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Abstract
The ambitious plans of the East African Community (EAC) to provide adequate electricity in the region have continued to generate substantial interest among experts in academia, industry and government. The communal efforts to realise such targets are predicated on individual capacities and cooperative endeavour. This article focuses on a legal assessment of the EAC energy market coupling with a special emphasis on examining whether a harmonised approach is possible from two perspectives: first, practical industry concerns and, second, the legal framework within which those concerns should be addressed. This article argues that there is strong potential for a harmonised approach supported by legal convergence. One important index of success in this area would be the promotion and protection of foreign investment to ensure enough electricity supply.
Notes
1 Essentially, this links the various countries with a robust transmission infrastructure to enhance electricity trade among the EAC electricity markets.
2 The EAC comprises Kenya, Uganda, Tanzania, Rwanda, Burundi and South Sudan.
3 NELSAP-CU, ‘Nile Basin Initiative: Power Trade and Development Projects’ http://nelsap.nilebasin.org/index.php/en/power/power-trade-and-development accessed 7 May 2019.
4 Tractebel, The Project for the Interconnection of Electric Grids of the Nile Equatorial Lakes Countries (NELSAP Report 2017).
5 Ibid.
6 Georgios Papaefthymiou and Ken Dragoon, ‘Towards 100% Renewable Systems: Uncapping Power System Flexibility’ (2016) 92 Energy Policy 69.
7 See discussions in sections 2 and 3 of this article.
8 In this context, cooperation between governments and private investors is complementary. For the argument that this cooperation is necessary to stimulate investment, see A Aly and others, ‘Barriers to Large-scale Solar Power in Tanzania’ (2019) 48 Energy for Sustainable Development 43, 45.
9 This involves a focus on the ‘EAC as a region, in spite of visible differences among the member countries’. See S Penev and A Marušić, ‘Attractiveness of East African Community (EAC) for Foreign Direct Investment’ (2014) 47(3–4) Economic Analysis 35.
10 Emily Nicoll and Sally Armstrong, ‘Alternative Energy in East Africa: The Case for Solar Power’ www.marsdd.com/news/east-africa-solar-power-innovations accessed 11 April 2019.
11 In such countries, some companies lose as much as 31 per cent in sales www.cgdev.org/article/new-study-sub-saharan-african-countries-unreliable-power-outages-cost-companies-much-31 accessed 7 May 2019. See also V Ramachandran, MK Shah and T Moss, ‘How Do African Firms Respond to Unreliable Power?’ (2018) Working Paper 493 – Center for Global Development www.cgdev.org/publication/how-do-african-firms-respond-unreliable-power-exploring-firm-heterogeneity-using-k-means accessed 7 May 2019.
12 A Hermanson, ‘Energy Security in a Multi-level Governance Perspective’ (2018) 98 Marine Policy 301.
13 East African Community, ‘History of the EAC’ www.eac.int/eac-history accessed 11 April 2019.
14 East African Community, ‘Overview of EAC’ www.eac.int/overview-of-eac accessed 14 November 2019.
15 E Pichon, ‘Economic Partnership Agreement with the East African Community’ (European Parliament Research Service 2018) www.europarl.europa.eu/RegData/etudes/BRIE/2018/620218/EPRS_BRI(2018)620218_EN.pdf accessed 7 May 2018.
16 The civil war that started shortly after independence did not help and South Sudan has the worst access to electricity in the world. See D Mozersky and DM Kammen, ‘South Sudan’s Renewable Energy Potential: A Building Block for Peace’ (Report, United States Institute for Peace 2018) www.usip.org/sites/default/files/2018-01/sr418-south-sudans-renewable-energy-potential-a-building-block-for-peace.pdf accessed 11 April 2019.
17 Ibid. See also East African Community, ‘EAC Secretariat Conducts A One-Day Sensitization Mission to the Republic of Sudan’ www.eac.int/press-releases/1359-eac-secretariat-conducts-a-one-day-sensitization-mission-to-the-republic-of-south-sudan accessed 11 April 2019.
18 East African Community, ‘Address by Secretary General, Amb. Liberat Mfumukeko, During the Press Conference on 10th October 2016, at the EAC Headquarters’ www.eac.int/statements/566-986-699-address-by-secretary-general-amb-liberat-mfumukeko-during-the-press-conference-on-10th-october-2016-at-the-eac-headquarters accessed 11 April 2019.
19 Treaty for the Establishment of the East African Community (signed on 30 November 1999 as amended in 2006 and 2007) art 101.
20 Ibid art 101(1).
21 Ibid art 101(2)(c).
22 Ibid art 101(2)(d).
23 HP Glenn, ‘Comparing’ in E Orucu and D Nelken (eds), Comparative Law: A Handbook (Hart Publishing 2007) 92.
24 RB Schlesinger, ‘The Past and the Future of Comparative Law’ (1995) 43 American Journal of Comparative Law 477.
25 J Husa, A New Introduction to Comparative Law (Hart Publishing 2015) ch 7.
26 Art 7(1)(e) of the Treaty.
27 In the Advisory Opinion to the Council of Ministers Application No 1 of 2008; Advisory Opinion No 1 of 2010. This is an operational principle that Partner States such as South Sudan will find beneficial and supportive.
28 J Bell, ‘Legal Research and the Distinctiveness of Comparative Law’ in MV Hoecke (ed), Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Hart Publishing 2011) 155–76.
29 M Pollitt, ‘Evaluating the Evidence on Electricity Reform: Lessons for the South East Europe (SEE) Market’ (2009) 17 Utilities Policy 13. See also S Estrin and A Pelletier, ‘Privatization in Developing Countries: What Are the Lessons of Recent Experience?’ (2018) 33 The World Bank Research Observer 65. On the need for a legal system that facilitates privatisation, see M Breen and D Doyle, ‘The Determinants of Privatization: A Comparative Analysis of Developing Countries’ (2013) 15 Journal of Comparative Policy Analysis 1, 8.
30 World Bank, ‘Sustainable Energy for All’ (World Bank Report 2017) https://data.worldbank.org/indicator/eg.elc.accs.zs accessed 11 October 2019.
31 Ibid.
32 World Bank, ‘Rwanda Economic Update: Making Electricity Accessible and Affordable’ www.worldbank.org/en/news/feature/2019/07/01/rwanda-economic-update-making-electricity-accessible-and-affordable accessed 11 October 2019.
33 R Tumwesigwe and others, Key Issues in Uganda’s Energy Sector: Pro-Diversity Conservationists in Uganda (PROBICOU) (International Institute for Energy and Development 2011).
34 World Bank, ‘Kenya Charts Path to Achieving Universal Access to Electricity’ www.worldbank.org/en/news/feature/2018/12/06/kenya-charts-path-to-achieving-universal-access-to-electricity accessed 11 October 2019.
35 National Energy Policy (Ministry of Energy and Minerals 2015).
36 MA Mondal and others, ‘Ethiopian Energy Status and Demand Scenarios: Prospects to Improve Energy Efficiency and Mitigate GHG Emissions’ (2018) 149 Energy 161.
37 National Energy Policy (Ministry of Energy and Minerals 2015).
38 Ibid.
39 This was built on the Electricity Supply Industry Reform Strategy and Roadmap of 2014. See also the Electricity Act (Cap 131) regulations – Supplement No 42, The Electricity (Market Re-organisation and Promotion of Competition) Regulation, 2016.
40 Ibid.
41 Ibid.
42 The Electricity (Tariff Setting) Rules, 2016; the Electricity (Procurement of Power Projects and Approval of Power Purchase Agreements) Rules, 2017; the Electricity (Licensing Fees) Rules, 2016; the Electricity (System Operations) Rules, 2016; the Electricity (Market Operations) Rules, 2016; the Electricity (Development of Small Power Projects) Rules, 2016.
43 OJ Mdee and others, ‘Assessment of Hydropower Sources in Tanzania’ (2018) 3 Renewable Energy Environmental Sustainability.
44 Mdee and others (n 43) 9.
45 A Eberhard, K Gratwick and L Kariuki, ‘A Review of Private Investment in Tanzania’s Power Generation Sector’ (2018) 29(2) Journal of Energy in Southern Africa 1, 8.
46 World Bank, ‘Implementation Completion and Results Report on a Global Environment Facility Grant –Energy Efficiency Project’ (The World Bank 2016).
47 Law No 1/13 of 2015 for the reorganisation of the electricity sector in Burundi.
48 e.g., Law No 1/014 of 2000.
49 AFDB, ‘Burundi Country Strategy Paper 2012–2016’ (Report, African Development Bank 2011).
50 The new electricity Law No 1/13 of 2015. However, this law is silent on the cross-border power trade and development of interconnectors – an inadequacy that potentially undermines regional harmonisation efforts.
51 Regulation No 100/320 of 2011.
52 World Bank, Doing Business 2019: Training for Reform (World Bank Group 2019).
53 The establishment of RURA in 2013 was provided in Law No 39/2001. This law further outlined the specifics of regulating the public utilities. However, this law was replaced with Law No 09/2013, reflecting a more extensive mandate for regulating the renewable and non-renewable energy technologies being developed and to contribute towards policy making as well as tariff regulation.
54 The Electricity Law No 21/2011 of 23 June 2011 governing electricity activities in Rwanda.
55 Rwanda Energy Policy of 17 March 2015, developed by the Ministry of Infrastructure, Kigali.
56 The Electricity Act, 1999, Cap 145.
57 The Energy Policy for Uganda, 2002.
58 The Renewable Energy Policy, 2007.
59 Cap 145. The main functions of the ERA are stated in the Electricity Act of 1999. The Electricity Act of 1999 and the Public Enterprise Reform and Divestiture Act of 1993 formed the basis for the electricity reform in Uganda.
60 Cap 145, s 61.
61 Energy Regulatory Commission (ERC), ‘Least Cost Power Development Plan’ (Energy Regulatory Commission 2012).
62 Ministry of Energy, Sessional Paper No 4 on Energy (Nyayo House, Nairobi 2004).
63 The Energy Act 2006, s 12(5)(d).
64 This is complemented by the Energy (Complaints and Dispute Resolution) Regulation, 2012. Dispute resolution will be discussed in section 4.3 of this article.
65 ERC, Kenya Electricity Grid Code (Energy Regulatory Commission 2008).
66 The Energy Security Policy Framework of the EAC (2017) urges the Partner States to: (1) develop national energy security policy, strategy and laws, (2) establish an institutional framework for energy security monitoring, (3) expand the mandate of the energy sector regulator to encompass downstream biomass energy, (4) engage development partners in supporting policy, strategy and institutional and human capacity development, (5) promote regional cooperation for energy security management based on common challenges, and (6) develop and strengthen national capacity in energy sector statistics and an energy security monitoring database. United Nations Economic Commission for Africa, ‘EAC Energy Security Policy Framework 2018’ www.uneca.org/publications/eac-energy-security-policy-framework-2018 accessed 5 October 2019.
67 EAC, ‘East African Community Vision 2050: Regional Vision for Socio-Economic Transformation and Development’ (EAC 2015).
68 ‘EAPP Regional Power Master Plan’ (Eastern Africa Power Pool 2014).
69 Ibid.
70 This is especially so as state regulators will remain relevant for the foreseeable future especially with respect to the transmission lines and overall consumer protection.
71 ‘Electricity Regulatory Index for Africa’ (African Development Bank 2018).
72 Ibid.
73 Ibid.
74 This will be discussed in section 5 of this article.
75 This is without prejudice to the EAC principle of variable geometry that will be discussed in section 4.4. of this article.
76 For this point in Uganda, see Legal Assistance for Economic Reform, ‘Retrospective Study of the Progress, Performance and Impact of the Uganda Commercial Court 1996–2015’ (Report of 6 November 2015) para 5.5 https://assets.publishing.service.gov.uk/media/591b07e6e5274a5e4e000010/uganda-com-ct-study.pdf accessed 5 October 2019.
77 J Mawejje, E Munyambonera and L Bategeka, ‘Uganda’s Electricity Sector Reforms and Institutional Structuring’ (Research Series No 89, Economic Policy Research Centre 2012) 25.
78 For an insight into Burundi, see World Bank, ‘Doing Business 2019: Economic Profile Burundi’ (A World Bank Group Flagship Report) 45 http://documents.worldbank.org/curated/en/240471541067681956/pdf/131613-WP-DB2019-PUBLIC-Burundi.pdf accessed 5 October 2019.
79 Burundi enacted specific legislation to tackle corruption in the judiciary. See Law No 1/36 of 13 December 2006 that established the Anti-corruption Court within the judiciary. See also, African Development Bank Group, ‘Republic of Burundi Country Strategy Paper 2019–2023’ (African Development Bank 2019) XXVI www.afdb.org/sites/default/files/documents/projects-and-operations/burundi_country_strategy_paper_2019-2023-rev.pdf accessed 11 October 2019.
80 Samuel Bimenyimana, Godwin NO Asemota and Lingling Li, ‘The State of the Power Sector in Rwanda: A Progressive Sector with Ambitious Targets’ (2018) 6 Frontiers in Energy Research 68.
81 T Ziesemer, ‘Renewable Energy Supply, Infrastructure and Gains from International Trade in Electric Current’ (2019) 26 Applied Economics Letters 1439, 1442.
82 In the context of African integrated power markets, see MO Oseni and M Pollitt, ‘Institutional Arrangements for the Promotion of Regional Integration of Electricity Markets: International Experience’ (2014) EPRG Working Paper 1408, Cambridge Working Paper in Economics 1458 (Energy Policy Research Group 2014) 6–9.
83 [2011] EWHC 1957 (Comm), [2012] 1 All ER (Comm) 820.
84 At [44]. See the Tanzanian case of DB Shapriya & Co Ltd v Bish International BV (No 2) [2003] 2 East Africa Law Report 404 (HCT).
85 Dowans Holding (n 83) [53].
86 At [11](iii)(e). See also the Kenyan case of Christ for All Nations v Apollo Insurance Co Ltd [2002] 2 East Africa Law Report 366, 370 (CCK).
87 See the Kenyan case of Nairobi Golf Hotels Ltd v Linotic Floor Co Ltd [2015] eKLR.
88 Ibid.
89 Ibid.
90 K Gratwick, R Ghanadan and A Eberhard, ‘Generating Power and Controversy: Understanding Tanzania’s Independent Power Projects’ (2006) 17(4) Journal of Energy in Southern Africa 39, 52.
91 [2017] UGCADER 2.
92 Ibid. See s 11(3)(b) of the Arbitration and Conciliation Act of 2000.
93 Electricity Disputes Tribunal (Procedure) Rules 2012, rule 4.
94 Kikoni v Uganda Electricity Board [2005] UCHC 106.
95 Abhul Bait (AS) Islamic Foundation Uganda Ltd (ABIFU) v Uganda Electricity Distribution Company Ltd (UEDCL) [2015] UGCOMMC 109.
96 Uganda Electricity & Allied Workers Union v Umeme (U) Ltd [2018] UGIC 22.
97 German and Belgian civil law systems. The EAC considered that the difference between the two legal systems was a significant hindrance to the unification www.newtimes.co.rw/section/read/8742 accessed 7 May 2019.
98 On the doctrine of binding precedent (stare decisis), see SR Perry, ‘Judicial Obligation, Precedent and the Common Law’ (1987) 7 Oxford Journal of Legal Studies 215.
99 Art 47 of No 03/2012/OL of 13 June 2012 Organic Law Determining the Organisation, Functioning and Jurisdiction of the Supreme Court https://nppa.gov.rw/fileadmin/Archive/LAWS_FILES/UBUBASHA_BWA_SUPREME_COURT.pdf accessed 5 October 2019.
100 Appeal No 1 of 2005 – an appeal from the judgment of the First Instance Division.
101 Ibid para 43.
102 www.bti-project.org/en/reports/country-reports/detail/itc/BDI accessed 5 October 2019.
103 Ibid.
104 Reference No 8 of 2015.
105 Ibid para 37.
106 Ibid para 41.
107 Ibid para 80.
108 JE Ruhangisa, ‘The Scope, Nature and Effect of EAC Law’ in E Ugirashebuja and others, East African Community Law: Institutional, Substantive and Comparative EU Aspects (Brill 2017) 139, 153. For the challenges of supranationalism in the EAC, see B Fagbayibo, ‘Common Problems Affecting Supranational Attempts in Africa: An Analytical Overview’ (2013) 16(1) Potchefstroom Electronic Law Journal 32, 39–43. See also KJ Alter, JT Gathii and LR Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’ (2016) 27 European Journal of International Law 293, 300.
109 Ruhangisa (n 108) 139.
110 Section 108 of the Energy Act 2006, Cap 314 (Rev 2012).
111 In the context of assessing evidence at the trial court, see Peters v Sunday Post Ltd [1958] 1EA 424 where the East Africa Court of Appeal approved the decision of the House of Lords in Watt v Thomas [1947] AC 484. See also Uganda Electricity Distribution Company Ltd v Commissioner General Uganda Revenue Authority [2013] UGCOMMC 2.
112 Uganda Electricity Distribution Company Ltd v Commissioner General Uganda Revenue Authority (n 111).
113 Appeal No 6 of 2014 – an appeal from the judgment of the First Instance Division.
114 Specifically, arts 6(c) and (d), 7(d), and 8(1). See para 63 of the judgment.
115 Section 4(1) of the Public Procurement and Disposal of Assets Act 2003 and s 5(1) of the Public Procurement and Disposal of Public Assets Regulations 2003.
116 Arts 6(d) and 7(2).
117 Art 8.
118 Para 70 of the judgment.
119 Section 4(1) of the Public Procurement and Disposal of Assets Act 2003.
120 Para 72 of the judgment.
121 Rugumba v Attorney General of Rwanda EACJ Ref No 8 of 2010. See also Muhochi v the Attorney General of Uganda EACJ Ref No 5 of 2011.
122 A Tharani, ‘Harmonization in the EAC’ in E Ugirashebuja and others (eds), East African Community Law: Institutional, Substantive and Comparative EU Aspects (Brill 2017) 486, 487.
123 See generally: MJ Pasqualetti and BK Sovacool, ‘The Importance of Scale to Energy Security’ (2012) 9 Journal of Integrative Environmental Sciences 167. See also DA Deese, ‘Energy, Economics, Politics and Security’ (1980) 4(3) International Security 140.
124 The Protocol on the Establishment of the East African Community Common Market of 2009.
125 See generally, D Peng and R Poudineh, Electricity Market Design for a Decarbonised Future: An Integrated Approach (The Oxford Institute for Energy Studies 2017). See also, CB Jensen and JB Slapin, ‘Institutional Hokey-Pokey: The Politics of Multispeed Integration in the European Union’ (2012) 19 Journal of European Public Policy 779.
126 MA Wilkinson and H Lokdam, ‘Law and Political Economy’ (2008) LSE Law, Society and Economy Working Papers 7/2008 1, 10.
127 A Swain, ‘Challenges for Water Sharing in the Nile Basin: Changing Geo-Politics and Changing Climate’ (2011) 56 Hydrological Sciences Journal 687.
128 ‘The 6th Northern Corridor Integration Project’ (Ministerial Report of 2 July 2014).
129 See the 1st and 2nd Infrastructure Summit, Joint Comminique www.nciprojects.org/sites/default/files/downloads/2nd%20COMMUNIQUE.pdf accessed 13 November 2019.
130 Ibid.
131 In this regard, South Sudan is particularly illustrative.
132 African Union, ‘Agenda 2063: The Africa We Want’ (African Union 2014).
133 Ibid.
134 N Kshetri, ‘Cybercrime and Cybersecurity in Africa’ (2019) 22 Journal of Global Information Technology Management 77, 78.
135 See ‘Cyber Security in the Energy Sector: Recommendations for the European Commission on a European Strategic Framework and Potential Future Legislative Acts for the Energy Sector’ (EECSP Report, 2017) 16 https://ec.europa.eu/energy/sites/ener/files/documents/eecsp_report_final.pdf accessed 5 October 2019.
136 J Liu and others, ‘Cyber Security and Privacy Issues in Smart Grids’ (2012) 14 IEEE Communications Surveys & Tutorials 981.
137 ‘Ransomware Hits Johannesburg’s Electricity Supply’ www.bbc.co.uk/news/technology-49125853 accessed 5 October 2019.
138 The Computer Misuse and Cybercrimes Act 2018.
139 See ss 57–65 of the Act.
140 Mutual Legal Assistance Act 2011.
141 The Treaty for East African Co-operation Act 1967.
142 As earlier argued, the legal systems/traditions of these countries seem to have expedited the development of their jurisprudence. See text to n 106.
143 See generally section 4.3 of this article.
144 E.g., Kyarimpa v the Attorney General of Uganda (n 113).
145 On the importance of appearances vis-à-vis trust and regional integration, see GM Genna, ‘Positive Country Images, Trust and Public Support for European Integration’ (2009) 7 Comparative European Politics 213.