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Court’s decision on secret oil PSAs may be unconstitutional

By Jocelyn Edwards

Despite a setback last week, activists and journalists in the campaign for the release of Uganda’s oil Production Sharing Agreements (PSAs) vowed to continue fighting, striking against the walls of government secrecy until they fall. Two Daily Monitor journalists will appeal the decision of a Nakawa court against their challenge of government for the release of the documents.

Godfrey Malinga is the lawyer for the two journalists, who are supported by the Ugandan Human Rights Network (HURINET). He disagreed with the ruling of the judge, which was handed down last Wednesday. ‘We are not convinced. The position of court is that the information the applicants gave was not sufficient to prove that there was public interest,’he said. ‘But the public interest (in releasing the documents) is really overwhelming.’

The case was seen as a test for Uganda’s Access to Information Act, passed in 2005 but never actually operational. ‘When you look at the Act itself, it is very specific on the kind of information that cannot be released to the public and these documents are not among them,’ said Malinga. The two reporters, Angelo Izama and Charles Mwanguhya Mpagi, were denied access to the documents by the solicitor general in 2007. The PSAs detail the arrangements between the government and oil companies to prospect and produce Uganda’s oil.

Government has argued that the documents, of which there are now five, must be kept secret due to the confidentiality clauses in them signed with the oil companies.The Act provides for government secrecy for the ‘protection of commercial information of a third party.’ Information may be kept secret when it is ‘supplied in confidence by a third party, the disclosure of which could reasonably be expected to put that third party at a disadvantage in contractual or commercial negotiations; or to prejudice that third party in commercial competition.

However, the legislation also establishes mandatory disclosure of documents that are in the public interest. ‘Notwithstanding any other provision (in the legislation), an information officer shall grant a request for access to a record of the public body otherwise prohibited under this part if . . . the public interest in the disclosure of the record is greater than the harm contemplated in the provision in question,’t states.

The judge in the case said the complainants failed to prove that the release of the documents was in the public interest. Malinga said he does not know what could be more in the public interest than information on how the government is managing the natural resources owned by the 30 million people of Uganda. “Those minerals belong to the people of Uganda; the government is just holding them in trust. The beneficiaries are asking, “How are you handling the exploitation of our property?”

Parts of the documents have been leaked by various civil society groups and activists have asserted that the agreements represent a raw deal for Uganda. Activists have argued that the documents should be released to determine if that is true and to prevent it from happening again. The government is due to grant further oil licenses this year.

While the arguments in this particular case may have centred on whether or not the release of the documents was in the public interest, some analysts do not think the complainants should have to even prove this. The supreme law of the land provides for even less secrecy than the access to information law.

‘Every citizen has a right to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the privacy of any other person,’tates Article 41 of the constitution.

Dickens Kamugisha is the head of Africa Institute for Energy Governance. In the case brought by the Monitor journalists, ‘the judge went beyond those exceptions,’he said. “There isn’t anything from the law that (says) that should be the judgment.’ According to Kamugisha, the very provisions in the PSAs that provide for secrecy should be illegal under the constitution. “It is very possible to challenge those confidentiality clauses,” he said.

The case brought by the Monitor journalists is just one of a number of challenges to government on the issue. AFIEGO and environmental watchdog Green Watch have also filed suits for the PSAs under the Access to Information Act which are still making their way through the courts. Kamugisha said they hope one will succeed.

Kamugisha said he is still optimistic that the case can be won on appeal. Lower courts may be reticent to make any radical ruling, he pointed out. ‘They tend to decided in favour of the government. The higher courts are far better.’

It’s not unprecedented that such documents should be released in Uganda. Activists won the release of the contract between the government and the company constructing a hydroelectric dam at Bujagali Falls in 2002. In that case, a court ruled that the Power Purchase Agreement between the Government of Uganda and AES Nile Power did not fall under the two exceptions to freedom of information in the constitution. In that instance too, government had argued that the documents must be kept secret because of the confidentiality clauses and trade secrets.

Besides finding out the amount of money that the Ugandan government stands to make or lose from oil exploitation in the country, there are other reasons activists want to see the PSAs. Kenneth Kakuru, founder of Green Watch, explained that having information about the financial arrangements between the companies and the government is important from an environmental perspective.It will indicate whether or not the commitments made by companies on the environment undersell or over promise, he said.

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