Tuesday 7th March, 2000
Parliament met at 2.30 p.m. in Parliament House, Kampala
PRAYERS
The Deputy Speaker, Mr. Edward Ssekandi, in the Chair
(The House was called to order)
COMMUNICATION FROM THE CHAIR
THE DEPUTY SPEAKER: Hon. Members, two weeks ago, you must have heard that our Prime Minister the Rt. hon. Prof. Apolo Nsibambi was in London for treatment but I am pleased to see him here. We welcome you back to Uganda. The fact that you have resumed Business immediately after your return means that the doctors have really done their work and we wish you well.
THE PRIME MINISTER (Prof. Apolo Nsibambi): Thank you Mr. Speaker for those very kind words. I want also to revenge positively by saying how deeply we appreciated the good wishes, the prayers of His Excellency the President, the Vice President, the Speaker, the Chief Justice, the Deputy Speaker and all of you. And of course as you can see, I am following Article 98 of the Constitution. We greatly appreciated your good wishes and we wish to say that objective observers have confirmed that we have regained our vitality. Thank you.
THE DEPUTY SPEAKER: Hon. Members, last week we adjourned business of the plenary sessions for the House to enable the Committees to expedite business before them. You will recall that on 17th February, the Business Welfare Committee under my chairmanship had charted out the legislative program for the second meeting of the Fourth Session of Parliament. This legislative program was arrived at, in such a way so as to have very urgent business to be disposed of by Parliament after which the Committees during the adjournment would be availed time to concentrate on the mornings and afternoons so as to discharge business before them.
In the Plenary Sessions, we passed the Electoral Commission amendment Bill, 1999, the Community Service Bill, 1998 and the Referendum and other Political Organisation, Verification and Approval of Regulations which was crucial to the fourth coming referendum exercise.
Originally, before we went into recess mid December last year, it had been agreed up on that the first two weeks on the commencement of business after recess would be allotted to the Committees of the House as I have indicated. But because of the urgent business I have referred to, the adjournment was delayed for the last week. The impression to the effect that we adjourned Parliament last week for want of business is therefore, not correct. We do have a lot of business as most of you have noted on the Legislate program that has already been circulated to you. That is the position and maybe, if the chairpersons of the Committees have some tentative reports to make, I would give them opportunity to do so.
MR.AWORI AGGREY (Samia Bugwe North, Busia): Mr. Speaker, I thank you for your explanation on this matter of adjourning the House for lack of business. We were very concerned when we saw the reports in the Press that this House has not been diligent in carrying out its rights or duties as far as we are concerned.
Not withstanding your clarification, I am also seeking clarification on two very important matters. Number one; on the eve of the Women’s day, I note with concern that two Bills which concern women most have never appeared in this House and yet we have been made to believe that the government is committed to emancipation and advancement of women. I am asking you Mr. Speaker, in your capacity as the Chairman of the Business Committee. When do you expect to receive these two Bills from the Government so that they can be tabled here and we see how to support our sisters in their struggle for emancipation?
I do understand the heckling from my Colleague, especially the Movement supporters because they have been uppermost in shouting and screaming for the women’s rights and yet when it comes to vital aspects of the women’s developing, they start back peddling. And I would like to put this, especially to the Government; where is the Domestic Relation’s Bill? Where is the Land Bill? What is happening to these two Bills? They must tell us - especially, now that the Prime Minister is back and in good form, can he tell us what is happening to these two? Mr. Speaker, I wish to know on the eve of the Women’s day.
THE DEPUTY SPEAKER: I think, it appears the way you have ended your question, it is clear to me that, you know whom to ask the question rather than the Speaker because as far as Parliament is concerned, it deals with the Bills that are brought by the Executive. We do not go to the Executive and say, what are you doing with this; that is their lubimbi and therefore, I think they are completing. The moment they bring them here then that will be our business to deal with these two Bills. But if you want to ask the Executive, you can have a formal question and it will be addressed to the proper person who will answer.
MR.KYEMBA HENRY (Jinja Municipality West, Jinja) Mr. Speaker, the point you have raised is causing us a lot of concern. Because when we saw in the newspapers, cartoons of Members of Parliament sleeping, while other people, particularly women with the hoes who were supposed to be doing their lubimbi, we did not take it lightly. And yet we know that when Parliament is in recess, it is the entire Parliament that is in recess. We cannot be in recess and then we have Committees in business to process the work for the House. So I think, it is only right, and I am glad that you have at least brought up this matter so that the chairman could clarify to us. Thank you.
THE DEPUTY CHAIRMAN OF THE COMMITTEE ON LEGAL AND PARLIAMENTARY AFFAIRS’ COMMITTEE (Mr. Wandera Ogalo): Thank you Mr. Speaker. In the Legal and Parliamentary Affairs’ Committee, the Political Organisations Bill is ready. The report of the Committee on Legal and Parliamentary Affairs on the Draft Constitution of the Uganda Branch of the Commonwealth Parliamentary Association is ready. The report on Human Rights Commission is ready. The Committee is presently dealing with the Statutory Declarations Bill and will be able to report next week and the Committee is also writing the report on the Inspector General of Government. Thank you Mr. Speaker.
DR.OKULO EPAK (Oyam South, Apac): Thank you Mr. Speaker. The hon. Chairman, who has just sat down, has enumerated a number of businesses, which he says is ready. May I know from him whether these businesses had actually been ready by the time the House adjourned for an apparent lack of business? Because he is saying, he is ready; from which time have they been ready? If they had been ready by the time we adjourned, we would definitely prefer to benefit from the reasons why we were not able to deal with them at the time we adjourned. I thank you, Mr. Speaker.
THE DEPUTY SPEAKER: No, but the hon. Member, as I have explained, the intention when Parliament was convened was not to start with Plenary Sessions, that was the arrangement. We only started with Plenary Sessions because of very, very important business namely, the amendment of the Electoral Commission Statute, the Regulations and any other business. Otherwise, we should have started with the Committees for two weeks. In fact, the Plenary should have started on 29th. So, even if it was ready then, because it was not so urgent as the other one, we would not have dealt with it. I think he is just saying if you now ask him, he is ready to present that business.
MR.NYAI DICK (Ayivu County, Arua): Mr. Speaker, with your indulgence, a very serious clarification. Would it be therefore, correct for you to say boldly and publicly that whereas Parliament went to concentrate on Committee business, the perception the public has got that Parliament had no business is not true?
THE DEPUTY SPEAKER: Well, as I have said, if the impression is that business of Parliament is only done in plenary, that is wrong. Because even when the Committees are sitting as Committees, that is parliamentary work, and it is part of our work. In fact we do not proceed to plenary until the Committees have finalised their work.
MR.BEN WACHA (Oyam North, Apac): Thank you, Mr. Speaker. I am slightly relieved that this communication has come from you. But would it also have been possible for your office to arrange with the PRO of Parliament to brief the Press in no uncertain terms that what you have stated is the position?
THE DEPUTY SPEAKER: Yes that will be done.
MR.MWANDHA JAMES (Representative of Persons with Disabilities, Eastern): Thank you, Mr. Speaker. We have the Business and Welfare Committee. This is the Committee, which discusses the business of this House and the Clerk, religiously, subsequently supplies a list of the business of the House. And since the Chairpersons of the Committees are Members of this Committee, those Chairpersons give the report of the Reports that they have in the pipeline and these are listed, and indeed they were listed and I believe that this list was even available to the Press. So, really the question of business not being available was totally out of context.
But also, I think the list which we have, unless we have changed it, the reports which were reported in the Business Committee are the very reports that we can again report in the House. Otherwise, I do not know whether really there is a problem of reports not being available over and above what was actually reported in the Business Committee and subsequently supplied to this House.
Mr. Speaker, we laid on the Table of this House before the last sitting even, the Report on National Social Security Fund, and we even distributed to Members, and that Report could be discussed any time.
THE DEPUTY SPEAKER: Any other report from the Committee?
MR.BEN WACHA: Thank you, Mr. Speaker. I have a problem with your office in respect to the Resolution on the amended rules of Parliament. I want to report to this House that the Committee on Rules and Privileges went through the rules, made recommendations for amendments and we are, as of now, ready to report this matter to this House.
We, however, have a problem because out of courtesy for the Office of the Speaker and for the Office of the Leader of Government Business, we thought that we could convene a small ad hoc Committee to look through the amendments that we propose to present before this House. Unfortunately, that ad hoc Committee has been dragging its feet and has, as of now, failed to meet to resolve on two small matters; that is the matter of censure of Ministers and the matter of either impingement or censure of the Vice President.
I want to report that if this small Committee does not meet this week, I will be compelled to bring the amendments before this House.
THE DEPUTY SPEAKER: Well, I think the point is taken, but maybe this week may not be convenient because tomorrow is a Public Holiday, then we have Thursday. But maybe we extend it by another week and then we shall see what happens. Any other report from the Committees?
THE DEPUTY CHAIRMAN OF THE COMMITTEE ON SOCIAL SERVICES (Dr. Mutesasira Timothy): Thank you, Mr. Speaker. The Committee on Social Services has finalised its report on the Workers' Compensation Bill and if given the opportunity, we shall be ready by Thursday afternoon.
THE DEPUTY SPEAKER: Thank you very much.
THE DEPUTY CHAIRMAN OF THE COMMITTEE ON PRESIDENTIAL AND FOREIGN AFFAIRS (Brig. Matayo Kyaligonza): Mr. Speaker, we are about to report our findings of the Joint Venture Agreement of NEC Pharmaceutical. We are also handling the issue of our troops in Congo on that Bill which is going to be handled and presented next week.
THE DEPUTY SPEAKER: Thank you. Well, those are the reports from the Committees. So, there is business and they has been working. Hon. Members, I have received a note from the Prime Minister about the sad news of the death of our Former Prime Minister, Eng. Abraham Waligo. May his soul rest in eternal peace. Details of burial arrangements will be given in due course.
LAYING OF PAPERS
THE DEPUTY SPEAKER: On this item, I understand that there is some consultation going on over this report and in due course it will be laid before the House, but not today.
BILLS
SECOND READING
THE ARBITRATION AND CONCILIATION BILL, 1999
THE MINISTER OF JUSTICE (Mr. Mayanja Nkangi): Thank you, Mr. Speaker. I beg to move that the Bill entitled, "The Arbitration and Conciliation Bill, 1999" be read a Second Time.
THE DEPUTY SPEAKER: Is the motion seconded?
HON.MEMBERS: Seconded.
MR.MAYANJA NKANGI: Mr. Speaker, hon. Members have had this Bill with them for sometime now, and I think in the interest of saving time, I should be very brief. The Memorandum to this Bill stated exhaustively the reasons for reading this Bill the Second Time.
Briefly, we want a local law, a Ugandan law to make it possible for those conventions to which Uganda is party, which we have ratified, to make them applicable to Uganda by having a domestic law. These conventions are the New York Convention, the International Convention on the Settlement of Investment Disputes between State and Nationals of other States, and the United Nations Commission on International Trade Law.
Furthermore, I would like to replace an outdated law, which is on our Statute books namely, the Arbitration Act Chapter 55 of 1950. I want to do this so that we bring this form of 50 years ago. We would like to bring the law up to date, to enable the commercial sector to deal with more contracts in a more up to date way.
And finally, of course we know why we want arbitration; Arbitration is normally used as a known judicial way. As in this case, you do not make recalls to courts but you agree between parties to have your disputes settled outside the court. Of course, you provide for appeals in case there is a problem in the arbitration law. But normally, this is done to make it easier for commerce and industry to run faster than by just waiting to go to courts for each and every dispute. Hence, this Bill comes to this Parliament for the Second Reading.
I note from the report of the Committee on Legal and Parliamentary Affairs that in fact they have exhaustively dealt with these preliminary issues and I request that you ask the chairperson to go ahead and address Parliament on this report. I beg to move.
THE DEPUTY CHAIRMAN, COMMITTEE ON LEGAL AND PARLIAMENTARY AFFAIRS (Mr. Wandera Ogalo): Thank you, Mr. Speaker. The Arbitration and Conciliation Bill, 1999 was read for the First Time on 10th, March 1999. It was then referred to the Committee on Legal and Parliamentary Affairs pursuant to rule 99(5) of the rules of procedure of the Parliament of Uganda.
The Committee discussed the Bill with the Minister of Justice and Constitutional Affairs, the First Parliamentary Counsel, the Law Reform Commission, the Centre for Arbitration and Dispute Resolution, Mr. Muyanja Jimmy, the Law Development Centre and Mr. Sebalu Paul.
The Bill seeks to repeal and replace the existing Arbitration Act of 1930, Chapter 55. This law was based on the English Arbitration Statute of 1932 and the Geneva Conventions of 1923 and 1927 respectively. These have since been revised and replaced. These Conventions have become obsolete as they have been superseded by other International Conventions namely, the New York Convention and the International Convention on the settlement of Investment Disputes between States and Nationals of other States, both of which have been ratified by Uganda.
The above therefore, has led to a need to up date arbitration legislation in Uganda. The Bill, when passed, will therefore give content to arbitration procedure in the country in an up dated form in consonance with international conventions.
Observations and recommendations:
After careful analysis of the Bill, the Committee makes the following observations and recommendations.
1. The Bill makes a distinction between domestic and international arbitration. The Committee observes that this distinction is likely to subject parties to trivial disputes of whether the dispute is international or domestic. The Committee therefore, recommends that distinction should be done away with.
2 In the Bill, there is over reliance on the courts on matters of appointment disqualification and challenging of arbitrators.
The Committee recommends that the act should include the role of the appointing authority, which is duly recognised by the United Nations Commission of International Trade Law Arbitration Rules of 1976 and the Model Law of 1985.
Over-reliance on the courts on the above matters fails to recognise the role played by the appointing authority, which is often agreed upon by the parties in advance by the arbitration clauses. It also tends to undermine the principle of party autonomy in arbitration matters, thus re-introducing the delays caused by court procedures which parties to the arbitration intend to avoid in the first place.
3. The Committee also observes that there is no authority in the country to supervise activities related to alternative dispute resolution. This has led to the administration of alternative dispute resolution to be cumbersome in certain respects.
The Committee therefore, recommends the creation of the body, the Centre for Arbitration and Dispute Resolution, which will handle administrative and technical details related to alternative dispute resolution.
4. The Committee also recommends as a by the way, that all Bills pass through the department of Legislative Counsel before they are handled by the House committees. This will enable the Committee to concentrate on the substance in the Bills rather than spending time on drafting issues.
In view of the above recommendations, the committee will at the appropriate stage move amendments to the Bill. Mr. Speaker, I beg to report.
THE DEPUTY SPEAKER: Thank you very much. Business is now open, there is a report and a Bill, now it is open for you to debate and then we see how we continue.
MR.DICK NYAI (Ayivu County, Arua): Thank you very much, Mr. Speaker. Allow me to thank the Minister, the Government and the Committee members for having done a commendable job in concentrating their minds on a subject, I believe not very many of people in this country are very familiar with. I am sure that arbitration is crucial particularly in matters relating to the less privileged, particularly our workers. I know there are enough laws in place to protect the investor but now I think we are turning to the protection of the workers. And it is only fair that this law should be brought in line with International laws so that arbitration in Uganda is as it is elsewhere in the world. Mr. Speaker, for that reason alone, I give this Bill my total and qualified support. I thank you.
MR.KARUHANGA ELLY (Nyabushozi county, Mbarara): Mr. Speaker, I stand to support the motion whole-heartedly. I also want to declare my interest in it because I am the President of the Centre for Alternative Dispute Resolution and Arbitration in Uganda and I am the founder President now for two years.
This Bill is trying to do two things mainly. One, to speed up justice. Justice delayed is justice denied. We have come to accept that our courts are loaded with so much backlog of cases that even if we were to appoint 100 judges on the High Court, we would still have to appoint a lot of judges on the Court of Appeal and on the Supreme Court. And we would need a lot of lawyers to be thrown at them to settle and bring justice. With this Bill, we are enabling quick settlement of disputes among the business community especially in civil matters.
The many disputes that we have would not necessarily need to go to court if the parties involved were to choose one person they trust, ‘come and listen, we do not agree with each other. Please, tell us who is right and who is in the wrong one’. Once that one says this one is right, he registers award to court and it becomes a judgement. So almost in one or two days the matter is resolved. In no time, many files that are stuck in the High Court would be referred to this centre for arbitration.
Secondly, it helps us to get true and proper justice. You will find that a judge sitting in High Court appointed as a judge, will hear a matter that is so sophisticated and is totally beyond her. For example, this case might be between engineers and they are talking a lot of engineering and maybe architectural designs. If the two engineers were in dispute, the best person to sort out their problem would be another engineer who knows and understands the profession and then reads what is happening and says, but you were wrong in this clause.
But for judges to be able to appreciate that, it takes a long time and sometimes when their judgement is made and read out, it is actually false. That is why we put Court of Appeal so that the other judges might say, ‘oh! But the learned judge down there was completely misdirected’. Then we put Supreme Court to also correct. So we have a series of people who are checking when matters could be easily resolved. If it is in business, customs clearing, entries, you can imagine if you have a big company which imports a lot of things and there are so many entries and then you go before a judge to look at those entries. Instead of just looking for one person who is qualified in customs business, who knows this nomenclature, who can read the Finance Bill and solve the matter as quickly as possible. So this helps us to find people in social science, people in politics, people in business, people in various professions to participate in dispensing justice in the areas where they are most qualified in, at the quickest possible opportunity.
There is a point I would like to bring to the hon. Members' attention. Recently, you will note that we passed a lot of loans coming out of the Ministry of Finance to deal either with World Bank, African Development Bank and the European Union. And all these loans were open to tender for people who were going to do procurement or who are going to implement. In these tenders, they end up writing legal contracts in which there is always an arbitration clause. We spend a fortune on arbitration because they are all settled outside Uganda. So we have to hire lawyers from outside Uganda, we have to hire doctors if the matter is to do with doctors outside Uganda to settle our disputes.
This is the first time we are making a break through that people can come to Uganda and settle their disputes here without us having to spend a fortune on hard earned income. Uganda will be, on passing this Bill, the only country in the region, especially now that we have joined the Community, which will have passed this ahead of others, and we are likely to be centre for settling disputes in the East African Community. So, I have no hesitation in supporting this motion and recommending it to all of you hon. Members to support it whole-heartedly. Thank you very much Mr. Speaker.
MR.AGGREY AWORI (Samia Bugwe North, Busia): Mr. Speaker, I also rise to support the motion in light of the following facts, or situations obtaining at the moment. We have two problems that seem to be passing without our attention and yet they were a matter of serious debate in this House. There was the question of National Social Security house. This contract was signed under very shoddy circumstances and it led to nearly a loss of more than 18 million dollars of the workman's social security savings.
Lately, I have read in the press with great concern, that one of the persons who was suing or a party to the disputes quietly brought in a lawyer from a neighbouring country for arbitration at a very high cost. I have also learnt with great concern that our Attorney General's office has not taken this matter very seriously. In the end, we might wind up with NSSF losing a lot of money to the former contractor who had taken up this contract to build the National Social Security house but it was terminated.
Number two; this House was at great pains to discuss a matter of privatisation of UCB. Again this matter was done in a very shoddy and funny manner to the extent that it became an international legal litigation. We have also learnt without even informing this House that this matter has been forwarded for arbitration in London. Now, UCB is a very important institution to this country. It was a matter of serious debate in this House. Somehow in the end, we left it hanging and as I said, I have just learnt that the matter is a matter of arbitration in London and it is going to cost us a lot of money.
This kind of negligence on our part, especially the arm of the State supposed to help us in legal issues of this nature, I do not know what they are doing! That is why I think it is very important that we expeditiously pass this Bill.
However, I do not have that legal mind professionally to interpret the current situation. In the event that we pass this Bill quickly, what is going to happen to the two issues? Legally, can we say now we have got the law about arbitration, the matter should be subjected to local arbitration instead of going to London or Singapore or other places? Over and above that, -(Interruption)
MR.KARUHANGA: I wish to inform the hon. Member that in most of these things the arbitrators are appointed by both parties, and they follow the existing law. So, we cannot now use this law stop what happened in the past. What happened in the past, we will have to meet and pay for. What we are trying to stop now is the future and if you know how we can persuade the parties to use this law, that will also be very welcome.
THE DEPUTY SPEAKER: Maybe, you can look at Clause 72, it will answer you.
MR.AWORI: Mr. Speaker, I take your advice and I will look at Clause 72.
THE DEPUTY SPEAKER: Since you have exhausted the debate, I now put the question that the Arbitration and Reconciliation Bill, 1999 be read a Second Time.
(Question put and agreed to.)
BILLS
COMMITTEE STAGE
THE ARBITRATION AND RECONCILIATION BILL, 1999
Clause 1.
THE DEPUTY CHAIRMAN OF THE COMMITTEE ON LEGAL AND PARLIAMENTARY AFFAIRS’ COMMITTEE (Mr. Wandera Ogalo): Mr. Chairman, on Clause 1, I beg to move that we substitute the words, “on such date as may be appointed by the Minister by Statutory Instrument” with the words, “on the date of publication”. The justification for this is that it may take long to make the regulation and the whole purpose is to have disputes for arbitration dealt with expeditiously.
MR.MAYANJA NKANGI: Mr. Chairman, I accept the amendment, especially, because it gives certainty as to when the Bill is going to become effective as law.
THE DEPUTY CHAIRMAN: I now put the question that Clause 1 be amended as put by the chairperson.
(Question put and agreed to)
Clause 1, as amended, agreed to.
Clause 2, agreed to
Clause 3.
MR.OGALO: Mr. Chairman, I beg to move that just before the definition of arbitration, we insert therein “appointing authority” and define as; “Appointing Authority means an institution, body or person appointed by the Minister to perform the functions of appointing arbitrators and conciliators”. Mr. Chairman, I beg to move.
MR.MAYANJA NKANGI: I accept, Sir.
MR.OGALO: Mr. Chairman, I beg to move that after the definition of the word “party” we provide a definition for “umpire” and it reads; "Umpire means the third arbitrator appointed by the two arbitrators who have been appointed by the parties”.
MR.MAYANJA NKANGI: Accepted, Sir.
THE DEPUTY CHAIRMAN: I now put the question that Clause 3 be amended as put by the chairperson.
(Question put and agreed to)
MR.OGALO: Mr. Chairman, I beg to move that Clause 3(2)(3) and (4) be deleted. The justification for this is that the Bill should make no distinction between domestic and international arbitration. Where the distinction is made, parties are likely to be subjected to trivial disputes of whether the dispute is international or domestic other than focusing on the fact that an arbitration agreement is in existence.
MR.MAYANJA NKANGI: Mr. Chairman, I see a possibility or possibly a probability of this happening. So, I concur.
THE DEPUTY CHAIRMAN: I now put the question that Clause 3 be amended by deleting sub-clauses (2), (3) and (4).
(Question put and agreed to)
Clause 3, as amended, agreed to.
Clause 4.
MR.OGALO: Mr. Chairman, I beg to move that in sub-clause 3(a), the word “or” be added at the end of that line. This is because we are moving to delete (c); and also to delete 'or' at the end of paragraph (b) so that it makes sense. The justification for this is simple. That is, it will become redundant when we delete (c).
MR.MAYANJA NKANGI: I concede, Sir.
THE DEPUTY CHAIRMAN: I now put the question that Clause 4 be amended as put by the chairperson.
(Question put and agreed to)
Clause 4, as amended, agreed to.
Clause 5.
MR.OGALO: In Clause 5, Mr. Chairman, I beg to move that we insert the word “which” between “agreement” and “has not”, in the third line. This is merely a typographical error.
THE DEPUTY CHAIRMAN: I now put the question that Clause 5 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 5, as amended, agreed to.
Clause 6.
MR.OGALO: Mr. Chairman, I beg to move that Clause 6(1) be redrafted to read: "A Judge or Magistrate before whom proceedings are brought in a matter which is the subject of an arbitration agreement shall, if the party so applies after filing the statement of defence and before taking any other step in the proceedings, apply to court to stay the proceedings and refer the parties to arbitration unless it finds-" then the rest follows as it is.
MR.MAYANJA NKANGI: I would expect, of course, the Judge or the Magistrate to make this order judiciary, but as it stands it looks imperative simply to say, “shall do so” without making it clear that the other party might not want the order and the request made. I am hoping that the order will be made by court having given the other party a chance to say something about the application.
THE DEPUTY CHAIRMAN: I think the problems have been that the courts have been insisting that you cannot host the jurisdiction of court to entertain any matter. So, you are saying the Judge may or may not, subject to the consent of the parties. Is that what you are saying, but this is mandatory.
MR.OGALO: Mr. Chairman, I take the point and I think it is a question of re-drafting it so that it reads in the fourth line “and before taking any other step in the proceedings applies to court to stay the proceedings and refer the parties to arbitration”. Then what you can do to take care of the Minister's fears is to use the word “shall”, which is a mandatory word so as to give the other party chance if he so wishes.
But I think that once the other application is made, it would follow that the court would serve the other party with the normal procedures. But, we can stand it over so that the legislative people to draft taking into account what the Minister has said.
THE DEPUTY CHAIRMAN: So, now what do we pass?
MR.OGALO: Let us stand over the whole of Clause 6.
Clause 7.
MR.OGALO: Mr. Chairman, I beg to move that Clause 7 be re-drafted to read; "A party to an arbitration agreement may apply to court before or during arbitration proceedings for an interim measure of protection and the court may grant that measure." This is only for clarity.
MR.MAYANJA NKANGI: I accept.
THE DEPUTY CHAIRMAN: I put the question that Clause 7(1)(b) be amended as stated by the Chairperson.
(Question put and agreed to)
Clause 7, as amended, agreed to.
Clause 8, agreed to.
Clause 9, agreed to.
Clause 10, agreed to.
Clause 11.
MR.OGALO: Mr. Chairman, in Clause 11(2), I beg to move that we substitute the words, “the number of arbitrators shall be one” with the word “there shall be one arbitrator”. Mr. chairman, 11(2) reads; "If the parties fail to determine under sub-section (1), the number of arbitrators shall be one", but for clarity it would rather be “there shall be one arbitrator".
THE DEPUTY CHAIRMAN: I now put the question that Clause 11 be amended as stated by the Chairperson.
(Question put and agreed to)
Clause 11, as amended, agreed to.
Clause 12.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 12(3) to (6) we substitute for “court” wherever it appears the words “appointing authority”. The justification for this is that court may take a long time unlike the appointing authority.
THE DEPUTY CHAIRMAN: I now put the question that Clause 12 be amended as stated by the chairperson.
(Question put and agreed to).
MR.OGALO: Mr. Chairman, I beg to move that in Clause 12(6) we delete the words beginning with “and in the case of a sole or third arbitrator, shall take into account the advisability of appointing an arbitrator of a nationality other than those of the parties”. The justification for this is that the proceedings of arbitration could be frustrated for lack of an arbitrator of a nationality other than that of the parties.
THE DEPUTY CHAIRMAN: I put the question that Clause 12(6) further be amended as stated by the Chairperson.
(Question put and agreed to)
Clause 12, as amended, agreed to.
Clause 13.
MR.OGALO: Mr. Chairman, I beg to move that Clause 13(2) be deleted. The justification is that what is appearing in 13(2) is already provided for in 13(1).
THE DEPUTY CHAIRMAN: Hon. Minister, is it okay?
MR.MAYANJA NKANGI: Mr. Chairman, I concede.
THE DEPUTY CHAIRMAN: I now put the question that Clause 13 be amended by deletion of 13(2).
(Question put and agreed to)
Clause 13, as amended, agreed to.
Clause 14.
MR.OGALO: Mr. Chairman, I beg to move that the words “subject to sub-section 3 of this section” appearing in Clause 14(1) be deleted. The justification for this is that, reference is made to subsection 3, which is already deleted.
THE DEPUTY CHAIRMAN: So, how do you read it?
MR.OGALO: Delete in 14(1); you remove subject to sub-section 3 of this section so that the sentence starts at, "The parties are free to agree on the procedure for challenging an arbitration."
THE DEPUTY CHAIRMAN: Any other amendment?
MR.OGALO: The other amendment, Mr. Chairman, is to substitute for “arbitration” appearing in the second line, the word “arbitrator”. The justification for this is, just a printing error in the second line of Clause 14(1) for challenging an “arbitrator” not “arbitration”.
THE DEPUTY CHAIRMAN: Why do you not read it as you want it to be?
MR.OGALO: So, that it reads; “the parties are free to agree on a procedure for challenging an arbitrator”. When read from Clause 13, it provides grounds for challenging somebody who has been appointed to arbitrate. Now, we are giving the powers to the parties to challenge that arbitrator to step aside.
THE DEPUTY CHAIRMAN: Is it clear?
MR.OGALO: I will go over it again beginning from Clause 13. Clause 13 provides grounds for challenging an arbitrator. The parties may agree on somebody to arbitrate their case; but then because of either impartiality or lack of independence or doubts in that arbitrator, one party may want to challenge him so that he steps aside and does not actually preside over that case. Clause 13 provides the grounds and 14(1) allows the parties to agree on a procedure. Therefore, instead of saying “agree on a procedure for challenging that arbitrator” from 13, the word used in 14(1) was arbitration.
THE SPEAKER: Is it clear? Okay.
(Question put and agreed to)
MR.OGALO: Mr. Chairman, in 14(2), I beg to move that we substitute for “Arbitral Tribunal” wherever it appears, the words “Appointing Authority”. The justification for this is that this is in consonance with the earlier Clauses where appointing authority has been provided for. The second amendment is to add at the end of the paragraph “within a period of not later than 30 days from receipt of a written statement”. The justification for this is to provide a time limit in the proceedings.
THE DEPUTY SPEAKER: Okay, will you deal with another amendment in 14 so that –(Interruption)-
MR.OGALO: Yes. 14(3), I beg to move that it be deleted, the justification, consequential.
(Question put and agreed to).
Clause 14, as amended, agreed to.
Clause 15.
MR.OGALO: Mr. Chairman, I beg to move that sub-clause 1(a), be merged with (c). To be redrafted so as to read (a), “he or she according to the parties is unable to perform the functions of his or her office, or for any reason fails to act without undue delay”. The justification is that it does not require separate paragraphs when (c) goes together with (a). And also to provide for a new (c) in Clause (2) to read, (c) “if he dies”.
THE DEPUTY SPEAKER: Okay.
MR.OGALO: Mr. Chairman, also in 15(2) and (3) to substitute for “court”, the word “centre”. This is consequential; we have already provided for it, and then to delete 15(4). The justification being that it serves no purpose here and does not relate to Clause 16(3). Mr. Chairman, I beg to move.
(Question put and agreed to)
Clause 15, as amended, agreed to.
Clause 16.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 16(2) and (3) we delete the word “otherwise” appearing in the first line. The justification is that it is redundant. I beg to move.
(Question put and agreed to)
Clause 16, as amended, agreed to.
Clause 17.
MR.OGALO: Mr. Chairman, I beg to move that Clause 17(5)(b) be redrafted to read; “the Arbitral Tribunal shall rule on a plea referred to in subsection (2) and (3) as a preliminary question”. The justification for this is to make the role of the Tribunal mandatory.
(Question put and agreed to).
(Clause 17, as amended, agreed to).
Clause 18.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 18(2), we substitute for “with the approval of the Arbitral Tribunal” the words or “Appointing Authority”. This is to remove the powers from the Tribunal to the Appointing Authority. That is the justification.
(Question put and agreed to)
Clause 18, as amended, agreed to.
Clause 19.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 19, the word “full” appearing in the second line be substituted with the word “reasonable”. The justification is that “full” may be interpreted to mean all the time a party wishes to have, leading to a delay in the proceedings contrary to the intention of the Arbitral proceedings. Mr. Chairman, I beg to move.
(Question put and agreed to)
Clause 19, as amended, agreed to.
Clause 20, agreed to.
Clause 21.
MR.OGALO: In Clause 21, Mr. Chairman, I beg to move to insert in the third line the word “the costs” between “regard to” and “and circumstances”. This is to cater for the financial implications. Mr. Chairman, I beg to move.
THE DEPUTY SPEAKER: Any other amendment?
MR.OGALO: Another amendment, Mr. Chairman, is in Clause 21(3) to delete the word “otherwise” appearing in the second line for redundancy as stated earlier.
(Question put and agreed to)
Clause 21, as amended, agreed to.
Clause 22.
MR.OGALO: I beg to move, Mr. Chairman, that the word “otherwise” appearing in the first line be deleted. Same reason, redundancy.
(Question put and agreed to)
Clause 22 as amended, agreed to
Clause 23.
MR.OGALO: In Clause 23, Mr. Chairman, I beg to move that Clause 23(1) be redrafted to read “the Arbitral proceedings shall be conducted in the English language unless the parties otherwise agree”. The justification in this is for clarity. And in;
(2) That “the parties shall have a right to an interpreter” and this is to make provision for an interpreter during proceedings and in (3) to delete the word “otherwise” for redundancy.
MR.MAYANJA NKANGI: Mr. Chairman, I am rather apprehensive about this English almost being mandatory, because in fact, we have international contracts and arbitrations between the Japanese and Ugandan and whatever. I do not really see why we should say English whatever. I would rather we leave it as it is, let the parties agree on the language to be used.
THE DEPUTY CHAIRMAN: Yes hon. Members, you have heard the Minister's views about the amendment. Any contribution? Or the motion is -we amend and then there is an objection by the Minister. Any contribution or I just put the question?
MR.WANDERA OGALO: Well, Mr. Chairman, I have really no hard thing about this.
THE DEPUTY CHAIRMAN: So, the amendment is dropped and therefore, I put the question that Clause 23 do stand part of the Bill.
(Question put and agreed to)
Clause 23, agreed to.
Clause 24.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that the word “otherwise” appearing in line 5 of Clause 2492) be deleted and to add a new 24(2) to read: “The claimant shall have a right to reply to the defence”. The justification is to provide for a reply to the defence. It is a cardinal rule that a person has a right to be heard.
In (3) to delete “except as otherwise agreed by the parties”, the justification being to avoid beginning from the negative.
THE DEPUTY CHAIRMAN: I now put the question that Clause 24 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 24, as amended, agreed to.
Clause 25.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that Clause 25 be re-drafted to read; “Subject to any agreement to the contrary by the parties, the Arbitral Tribunal shall decide whether to hold oral hearings for the presentation of evidence or have oral argument or written submissions”. The justification for this is that, the amendment reflects what was intended in the marginal note.
In 25(2), I beg to move that we delete, “if so required by a party” appearing in the last line. The justification being that this is a repetition.
In 25(5), I beg to move that we delete the words, “for the purpose of inspection of documents, goods or other property”. The justification being, if maintained, the process becomes too restrictive.
THE DEPUTY CHAIRMAN: The motion is that Clause 25 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 25, as amended, agreed to.
Clause 26.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that the word “otherwise” appearing in the first line be deleted and in Clause 26 (b) substitute the word “by” appearing in the first line with the word “in”. In 26(c), we delete the word “which” appearing in the first line and 26(d), to substitute the word “prosecute” appearing in the first line with the words “proceed with”.
THE DEPUTY CHAIRMAN: I now put the question that Clause 26 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 26 as amended, agreed to.
THE DEPUTY CHAIRMAN: But if I may ask, why is it that every Clause in this Bill is being amended? Any idea?
MR.WANDERA OGALO: Mr. Chairman, as stated in our recommendation in the report, on page 2, the last recommendation, was that, these Bills coming here should first of all go to our Legislative Counsel here in Parliament because they have a lot of drafting errors.
THE DEPUTY CHAIRMAN: And that is your comment, right.
Clause 27.
MR.WANDERA OGALO: In Clause 27 (b) I beg to move that we substitute in the first line the words “unless the parties agree otherwise if a party” with “unless the parties otherwise agree” then coma, “if a party”. The justification here is the drafting problem. I am just putting it right, then substitute for the first line the following; “unless the parties agree otherwise, the expert...” then the rest flows. Same justification, Mr. Chairman.
THE DEPUTY CHAIRMAN: I put the question that Clause 27 be amended as stated.
(Question put and agreed to)
Clause 27, as amended, agreed to.
Clause 28, agreed to.
Clause 29.
MR.WANDERA OGALO: Clause 29, Mr. Chairman, I beg to move that we substitute the word “only” appearing in the third line with the word “except”. This again is for clarity.
THE DEPUTY CHAIRMAN: I put the question that Clause 29 be amended as stated.
(Question put and agreed to)
Clause 29, as amended, agreed to.
Clause 30.
MR.WANDERA OGALO: In Clause 30(1), I beg to move that the words “unless otherwise agreed by the parties” be deleted for clarity.
(Question put and agreed to)
Clause 30, as amended, agreed to.
Clause 31.
MR.WANDERA OGALO: In Clause 31(1), I beg to move that we delete the words “and not objected to by the Arbitral Tribunal”. The justification is that these words are redundant. In 31(2), we substitute the word “items” with the words “terms”. This is a printing error.
(Question put and agreed to)
Clause 31, as amended, agreed to.
Clause 32.
MR.WANDERA OGALO: In Clause 32(1), I beg to move that we substitute the words “three months” appearing in the second line with “two months”. The justification for this is that three months is too long a period.
(Question put and agreed to)
Clause 32, as amended, agreed to.
Clause 33.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that in Clause 33(2)(c), the words "or impossible" be deleted. The justification is that they are redundant. And in Clause 33(3), we substitute the word for “court” appearing in the second line with the word "Arbitral tribunal". Mr. Chairman, I beg to move.
THE DEPUTY CHAIRMAN: I now put the question that Clause 33 be amended as stated by the Chairperson of the Committee.
(Question put and agreed to)
Clause 33, as amended agreed to.
Clause 34.
MR.WANDERA OGALO: In Clause 34(1)(g), substitute the word “thirty” appearing in the third line with the word "fourteen". The justification is that, 30 days is too long a period.
In 34(4), we delete the words "unless otherwise agreed by the parties". The justification is to avoid giving a chance to one party to tie down the proceedings, which should be expeditious.
THE DEPUTY CHAIRMAN: Continue with other amendments.
MR.WANDERA OGALO: In 34(5), I beg to move that we substitute “sixty days” appearing in the last line with “thirty days”. The amendment will expedite the proceedings. And in 34(6), to add at the end of the paragraph "save that such extension does not exceed 14 days”. The justification is that the inclusion of a time limit is intended to keep the proceedings going on. Mr. Chairman, I beg to move.
THE DEPUTY CHAIRMAN: I now put the question that Clause 34 be amended as moved by the Committee.
(Question put and agreed to)
Clause 34, as amended, agreed to.
Clause 35.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that in sub-clause 2(a), you add the word "that" after “proof” in the heading for clarity. Then in paragraph (i), delete "that" and in paragraph (iii) delete "otherwise" appearing in the fourth line because they are redundant.
I also beg to move that we provide a new paragraph (vii) to read "the Arbitral award is not in accordance with this Act”. The justification is that it is a subject of regulation, which should not be included in this Act.
I beg to move that 35(2)(b) be deleted. The sub-clause is too wide and gives court too much discretion for setting aside awards without any limitation. And in 35(3), I move that we substitute the words "three months" with "one month". Three months is too long for the one complaining and one month is consistent with other laws.
In Clause 35, I beg to move that we provide a new sub-clause 5 to read "if an application for the setting aside or suspension of an Arbitral award has been made to a court, the court may, if it considers proper, adjourn its decision and may also, on the application of a party claiming recognition or enforcement of the Arbitral award, order the other party to provide appropriate security." This provides for setting aside an award award. Mr. Chairman, I beg to move.
THE DEPUTY CHAIRMAN: I now put the question that Clause 35 be amended as stated by the Chairperson of the Committee.
(Question put and agreed to)
Clause 35, as amended, agreed to.
Clause 36, agreed to.
Clause 37.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that Clause 37(1) be deleted as it is already catered for in Clause 35(2). We also delete 37(2) as this is also already catered for in the new Clause 35(5).
THE DEPUTY CHAIRMAN: I now put the question that Clause 37 be amended as stated.
(Question put and agreed to)
Clause 37, as amended, agreed to.
Clause 38, agreed to.
Clause 39.
MR.WANDERA OGALO: In Clause 39(3), I beg to move that the words "in domestic arbitration" be deleted. The justification for this is that the distinction between domestic and international arbitration was already done away with. I also move that we delete the words "according to the rules of conflict of laws". This is because if conflict of laws is applied to the law of Uganda being applicable will be negated.
MR.MAYANJA NKANGI: Mr. Speaker, I request the chairman to be clear about the issue of conflict of laws.
MR.WANDERA OGALO: Mr. Chairman, Clause 39(3) reads; “this Section shall apply in Domestic Arbitration or if the bankrupt person is a Ugandan or if the Law of Uganda is applicable according to the rules of the conflict of laws”. This means applying the conflict of laws when you have already provided for it in the second line in the Ugandan Law. So it would be leaving a party - it is actually not understandable why you should provide for that when you have provided for the Ugandan Law. That is the justification for it.
MAYANJA NKANGI: Mr. Chairman and hon. Members, normally when you have got contracts, particularly, cutting across the laws of two or more states, by definition the conflict of laws come into play. Therefore, we have got to see the laws applicable how the conflict principles apply to the particular case. I would rather not really have this deleted. This is the last one.
MR.ADOLF MWESIGE (Bunyangabu County, Kabarole): Mr. Chairman, the flow here does not come. Because if the Law of Uganda is applicable and at the same time you talk of ‘according to the rules of conflict of laws’; invoking the rules of conflicts of laws pre-supposes a conflict of legal regimes. Now we are talking solely about the Ugandan Law. So where do you vouch the rules of conflict of laws? If we maintain the conflict of laws, I think the flow will not come.
THE DEPUTY CHAIRMAN: So you are saying, maybe, if the person is not a Ugandan but this is a Ugandan and also if the Law of Uganda is applicable, so the question of conflict -(Interruption)
MR.MWESIGE: Then really there is no need for invoking the rules of conflict of laws.
MR.KARUHANGA: I am standing in support of the hon. Member who has just been on the Floor, hon. Mwesige, because if you introduce conflict of laws in this Section, we are importing a lot of confusion. We should delete it now so that we have complete clarity because we are now dealing with one aspect of the laws of Uganda. We do not legislate for other countries.
THE DEPUTY CHAIRMAN: Well, there are situations where we would have to apply the laws of other countries. But what you are saying is that in this particular case, the question does not arise because first of all, you are talking about a Ugandan. Secondly, you are saying Law of Uganda and therefore, there is no question of conflict. It is the question of interpretation as the case maybe.
Now I put the question that Clause 39 be amended as stated.
(Question put and agreed to)
Clause 39, as amended, agreed to.
Clause 40
MR.OGALO: Mr. Chairman, I beg to move that the words towards “a domestic” in the first line of Clause 40(1) be deleted. It is consequential. And then to delete 40(2) because the provisions under 40(1) are sufficient.
THE DEPUTY CHAIRMAN: I put the question that Clause 40 be amended as stated.
(Question put and agreed to)
Clause 40, as amended, agreed to.
Clause 41, agreed to.
Clause 42, agreed to.
Clause 43, agreed to.
Clause 44.
MR.OGALO: Mr. Chairman, I beg to move that the words “and 37” be deleted. It is consequential.
THE DEPUTY CHAIRMAN: I put the question that Clause 44 be amended as stated.
(Question put and agreed to)
Clause 44, as amended, agreed to.
Clause 45, agreed to.
Clause 46, agreed to.
Clause 47, agreed to.
Clause 48, agreed to.
Clause 49.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 49(1)(c), we substitute the words “such a judgement of the court” with the words “a judgement of such court”.
THE DEPUTY CHAIRMAN: I put the question that Clause 49 be amended as stated.
(Question put and agreed to)
Clause 49, as amended, agreed to.
Clause 50, agreed to.
Clause 51.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 51(4), the words “30 days” be substituted with “21 days” The justification is being that 30 days are too many for the purpose.
THE DEPUTY CHAIRMAN: I put the question that Clause 51 be amended as stated.
(Question put and agreed to)
Clause 51, as amended, agreed to.
Clause 52, agreed to.
Clause 53.
MR.OGALO: Mr. Chairman, I beg to move that the words “a suitable institution or person or person” appearing in the first line Clause 53(2) be substituted with the words “the appointing authority”. And in 53(2)(a) we substitute the words “such an institution” with the words “the appointing authority”. Then in 53(2)(b) we should substitute “for institution or person” with the words, “appointing authority”.
THE DEPUTY CHAIRMAN: The Minister of Justice and Constitutional Affairs?
THE MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS (Mr. Mayanja Nkangi): It is okay.
THE DEPUTY CHAIRMAN: I now put the question that Clause 53 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 53, as amended, agreed to.
Clause 54, agreed to.
Clause 55, agreed to.
Clause 56, agreed to.
Clause 57, agreed to.
Clause 58, agreed to.
Clause 59, agreed to.
Clause 60.
MR.OGALO: Mr. Chairman, I beg to move that in Clause 60(5) you add the word “them” at the end of the sentence; without that word that sentence is not complete.
THE DEPUTY CHAIRMAN: I put the question that Clause 60 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 60, as amended, agreed to.
Clause 61.
MR.WANDERA OGALO: In Clause 61, I beg to move that the same be redrafted to read, "The Settlement Agreement shall have the same status and effect as if it is an Arbitral award under this Bill” for clarity.
MR.MAYANJA NKANGI: Do we want to say, "Under this Bill or under this Act"?
MR.WANDERA OGALO: It should be "Under this Act".
THE DEPUTY CHAIRMAN: Okay. I now put the question.
(Question put and agreed to)
Clause 61, as amended, agreed to.
Clause 62, agreed to.
Clause 63.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that the word, "or" be inserted after "justified", and to delete the words, "on the date of the declaration; or". I beg to move.
THE DEPUTY CHAIRMAN: I put the question that Clause 63 be amended as stated.
(Question put and agreed to)
Clause 63, as amended, agreed to.
Clause 64.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that the words, "except that" appearing in the fourth line up to the end of the sentence be deleted because they are redundant.
THE DEPUTY CHAIRMAN: I put the question that Clause 64 be amended as stated.
(Question put and agreed to)
Clause 64 as amended, agreed to.
Clause 65, agreed to.
Clause 66.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that Clause 66(2) be deleted. This is because Clause 66(1) already provides for depositing money as an advance for costs. Clause 66(2) provides for continual supplementary deposits. We do not think that this is necessary. Once money has been deposited at the beginning, the Arbitral proceedings should go on up to the end and then the final costs computed and the parties are called upon to bring money instead of paying it whenever the arbitrator says so.
MR.KARUHANGA: Mr. Chairman, the problem with this amendment is that people who come for arbitration, come for very quick justice. Once they get that justice the losers tend to dispute and leave the people who took the trouble to organise justice for them unattended to in terms of their costs. So this, I think, was meant to ensure that they are regularly meeting their expectations. I think if you delete it, it might delay in the hands of these parties who get into conflict. They are difficult people - bear that in mind! They waste a lot of time of people who leave their work to go and attend to them and then they end up not meeting their obligations. So, I do not know whether you are very strong on this point.
MR.WANDERA OGALO: Yes, Mr. Chairman, the Committee was very strong on this. They felt that the Arbitral proceedings should not be brought down to the level of the business; it is dispensing justice. But if the arbitrator is given the authority whenever he says, "bring more”, the parties have to bring, it is at the expense of justice. In any case, in 66(1), the Arbitrator would have already required money to be deposited by the parties and they would have deposited it. Then at the end of the proceedings, the process of execution can ensure for collection of the costs.
Further, in 66(3), the power is given to the Arbitrator to suspend the proceedings if the advance in 66(1) is not paid. So, the Committee’s view was not to lower the proceedings where people have come for a decision to a situation where the Judge, who is now the Arbitrator, is given the power, whenever he so wishes, to demand the money from the parties. If the party does not have the money in the middle of the hearing of the case, then that is the end of hearing the case. We would rather have a situation where the money is provided at the end because money has already been provided at the beginning rather than interrupting the proceedings with claims of money by the Judge, in this case, the Arbitrator. The Committee is very strong on this, hon. Karuhanga.
THE DEPUTY CHAIRMAN: Now, there is the original provision and a motion to amend. I now put the question.
(Question put and agreed to)
Clause 66, as amended, agreed to.
Clause 67.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that in Clause 67 we delete the words, "unless otherwise agreed by the parties". This is because the parties do not really have to agree.
THE DEPUTY CHAIRMAN: I put the question that the Clause 67 be amended as stated by the Chairperson.
(Question put and agreed to)
Clause 67, as amended, agreed to.
Clause 68,agreed to.
Clause 69.
MR.WANDERA OGALO: Mr. Chairman, I beg to move that before Clause 69, that is Part (VI), we provide a new part (VI) to cater for a Centre for Arbitration and Resolution as follows:
“Clause 69(1) There is hereby established a body to be called Centre for Arbitration and Dispute Resolution.
(2) The centre shall be a body corporate with perpetual succession and common seal and shall be capable of suing or being sued in its corporate name and may borrow money, acquire and dispose of property and do all such other things as the body corporate may lawfully do.”
THE DEPUTY CHAIRMAN: I now put the question that the Bill provides a part for Part VI to cater for a Centre for Arbitration and Dispute Resolution -(Interruption.).
MR.KARUHANGA: Mr. Chairman, there is, I think a missing word "There is hereby established the body to be called the Centre for Arbitration and Dispute Resolution", the word "Dispute" is missing.
THE DEPUTY CHAIRMAN: Can you read it again, please?
MR.OGALO: 69(1) “There is hereby established a body to be called the Centre for Arbitration and Dispute Resolution.”
CHAIRMAN: I now put the question that a new Clause 69 be introduced in the Bill.
(Question put and agreed to)
MR.OGALO: A new 70 with marginal note to read “Functions of the Centre”. “The functions of the centre shall, in relation to arbitration and conciliation proceedings under this Act, include the following:
to perform the functions referred to under section 12,13,14,15,16 and 53.
to perform the functions specified in the UNCITRAL Arbitration Rules of 1976.
to make appropriate rules, administrative procedure and forms for effective performance of arbitration, conciliation or alternative dispute resolution process.
to establish and enforce a code of ethics for arbitrators, conciliators, neutrals and experts.
to qualify and accredit arbitrators, conciliators and experts.
to provide administrative services and other technical services in aid of arbitration, conciliation and alternative dispute resolution.
to establish appropriate qualifications for institutions, bodies and personal eligible for appointment.
to establish a comprehensive roster of competent and qualified arbitrators, conciliators and experts.
to facilitate certification, registration and authentication of arbitration awards and conciliation settlements.
to establish and administer a schedule of fees for arbitrators.
to avail skills, training and promote the use of ADR methods for stakeholders.
to do all other acts as are required, necessary or conducive to the proper implementation of the objectives of this Act.
THE DEPUTY CHAIRMAN: Since these are new, may be we also read 71, because we have to give them a second reading and then take them over in the committee.
MR.OGALO: 71 marginal note, “Governing body for the Centre for Arbitration and Dispute Resolution”.
71(1) “The governing body for the Centre for Arbitration and Dispute Resolution shall be a Council.
The Council shall be responsible for the formulation and implementation of policy for the centre.
The Council shall consist of the following:
the Chairman to be appointed by the Minister on such terms and conditions as the Minister may determine.
the Executive Director of the Centre appointed by the Council on such terms and conditions as the Council may determine.
the President of the Uganda Commercial Court.
a representative of the private sector to be elected by the Private Sector Foundation.
a representative of the manufacturers to be elected by the Uganda Manufacturers Association.
a representative of the business community to be elected by Uganda National Chamber of Commerce and Industry;
a representative of the Uganda Law Society.
The members of the Council, other than the Executive Director, shall hold office for a term of three years and shall be eligible for re-appointment.
72(1) Marginal note of “Secretariat of the Centre”. “The Centre shall have the Secretariat consisting of an Executive Director and such other officers and staff as the Council may from time to time appoint.
(2) The Executive Director shall be the administrative officer of the Centre and as such shall be responsible for the day-to-day operations of the centre.
THE DEPUTY CHAIRMAN: Now, hon. Members there are new Clauses, which were not in the original text. Therefore, we are required to have the new 69,70,71 and 72 be read the second time. I put the question that those new Clauses be read the second time.
(Question put and agreed to)
THE DEPUTY CHAIRMAN: I now put the question that Clause 69 do stand part of the Bill.
(Question put and agreed to)
Clause 69, agreed to.
THE DEPUTY CHAIRMAN: I now put the question that Clause 70 do stand part of the Bill.
(Question put and agreed to)
Clause 70, agreed to.
THE DEPUTY CHAIRMAN: I now put the question that Clause 71 do stand part of the Bill.
MR.KINTU MUSOKE: Mr. Chairman, I am seeking clarification on whether bodies like the Uganda Manufacturers Association, Uganda National Chamber of Commerce are established by an Act of Parliament so that we are sure of their permanence. But if they are not and we put them in a law, what happens to our provision in the law if they change or they cease to exist? I am seeking clarification.
MR.WANDERA OGALO: Mr. Chairman, these bodies represent certain functions in our society and I do not foresee a situation where if this particular body went away, the one we know, whether there will not be another one to replace it. In my view, there is no way you will fail to have an association of manufacturers or industrialists coming together. So if the particular ones we have named go away, there will always be a successor. I believe that in any case if they do not- if they cease to exist, then an amendment to that effect could be moved to remove them from this Act. We would have the Centre for Arbitration bringing to the attention of the Minister that so and so is no longer eligible to sit and then the Minister would remove.
THE DEPUTY CHAIRMAN: But I think he was asking the legal capacity of these bodies. How do you deal with them?
MR.RWAKOOJO: Thank you, Mr. Chairman. The way I look at this Council is that is going to be formulating and implementing the policies of the Centre. I am therefore wondering why we feel it is necessary to have manufacturers and traders there. It is very possible that some of these contracts that will be arbitrated might not have anything to do with manufacturing or trading. Why do we feel that these people should be part and parcel of this Centre? I would rather we had a representative from the accounting body since we are going to be dealing with a lot of figures. I can see the justification for that, but I do not see why we need manufacturers and importers and exporters.
THE DEPUTY CHAIRMAN: Yes, but perhaps before we go to whether it is necessary, I think the pertinent question by hon. Kintu Musoke was about the problems of including these bodies in the law. Suppose there are disputes, how are you going to determine that they are representing manufacturers if another body comes up and says, ‘we are also representing the manufacturers’? How are you going to choose? And if there is such a dispute, how are you going to resolve it? Are you not going to paralyse the functions of the Centre? Because, you may not have - I think that is really -(Interruption)-
MR.KINTU MUSOKE: Thank you, Mr. Chairman, for clarifying my concern beyond what I had intended to. I think that it is exactly what I wanted to say. Thank you very much.
THE DEPUTY CHAIRMAN: Definitely there may be a conflict - I mean competing claims.
MR.OGALO: Mr. Chairman, in the first place, arbitration is going to be resolution of conflict dealing mainly with commercial matters. That is the essence of this Bill. The disputes are mainly commercial, hence the inclusion of bodies, which are commercial-oriented. However, the point you raised, whom to deal with?
We have at least already identified these here, for the body we are creating for it to operate; there must at least be a Council for it in the first place. If it could create problems of who to deal with if other rivals come up, we could possibly provide powers to the Minister by way of regulations to be able to determine this.
THE DEPUTY CHAIRMAN: I think what could be done is to give the Minister responsible for the law, the right to appoint people from various sectors, which you think may be relevant. That may solve the problem because the Minister will find a way of identifying people falling in certain category and then appoint them there. But for the association, definitely you are bound to meet some resistance.
MR.KARUHANGA: I think we are only being courteous. Adding on what the hon. Chairman has said, we are also being conscious of the historical aspect of this Centre because it was created first; it is in existence. In fact it was established by the Chamber of Commerce, Uganda Manufacturers Association and the Private Sector Foundation. And so I think by putting them there is a case of just ensuring that they continue to play the role and identify themselves as the sector people because this is a centre to determine civil disputes in business.
THE DEPUTY CHAIRMAN: But hon. Karuhanga, there is one thing, doing it voluntarily and setting up a centre; it deals with this. And the other, but at the moment this Parliament is dealing with a law. There are two different things. We can assimilate some elements from the formal Centre to this one. But how do we do it? I think that is the question really. Do we give the Minister powers?
MR.WANDERA OGALO: Mr. Chairman, I think to solve that problem, we could give the powers to the Minister. That would sort out this problem. I think we could ask our legislative people there to make a draft while we continue.
THE DEPUTY CHAIRMAN: Maybe hon. Karuhanga may arrange with the technical person. Meanwhile, we leave Clause 71. I put the question that Clause 72 do stand part of the Bill.
(Question put and agreed to)
Clause 72, agreed to.
THE DEPUTY CHAIRMAN: Now we go to the original 69.
MR.WANDERA OGALO: Mr. Chairman, Part VI in the Bill will now become Part VII and consequentially Clause 69 will become 73. So where you read 69 actually we are saying 73.
THE DEPUTY CHAIRMAN: No, I think what we do, not to confuse, they will do it but you follow the –(Interruption)
MR.WANDERA OGALO: Okay. In Clause 69, I beg to move that we substitute for the first line the words, “the Centre may make rules for” so that 69(1) will read, “the Centre may make rules for” and we delete the words “otherwise the rules committee may make rules of the court”. Mr. Chairman Sir, I beg to move.
THE DEPUTY CHAIRMAN: There is another amendment.
MR.WANDERA OGALO: Obliged. Mr. Chairman, I beg to move that in 69(1)(a) you delete the words “on them” appearing in the second line because the words are redundant.
THE DEPUTY CHAIRMAN: I now put the question that Clause 69 be amended as stated by the chairperson.
(Question put and agreed to)
Clause 69, as amended, put and agreed to.
MR.WANDERA OGALO: Mr. Chairman, the formulation I have for Part VI is; “A judge or magistrate to whom proceedings are being brought in which is the subject of an arbitration agreement shall, if the party so applies after the filing of a statement of defence and both parties having been given a hearing, refer the matter back to arbitration”; and then the rest flows. Mr. Chairman, this was to take into account the hon. Minister’s concern.
MR.MAYANJA NKANGI: Mr. Chairman, looking at this Clause as it stands, it seems to me the party applying to refer the case to arbitration is really relying on the agreement for arbitration. I think he will be entitled to say to the court before he does anything else to say, ‘no, we have an agreement for arbitration. This matter should not have come here at all. So we better go to arbitration’. A party simply says, ‘I do not have to put in a defence, I do not have to put in an appearance. I stand on the agreement for arbitration. So Mr. court, do not listen to this’. That being the case, I think the hon. chairman would like to look at it in that interpretation and redraft if he wants to.
MR.WANDERA OGALO: There is a problem Mr. Chairman because if you remove the necessity for putting in a defence first, then what is the locus standing of a party? Because you must have a way first of all to come to court; to bring to the attention of the court the fact that actually their agreement is governed by an arbitration.
THE DEPUTY CHAIRMAN: Because if it does not and the court says ‘no, we proceed’, what happens? Is that the question?
MR.WANDERA OGALO: Exactly.
THE DEPUTY CHAIRMAN: There is no harm putting it there and then later they go for arbitration so that the party is not prejudiced. Because if he says, ‘all this is arbitration, there is no question of putting in the defence’, suppose he is over-ruled? If he is over-ruled and then there is no defence, then he will be losing unless he makes another application that ‘I did not know’. So since this is not going to prejudice, eventually the court may say, ‘oh! this matter is there. Let it go there’. I think that is what he is saying.
THE DEPUTY CHAIRMAN: I now put the question to the amendment.
(Question put and agreed to)
Part VI, as amended, agreed to.
Clause 71.
MR.KARUHANGA: Sorry Sir, I have not bounced this off the chairman but I hope he will bear with me. But I have bounced it off with the officials here. The Clause would read, “Three representatives appointed by the Minister from the existing private sector organisations or their successors namely, Uganda Chamber of Commerce and Industry, Private Sector Foundation, Uganda Manufacturers Association”.
THE DEPUTY CHAIRMAN: Why do you mention them? Why do you not leave it, because the names may change?
MR.KARUHANGA: Because these are founder members.
THE DEPUTY CHAIRMAN: Organisation representing the manufacturers, the businessmen as the case may be; I think that is better. Make it general.
MR.KARUHANGA: We are trying to get what is there.
THE DEPUTY CHAIRMAN: It has some problems once you name it in the original Bill. But you put it in a general way. It is not going to prejudice them. The Minister will find out what he thinks is there currently.
MR.KARUHANGA: Mr. Chairman, you would prefer then to say, “three representatives appointed by the Minister from the existing private sector organisations or their successors, namely; Uganda Chamber of Commerce and Industry, Private Sector Foundation, Uganda Manufacturers Association”?
THE DEPUTY CHAIRMAN: Why do you mention them? Why do you not leave the names out because they may change!
MR.KARUHANGA: We have said “or their successors” because these are founder members.
THE DEPUTY CHAIRMAN: “Organisations representing the manufacturers, the businessmen as the case may be”. I think that is better; make it general rather than –(Interruption)
MR.KARUHANGA: We are trying to get this one which is there to be -(Interruption)
THE DEPUTY CHAIRMAN: No, it has its own problems, once you name it in the original Bill, but you leave it is such a way - it is general, the Minister will find what he thinks is there -(Interruption)
MR.KARUHANGA: Mr. Chairman, we prefer then to say “three representatives appointed by the Minister from the existing private sector organisations or their successors”.
THE DEPUTY CHAIRMAN: Okay, that is good; I now put the question that Clause 71 be amended as stated by the chairperson and hon. Karuhanga.
MR.RWAKOOJO: Point of clarification. I just needed clarification on 71.4, the terms for the people of the Council. It seems to have been stated that they will hold office for three years, but the Executive Director is not mentioned. Does that mean that its perpetual or?
MR.WANDERA OGALO: Mr. Chairman, I think this being the governing body and the Executive Director being an administration man running day to day, he will draw his terms and condition of service as an agreement with the governing body. We do not really have to provide for him that he will hold office for such a time. I would rather that his terms and conditions of service are a matter for the Council.
THE DEPUTY CHAIRMAN: Is it clear, hon. Rwakoojo?
MR.RWAKOOJO: Yes, Mr. Chairman, it is clear. I have another small clarification. Recently the name for such bodies, the cultural one has been “Authority” I am wondering why we are calling this “a Council” and not “an Authority”, Mr. Chairman.
MR.WANDERA OGALO: Mr. Chairman, we had already expressed ourselves on “Council” from 70 up to 72.
THE DEPUTY CHAIRMAN: Okay, I put the question that clause 71 be amended as read out by hon. Karuhanga.
(Question put and agreed to)
Clause 71, as amended, agreed to.
The First Schedule.
THE DEPUTY CHAIRMAN: Well, we have been using 71 in two places, but I hope people concerned will know that this 71 is the new but the other one will be adjusted accordingly. Now, I put the question that the First Schedule stands part of the Bill.
(Question put and agreed to)
The First Schedule, agreed to.
The Second Schedule, agreed to.
The Title.
MR.WANDERA OGALO: Mr. Chairman, on the Long Title, in the first line, 'an Act to amend the law relating to arbitration ....' I beg to move that the words 'to amend the law' be deleted. This is because the Bill repeals and replaces but is not amending the Statute.
MR.MAYANJA NKANGI: I can amend 50 per cent, 80 per cent, a hundred per cent. When I amend a hundred per cent, I amend the whole thing, but I am easier on this.
THE DEPUTY CHAIRMAN: Well, I think, he is saying he is amending the existing law by bringing –(Interruption)
MR.OGALO: Mr. Chairman, in 72 the Minister has said, “the Arbitration Act, Chapter 55 is repealed”.
THE DEPUTY CHAIRMAN: Well, now you have heard arguments from both sides, I put the question to the motion by the Committee.
(Question put and agreed to)
The Title, as amended, agreed to.
MOTION FOR THE HOUSE TO RESUME
THE MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS (Mr. J. Mayanja Nkangi): Mr. Chairman, I beg to move that the House do resume and the Committee reports thereto.
(Question put and agreed to)
(The House resumed, the Deputy Speaker presiding)
REPORT FROM THE COMMITTEE OF THE WHOLE HOUSE
THE MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS (Mr. J. Mayanja Nkangi): Mr. Speaker, I beg to report that the Committee of the Whole House has considered “The Arbitration and Conciliation Bill, 1999” and passed it with several significant amendments.
MOTION FOR ADOPTION OF THE REPORT FROM THE COMMITTEE OF THE WHOLE HOUSE
THE MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS (Mr. J. Mayanja Nkangi): Mr. Speaker, I beg to move that the report of the Committee of the Whole House be adopted.
(Question put and agreed to)
BILLS
THIRD READING
THE ARBITRATION AND CONCILIATION BILL, 1999
THE MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS (Mr. J. Mayanja Nkangi): Mr. Speaker, I beg to move that the Bill entitled The Arbitration and Conciliation Bill, 1999 be read a Third Time and do pass.
(Question put and agreed to)
(Bill read a Third Time and passed)
THE DEPUTY SPEAKER: The Bill has been enacted, I congratulate you for having passed it through in a very short time. Before we end, I have received information from the Rt. Hon. Prime Minister that there shall be a service at Namirembe Cathedral on Thursday at 10 a.m. for late Engineer Waligo. Burial will take place at Kwata, six miles on Gayaza road at 2.00 p.m. on Thursday. With this, we have come to the end of today's business. The House is adjourned until Thursday, 2 p.m.
(The House rose at 4.50 p.m. and adjourned until Thursday, 9th March , 2000)