“defying history” - natural resource governance institute history... · list of acronyms ......

May 2008

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“Defying History”

Promoting the Application of Access Rights in Uganda’s Oil

Sub-Sector

By

Dickens KamugishaEdwin MuherezaDoreen Elima

AFIEGO Research Series No.4 2008

A F I E G O R e s e a r c h S e r i e s , N o 4 , 2 0 0 8 i

Acknowledgement......................................................................................................................iiList of acronyms ...........................................................................................................................iii

Introduction...........................................................................................................................11.0 1.1 Access Rights and Extractive Resource Management......................................................21.2 Historical developemnt of accesss rights...........................................................................31.3 East African Environmental Memorandum of Understanding..........................................51.4 Case Studies of the oil projects that have promoted access rights .......................................................................................................................................61.4.1 The Camisea project in Peru by Shell...............................................................................61.4.2 The Chad Cameroon project............................................................................................71.5 The History of Oil Exploration in Uganda.............................................................................9 A map of Albert Graben showing exploraton blocks.....................................................10

2.0 The legal and policy regime for effective application of access rights in Uganda’ oil sector...........................................................................................112.1 The law and right of access to information.......................................................................11 The 1995 Constitution of uganda.....................................................................................11 Access to Information Act 2005.......................................................................................12 The National Environmnetal Act,CAP 153(NEA..............................................................13 The Petroleum Act CAP 149............................................................................................14 The Petroleum(exploration and Production) Act CAP 150...........................................14 The National Oil and Gas policy for uganda.................................................................14 The Investiment Code Act CAP 92............................................................. .....................15 The Industrial Lincecing act,cap 91.................................................................................15 Advantages /benefits of right of access to information...............................................15 Challenges facing access to information.....................................................................16

2.2 The law and right of access to Public participation.......................................................18 National environmental act, CAP 153 (NEA) .................................................................18 Advantages /benefits of access to public participation..................................................19 Challenges facing access to participation....................................................................212.3 The Law and Right of Access to Justice............................................................................23 Advantages/ Benefits to justice......................................................................................24 Challenges facing access to Justice.............................................................................25

2.4 Recommendations.............................................................................................................26

2.5 Conclusion............................................................................................................................28

References .................................................................................................................................29

Table of Contents

A F I E G O R e s e a r c h S e r i e s , N o 4 , 2 0 0 8i i

This policy research paper has been prepared with a grant awarded to Africa Institute for Energy Governance (AFIEGO) by the Open Society Institute (OSI) through Open Society Initiative for East Africa (OSIEA) to promote the application of access rights in Uganda’s oil sector. The main objective of the paper is to contribute to Uganda’s efforts to ensure that the recently discovered oil and other extractive resources benefit the entire country, especially the poor and vulnerable communities through participatory natural resources democracy. The paper examines access rights application experiences in and outside Africa and makes a case for Uganda. The paper also gives some case studies for lessons. Benefits that accrue to a country as a result of applying access rights are analyzed and documented. Finally, a summary of situational analysis of Uganda’s legal, policy and institutional framework that can make access rights application in the country a success is given. The final part of the paper contains a number of policy proposals and recommendations for action.

The authors are indebted to the research team at Africa Institute for Energy Governance (AFIEGO) for saving and dedicating their time to share ideas in order to make this project possible. The authors are also indebted to the different authors of the materials that were heavily consulted during the preparation of this study.

We specifically thank all Members of Parliament, District Chairpersons, Resident District Commissioners, Bunyoro Kingdom Officials, local communities, CBOs, NGOs and many others from all parts of Uganda who participated and made useful recommendations upon which this paper is based.

Once again, special thanks go to Open Society Initiative for East Africa (OSIEA) for providing the financial support that facilitated the research and production of this paper.

Acknowledgement

A F I E G O R e s e a r c h S e r i e s , N o 4 , 2 0 0 8 i i i

AC Aarhus Convention

AIA Access to Information Act

CC Chad/Cameroon project

CSOs Civil Society Organisations

EAC East African Community

EIA Environmental Impact Assessment

EITI Extractive Industries Transparency Initiative

EMP Environmental Management Plan

GDP Gross Domestic Product

MOU Memorandum of Understanding

NEA National Environment Act

NEMA National Environment Management Authority

PSA Production Sharing Agreement

UNCED United Nations Conference on Environment

UNECE United Nations Economic Commission for Europe

WB World Bank

WSSD World Summit on Sustainable Development

List of Acronyms

A F I E G O R e s e a r c h S e r i e s , N o 4 , 2 0 0 8 1

“That oil wealth could be a curse seems counterntui-tive. When an oil bonanza is discovered in a struggling African country, the instinc-tive assumption is that it can only be a good thing; that it will result in a rapid improvement in the lives of the people; that sud-denly there will be money for hospitals and vaccines and schools and roads; and, even more than that, everyone will be rich. To the contrary, however, studies suggest that real GDP and the population’s standard of living nearly always de-cline where oil is discov-ered” John Ghazvinian, Un-tapped: The scramble for Africa’s oil, pg 95.

It is now an indisputable fact in modern environmental discourse that the promotion of environmental and natural resources protection and sustainable development is fundamentally enhanced through the adoption of strategies and practices that secure citizen’s rights to access information, to participate in decision making processes and access affordable and reliable judicial redress. Rights of access to environmental and natural resources information, participation in decision- making and access to justice, all provide opportunities to the public to influence both their living conditions and the broader management of the environment, making them not only theoretical or philosophical entitlements, but also practical and realistic ways to achieve sustainable development1. This is evidenced by the fact that governments which operate with openness, transparency, accountability and encourage public participation are likely to promote environmental justice, to balance the needs of present and future generations in the protection of the environment, to integrate public environmental considerations in governmental decisions and to implement and enforce existing environmental standards and therefore achieve the common good than closed and totalitarian societies governed in a rigid centralized fashion2.

The Principles of democratic empowerment in the arena of environmental decisions which were first articulated in 1992 Declaration at the Earth Summit at Rio de Janeiro contained a number of principles. Principle 10 significantly put forth the ground-breaking proposition that; every citizen should have access to information about the environment, opportunities to participate in decision-making processes affecting the environment and access to redress and remedy i.e. Access to justice to protect their rights to information, right to participation and the right to challenge the decisions that do not take into account their interests. These three rights; right of access to Information, right of access to participate in decision-making processes and the right of access to justice are referred to as the “Access Rights”. Thus Principle 10 appreciates the role of citizens in promoting sustainable development at all levels in society or country.

1.Mwebaza, R , (2002). Iimproving environmental procedural rights in Uganda. IUCN draft paper 30 June 2002 at 4. 2 ibid.

1.0Introduction

A F I E G O R e s e a r c h S e r i e s , N o 4 , 2 0 0 82

The United Nations Conference on the Human Environment that took place in Stockholm, Sweden3, twenty years before the Rio de Janeiro conference, observed that “Man has a fundamental right to freedom, equality, and adequate standards of life, in an environment of quality that permits a life of dignity and well being and he bears the solemn responsibility to protect and improve the environment for the present and future generations…”. These values can only be achieved through the promotion of these access rights.

1.1 Access Rights and Extractive Resource Management

The three access rights are evidently more relevant in extractive industries with oil being a live example of how governance, accountability and transparency determine the difference between natural resources (such as oil) being a ‘curse or a blessing’. Limitations and restrictions on the availability of information such as government development agendas and budget plans inhibit the ability of the public to effectively participate and hold governments accountable and seek redress in competent courts of law. Experience especially in Africa has shown that countries that rely on natural resources like oil but with poor record of accountability, disclosure mechanisms and lack of public participation have suffered with problems of bad governance, conflict, poverty, corruption and the overall problem on the economy known as the “Dutch Disease”4. In Africa, countries that have suffered the Dutch disease include Nigeria, Angola, DRC, Chad, Gabon, etc while countries that have embraced transparent methods of managing natural resources such as Botswana, Norway, Kuwait, etc have emerged out of poverty and improved and continue to improve their GDP significantly. As John Ghazvinian puts it,5

“ The curse of oil is a term that has become hugely fashionable in recent years among those concerned about poverty reduction and the effects of resource boom on developing countries… it can take many forms, from the exacerbation of preexisting armed conflict to the encouragement of corruption to the neglect of traditional industries and agriculture.”

It is therefore not a surprise that in Africa, Botswana is ranked by Transparency International as one of the most transparent countries in Africa and this is reflected in their capacity to organize fair elections every five years since independence6. So one may ask the difference between natural resource ( in this case oil) ‘curse or a blessing” The answer is governance- the way the resources are used and the transparency and accountability which drive this.

Promoting the norms of environmental governance is important especially for Uganda from a purely economic perspective. Access rights promote good governance and sustainable development and it is therefore very relevant in utilization of oil resources visa vis the protection of environment from damages which may arise from poor handling of oil extraction and processing. This will enable citizens to fully benefit from income realized from oil resources. This is based on the premise that public policy decisions that take into account the views of all relevant stake holders are more

3.Principal 1 of the Stockholm Declaration adopted by the United Nations Conference on the Human Environment, on the .16th June 1972 in Stockholm, Sweden. 4.Ghazvinian J., (2007), Untapped: The scramble for Africa’s oil. 1st ed. Harcourt at 95. 5.Ibid6.Save the Children-UK, Natural resources in Africa-The extractive industries. Submission to the Africa Commission page 2.


likely to lead to sustainable development and a fair distribution of benefits7. In relation to oil production therefore, it is paramount that the public in Uganda is informed on the relevance of access rights in effective environmental development and governance.

It is increasingly becoming clear that effective governance, based on transparent decision-making and public access to government decisions is the foundation of fair, legitimate and sustainable economic and development choices8. Effective governance permits transparent, participatory and accountable decision-making; promotes the integration of social and environmental concerns in economic development decisions; and allows for the management of risk. Decision-making built on three pillars of access rights not only gives opportunity to the public to make informed choices and influence decisions but also creates a stable and predictable investment environment for business9. This ultimately promotes and supports economic growth and sustainable development, especially where you have a rich resource such as oil.

1.2 The historical development of access rights

The link between participation and effective protection of the environment was first articulated at the United Nations Conference on Human Settlement,10 which recognized that “Man has a fundamental right to freedom, equality, and adequate standards of life, in an environment of quality that permits a life of dignity and well being and he bears the solemn responsibility to protect and improve the environment for the present and future generations…”11 This principle laid the responsibility of ensuring quality life and protecting the environment in a collective manner thus promoting the three access rights. The link between participation and effective protection of environment was later reaffirmed twenty years later in 1992,12 the conference sought to build on the Stockholm declaration with the goal of establishing a new and equitable global partnership through the creation of new levels of co-operation among states, key sectors of societies and the people.13

Agenda 21, the programmatic plan of action adopted at the UNCED and the Rio Declaration, emphasized the relationship between governance and achieving the objectives of sustainable development. New opportunities for implementing these new rules were not only created but States also committed themselves to providing the financial resources required for undertaking the necessary reforms. Paragraph 4 of the Draft Plan of Implementation for the World Summit on Sustainable Development states that;“Good governance within each country and at the international level is essential for sustainable development. At domestic level, sound environmental, social and economic policies, democratic institutions responsive to the needs of the people,

7.Supra note 1. 8 .Tumushabe G. W., Bainomugisha A., Sustainable Development Beyond Rio + 10: Consolidating Environmental Democracy in Uganda through Access to Justice, Information and Participation. ACODE Policy Research Series No. 5, 2002. ACODE. Kampala.9.Ibid10.Held on the 16th June 1972 in Stockholm, Sweden.11.Principle 1 of the Stockholm Declaration.12.At the United Nations Conference on Environment and Development held in Rio de Janeiro, Brazil.13.Preamble to the Rio Declaration on Environment and Development.


rule of law, anti-corruption measures, gender equality and enabling environment for investment are the basis for sustainable development.”14

The Declaration sought to amplify the role of citizens at different levels in promoting sustainable development objectives. In Principle 10 of the Rio Declaration, the Heads of States and Government declared that:

“Environmental issues are best handled with the participation of all concerned citizens; at the relevant level each individual shall have appropriate access to information concerning the environment and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”(Emphasis added).

The period between and after these two major UN Conferences has seen a growing recognition and elevation of access rights. A case in point is the Aarhus Convention15, an environmental treaty that turns the 1992 Rio Declaration’s vague commitments to the principles of access into specific legal obligations. Since its negotiation in 1998 as a regional agreement among the countries of the United Nations Economic Commission for Europe (UNECE), 24 nations in Europe and Central Asia have become Parties to the treaty, and 40 have signed it. Article 6(1) of the Convention provides for the right to public participation on proposed activities such as the setting up of mineral oil and gas refineries, i.e. mineral oil and gas refineries are activities that affect the environment and requires that the public to be involved in the making of decisions on the establishment of such activities.

The Convention not only recognizes the basic right of every person of present and future generations to a healthy environment but also specifies how the authorities at all levels will provide fair and transparent decision-making processes, access to information, and access to redress16. The Convention requires inter alia access to information about influences on the environment such as energy, development plans, and policies and information about how these influences affect human health and safety17. A person does not need to prove “legal standing” to request information or to comment on official decisions that affect the environment, and the Convention requires that governments respond to requests for information from any person of any nationality within one month.

The Convention also gives citizens, organizations, and governments the right to investigate and seek to curtail pollution caused by public and private entities in other countries that are parties to the treaty18. The Aarhus Convention is significant

14.See Draft Plan of Implementation for the World Summit on Sustainable Development, Bali, Indonesia 27 May-7 June 2002. 15.Of 25th June 1998; It entered into force in October 2001, and was only applicable in European Countries. (However, it is now open to signature and accession by all nations of the world that are Member States of the United Nations, according to Article 19 (3) Of the Aarhus Convention)16.World Resources 2002-2004: Decisions for the Earth: Balance, Voice and Power. World Resources Institute, Washington, D.C at page 21.17.Ibid.18.Ibid.


not only because its provisions are binding and bring together previously scattered legal and institutional elements into an integrated system, but also because it regionalizes environmental governance by recognizing the procedural rights of affected persons across countries.

1.3 East Africa Environmental Memorandum of Understanding (MOU)Signed on the 22nd of October 1998 by the Governments of Kenya, Uganda and Tanzania, the Memorandum of Understanding in its preamble states that Partner States were driven by the need to cooperate in the rational management and sustainable use of environment and natural resources to ensure sustainable development. The Partner States agreed to enact laws for implementing regulations on the right of people to clean and healthy environment and for full involvement of their people in the sustainable use and management of environment and natural resources19.

Under Article 16(2) (a) the Partner States agreed to promote public awareness programmes and access to information as well as measures aimed at enhancing public participation on environmental issues. Agreed upon also was to develop measures, policies and laws which will grant access, due process and equal treatment in administrative and judicial proceedings to all persons who are or may be affected by environmentally harmful activities in the territory of any of the Partner States20.

The Partner States also agreed to enact legislation to regulate environmental impact assessment including enabling public participation at all stages of the process related to environmental impact assessment21. The countries of the East African Community should be credited for being one of the first geo-political entities to incorporate the commitments in Principle 10 into a regional instrument and this MOU is very instructive on issues of access to information, public participation and access to justice.

In September 2002, the World Summit on Sustainable Development was held in Johannesburg and was aimed at formulating strategies for achieving global sustainable development. The Johannesburg Declaration on Sustainable Development, a political statement from the summit, the representatives agreed on the collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development-economic development, social development and environmental protection-at the local, national, regional and global levels.

The Declaration also recognized that sustainable development requires a long-term perspective and broad-based participation in policy formulation, decision making and implementation at all levels. It called upon all partners to continue working for stable partnerships with all major groups, respecting the independent roles of each other.

19. Article 7 (1) (a) & (i)20.Article 16(2)(d)21.Article 14(2)


1.4 Case studies of the oil projects that have promoted access rights

“Sustainable development has entered the lexicon of the oil and gas industry’s annual reports, trade literature, conference meetings and business councils, much as it swept through the environmental policy and economic development literature and communities over the last two decades. This full sweep reflects both the painful legacy of pollution and poverty too often left by the extractive industries in developing countries in the past and a beam of light pointing to a brighter future.22”

1.4.1 The Camisea Project in Peru by Shell

The Camisea fields which lie about 430 kilometers east of Lima the capital city of Peru begun its production in June 2004 and some 180 industrial clients were added to the Camisea natural gas distribution network by October 200623. During the drilling period, Shell pledged a policy of openness and public participation in its practices and maintained an extensive websites which would broadcast briefing papers, photos, anthropologist’s reports, environmental assessment reports, and speeches and contracts with the indigenous groups in the drilling area. Shell pledged a standard of “sustainable development” in its Camisea agreements, defined as “improving the quality of life while ensuring that renewable resources remain vibrant to benefit future generations and nonrenewable resources are used wisely and efficiently with the benefit of future generations in mind.24”

Shell’s greatest challenge was developing mechanisms to work with the indigenous groups. It hired environmental consultants to identify stakeholders and NGO groups and involved them in meetings and workshops. As a result of these early consultations, Shell voluntarily modified the boundaries of its concession to exclude a small area that intruded into a national park25. Shell then undertook a “world class” environmental impact assessment and invited the Smithsonian Institute to do an independent survey of the area to establish its biodiversity and to monitor any effects of the project. Shell also undertook a study of the population’s health through the Royal Tropical Institute of Amsterdam and key Peruvian health agencies and also studied the socio-economic base of the region. In addition, the government performed quarterly audits of performance, which Shell requested to be made public and the feedback from all these studies and communication with all stakeholders led to constant interactive changes in the design of the project. The Land Use Transfer Agreement between Shell and the Shivankoreni Native Community appeared in full on the Camisea website and in summary it provided that Shell, the transferee, “has assumed a public commitment to carry out the Camisea Project-Block 75-in a sustainable manner based on good operating practices,

22.Lang W J, (2003); Sustainable development in the petroleum sector. IUCN Environmental Policy and Law Paper No. 47 at 68. 23.Inter American Development Bank,; Report evaluates economic benefits of Camisea Project. Accessed on www.iadb.org/news/articledetail.cfm on 25th March 2008.24.Lang W J, Op., Cit.25.Ibid


the fulfillment of the highest industry standards, and with the net benefit for the region with the dynamic participation and the cooperation of the surrounding communities to the area of the project”

Shell also promised to finance the training of members of the Shivankoreni so that they would be able to operate and maintain the physical infrastructure and acquire a sense of autonomy with respect to their own development. Shell also invited Sustain Ability, an independent NGO, to monitor the project’s health, safety and environmental performance and make its report available to the public.

Though two groups continued to oppose Shell’s drilling in the Amazon by failing to acknowledge the support which Shell had from the local indigenous communities, Shell successfully drilled three exploration wells but later withdrew from the development stage of Camisea project because of guerilla violence and failing to secure a long term contract for the gas at a guaranteed price. By making full disclosure about what was taking place during the operation of this project and by involving the local communities and NGOs in the implementation of the project, Shell proved beyond doubt that access rights can be applied in the oil exploration process for the benefit of local communities, oil companies and the government through promotion of transparency and accountability.

1.4.2 The Chad/Cameroon project

The $3.5 billion Chad/Cameroon (CC) pipeline project in West and Central Africa is another example of the access rights paradigm in action. However, unlike the Camisea project, the CC pipeline involved the World Bank as a significant actor. The CC project is a 660-mile (1,070 km) pipeline bringing oil from landlocked Chad to a marine terminal on the coast of Cameroon26. A consortium of affiliates of Exxon Mobil, Petronas and Chevron are the private investors in the project while both governments of Chad and Cameroon wanted to participate as equity holders but required World Bank loans to fund their percentage, amounting to about three per cent of project costs. Because both leaders of Chad and Cameroon had an ignoble past of corruption and human rights abuses including torture of political opponents, enormous pressure was exerted by human rights and environmental NGOs against both Exxon Mobil and World Bank to prevent project approval unless effective safeguards were created to prevent oil money from being used to further corrupt undemocratic governments27.

Exxon Mobil fearful that Chad would become a Nigeria of sorts, sought assistance from the World Bank to act as a “moral buffer” and to help coordinate the participation of NGOs in project assessment. The World Bank negotiated a Revenue Management Plan with Chad’s President Deby and with the Chad parliament, that 10% of all oil revenues would be held in trust for future generations, 80% would be earmarked for health, education and rural development, and 5% would go to communities around the oil fields as detailed in the Regional Development Plan28. Spending was to be supervised by a nine-person board

26.Lang W J, Op., cit.27.Exxon Mobil website IUCN


that included four NGO representatives, and the World Bank assisted by Chad in implementing a system of financial controls over the revenues. Public consultations on the project began in 1993 and ultimately included about 900 village level meetings; 145 meetings with about 250 in-country and international NGOs; 165 consultation visits to Pygmy settlements in Cameroon; and one-on-one consultations with households in Chad who would be forced to resettle.

The Environmental Management Plan (EMP) for the project consisted of 19 volumes of documentation describing the environmental assessments and environmental management standards and commitments of the project sponsors. In Cameroon, three specific country-level plans were developed; an Offsite Environmental Enhancement Programme for the creation of two biodiversity reserves, the Induced Access Management Plan and the Indigenous Peoples Plan. The project’s progress would be available for the World to monitor via quarterly reports on the website of essochad.com and the reports chronicle noncompliance events, such as spills of sewage or hazardous materials, working outside approved areas, inadequate equipment use, workers eating bush meat, and traffic accidents. The fourth Quarter 2001 Reports stated that about 85% of the Project’s workers are host country citizens and that more than two-thirds of the Chad and Cameroon workers held skilled or semi-skilled jobs.

Still, the project has not been with controversy, the signing bonus of $25 million received by the government of Chad was not included in the Revenue Management Plan and after hearing rumours going to development projects, the World Bank investigated and found that the government had spent $4.5 million on military weapons and the Bank exercised its leverage to deny debt relief to Chad if the government did not use the Revenue Management Plan for all revenues. The Chad government complied and adopted a budgetary amendment allocating all remaining bonus funds to priority expenditures under the Oversight Committee.

Moreover, the Netherlands Committee of the IUCN reviewed the project using a team of experts and concluded that the World Bank gave inadequate attention to the possibility of major oil spills, especially from sabotage, and the lack of a functioning legal system that would compensate for the destruction of natural resources especially since judicial independence and court procedures are lacking in the two host countries. In response to the misuse of the $4.5 million, the World Bank in February 2001 announced the creation of a six-person International Advisory Group to act as a watchdog over the CC project, guarding against misuse of public money in the project and monitoring the fulfillment of the developers’ promises of environmental protection and social benefits.

The end of year 2006 report of CC project indicated satisfactory results as far as project implementation was concerned while current information on the CC project indicates that prompt update of any information about the project is posted in time to the website and is available to the public. Though by the time of writing this the Chad government was still battling rebels who had destabilized

28.Information obtained from www.essochad.com on 27th March 2008.


the working systems of the government, the successful application of access rights to promote transparency in the oil exploration even in a poor, deprived African state like Chad where there are few if any legal systems operating and no known democracy is a clear testimony that access rights can be successfully used even in African countries to make oil a blessing rather than a curse by realizing the benefits from petrodollars to the intended beneficiaries.

1.5 The history of oil exploration in Uganda.Uganda is a land locked country in East Africa with Kenya to the east, Tanzania to the South, Rwanda to the South West, Democratic Republic of Congo to the West and Sudan to the North. The cost of petroleum products constitute over 15% of the country’s total import bill and most of these products are imported through the port of Mombasa in Kenya, a distance of 1300 km from the capital city of Kampala.

Petroleum occurrence was first recorded in Uganda in the early 1920’s. One deep well was drilled in 1938 which encountered some hydrocarbon shows but was not tested. Several shallow wells were drilled during the 1940’s and 1950’s for stratographic purposes but then there was a period of limited or no activity between 1940 and 1980 largely due to the second world war and political instability in the country. A modern and consistent effort to establish the country’s petroleum potential has been undertaken since 1980.29

Aeromagnetic surveys undertaken during 1983 and 1992 respectively identified five sedimentary basins in the country. These are; Albertine Graben, Lake Kyoga Basin, Hoima Basin, Lake Wamala Basin and Moroto-Kadam Basin. The aeromagnetic surveys were followed by ground gravity/magnetic survey and geological mapping starting in the early 1990’s which were aimed at defining the extent and geometry of the sub-basins with a view of establishing their suitability for petroleum generation and accumulation.Of the above areas, the Albertine Graben has proved the most prospective with wells drilled in the Kaiso-Tonya and Bogoma areas by Hardman Petroleum Africa Pty Ltd and Heritage Oil and Gas Ltd respectively have confirmed the existence of a working petroleum system. Flow rates of over 12,000 barrels of oil per day (bopd) in Waraga-1, 1,100 bopd in Mputa -1 and over 14,000 bopd in Kingfisher-1 have confirmed the existence of significant petroleum accumulations in the Graben. Petroleum reserves of between 100-300 million barrels of oil are estimated to be in place in the Waraga and Mputa prospects in the Kaiso-Tonya area which covers less than 6% of exploration area 2, one of the six exploration areas demarcated in the Albertine Graben.30

29.Bainomugisha, A., Kivengyere, H., and Tusasirwe, b., (2006), Escaping the Oil Curse and Making poverty history: A review of the Oil and Gas Policy and Legal Framework for Uganda. ACODE Policy Research Series, No.20, 2006. ACODE-Kampala.30.Uganda’s Draft Oil and Gas Policy.


MAP OF THE ALBERTIN GRABEN SHOWING EXPLORATION BLOCKS

Whereas policy formulation lays down the ideals, intentions and aspirations, legal provisions actualize the ideals and aspirations by laying down rules and institutional framework that ought to facilitate the implementation of the policies, thus the two complement each other for actual realization of the intended goals and objectives.

The laws governing access rights in the oil sub sector in Uganda are found in diverse legislation, some are specific while others are general. Laws such as the 1995 Constitution of Republic of Uganda, the Petroleum Act, cap 149, the Petroleum (Exploration and Production) Act, cap 150, the National Environment Act, cap 153, Access to Information Act, 2005, the Mining Act, cap 148, the Petroleum (Exploration and Production) (Conduct of Exploration Operations) Regulations, the Investment Code Act, cap 92, the Industrial Licensing Act, cap 91 and the Illiterates Protection Act cap 78 provide for access rights in one way or the other.

A F I E G O R e s e a r c h S e r i e s , N o 4 , 2 0 0 8 1 1

2.1 The law and the right of access to information“Unless citizens can find out what governments are doing and how they spend their funds, governments have little incentive to improve performance, deliver on the promises, or even provide basic services at adequate levels.31” Access to information is defined as the ability of citizens to obtain information in the possession of public authorities. Access to information is critical to inform and engage public constituents, so that their participation can be meaningful. Access to justice or redress mechanisms is necessary in order to hold governments, private sector and public sector actors, accountable in a democratic society. This enables individuals and public interest groups to protect their rights to information and participation, and to challenge decisions that do not take their interests into account.

The 1995 Constitution of UgandaThe Constitution of the Republic of Uganda, the supreme law of the land provides under Article 41(1) that;“every citizen has a right of access 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 right to the privacy of any other person”Clause 2 of article 41 enjoins Parliament to make laws prescribing the classes of information referred to in clause (1) and the procedures for obtaining access to that information.

The Ugandan courts have had occasions to consider the implications of article 41 of the Constitution as far as access to information is concerned and in the light of the exemptions provided under this article and other pieces of legislation that predate the Constitution. In the case of the Attorney General Vs Major General David Tinyefuza32, the then Chief Justice Wako Wambuzi while rejecting the claim of exemption by the Attorney General on the grounds of State security noted as follows:“…The Constitution has determined that a citizen shall have a right of access to information in State hands…it is no longer for the head of department to decide as he thinks. That unfettered discretion has been overturned by article 41 of the Constitution. And now it is for the court to determine whether the matter falls in the exceptions with in article 41 or not. And to do this the State must produce evidence upon which the court can act”

31.The World Resources Institute 2005; The right to information, participation, and justice: The importance of a voice32.Const. Appeal no.1 of 1997(unreported)

The Legal and Policy regime for effective application of Access rights Uganda’s oil sector.

2.0


In another case, Greenwatch Vs Attorney General, where Greenwatch an NGO challenged the government on her refusal to make public the Power Purchase Agreement between the government and AES Company, the high court concurred with the petitioner that the agreement in question was indeed a public document and therefore the government could not refuse to release this agreement to the public.

We can now apply the implications of the court findings in the cases cited above to show that this can be used against Government in relation to current and future oil Agreements to be entered into between Government (on behalf of the people of Uganda) and the intending oil investors. This should be seen as a precedent and a step in the right direction. As the economy keeps evolving so does the law and the courts must also be alive to such changes in development and be informed. Therefore with the advent of oil production in Uganda, courts are likely to be at the center of controversial cases relating to Access rights in the field of oil. Arguably these cases have set the ground for the public to act and grip their rights with two hands. It is important therefore that Government informs the public before taking decisions and if it does so, it must still accord the public an opportunity to view these documents.

Access to Information Act, 2005Though Parliament took long to implement clause 2 of article 41 of the Constitution, the Access to Information Act 2005 was finally enacted. The act provides in detail how the information in governments hands should or can be accessed. Under S. 3 of the Access to Information Act, the purposes of the Act include;

To promote effective, efficient, transparent and a. accountable government;To promote transparency and accountability in b. all organs of the State by providing the public with timely, accessible and affordable information; andTo empower the public to effectively scrutinize c. and participate in Government decisions that affect them.

Section 5 makes it clear that it’s a right of any person to access information in possession of the State or any public body thus giving effect to article 41 of the 1995 Constitution.The Act goes ahead to prescribe how the information in public organs should be accessed, who should provide the required information and which information is exempted from access all of which aim at achieving the objectives of the Act.This Act aims at promoting access rights of information, public participation and justice and can be used as an effective tool for enforcement incase there is violation of any section of the Act.

However under section 27 of the Act, commercial information of the third party is protected from disclosure and this information includes; proprietary information, information supplied in confidence which is likely to prejudice the third party in


a commercial competition and information which is likely to put the third party at a disadvantage in a commercial or contractual competition. By putting such exceptions for access to information, the Act gives with one hand and takes away with the other and such undefined exceptions may be used to deny the public information relating to oil exploration and production.

The National Environment Act, cap 153 (NEA)There are key legal provisions guaranteeing access rights in this Act.Section 3 provides that

“in furtherance of the right of a healthy environment and enforcement of the duty to maintain and enhance the environment, the authority or local environment committee is entitled to bring an action against any other person whose activities or omissions have or are likely to have significant impact on the environment…”

Section 16 provides for the appointment of Local environment committees. Under section 16(2) some of the functions of this committee are;

To carry out public environment information education campaigns; this d. means that the committee is tasked to provide environmental information to the public.To mobilize people within its local jurisdiction to conserve natural resources e. through self-help; it requires the committee to demand for the public’s participation in conserving and protecting their natural resources.To mobilize people within its local jurisdiction to restore degraded f. environmental resources through self-help; this also calls for participation and involvement of the public in restoration of their environment.To mobilize people within its local jurisdiction to improve their natural g. environment through voluntary self-help; To monitor all activities within its local jurisdiction to ensure that such activities h. do not have any significant impact on the environment; This means that through mobilizing the local people and involving their participation, this could be a tool for monitoring i.e. by receiving feed back from the people of what is on the ground.To report any events or activities which have or are likely to have i. significant Impacts on the environment to the district environment officer or to the j. appropriate executive committee or local council or such council as the district council may direct; i.e. After involving the local people, their concerns may be forwarded higher k. authority for redress.

Section 60 of the National Environment Act, cap 153 provides that upon receiving an application for an environmental license, the committee shall within sixty (60) days notify persons who may be affected by the proposed activity of the applicant and invite them to make presentations. The committee can only consider the application having


regard to all the presentations received. Section 85(1) of the NEA states that;

“Every person shall have a right of access to any information relating to the implementation of this statute submitted to the authority or to a lead agency”.

This means that if any information concerning environment is submitted to NEMA or any lead agency, such information should be made available to the public and this in a way guarantees the right of access to information.

Under section 86 of the Act, the Authority has the duty to gather information on the environment and natural resources on existing data, to analyse it, to disseminate this information to the public, to carry out public information and education campaigns in the field of environment, to advise Government on the existing information gaps and needs. This clearly upholds the principles of Access rights which can be applied in the oil sector to conserve the environment and oil resources.

The Petroleum Act, cap 149This Act is very redundant and therefore, very silent on Access Rights in the Oil sub sector.

The Petroleum (Exploration and Production) Act Cap 150This Act was assented to on 13th June 1985. Section 72 of the Act (since omitted), provides that it would come into force on such a day as the minister would appoint. The Act remained a dead letter up to 2000 when under instrument no.89/2000 the Minister of Energy and Mineral Development provided that the Act “shall be deemed to have come into force on 27th September 1985.” Section 2 of the Act vests petroleum in the government on behalf of the Republic of Uganda and makes it an offence to carry on any exploration of development operations without a license.

Section 59 of the Act, however, prohibits disclosure of information furnished by a licensee in a report submitted pursuant to the Act to any person who is not a government minister or an officer in the public service save with the consent of the licensee. Sub-section (2) goes ahead to provide some exceptions which still can find no place in the modern juridical world and globally accepted rules.

The Draft National Oil and Gas policy for Uganda The draft policy’s goal is to use the country’s oil and gas resources to contribute to early achievement of poverty eradication and to create lasting value to society. The draft policy is designed to inter alia set up institutions and capacity institutions, attract investors in the petroleum sector, ensuring the country’s receipt of appropriate share and benefits from oil and gas resources and ensuring efficient and effective utilization of the resources and revenue. It should be noted that all the above targets can be achieved by among other things providing for access rights in the implementation of this policy.

The Draft Policy appreciates that openness and access to information are fundamental rights in activities that may positively impact individuals, communities and states. It adds that therefore it is important that information that will enable stakeholders to assess how their interests are being affected will be is disclosed. The policy aims at promoting high standards of transparency and accountability in licensing, procurement, exploration and development operations as well as management of revenues from oil and gas. The policy also supports disclosure of payments and revenues from oil and gas using simple and easily understood principles in line with accepted national and international financial reporting standards.


The Investment Code Act, cap 92Under section 6 (e) and (h) of this Act, the functions of the Uganda Investment Authority are to provide information on matters relating to investment in Uganda and to deal with complaints received by it. For purposes of investment in the oil sub sector in Uganda, the public can get such information from the Authority which is empowered to provide them with such information.

In section 18 (2) (d) one of the conditions for the grant of an Investment license is to take necessary steps to ensure that the operation of his or her business enterprise does not cause injury to the ecology or the environment. The investor can do this by obtaining this information from the relevant environmental authorities in the jurisdiction. In turn he or she will be offering information to the public on the kind of activity he or she intends to undertake.

The Industrial Licensing Act, cap 91Section 7 of the Act provides that application for a new Industrial license shall be published in the Gazette and in a circulating news paper. This means that the public will have an opportunity to see these adverts and be informed of impending activities. That the public can participate in deciding if the license should or should not be given for the intended oil industry to be set up i.e. Under section 8(1) of the Act which provides that;

‘Any person who is likely to be adversely affected by the grant of an industrial license may lodge an objection with the secretary not later than thirty days from the date of publication of the application’.

After the expiration of the thirty days following the date of publication of the application, the industrial Licensing Board shall meet for purposes of inquiring into the allegations. The applicant and the objector shall be notified in writing of the date, time and place for the Board’s inquiry into the application. The applicant and objector shall be entitled to be present or represented and heard at the inquiry. The Board may adjourn the inquiry for purposes of obtaining further evidence or information33. This provision means that the public shall exercise their access rights in the field of setting up industries that intend to engage in the oil related products. However considering that the biggest percentage of Uganda’s population is illiterate and therefore unable to read and write this provision may be unutilized by the local population. Another alternative should be incorporated in the law to accommodate those who cannot read.

Advantages/Benefits of the Right of Access to Information

The underlying and most important principle is that the three Access rights promote effective and democratic governance. Access to Information is a powerful tool for public involvement in Government decisions on matters that affect them. Information is knowledge and knowledge is power. An informed public is more likely to participate effectively in decision-making processes than a community that is less informed. Therefore information contributes greatly to the participation of the public in decision-making processes.

33. Section 9 of the Industrial Licensing Act, cap 91


Information will help the potential investors set up environmentally friendly activities. Where the investor intends to invest in the oil sub sector, and requires information on matters related to oil, information on oil exploration or production, information gathered from the relevant Investment Authority and environmental sources will be useful in helping to sustain the productivity of the oil.

Information on the oil sector will empower the local population with skills required by the oil sub sector and also create good investment climate for those to invest in oil. Where the local communities are given information about how much has been they are entitled too as their share, how it is going to be invested and how it has been invested, then the problems similar to those on Niger Delta of burning oil pipes, taking hostage of oil companies and general hostility against oil companies are likely to be avoided.

Access to information increases general transparency, good governance and accountability in particular as far as oil revenues are concerned. If oil revenue and sharing agreements are made public, and there is a systematic and known distribution of oil revenue, the country is likely to avoid corrupt leaders like Governor Diepreye Alamieyesegha of Bayelsa State in Nigeria who was arrested and charged with money laundering in UK in 2005 with money suspected to be from oil revenue. This is because if the people know what they are entitled and how much has been paid they will demand for accountability and how the money has been spent and will feel contented and fairly treated than when business is conducted in camera which creates suspicion even when there is no single coin which has been squandered.

Challenges in Access to informationIt should be noted that by putting such exceptions as those for non disclosure of third party’s proprietary information, supplied in confidence for access to information, the Act gives with one hand and takes away with the other (claw-back clauses) and such undefined exceptions may be used to deny the public information relating to oil exploration and production as flimsy excuses can be put forward to cover up some important information thus violating the right of access to information.

It is important to note that the Constitution and Access to Information Act are not all inclusive as far as access rights are concerned since there are restrictions and claw-back clauses like the right to information being subjected to the “prejudice to security of sovereignty of the state” while the right to participate in the affairs of the government is only enjoyed by the citizens of Uganda.

The Access to Information Act is still lacking. In comparison with the Aarhus Convention of Europe, (which invites other UN member countries like Uganda to sign and ratify it) is more comprehensive on access rights and sets the yard stick that should be followed by legislators in Uganda to amend this law.The Aarhus Convention lists the responsibilities of the State under Article 3 on general provisions in the promotion of the different Access rights. In comparison to the Ugandan legislation, the State’s responsibility is limited to certain Acts and to certain Agencies. The officials and authorities in such state agencies and institutions may not be willing and helpful in providing guidance to the public to seek access to information, in facilitating participation in decision-making and seeking access to justice in oil related matters.

Still in comparison with the Aarhus Convention which states in Article 3 (8) that ‘each party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized or harassed in any way for their involvement. This provision shall not affect the powers of the national courts to award reasonable costs in


judicial proceedings’. The Aarhus Convention also further provides under Article 3 (9) that ‘the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’. In contrast with Article 41 of the Constitution of the Republic of Uganda restricts the enjoyment of this right to only citizens. In the event that the area on which aliens/non-citizens have been settled is discovered to contain deposits of oil or they are members of local communities blessed with oil deposits, such persons will not be able to exercise these rights even when the major decisions will affect them and/or disrupt their lifestyle because they do not have legal standing (locus stand).

There are still some draconian laws e.g. the Petroleum (Exploration and Production) Act, cap 150 under section 59 which prohibits disclosure of information. Under the said section, its provided that no information furnished by a licensee in a report submitted pursuant to the Act shall be disclosed to any person who is not a Government Minister or an officer in the public service save with the consent of the licensee. Sub-section (2) goes ahead to provide some exceptions which still can find no place in the modern juridical world and globally accepted rules. Legally section 59 is obsolete and unconstitutional considering the provisions of the 1995 Constitution which guarantee the rights to access to information in the possession of the state and the Access to Information Act which operationalised the Constitutional provisions on the right to access to information.

The capacity of CSO’s and NGO’s to support the Government initiative of keeping the public informed may be hampered. CSO’s and NGO’s usually intervene to bridge the gap between the Government’s and the vulnerable grass root persons. They endeavour to obtain such information and sometimes translate it into local languages. Such organisations are sometimes mistaken to be partisan and may be banned from operations. The result is that it will adversely affect the public that used to rely on their existence to enjoy the exercise of their Access rights. No more information will received by communities when such important organisations are stopped/restricted from operating in the volatile oil sub sector.

However, there is a growing fear that with respect to oil, Government may loose its grip on this precious resources for which it claims to hold for the benefit of all Ugandans to foreign nations and ultimately usher in a fresh phase of colonialism. That by supplying information freely and attracting foreign experts as investors in the oil sub sector, Government may have to give in to the demands of these nations in exchange for advanced technology and expertise. Though the draft policy provides some good aspirations as far as access to information is concerned, it lacks clarity on issues like what are the considered stakeholders, how disclosure of information shall be affected and what it considers financial reporting standards and there is need to make it detailed before it becomes a policy

World over, experience has shown that countries which have not fully disclosed information concerning oil revenues and have poor transparency and accountancy records have not been able to escape the “ oil curse”. The local communities tend to and for good reasons believe that the leaders are the only ones benefiting from Petro dollars and in many cases have led to chaos in exploration areas the biggest culprits being the Niger Delta in Nigeria, Cabinda in Angola and the Ninja rebels in Congo Brazzaville


2.2 The law and the Right of Access to Participation“Democratic strength is not merely a function of electoral process. A true democracy must additionally feature transparent and participatory decision making and a government that is in constant dialog with its citizens to shape and direct its fundamental policies. It is pluralistic decision making that is at the heart of democracy, and there must exist a public space within which citizens learn from and debate among each other, and where the government is informed about the public will”Ramon Daubon.34

Access to participation is the opportunity for the citizens to provide informed, timely and meaningful input and influence decisions on general policies, strategies and plans at various levels and individual projects that impact on the public. Informed and meaningful public participation is a mechanism to integrate citizens’ concerns and knowledge into public policy decisions that affect the environment. The value of public participation in decision making is increasingly getting well recognized. Public participation should be understood to include the full range of options that engage and integrate the public into the process of making or implementing a policy of choice. Participation includes processes by which citizens can engage in public deliberation effectively and with technical competence. This can be enabled through education and training as well as access to information. Representative institutions are also important in ensuring participation. This means that states should be able to provide representation for the public at both local and national level in order for them to influence policy dialogue and provide over sight to the policy formulation and implementation process35.

Additionally, public participation should include mechanisms by which the public can communicate with government and with each other in order to effectively participate in developing and implementing sustainable development policies. This can include public hearings, notice and consultation rule making, access to information, citizen advisory boards, citizen ombudsmen, judicial review mechanisms and even the right to organize and operate NGOs in a responsible and accountable manner.In oil exploration, public participation includes actions like offering the public a chance to participate in formulation of oil policy and law, giving the public information concerning oil exploration agreements and how much is to be earned, giving a chance to local communities to plan for the benefits which may be paid back to them and who to manage such benefits, having a right to challenge actions considered wrong by the public and giving accountability to the citizens for scrutiny on how oil royalties have been spent.

Different laws in Uganda provide for the right to public participation and the right to influence or engage in government decision making.Article 38(1) of the 1995 Constitution of Uganda provides that,

“every Ugandan citizen has the right to participate in the affairs of government, individually or through his or her representative in accordance with the law”.

National Environment Act, cap 153 (NEA)The above article is further reinforced by section 2(2) (b) of NEA which provides among other principles of environment management, the encouragement of maximum participation by the people of Uganda in the development of policies, plans and processes for the management of the environment.

34.As cited in Mwebaza R, Op., cit.,35.Mwebaza R., Op., cit., 9


Section 60 of the NEA, provides that upon receiving an application for an environmental license, the committee shall within sixty (60) days notify persons who may be affected by the proposed activity of the applicant and invite them to make representations. The committee can only consider the application having regard to the all the representations received.

Under sections 86 and 87 of the NEA pointed out earlier, the authority is under obligation to gather information, analyze it, disseminate it and educate the public in the field of environment. This Act clearly puts the obligation of involving the public in environmental matters in the hands of government and makes it a duty for which government agencies are supposed to act. Also under regulation 19 of the (EIA) Environment Impact Assessment Regulations provides for public participation where by if EIA is to be carried out, it should be officially announced and published by the government at least once in the mass media, no less than 30 days before initial contact with potentially affected parties and the project proponent or its consulting firm holds at least one meeting with potentially affected parties to outline the future Environmental Impact Assessment process.

The National Oil and Gas Policy also recognizes the role played by civil society organizations (CSOs) and cultural institutions through advocacy, mobilization and dialogue with communities. It further notes that, CSOs may also be contracted in the delivery of various services, especially in the communities where oil and gas will be undertaken. These institutions will contribute to holding the different players accountable with regard to oil and gas issues and participate in getting the voices of the poor into designing, monitoring and implementation of programmes in the oil and gas sector.

A close scrutiny of the Petroleum (Exploration and Production) Act indicates that there is no single section providing for public participation in oil exploration and production as all roles are a preserve of the government agencies and licensees. Section 2 of the Petroleum Act together with Article 244 of the Ugandan Constitution (Amendment 2005) which provides that oil and other extractives are owned by the government on behalf of the republic, you discover that the participation of the public has been further limited and this does not reflect the public trust doctrine spirit of Article 1 of the constitution which provides that power belongs to the people of Uganda. The main reason for this could be that the Act was enacted before the era of proactive environmental legislation or at least before it caught on in this country and the Act was intended to deal with the upstream aspects of the petroleum industry and not with the down stream activities and the macro-economic and social implications of the oil boom and its aftermath. There is need to amend the Act to reflect the current needs of modern oil exploration and production methods or to enact supplementary laws to deal with specific questions.

Advantages/Benefits of Access to Public ParticipationJust like access to Information, the underlying and most important principle is that the three access rights promote effective and democratic governance. It creates a bond between the Government and the governed. Article 244(3) of the Constitution states that,

… petroleum shall be exploited taking into account the interest of the individual landowners, local governments and the Government.

This right to freely participate in matters that interest the community invariably promotes unity and patriotism. It reduces the possibility of war and conflict between the individuals themselves and between communities and Government.


Public participation is important for ensuring sustainable development through ensuring the utilization and proper management of oil resources visa vis the protection of the environment.

Simply, participation of the public helps in the protection and preservation of the environment while at the same time sustaining the oil resources. The right to public participation has gained importance due to the fact that better decision-making will flow towards involving the public in development processes36. This can be likened to the concept of the Rights based Approach where rights are considered in the mainstream process of planning, budgeting and implementation of Government programs by Government Ministries and Departments. Public participation in decision-making is important because it allows the public to express their views on key government policies and laws concerning the environmental conditions in their communities. This in turn enables government to pass policies and enact laws that are relevant to communities and take into account their needs. Effective governance based on transparent decision-making and the public’s access to Government information/decisions is the foundation of fair, legitimate and sustainable economic and development choices.

There are existing opportunities that the oil sub sector can take advantage of in relation to the right to public participation for instance the available legislation, the relative peace and security, the established institutions that are empowered to handle various concerns (such as the Uganda Investment Authority, NEMA, the Petroleum Commission, the local council authorities, the Courts of law among others), the current Oil policy, and the opportunities for education to improve their ability and capacity to participate in decision-making at an early stage

The public acts as the check for Government and ensures that Government institutions, organs and officials do not unfairly impose bad decisions on their communities concerning matters of oil that interest them. In the event that this happens the community can rise up and exercise their right under Article 29 (1) (d) of the Constitution to assemble and demonstrate over their interests.

As observed earlier, information is knowledge and knowledge is power. Participation of the public in decision-making is important because some members of the public are more knowledgeable and could be experts in a particular aspect in relation to oil. Such people are better placed to help make decisions than some political leaders who may not be sufficiently knowledgeable in that area. This is only possible through opening up space for active and effective participation of the public.It allows for the proper management of risk especially because of the integration of transparent and accountable approaches involved and therefore, the entire community is responsible.It helps in the creation of a stable and predictable investment environment for business, therefore sustained economic growth. It encourages the creation of more job opportunities once the investment has been approved by both the leaders and the community in question. This contributes to increased GDP and per capita incomes thus reducing poverty.

36.Mwebaza R, Op., cit at 8.


Once the investment environment has been set and the oil exploration and production begins, a lot of money in the form of royalty shall be obtained. This money will definitely contribute to increasing the tax base for the country. As revenue increases, more money is allocated to crucial sectors that will be channeled to improve on the standard of livelihoods of the people such as infrastructure, health care, education, agriculture, among others.

It also ensures equitable distribution of wealth country-wide, as stated under Article 244 (2) (b). Resource allocation will not only be limited to the areas where the oil reserves are located but the royalties (proceeds) from the exploration and production of oil will be equitably distributed to benefit all the regions in the country. This promotes balanced regional and national development, ensures integration of social and environmental as well as economic concerns into economic development decisions i.e. when the questions asked are effectively answered through the participation of the informed public. Questions such as who should decide where to drill oil wells? When is the public consulted? Can people effectively and impartially appeal unfair Government decisions?

It facilitates participation processes that grant greater decision-making power to the wider public including local governments’ communities and individuals contributes to sustainable and equitable development.37 Sustainable development for the generations yet to come i.e. involving the communities in the protection and preservation of the environment and oil resources. They exploit the oil resources bearing in mind the needs of future generations for the same resource and careful not to deplete or exhaust them. An institutional arena of public discourse and civic participation is essential to arrive at the desired outcome of proper management of natural resources and decisions that incorporate public input generally result in outcomes that are more effective and environmentally sustainable than those that do not38.

Participation enables the participating communities to hold public authorities accountable for implementation thus improving efficiency, and credibility to government processes39. Public participation is most successful when government agencies are flexible about the participation process itself and what they expect it to produce. Flexibility includes letting participants redefine the problem, focus on other issues, and change the nature of questions being considered40.Decisions are better received by the communities that participated in their making. They are better understood in relation to the importance and the benefits of oil, thereby strengthening public support for such decisions on the community.

Challenges facing access to participationInformation that is essential to help the public effectively participate in Government decisions is often hard to find. It may not be well understood by the citizens and documents about environmental effects of development projects such as oil production are frequently not made available in a timely manner. In addition, the mode of seeking the public’s opinion is usually inappropriate, inadequate and late. This encumbers/hinders the effective participation of the public for lack of information.

3�. �ee, ��escencia Ma��e� et a�, A�i�nin� ��it�ent� ��b�ic �a�ticipati�n, �nte�nati�na� �ecisi�n Ma�in� and t�e �n�i��n�ent ��R��. �ee, ��escencia Ma��e� et a�, A�i�nin� ��it�ent� ��b�ic �a�ticipati�n, �nte�nati�na� �ecisi�n Ma�in� and t�e �n�i��n�ent ��R�� 2003.38.��d Res��ces �nstit�te, Op., cit at 1.39. Mwebaza R, Op., cit., 940.��d �es��ces 2002-2004 p� 59


Even if the information is available, the public’s ability to participate in resource-related decisions like oil and gas production is curtailed because it is too technical therefore, their input is limited.

The democratic rights of the poor and their capacity to participate in environmental decisions affecting their livelihoods are central to their ability to escape poverty. Yet, despite their greater reliance on natural resources to earn a living, the poor have less say than their richer counter parts in how environmental decisions are made. In much of the developing world and for many nations that are nominally democratic, the policies, practices and institutions of political life serve to exclude the majority of citizens from full participation in decision-making especially the poor and socially marginalized.

When public comment is invited many people do not have the time neither the capacity to take advantage of the opportunity. They are largely poor and are more committed to trying to eke out a living than devote their time and meager resources to participation in public matters that may affect them.

The poor are held back by the lack of education and literacy, by deficits of information, and awareness and by a lack of understanding of their rights and how and when to exercise them. Those deficits are not only restricted to the poor but the poor tend to suffer them more acutely. Indeed most of the world’s poor are excluded from interacting fully within the political processes in their countries. In Uganda, it is being argued that the oil sub sector has already been politicized and any decisions that may subsequently come up in relation to oil are already decidedly political.

In Uganda where the largest portion of the population is illiterate, there is a failure to appreciate the interdependence and indivisibility of human rights. The interdependent nature of human rights requires that emphasis be given to both Civil and Political rights and Social and Cultural rights in all sectors of the economy in order for persons to fully enjoy the fulfillment of their rights. The neglect of one category of rights in favour of another/others is a challenge that acknowledges the need for the fulfillment of the full range of rights.

Although the process of publicly airing/preparing EIAs has greatly improved overtime, the public’s involvement still tends to be in the later stages after many major decisions have already been made/taken. Limitations and restrictions on the availability of information, such as development agendas and budget plans inhibit the ability of persons to effectively participate and demand their rights. Lack of information for the public precludes their ability to hold the duty bearers accountable.

The Petroleum Act, cap 149 and Article 244 of the Ugandan Constitution (Amendment 2005) provides that oil and other extractives are owned by the government on behalf of the republic, therefore participation of the public has been further limited and this does not reflect the spirit of Article 1 of the constitution which provides that power belongs to the people of Uganda.

The Investment Code Act, cap 92 is silent on the participation of the public in the vetting/consideration of applications for investment licenses to potential investors. This means that investors can impose any activity on the local community without their say on the impacts of the investment activity which may harm the environment. Just


because oil is a desired natural resource does not mean that everywhere it is discovered, it must be drilled. The public is usually not consulted and the Government is quick to attract potential investors under the guise of eradicating poverty and promoting development.

Corruption challenges the effective application of the Access rights through the diversion of needed resources. When oil proceeds are used to pay off corrupt officials, less money and resources are available for the intended use in development programs. This in turn is a violation of the rights of the people entitled to these resources and the would-be services in health care support, education, infrastructure, economic empowerment programs etc.

The challenge of corruption highlights the need for monitoring and increased accountability. Given the economic status of Uganda, the availability of sufficient funds and facilities to ensure effective monitoring and evaluation still proves to be difficult. The desired man power may also be a strain to come by.

There is an apparent lack of political will to have these Access rights fully enjoyed by the citizens. There is fear that the release of certain information and the participation and the involvement of citizens in certain fora is likely to ‘open’ the Government to their political opponents who may use this to challenge or discredit the Government in power.

It should be noted that though the role of CSO’s and cultural institutions are recognized, they are given peripheral attention instead of a central role in the oil exploration and production and this could lead to lack of accountability and conflict as has happened in the Niger Delta for many years.

2.3 The law and the right of access to justice “The successful translation of oil revenues into equitable, effective economic develop-ment and poverty reduction extends well beyond budget allocations and the audit-ing and control of public expenditure. It also requires effective democratic institutions” Catholic Relief Services; Bottom of the Barrel: Africa’s oil boom and the poor.

Access to Justice is the ability of citizens to turn to impartial arbiters to resolve disputes in decisions that affect them and their environment. Access to justice is concerned with that area of law that deals with the enjoyment of legal claims. It sets out the form of action a claimant may invoke in order to enforce his or her legal rights ,it also defines the regime of rights and duties of value to those that invoke them and provides for a particular procedure and the obligations to facilitate it41.When disputes arise over environmental decisions, or where the public’s rights to information and public participation are ignored, a binding system of review and legal remedy is needed42. Ugandan courts have considered the implication of Article 41 in as far as Access to information is concerned and in light of the exemptions provided under that Article and other legislation that predate the Constitution of Uganda. In the case of the Attorney General Vs Major General David Tinyefuza43, the then Chief Justice Wako Wambuzi while rejecting the claim of exemption by the Attorney General on the grounds of State security noted as follows:

41.Mwebaza R, Op., cit., 10 42.��d Res��ces �p., cit at 59 43.��nst. Appea� n�.1 �f 199��n�ep��ted�


“…The Constitution has determined that a citizen shall have a right of access to information in State hands…it is no longer for the Head of Department to decide as he thinks. That unfettered discretion has been overturned by article 41 of the Constitution. And now it is for the court to determine whether the matter falls in the exceptions in article 41 or not. And to do this the State must produce evidence upon which the court can act”In another case, Greenwatch Vs Attorney General, where the Greenwatch challenged the government on her refusal to make public the Power Purchase Agreement between the government and AES Company, the high court concurred with the petitioner that the agreement in question was indeed a public document and therefore the government could not refuse to release it to the public.

Access to Information and Public participation will have little meaning if citizens lack the right to seek legal redress through effective access to justice. Article 50(1) provides that,

“Any person who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation”.

While clause 2 provides that,“Any person or organisation may bring an action against the violation of another person’s or group’s human rights”.

The above article is reinforced by Section 4 (3) of the National Environment Act which provides that,

“… in furtherance of the right of a healthy environment and enforcement of the duty to maintain and enhance the environment, the authority or local environment committee…is entitled to bring an action against any other person whose activities or omissions have or are likely to have significant impact on the environment…”

The above section should be read together with section 74 where subsection 1 provides that, “without prejudice to the powers of the authority…the court may in any proceedings brought by any person, issue an environmental restoration order against a person who has harmed, is harming or is reasonably likely to harm the environment”.

Subsection 2 provides that,“for avoidance of doubt, it shall not be necessary for a plaintiff under this section to show that he has a right of or interest in, the property, in the environment or land contiguous to such environment or land”.

This section removed the traditional requirements for demonstrating sufficient interest in a case before the court could grant an individual, standing to sue(locus standi) thus a major reform to the right of access to justice in protection of environment and can be used to address violation of rights in the oil sub sector. Additionally, the fact that the rights to information and public participation are provided for under the Constitution means that if violated then a person can seek justice from court as provide for under Article 50.

The Advantages/Benefits of Access to Justice;Access to justice serves as a mechanisms for civil society to challenge government actors who fail to follow the rules that govern how the public should be consulted, thus enforcing access to information and public participation. Access to justice is also in some cases a way for citizens to challenge other private parties or businesses that have failed to comply with the laws, such as public health and


environmental laws that ensure that the development activity will promote sustainability of the oil reserves for future generations. Therefore access to justice enables citizens to assist government in the enforcement of laws and in ensuring respect for environmental rights44.Access to justice also includes advocacy and association rights for example freedom of assembly which protects the right of people to come together i.e. under the Constitution of the Republic of Uganda, Article 29(1) (e) on freedom of Association and Article 50(1) and (2) on right of access to justice and on public interest litigation respectively to advocate their interests through public interest and community based organizations.

Challenges in Access to justiceA number of these laws granting Access rights have been improved but the implementation mechanisms are still very weak and that leaves a gap that urgently needs to be filled by strengthening the enforcement mechanisms.

Performance is weakest on the Access principles when it comes to access by ordinary citizens to redress i.e. the ability of local people to appeal decisions they do not agree with is usually constrained by obstacles of cost, lack of clarity about the procedures of appeal, and also the lack of legal standing (locus standi) as a legally recognized party with a legitimate interest in the case.

The poor are held back from exercising their right to access justice by the lack of education and illiteracy; by the deficits of information and awareness and by the lack of understanding of their rights and how to exercise them.

Even where the poor are aware of their rights, other barriers may prevent them from being involved. People who are barely managing to eke out a subsistence livelihood often can not afford the luxury of devoting time and resources to participation or even information-gathering, and they may be less able to pursue a legal challenge to decisions with which they disagree given the expense and time burden.

The apparent challenge is the lack of specific legislation on the right of Access to Justice. In comparison to the Aarhus Declaration that is so elaborate and comprehensive on Access to Justice, there are no special organs closer to communities with oil resources to offer justice expeditiously and impartially on matters related to the oil sub sector and to provide for other relief such as injunctive relief as appropriate.

Many of the above mentioned legal instruments are largely related to the environment. There is certainly a nexus between oil exploration and the impacts on the environment. However, Uganda has since discovered commercially viable oil deposits. The legislation gap may cause trouble in the near future. There is no mechanism of holding Government and other private persons liable when their roles and responsibilities are not specifically spelt out, assistance in terms of translation of the legislation and the administrative and judicial review reports for easy understanding not provided for in the law.

44.Mwebaza R., Op., cit., p� 10


Total overhaul of legislation governing access rights and oil exploration, using a case of Norway where upon discovery of oil their legal system was completely overhauled to give relevance of oil management. Repeal the Petroleum (Exploration and Production) Act to reflect the current trend. A review of Uganda’s legislation reveals the total lack of relevant laws as far as oil management is concerned, the would be relevant laws like petroleum (Exploration and Production) Act are archaic and out dated having been enacted long before oil was discovered while other Acts like National Environment Act deal with environmental matters generally without specific relevance to oil. Such lacuna if left un attended will lead to the problems of oil curse which have already been suffered by other Africa’s oil producing countries like Nigeria and Angola.

Engage the public in oil policy, management and production especially local communities. One of the short falls since oil was discovered in Uganda has been engaging the public in oil management. Information gathered from this study reveals that even at top level, Environmental officers from soon to be oil producing districts were never consulted but were presented with EIA forms for signature. With such neglect of technical people at high level, one wonders how the common man on the ground who has high expectations from oil will ever be consulted or informed of what the current position is.

Engaging the local communities is also important to curb the high expectations among the public where everyone’s problems are expected to be solved by oil revenue. For example Bunyoro region has already demanded that it should take more than 50% of oil’s revenue as a producing region. With such demands already surfacing it is prudent that the government engages the public in formulating oil policies and laws to restore public confidence and create a sense of belonging to avoid problems like wars and dissent.

Apply internationally recognized transparency mechanisms in oil exploration and production like Publish What You pay. Uganda being an “infant” in oil management should adopt the conduct of ‘elders’ such as Norway in the field. International policies like Publish What You Pay and EITI principles should be adopted to ensure accountability and transparency in handling oil benefits. Other countries that have successfully managed to escape the oil curse should be looked at as role models on how to handle oil in a proper manner and for the benefit of all.

Recommendations3.0


Enhance overall political accountability through strengthening existing and new relevant institutions. A look at the oil and gas policy reveals lack of proper separation of roles to be performed by different institutions and lack of independence by those institutions. There is need for review of the policy to provide for specific roles of each institution to avoid overlap of roles which may result in poor implementation of policies while lack of independence may lead to officers of those institutions being compromised by leaders thus leading to misappropriation of oil benefits.

Provide for a clear and specific benefit-sharing mechanism. The government should make public the production sharing agreement already signed for the public to analyse how the benefits are to be shared and how transparency will be ensured. With the persistent refusal of government to disclose such important document, too much suspicion has been raised and without its disclosure the public may not believe other information which will further create problems in oil management.


In this research series, we have set out the historical development of access rights, the definition of those rights and why they are relevant to Uganda. It should be remember that oil production in Uganda is slated for June 2009. We have also looked at case studies of projects which have applied access rights in exploitation of oil and the legal and policy framework present in Uganda’s system and an analysis has been made about those systems. We argue that if Uganda can properly apply the access rights from this preliminary stage of exploitation then the problems associated with oil drilling/ oil curse can be avoided. We also urge the government of Uganda to look at other countries that have successfully drilled oil to make it a blessing to learn how to follow suit and also look at other countries where oil has proved to be a curse to find out what went wrong and avoid falling into that same trap.

We hope this paper will bring about constructive contribution to oil exploitation and management of oil resources and also bring a positive change in policy and legal regime that will ensure transformation of oil benefits into economic prosperity.

Conclusion4.0


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The Uganda Oil and Gas Policy 2008

Promoting the Application of Access Rights in Uganda’s Oil Sub-Sector

“Defying History”“Defying History”

“defying history” - natural resource governance institute history... · list of acronyms ......

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