Legal issue

Whether a company limited by guarantee qualifies to be a citizen of Uganda under the meaning of Article 41 of the Constitution and, can therefore, apply and access information in possession of a government entity. Whether Uganda Electricity Transmission Company Ltd was a government entity and thus obligated under Article 41 of the Constitution to grant access to information, on request.

Ruling

The Court found that the PPA was incorporated by reference into the Implementation Agreement and was in the possession of the Government. With regard to Article 41, the Court rejected the 2nd respondent’s argument that it was a company limited by liability company, thus not a government agency for purposes of Article 41 of the Constitution. The Court held that it is the totality of circumstances surrounding the company that must be taken into account before determining whether it is a government agency or not. It also found that the applicant qualified to be a citizen of Uganda taking the same analogy of Article 237 of the Constitution which provides that land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided in the Constitution. A limited liability company incorporated in Uganda with all its members being citizens of Uganda qualifies to own land in Uganda is not in question at all.

Reasoning of the Court

For the Court, the fact that the Permanent Secretary to the Ministry of Energy and Mineral Development had indicated that they possessed the Agreements, was enough to trigger the application under Article 41 of the Constitution. Uganda Electricity Transmission Company Limited, a limited liability company, wholly owned by the Government was indeed its agency. The company is an agent of Government. It is charged with a duty to ensure that electricity is available to the people of Uganda. Thus, the information in the company’s possession is in the hands of a state agency. The Court further reasoned that a corporate body can apply to be a citizen under the provisions for citizenship in the Constitution, unless the law restricts citizenship to natural persons.

The applicant, an NGO, whose main mission is to protect the environment through advocacy and education, sought to obtain a copy of the Power Purchase Agreement from the 2nd respondent, a parastatal company whose primary purpose is to make bulk electricity purchases and transmit the electricity along high-voltage wires to local and foreign distribution points. The Government of Uganda had signed the agreement with the AES Nile Power Limited. It concerned the covering of the building, operation and transfer of a hydroelectric power complex at Dumbbell Island, on the river Nile, near Jinja, Uganda. This request was not granted, instead, the Government responded to the request, in a letter dated 23rd November 2001, from the Permanent Secretary to the applicant indicating that the letter had been referred to the Commissioner, Energy Department, dated 1st November 2001. The letter read in part that « The Power Purchase Agreement (PPA) is a comprehensive document with a lot of information including the sponsor’s technical and commercial secrets. It therefore contains clauses on confidentiality and protection of intellectual property, which do not permit us to make it available to the entire public.” In view of this letter, the applicant petitioned the Court and sought to challenge the actions of the respondents under Article 41 of the Constitution, which guarantees the right of citizens to access information in the Government’s possession.

The Applicant, petitioned the High Court to challenge the actions by the Permanent Secretary, Ministry of Energy and Mineral Development and the Attorney General to refuse them access to information.

A body corporate qualifies to be a citizen and can thus apply and should be granted access to information in possession of government agencies among others. A limited liability company, wholly owned for the government qualifies as a government agency. Whether or not the government is party to the agreement, the right to access information is only concerned with information in possession of the government.