The East African Court of Justice First Instance Division, today heard a matter seeking the determination of the Court on a case challenging the Memorandum of Understanding (MoU) that was signed between the Republics of Uganda and China to construct Kaluma Hydro Power Unit 600MW in Uganda.
The Applicant, Mr. Henry Kyarimpa represented by his Lawyer Mr. Mohamed Mbabazi asked the Court to find that the MoU signed by Uganda and China was an infringement of the provisions of the Treaty for the Establishment of the East African Community on fundamental principles of good governance, democracy and rule of law, Articles 6, 7 and 8 of the Treaty. He also asked the Court to interpret Article 38 (2) of the same.
Mr. Mbabazi submitted that there were court orders issued on 18 and 22 April 2013 by the Uganda High Court Nakawa and after those orders on 23 of the same month the contract committee went ahead and cancel all bids which according to the Applicant is a violation of the Treaty provisions.
Among those court orders were for the Government of Uganda (the Respondent) to preserve the status queue (maintain the existing situation), ordering the award of the contract to the best evaluated bidder for the engineering, procurement and construction contract for 600MW Karuma Hydro Power and the status queue be maintained. Mr. Mbabazi said that none compliance by the Government of Uganda with the Court’s order is an infringement of the Treaty because the awarding of the contract was done outside the procurement process.
Mr. Bafirawala Elisha, Senior State Attorney and Mr. Richard Adrole State Attorney also Counsels for the Respondent urged that at the time when the High Court of Nakawa issued the order, there was no best evaluated bidder, there was no statute restraining the government from proceeding with the new procurement process and the Inspector General of Government (IGG) had issued a cancellation report to the Ministry of Energy and Minerals to stop the procurement process because it was allegedly riddled with bribery and corruption. He also urged that the government of Uganda not being satisfied with the High Court order mentioned above, it is in the process to of appealing.
Mr Adrole added that in a bi-lateral arrangement between the government of Uganda and China signed July 2013 does not touch the Karuma dam construction but other areas of development. He concluded that, Uganda therefore nullified the previous procurement process after investigations by the IGG and found out the process was not accurate and not recommended by the Ministry of Energy and Minerals of Uganda as well which led to the cancellation of the previous procurement process and now the government in the implementation of the new one.
He also said that Section 75 of the Public Procurement and Disposal of Public Assets Act (2003), gives powers to the procurement committee to reject any or all bids at any time prior to the award of the contract.
The Court will deliver the Judgment on notice.
The hearing came before Hon. Mr. Justice Jean Bosco Butasi, Principal Judge, Hon. Isaac Lenaola, Deputy Principal Judge, Hon. Dr. Justice Faustin Ntezilyayo, Hon. Lady Justice Monica Mugenyi and Hon. Mr. Justice Fakihi A. Jundu
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