Why the Sovereignty Bill must be withdrawn.

By Phillip Karugaba

There is an unwritten rule, supported by parliamentary precedent, that where substantial amendments are made to a Bill, that Bill must be withdrawn, redrafted, re-gazetted and reintroduced to Parliament at first reading.

The rationale for this rule is that the Bill is no longer that which was presented to the public, and the public have not had an opportunity to comment on the amendments.

Such withdrawal was done by the Attorney General Kiryowa Kiwanuka on the Public Service Pension Fund Bill, on May 23, 2023 before the Deputy Speaker Hon. Tayebwa, and for the Sexual Offenses Bill on 19 February 2019, before the Deputy Speaker Hon. Jacob Oulanyah (RIP).

In neighboring Kenya, the Finance Bill 2023 was nullified by the Court of Appeal on the grounds that 18 substantial amendments were introduced on the floor of Parliament, bypassing the legislative process for public participation.

Applied to the facts of the Sovereignty Bill, the proposed amendments recast the whole foundation of the law. The key definitions and the application clause of the Bill that are the heart and engine of the Bill, have been fundamentally recast. The definitions of “foreigner” and “agent of a foreigner” Clause 2(2) of the Bill, which set the scope and application of the law have been fundamentally changed to focus on engagement in political activities rather than the principal-agent relationship in the original Bill. 5 new definitions of “foreign policy”, “government policy” “political activities”, “interests of a foreigner”, “interests of Uganda” have been introduced. Clause 2(2) on application of the Bill has been amended to introduce (4) and (5) creating massive exemptions of categories of monies that are exempted from the Bill.

The change in scope and application of the bill is also amplified by the letter of His Excellency, the President on the Bill in which he disassociated himself from the current Bill and directed the Chief Whip Hamson Obua and the Chairpersons of the relevant Parliamentary Committees “to make the Bill concentrate on the sovereignty of policy-decision-making and not to meander in the areas of the freedom of private enterprise transfers private money transfers of church donations”.

The Bill with amendments is therefore a new proposition, fundamentally different from its original. In exercise of their sovereignty under Article 1 of the Constitution, and in particular the right to participate in their governance under Article 38, Ugandans have a right to public participation on the amended Bill. The Bill must therefore be withdrawn and reintroduced in full compliance of all legislative process.

The certificate of financial implications that never was

The law requires that a Bill, be supported by a certificate of financial implications, stating the cost of implementation of the Bill, and the economic impact that the Bill will have in application. The certificate that accompanied the of Sovereignty Bill was signed by Minister Amos Lugoloobi. It achieved neither of the above and was no certificate in law. The certificate wrongly states that the Bill will not generate revenue, yet the Bill provides for application and renewal fees, for certificates of registration of foreigners and prescribes the highest penalties in Uganda’s entire legislative history, as high as USD 1 million. The certificate also fell short on assessment of the economic impact of the Bill.

As was ably demonstrated by Mr. Michael Atingi-Ego, Governor Bank of Uganda, the Bill is an “economic disaster”, a “voluntary shock” with potential to upset Uganda’s balance of payments position, eroding our foreign reserves and risking a massive depreciation of the Uganda Shilling. This would jeopardize the very sovereignty the Bill purports to preserve.”

The case for a new certificate and full consideration of the economic impact of the Bill by government is made doubly so by the amendments to the Bill. Hopefully the new certificate will be issued in full consultation with the Bank Of Uganda and other agencies such as the Financial Intelligence Authority and the Insurance Regulatory Authority.

Constitutional conflict issues

The constitutionality of the Bill even as amended remains deeply contentious. Starting with Article 1, the Bill inverts the whole concept of sovereignty of the people, taking way fundamental rights of the people and making them subject to the permissions of a single appointed official, the Minister responsible for Internal Affairs.

The offense of economic sabotage in Clause 13, also offends Article 29(1)(a) on freedom of speech and of expression, and flies wholly in the face of the decision of the Supreme Court in Charles Onyango Obbo v AG that nullified the offense false news and the decision of the Constitutional Court in Alternative Digitalk v AG which establishes a new standard for freedom of speech anchored in Uganda’s international treaty obligations. It is absolutely incredible that the Bill seeks to reintroduce offences similar to those already nullified by our highest courts.

The Clause 7 restrictions from engaging in influencing government policy offend Article 38 on the right to participate in the affairs of government and to influence the policies of government.

Regulatory fragmentation and already existent laws

In several respects, the Bill, seeks to reenact provisions, already existent in other laws, such as the Political Parties and Organizations Act and the Non-governmental Organizations Act. The result is a regulatory mishmash and a compliance nightmare. The same circumstances are governed by different laws, with different reporting requirements and different criminal sanctions that can only leave the citizen subject to the law, bewildered.

Bill is still not on the Parliament website

It remains a deep source of puzzlement and anguish that with all the public interest in this Bill, it is still not available on the website of Parliament.