ADMINSITRATIVE LAW ALERT (JUDICIAL REVIEW)
An end to monopoly rights over garbage collection scheme in Kampala; re-affirming the right of private collectors’ to engage in garbage collection in Kampala. _ BIN-IT SERVICES LIMITED v KAMPALA CAPITAL CITY AUTHORITY (KCCA) & 2 Ors Miscellaneous Cause No.117 of 2016
The High Court decision vides HCMC 117 of 2016 set a useful precedent on de-monopolizing of the garbage collection scheme in Kampala. This decision affirmed the right of residents to freely opt out of the system of solid waste collection by the council as it then was now KCCA and permits private institutions to collect garbage around Kampala.
On the 20th of June 2018, the Honourable Justice Ssekaana Musa delivered quashing the decision of Kampala Capital City Authority (KCCA) of conscripting all the residents of Kampala into the Council’s solid waste collection system without the option of residents contracting with authorized private collectors for a solid waste collection service.
Counsel for the applicant’s in this case were Ebert Byenkya and Anthony Bazira of Byenkya, Kihika and Co advocates.
BIN-IT-SERVICES, a private garbage collector applied for judicial review through its lawyers, Byenkya, Kihika & Co. Advocates challenging the legality of the public notice issued by KCCA to the effect that “KCCA through competitive process under a Public Private Partnership (PPP) framework contracted three companies that is M/S Kampala Solid Waste Management Consortium Ltd, M/s Nabugabo Updeal Joint Venture and M/s Homeklin (U) Ltd.
Prior to the notice of new garbage (solid waste) collection measures, KCCA issued bids in 2013. A number of companies applied including the Applicant but the 2nd Respondent, 3rd Respondent and M/s Nabugabo Updeal were declared the successful applicants.
In 2016 KCCA issued the notice of new (Solid waste) collection measures relying on the Kampala City Council Waste Management Ordinance 2000. The effect of this notice was that it would stop any other private collector not included in the public private partnership from collecting garbage in Kampala.
In regards to judicial review, court found that the notice issued by KCCA creates monopoly rights in favor of the 2nd and 3rd respondents.
Court relied on clause 23 of Kampala City Council Solid Waste Management Ordinance 2000 and held that “parties are free to opt out of the system of solid waste collection by the council and that they are at liberty to engage the private collectors authorized by the council.”
Court issued an order quashing the decision of the 1st Respondent of conscripting all the residents of Kampala into the Council’s solid waste collection system without the option of residents contracting with authorized private collectors for a solid waste collection service.
Court issued an order directing the 1st Respondent to authorize all or any persons willing and able to meet the generally applicable and rational licensing requirements for the business of collecting garbage without victimization of the Applicant.
Additionally, Court issued an order directing the 1st respondent to publish another public notice informing the residents of Kampala about their right to contract with authorized private collectors for a solid waste collection service and opt out of the 1st respondent’s garbage collection system together with the list of authorized private collectors.
Court did not award general damages because there was no evidence in support of the same. Rather court awarded costs against the 1st Respondent. The 2nd Respondent was denied costs because it is a beneficiary of the 1st Respondent’s refusal to authorize the private garbage collectors.
Relevance of the decision.
Court did away with monopoly rights of governments institutions against the residents who would be willing to become private garbage collectors. The residents of Kampala have a variety of options to choose from when it comes to garbage collections.
Court impliedly reemphasized economic rights of the prospective private collectors and thus this would give them courage to apply and become private garbage collectors and thus use this as a source of income.
The scope of taxes, employment, and income would be widened for with more private garbage collectors, this would increase; taxes remitted to tax masters, create employment to the numerous collectors and thus they would earn a better living.
This would increase the efficiency of garbage collection. Garbage is very delicate since it involves decomposing and bad smells. Thus by allowing private collectors to add to the Public Private Partnership, the numerous collectors would be able to curb delayed pick-ups and spread of diseases.
This decision therefore preserved competition and controlled KCCA’s inappropriate use of regulatory power.
The decisions are a great development in the jurisprudence of Uganda as they discourage a monopolistic view that had prior been the case in the field of garbage collection in Kampala.
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