Legal issue

Whether the applicant is entitled to receive copies of the production sharing agreements and whether the said documents were public documents.

Ruling

The Court ruled that the respondents failed to demonstrate how disclosure of the agreements to the applicants would interfere with the country’s security and sovereignty as stipulated by Article 41 of the Constitution and Section 5 of the Access to Information Act, 2005. In the Court’s opinion, a confidentiality clause in an agreement wherein the government is a party, can only stand if its disclosure fits within the exceptions provided for under the Constitution and the Access to Information Act. It also held that given that the Constitution is supreme, any terms of the agreement which do not conform with the constitutional provisions become redundant and cannot be relied on.

Reasoning of the Court

The Court opined that the use a confidentiality clause in a contract in disregard of the exceptions in Article 41 of the Constitution and Section 5 (1) of the Access to Information Act to deny access to information would make such a confidentiality clause arbitrary, unfair, prejudicial and illegal. This is because the right to access information can be legally limited with exceptions that satisfy the constitutional requirements that release of such information is likely to prejudice the security or sovereignty of the state or interfere with the privacy of any other person. The Court further guided that the determination of whether denial of access to information is proper, can only be made on a case-by-case basis.

The Applicant sought to obtain the oil production sharing agreements relating to oil exploration, exploitation and production in the Albertine region from the government and government agencies but access was denied. The applicants argued that because of this denial, they were unable to conclude their research and publish its findings, observations and recommendations to the public and government. They contended that the denial infringed their right and the citizens of Uganda to access information, which is guaranteed by article 41(1) of the Constitution. In this context, the denial was unjustified and as such contravened the law. The applicant through their Research Assistant informed the Court that they had already conducted interviews with different government bodies, civil society organizations, development partners, among others groups, seeking information on the oil exploration and exploitation agreements. The agreements that they sought and which were denied were significant for the livelihood of the people and natural resources. The Research Assistant also averred that the interviews with government bodies limited the disclosure of information regarding agreements. Some requests for interviews with government officials were not granted.

This application was brought under Article 50 of the Constitution, Section 41 of the Judicature Act and Rules 3, 4 and 7 of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rule, 2008.

Confidentiality clause between the State and another party on their own cannot impede the right to access information. Access to information related to the extractive industries is very hard. The procedures put in place by the government are frustrating, the importance of this ruling is that now various actors can apply for and access information in the possession of government that relates to the oil extractive industry.