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Karuma, Isimba dam face fresh legal battle

A private citizen, Henry Kyarimpa, has asked the High court to order for an independent engineering, financial and value-for-money audit to determine the quality of works and viability of both the Karuma and the Isimba hydro power projects.

In the suit filed on May 9, 2016, Kyarimpa has listed the Attorney General, Sinohydro Corporation Limited, China International water and Electric Corporation, Export and Import bank of China (EXIM bank), Uganda Electricity Generation Company Limited and Energy Infratech as the respondents.

Chinese firm Sinohydro is the contractor for the 600MW Karuma dam while China Water is constructing the 183MW dam at Isimba, both of which are slated to be commissioned in December 2018 to bolster the country’s hydropower capacity.

Kyarimpa premises his suit on the case he filed and won in the appellant division of the East African court of justice, in which he challenged the procurement process of Karuma and Isimba hydro power projects.

As per the East African court of justice ruling, through Nyanzi, Kiboneka and Mbabazi company advocates, Kyarimpa says that court found that the projects are illegitimate, illegal and unlawful. 

Karuma dam under construction

On February 29, 2016, the East African court’s Appellants division ruled against the Ugandan government, saying that the manner in which it awarded the contracts to the power companies disrespected its own domestic law, in particular the Public Procurement and Disposal of Assets Act and was also in contempt of court.

Kyarimpa, both a procurement consultant and an advocate, had challenged the contract being awarded to Sinohydro Group. Kyarimpa  had first filed the case in the East African Court of Justice’s First Instance Division Trial Court in 2013, challenging the government’s actions in hand-picking Sinohydro to construct the Karuma hydropower dam and transmission lines.

However, Kyarimpa lost at the first instance trial court based in Arusha, Tanzania, but successfully appealed.

“The selection and subsequent signing of the memorandum of understanding between the government of Uganda and Sinohydro was inconsistent with and an infringement of sections 6(c), 7(2), and 8(1) of the Treaty [East African],” reads the appellate court’s judgment.

In March 2013, the government asked for tenders to construct the dam but later cancelled the process. The government was acting on the basis of a recommendation made by the Inspectorate General of Government to cancel the bidding process because of lack of transparency and integrity. 

However, the Member of Parliament for Kabale municipality, Baryayanga Aja, went to the High court and challenged the government’s decision to cancel the bidding process. Specifically, he asked the court to stop implementation of the IGG’s report and to continue evaluating the bids.

The High court issued a final order in May 2013 restraining the government from taking into account the IGG’s recommendations, and to declare the best-evaluated bidder to construct the dam.

However, the ministry of energy ignored the court order, cancelled the bids, but did not issue fresh bids. In June 2013, the government signed a memorandum of understanding with Sinohydro.

Attorney General Fred Ruhindi argued that the project was a bilateral agreement, and it was agreed that the contract should be given to Sinohydro if Uganda was to access a loan from China’s Exim Bank for the construction. In effect, in his suit now in the Uganda High court, Kyarimpa says that the implementation and execution and continued execution of the projects are illegal.

“Additionally, the officials of the government of Uganda and the fifth defendant [Uganda Electricity Generation Company Limited] participating in the implementation of the projects are acting illegitimately, illegally and unlawfully and are liable for breaching of the laws of Uganda with special reference to the leadership code…,” Kyarimpa states.

According to Kyarimpa, the legitimisation process can only be done if an engineering, financial and value-for-money audit is done in the context of a cost benefit analysis of the projects execution visa vie the breach and infringement of the East African treaty provisions.

“Consequent to the judgment of the East  African Court of Justice, it has now come to light that the Karuma hydro power project and Isimba hydroelectric power dam are mired in acts of corruption, misuse and wastage of public resources that render the project uneconomic and unviable,” the plaint states.

Kyarimpa insists that during the hearing of his case in the East African Court of Justice, it was revealed that the procurement for the construction of Isimba dam was awarded to China International Water and Electric Corporation in a similar manner as Sinohydro was awarded Karuma hydro power project.

“……Most importantly, the plaintiff [Kyarimpa] shall further aver and contend that there is a public need and interest to investigate and inquire into how  such a huge project of such magnitude was procured and continues to exist in breach of the principles of good governance and the  rule of law,” the plaint goes.

Recently, President Museveni ordered Irene Muloni, the minister of Energy and Mineral Development, to suspend three top government engineers to pave way for an investigation into shoddy work in the ongoing construction of the Karuma (600MW) and Isimba (183MW) dams. There are four evident cracks on the dam’s spillway walls that are supposed to hold and release the side water that passes through the power house.

The dam is located around the greater Murchison conservation area where wildlife such as hippos roam.

dkiyonga@obsever.ug

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