amber House induces an eerie allure of a haunted or deserted building. Conversely, Amber House, the seat of the Ministry of Energy and Mineral Development where several big-ticket projects in oil, electricity, and minerals are superintended, is a beehive of activity.
That though is only to the front overlooking Worker’s House on Pilkington Road. The EDT is enfolded at the back, on plot 29/30 Speke Road, overlooking the Posta Uganda complex. Its office can hardly be located despite the large signage hoisted at the entrance.
A peek inside shows that the place appears to have been deserted for months. This is confirmed by the two-page cause list of cases last handled by the tribunal as of July 31, 2024 stapled on the notice board.
The contracts of five members, since August 2019, Ms Harriet Wanyoto, Ms Christine Muhindo, Mr Paul Mubiru, Dr Terry Kahuma, and Mr Judy Mike Mudoma, expired at the end of July. The contracts of the chairperson, Mr Charles Owor, and his deputy Mr Anacelet Turyakira, expired on June 30 and July 7, respectively.
Following their exit, according to a clerk who drops by mid-afternoon to receive new files, they are uncertain on what to do; to receive or not to receive new complaints, if more than 160 old ones are piled in the registry. At least 20 judgments were in the writing stage.
The clerk also intimated that an estimated Shs50b is locked up in the case files relating to electricity disputes around the country. The most noteworthy case, the clerk intimated, is about $10m (Shs37b).
“Of course, it affected workflows. It (tribunal) was set up with specific objectives,” Energy minister Ruth Nankabirwa told Sunday Monitor, adding, “But the government took a decision [of the rationalisation of government agencies and public expenditure (Rapex)] which I have to abide by.”
Established by Section 93 of the Electricity Act, the tribunal hears and determines all matters referred to it relating to the electricity sub-sector. The chairperson and deputy, according to the Act, shall be qualified to be a judge of the High Court, and the other five members drawn from specifically law or administration, finance or economics, energy industry, and environment.
Section 97 stipulates that members shall be in office for a five-year term, renewable by the minister of Energy. The fate of the tribunal, industry sources intimated, was thrown in turmoil after President Museveni doubled down on the merger of agencies and departments, christened Rapex, in order to save at least Shs1 trillion annually in public expenditure.
Earlier in April, the Minister of Public Service, Mr Muruli Mukasa, had withdrawn the National Tribunal which particularly seeks to merge the EDT and the Tax Appeals Tribunal to form the National Tribunal as the supreme tribunal in the country.
Logic-defying plans
On July 2, junior Energy minister Sidronius Okaasai wrote to the chairperson of the Public Service Commission seeking guidance on reappointment of the five members for a period of six months ending December 3.
This was after the Ministry of Public Service Permanent Secretary, Ms Catherine Bitarakwate, had in a June 20 circular slapped a temporary freeze on new staff recruitments across the central and local government structures until the ongoing merger of agencies and departments is finalised.
Ms Bitarakwate guided that all new hires or contract extensions had to be cleared by the Attorney General’s office. On July 11, the Public Service Commission chairperson Winnie Kabogoza wrote to the Attorney General’s office seeking guidance on the matter.
The Attorney General, Mr Kiryowa Kiwanuka responded on August 8 noting: “Considering that the Bill is now at an advanced stage in the legislative process, my advice is that the appointment of the EDT be deferred until the legislative process is complete.”
He added: “This is to guard against the financial and legal implications that arise from such an appointment, particularly if the Bill is passed by Parliament shortly after appointment.”
Last Friday, President Museveni twice met his ruling National Resistance Movement (NRM) party caucus and urged them to see through the pending Rapex Bills, including reconsidering those that were rejected by Cabinet such as the Uganda National Roads Authority (Unra), National Forestry Authority (NFA), among others. A three-year reprieve was granted to the National Information Technology Authority-Uganda (NITA-U), Uganda Coffee Development Authority (UCDA), and National Agricultural Advisory Services (Naads).
Inversely, the immediate past Energy minister Goretti Kitutu had in a May 5, 2021 letter to her Public Service counterpart made a case for the EDT to be retained as a quasi-judicial body to litigate, arbitrate, and mediate disputes in the electricity sub-sector.
“The tribunals have been established by statutes to resolve disputes which require the application of specialised knowledge or expertise,” Dr Kitutu wrote.
She added: “The EDT is not a board of directors, but rather a court in the electricity sector, with two judicial officers in the person of chairman and vice chairman, and a registrar, all of who must qualify at appointment to hold similar offices of the High Court judges and High Court registrar.”
“The EDT is very much in setup, function and operation, like the Tax Appeals Tribunal established to deal with tax-related disputes; Public Procurement and Disposal of Public Assets Authority (PPDA) Appeals tribunal established under the PPDA Act to hear administrative reviews by aggrieved bidders; the Industrial Court established to deal with labour disputes; and Leadership Code Tribunal set up under the Leadership Code Act; and the Communications Tribunal under the Uganda Communications Act 2013,” the letter reads in part.
Between February and April, the Ministry of Energy was engaged in back-and-forth talks with the Ministry of Public Service until Cabinet reconsidered the National Tribunal Bill after being withdrawn initially.
Inexplicably, on May 4, 2024, Finance Minister Matia Kasaija constituted the Tax Appeals Tribunal (TAT) for a three-year term. The TAT is chaired by Ms Crystal Kabajwara, alongside Mr Ali Siraj, Ms Christine Katwe, Ms Kabakumba Masiko, Ms Rosemary Najjemba Mbabali, Mr Wily Nangusyo, and Ms Grace Safi. The tribunal’s mediators are Ms May Virji, Ms Zaina Nabukenya, Mr Stanley Kawalya, and Ms Teddy Mayengo. The registrars are Ms Rachel Kisakye and Mr Solomon Wamai.
Asked about this inconsistency, Ms Nankabirwa referred this newspaper to Mr Kasaija on why he took the decision.
“You are speaking to me, and I cannot speak for him,” she said. “The government took the decision and I have to abide by it.”
Discordance
The kernel of the National Tribunal draft Bill is to merge both the EDT and TAT established on the other hand by the TAT Act to resolve disputes relating to taxes. The TAT is led by a chairperson, according to the TAT Act, appointed by the minister of Finance in consultation with the Judicial Service Commission, and four other members. The members, according to section five, shall be qualified in taxation, finance, accounting or law.
“The intention of the Bills is to manage the TAT and the EDT into one national tribunal called the National Tribunal which shall adjudicate all disputes subject to a tribunal,” the draft Bill reads in part.
The proposed national tribunal shall comprise a chairperson and six other members. The Bill also transfers power to appoint a chairperson, in consultation with the Judicial Service Commission and minister of Public Service, to the minister of Justice.
Other members drawn from the fields of taxation, finance, accounting or law, shall be appointed in consultation with the Public Service minister. Thus it remains unclear how energy-related disputes, another technical field, will be arbitrated.
Sources indicated what is termed as a National Tribunal “is in actual sense the Tax Appeals Tribunal simply being moved from the Ministry of Finance to the Ministry of Justice and its members reduced from nine to seven.”
To the surprise of some observers, section 42 of the Bill seemingly scraps other issues-specific Leadership Code, PPDA, and Communication tribunals by detailing that: “Where any Act provides for the establishment of a tribunal, the National Tribunal shall be taken to be established by the Act.”
Tribunals hold quasi-judicial functions, established by statutes to adjudicate over issues of an administrative nature.
CHAOTIC
Four years since it was first conceptualised, the Rapex has thrown the entire public service apparatus into disarray amid incongruent directives. The merger was first piloted with the subsuming of the Rural Electrification Agency (REA) back to its parent Ministry of Energy.
In February this year, the Ministry of Justice submitted 40 merger Bills, which were hastily drafted, before Parliament for scrutiny by the respective sectoral committees. To-date, only 23 have been passed.
