Introduction
In Uganda, as in many parts of the world, the pursuit of parenthood is a personal and often challenging journey. For individuals and couples facing infertility or other reproductive health issues, the advent of human assisted reproductive technology (HART) has offered newfound hope and possibilities. However, with these advancements come ethical, legal and social considerations that demand careful regulation and oversight.
In response to the growing demand for HART services and the need to protect the rights and well-being of all the parties involved, Uganda has introduced the Human Assisted Reproductive Technology Bill, 2023. This proposed legislation aims to establish a legal framework for the practice of HART, encompassing procedures such as invitro fertilization (IVF), intrauterine insemination (IUI), and surrogacy.
The introduction of this bill is fundamental in Uganda’s reproductive healthcare landscape. It signals government’s recognition of the importance of regulating HART practices to ensure ethical conduct, patient safety, and adherence to established standards of care. As Uganda prepares to pilot the difficulties of HART regulation, it is imperative to undertake a comprehensive analysis of the proposed bill, examining its key provisions and implications.
Analysis of the key provisions of Human Assisted Reproductive Technology Bill, 2023
Application
Section 1 specifies the scope of individuals to whom the law applies. It provides that the Act applies to a man and woman who jointly seek to use human assisted reproductive technology to obtain a child; and a man and woman, where either the man or woman or both the man and woman, suffer primary or secondary infertility or health related challenges which affect the man or woman’s ability to reproduce.
Upon closer examination, the wording of this clause could potentially be construed as limiting the application of reproductive technology services to only cases where both a man and woman are involved, either as a couple seeking treatment together or where one or both partners suffer from infertility. To ensure inclusivity and account for the diverse range of individuals who may seek the services, including single individuals, the provision would benefit from clarification or amendment. One approach could involve revising the language to broaden the scope of applicability to all adults, regardless of marital status and regardless of whether or not, they have infertility challenges. This would ensure that single individuals are not inadvertently excluded from accessing the services under the law.
Administration
Part II of the Bill designates the Medical and Dental Practitioners Council as the administering body responsible for regulation, implementation and oversight of HART practices in Uganda. This therefore leverages existing expertise and infrastructure to streamline oversight efforts. The Council is tasked with recommending health units for designation as fertility centers, recommending banks for approval, enforcing standards, conducting inspections, and maintaining a register for human assisted reproductive technology. The tasks stress the role of the council in promoting patient safety, quality of care, and ethical conduct within the HART sector. Overall, these clauses reflect a proactive approach to regulating reproductive technology practices.
Fertility Centres and Banks
Part III of the bill is aimed at ensuring the systematic designation, accreditation, and oversight of fertility centers and banks. A fertility centre means a health unit designated to offer human assisted reproductive technology services. A bank means sperm, oocyte or embryo bank used for the storage and cryopreservation of sperm, oocyte and embryo.
Sections 5 to 10 outline procedures for designating a health unit as a fertility center. A health unit applies to the Council, which assesses compliance before recommending designation to the Minister. The Minister may issue a designation certificate within 21 days or provide reasons for refusal. Designated centers must be annually accredited by the Minister based on the Council’s recommendation. Annual accreditation of centres is a prudent measure as it will ensure ongoing compliance with regulatory standards and promote continuous improvement in the quality of fertility services in the Country. The Minister, upon Council recommendation, can suspend or revoke a center’s designation for non-compliance; the regulations will prescribe the grounds for such action.
Additionally, the Bill mandates the establishment of a bank within fertility centers, subject to Ministerial approval based on Council recommendation and compliance with prescribed conditions. The Minister may issue or refuse a certificate of approval for the bank, with reasons provided for refusal. Similar to the designation process, the Minister, in consultation with the Council, can suspend or revoke a bank’s approval based on prescribed grounds.
We propose that the approval of banks be issued on annual basis. This is intended to ensure that the bank continuously meets requisite standards to operate.
Provision of Human Assisted Reproductive Technology services
Part of the Bill articulates a comprehensive framework governing assisted reproductive services, delineating specific regulations and restrictions. To begin with, only registered medical practitioners certified by the council to undertake HART services can provide the said services, and these must be provided within a fertility center. Before providing the services, a medical practitioner must offer patients information on available services, potential outcomes, facilities, confidentiality policies, consent procedures, complaint handling, fees, and other relevant details. However, under clause (h) of section 12 “any other relevant information” is vague and subject to misinterpretation or abuse as it gives undefined discretion to the medical officer. We propose that it should be deleted.
In addition to the information provided to the intending parent to use human-assisted reproductive technology services, such decision to use HART should be made in the presence of an independent person, and the intending person or surrogate must receive independent advice on the terms and conditions of surrogacy.
A medical examination by the practitioner is mandatory before providing HART services. If a genetic disease is found in a potential gamete donor, harvesting of gamete is prohibited. Harvesting gametes from persons under the age of eighteen is prohibited. Fertility centers must maintain a comprehensive register of all information collected. Section 15 allows donation of gametes or embryos, with agreements required between donors and recipients. Conditions include consent, terms for usage of the gamete or embryo, storage duration, recipient limits, posthumous use, and any other mutually agreed conditions.
Registered medical practitioners will collect detailed information from donors, including age, identity, health history, and professional qualifications, to assess suitability; and recipients or persons intending to use the donated gamete or embryo will be informed of this information.
Gametes or embryos harvested or received by a fertility centre must be stored in a designated bank within the centre, with an agreement for storage between center(s), the donor, and recipient. Costs of storage are borne by the parties involved. The Council shall be mandated to prescribe clinical guidelines for storage of gamete or embryo.
It is imperative to note that advances in reproductive technologies could raise concerns about the potential for eugenic tendencies. While the technologies hold promise for preventing genetic diseases and improving health outcomes, they also raise ethical questions about the potential misuse or abuse of genetic interventions for eugenic purpose. The bill should explicitly forbid individuals from engaging in genetic manipulation and address the ethical concerns linked to such practices.
Surrogacy
The bill defines surrogacy to mean a practice where a woman carries and gives birth to a child for another person. Under part V, the bill ensures legal and ethical conduct of surrogacy arrangements. To begin with, it grants intending parents the right to use surrogacy if they suffer from infertility or health challenges affecting their reproduction. An intending parent as interpreted by the bill means a man and woman who enter into a surrogacy agreement with a woman (surrogate mother) for her to carry and give birth to a child for that man and woman.
The bill only allows intending parents suffering from primary or secondary infertility, or the intending parent suffering health challenges that affect the intending parent’s ability to reproduce to use a surrogate; it excludes other people without fertility issues from accessing it. Although limiting surrogacy to individuals with fertility issues or health challenges that affect reproduction may be a way of prioritizing those who have a medical need for assisted reproduction, it excludes others who may desire surrogacy for other reasons such as single individuals, those who have ethical or moral objection to other reproductive methods among others. Opening surrogacy to everyone could promote reproductive autonomy and choice, recognize the diversity of families and relationships, and address issues of equality and inclusivity.
Therefore the definition of “intending parent” as being exclusively a man and woman is problematic and could be seen as discriminatory and exclusionary. Firstly, it denies single individuals the opportunity to pursue surrogacy as a means of becoming parents. Secondly, this restriction is discriminatory as it bases access to reproductive rights on marital status. This narrow definition undermines reproductive freedom as it restricts access to surrogacy based on factors unrelated to an individual’s ability or suitability to become a parent. A more holistic approach to the definition of intending parents is needed, one that is inclusive of all individuals regardless of marital status or relationship status.
Surrogacy agreement
Intending parents must enter into a written surrogacy agreement with the surrogate mother or authorize a fertility center to do so on their behalf, prior to the provision of any reproductive technology services. Section 22 provides that a surrogate mother must be 18 and above. It is our opinion that the decision to become a surrogate should be made by a person who is fully informed, emotionally prepared, and legally competent. Although an 18 years old person is competent to enter into a surrogacy agreement, that person is barely an adult, and the majority of 18 years have never even had a child, based on the above, The surrogate mother should at least be 21 years and above and has given birth to at least to one child to minimize complications and also show that the surrogate mother understands what being pregnant entails.
Section 23(5), on surrogacy agreement, requires a registered medical practitioner to in as much as possible, take into account the terms and conditions of the surrogacy agreement. We are of the view that the medical officer should not have the discretion to determine what provisions of the agreement to take into account. The wide discretion may be subject to abuse.
A surrogacy agreement typically delineates the rights and responsibilities of the intending parents and the surrogate mother. It covers financial arrangements like compensation for the surrogate mother, reimbursement of expenses related to the surrogacy process, and any other financial obligations agreed upon by the parties; It also specifies medical procedures involved in the surrogacy process, such as screening, fertility treatments, IVF, embryo transfer, prenatal care, and childbirth, as well as arrangements for medical insurance coverage and health care decisions; it addresses establishment of parental rights and legal parentage, including procedures for the legal recognition of the intending parents as the child’s legal parents after birth; It includes provisions regarding confidentiality and privacy; it also outlines procedures for terminating the agreement in case of unforeseen circumstances or disagreements between the parties; legal compliance; among others. Parties should seek independent legal advice and carefully review the agreement to ensure clarity and protection of their rights throughout the surrogacy process.
Section 25 on medical care of a surrogate mother, provides that an intending parent shall provide medical care for a surrogate mother during surrogacy. The medical care should be extended for period outside surrogacy in unfortunate situations where the surrogate mother gets into medical complication as a result of surrogacy arrangement.
Parentage in surrogacy and assisted reproductive technology
Section 24 recognizes intending parents as the legal parents of the child born through surrogacy. The surrogate mother is not considered the child’s parent. Intending parents must appoint a guardian in the surrogacy agreement to take parental responsibilities of the child if the intending parent dies before the child’s birth. Additionally, Clause 19 specifies that regardless of whether a man and woman use their own gametes or embryos or those of another person, they will be recognized as the parents of the resulting child. Therefore the provisions have the effect of stipulating that the surrogate mother relinquishes all parental rights at the birth of the child. This indeed will reduce the potential for legal and moral claims over the child.
Parentage defines who is considered the legal parent of a child and outlines the associated rights and duties, such as custody, support, and heritage. Traditionally, parentage has been determined based on biological ties or legal recognition through birth or adoption. On the other hand, the surrogate mother, despite carrying and giving birth to the child, is not considered the child’s legal parent under the provisions. This is because the surrogacy agreement typically outlines the intention of the parties involved, specifying that the surrogate mother is acting as a gestational carrier and not as the intended parent of the child. The provisions thus reflect a legal framework that prioritizes the intentions and agreements of the parties involved in the surrogacy arrangement.
In many jurisdictions, including those with clear legal frameworks for surrogacy such as the United Kingdom, United States, Thailand, among others, the intended parents are typically recognized as the legal parents of the child from the moment of birth, even if they are not biologically related to the child. However, this legal recognition of parentage is often facilitated through pre-birth or post-birth orders granted by court, it is this parental order that transfers legal parenthood from the surrogate to the intended parents. Subsequently, the intended parents’ names are listed on the child’s birth certificate.
While the bill doesn’t expressly articulate the different rights of children born out of assisted reproductive technology, it appears to ensure that those children acquire the same rights and protection as those born through natural conception. However, should the HART bill pass, Section 31 of the Registration of Persons Act 2015 (RPA) would need to be aligned to reflect this position as to matters of who does the registration of the child. In the context of the Bill, which stipulates that intending parents are recognized as the legal parents of a child born through surrogacy, the RPA may need to be updated or interpreted in conjunction with the surrogacy provisions of the bill. Therefore, the duty to notify the registration officer of the birth would fall on the intended parents, rather than on the surrogate.
Prohibited activities
Registered medical practitioners are prohibited from using a person’s genetic material without their consent or implanting human admixed embryos or other non-human embryos into a woman’s uterus. Advertising for surrogacy is prohibited. The effect of these prohibitions is that any contravention of them will potentially result in a colossal fine or even life imprisonment.
Conclusion
The proposed Human Assisted Reproductive Technology Bill stands as a landmark effort to balance the ethical, regulatory, and access considerations in the realm of reproductive technology and healthcare. Surrogacy and other reproductive technology practices are here to stay and the least we can do is regulate them.Top of Form
Prepared by
Resty Nalwanga
Resty is an associate in the law firm of Angualia Busiku & Co. Advocates (www.lawyers-uganda.com). She holds Bachelor of Laws degree of Kampala International University (first class) and Post Graduate Diploma in Legal practice from Law Development Centre (first class).
Email address: nalwanga360@gmail.com
Angualia Daniel
Daniel is the managing partner in the law firm of Angualia Busiku & Co. Advocates. He holds Bachelors of laws degree from Makerere University (2007), Post graduate diploma in legal practice from Law Development Centre (2008), Master of Laws (2011), Qualifications in Construction Law and International commercial Arbitration, Member Chartered Institute of Arbitrators (UK).
Email address: dangualia@yahoo.com, angualia@lawyers-uganda.com
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Requirements for Acquiring a Mining License/ Mineral Right in Uganda
1.1 Introduction
Mining in Uganda is regulated by the mining and minerals Act, 2022 and the Mining (Licensing) Regulations, 2019.
The Act prohibits any person from conducting prospecting, exploration, mining, processing, refining or other beneficiation operation under Uganda’s jurisdiction without an authorisation, licence, lease, permit or approval in accordance with the Act, the National Environment Act,2019 or any other written law.
The right to explore for, retain, mine and trade in minerals may be acquired and held under and in accordance with a mineral right granted by the Act, notwithstanding any right of ownership or otherwise which any person may possess over the land on which the mineral right is granted.
The Act defines a “mineral right” to mean a right to prospect, explore or mine for minerals under a prospecting licence, an exploration licence, a retention licence, a large scale mining licence, a medium scale mining licence, small scale mining licence or an artisanal mining licence. The types of mineral rights that may be granted under the Act;
(a) prospecting licence;
(b) exploration licence;
(c) retention licence;
(d) large scale mining licence;
(e) medium scale mining licence;
(f) small scale mining licence; and
(g) artisanal mining licence.
The Act prohibits any person from prospecting, exploring for, retaining, mining, processing, refining, smelting, fabricating or disposing of any mineral in Uganda save for persons who acquiring a license.
1.2 Who May Acquire A Mining Licence/Mineral Right In Uganda?
A mining licence in Uganda may be granted to;
It should be noted that the Act restricts granting of mineral rights or licence to Non Ugandans and entities not incorporated or registered in Uganda.
1.3 Requirements For Attaining A Mineral Right/ Mining Licence
Prospecting licence;
The Act defines “prospecting” to means intentionally searching for minerals and mineral deposits and includes any operations to test the mineral-bearing qualities of any area.
Section 35 of the Act provides that an application for a prospecting licence shall be made to the Minister responsible for mineral development in a manner prescribed by regulations.
The Application shall contain;
A prospecting licence once issued is valid for a period of one year and is not renewable.
Exploration licence
The Act defines the term “explore” to mean to define the extent and determine the economic value of a mineral deposit and includes activities undertaken in order to identify, and determine the presence of minerals or mineral deposits and to assess the extent and economic value of a mineral deposit.
an application for an exploration licence shall be made to the Minister responsible for mineral development in a manner prescribed by regulations.
The application is accompanied by;
The exploration licence shall be valid for a period not exceeding four years from the date of grant of the exploration licence and it may be renewed for a single period not exceeding three years.
Retention Licence (Rl)
This Licence is given to the holder of an Exploration Licence who has identified a mineral deposit but the deposit cannot be immediately developed due to factors beyond reasonable control of the Licence holder, which are of a temporary nature.
Requirements For Application For A Retention Licence
Large Scale Mining Licence
The Act defines “large scale mining” as the intentional mining of minerals in mechanised operations, involving the excavation of large surface pits, sinking of shafts, driving of adits or other underground openings with limitations to the extent of the mining operation dictated by the extent of the ore body and the capital investment Exceeding nineteen million, four hundred and ten thousand (19,410,000) Currency Points;
An application for a large scale mining licence shall be made to the Minister in a manner prescribed by regulations. The Licence is granted for large mining operations in an area not more than 50km2 requiring a capital investment threshold exceeding nineteen million, four hundred and ten thousand (19,410,000) currency points (1currency point = UGX 20,000)
Requirements For Application For A Large Scale Mining Licence
Medium Scale Mining Licence (Mml)
This Licences issued for mining operations in an area not more than 50km2 requiring a capital investment threshold from fifty-eight thousand, two hundred and thirty (58,230) currency points to nineteen million, four hundred and ten thousand (19,410,000) currency points (1currency point = UGX 20,000)
Requirements For Application For A Medium Scale Mining Licence
Small Scale Mining Licence (Sml)
This is granted for mining operations in an area not more than 10km2 requiring a capital investment threshold exceeding nineteen thousand four hundred and ten (19,410) currency points to nine hundred seventy thousand and five hundred (970,500) currency points (1currency point = UGX 20,000.
Requirements For Application For A Small Scale Mining Licence
Artisanal Mining Licence
This issued for mining operations not exceeding nineteen thousand four hundred and ten (19,410) currency points (1cp = UGX 20,000).
Requirements For Application For An Artisanal Mining Licence
Conclusion;
it is important to note that a holder of a mineral right/mining licence as discussed above has the right to sell any minerals acquired by him or her under the Act without obtaining a mineral dealer’s licence.
The Human Assisted Reproductive Technology Bill 2023: Balancing Ethics, Regulation and Access to Reproductive Healthcare in Uganda
Introduction
In Uganda, as in many parts of the world, the pursuit of parenthood is a personal and often challenging journey. For individuals and couples facing infertility or other reproductive health issues, the advent of human assisted reproductive technology (HART) has offered newfound hope and possibilities. However, with these advancements come ethical, legal and social considerations that demand careful regulation and oversight.
In response to the growing demand for HART services and the need to protect the rights and well-being of all the parties involved, Uganda has introduced the Human Assisted Reproductive Technology Bill, 2023. This proposed legislation aims to establish a legal framework for the practice of HART, encompassing procedures such as invitro fertilization (IVF), intrauterine insemination (IUI), and surrogacy.
The introduction of this bill is fundamental in Uganda’s reproductive healthcare landscape. It signals government’s recognition of the importance of regulating HART practices to ensure ethical conduct, patient safety, and adherence to established standards of care. As Uganda prepares to pilot the difficulties of HART regulation, it is imperative to undertake a comprehensive analysis of the proposed bill, examining its key provisions and implications.
Analysis of the key provisions of Human Assisted Reproductive Technology Bill, 2023
Application
Section 1 specifies the scope of individuals to whom the law applies. It provides that the Act applies to a man and woman who jointly seek to use human assisted reproductive technology to obtain a child; and a man and woman, where either the man or woman or both the man and woman, suffer primary or secondary infertility or health related challenges which affect the man or woman’s ability to reproduce.
Upon closer examination, the wording of this clause could potentially be construed as limiting the application of reproductive technology services to only cases where both a man and woman are involved, either as a couple seeking treatment together or where one or both partners suffer from infertility. To ensure inclusivity and account for the diverse range of individuals who may seek the services, including single individuals, the provision would benefit from clarification or amendment. One approach could involve revising the language to broaden the scope of applicability to all adults, regardless of marital status and regardless of whether or not, they have infertility challenges. This would ensure that single individuals are not inadvertently excluded from accessing the services under the law.
Administration
Part II of the Bill designates the Medical and Dental Practitioners Council as the administering body responsible for regulation, implementation and oversight of HART practices in Uganda. This therefore leverages existing expertise and infrastructure to streamline oversight efforts. The Council is tasked with recommending health units for designation as fertility centers, recommending banks for approval, enforcing standards, conducting inspections, and maintaining a register for human assisted reproductive technology. The tasks stress the role of the council in promoting patient safety, quality of care, and ethical conduct within the HART sector. Overall, these clauses reflect a proactive approach to regulating reproductive technology practices.
Fertility Centres and Banks
Part III of the bill is aimed at ensuring the systematic designation, accreditation, and oversight of fertility centers and banks. A fertility centre means a health unit designated to offer human assisted reproductive technology services. A bank means sperm, oocyte or embryo bank used for the storage and cryopreservation of sperm, oocyte and embryo.
Sections 5 to 10 outline procedures for designating a health unit as a fertility center. A health unit applies to the Council, which assesses compliance before recommending designation to the Minister. The Minister may issue a designation certificate within 21 days or provide reasons for refusal. Designated centers must be annually accredited by the Minister based on the Council’s recommendation. Annual accreditation of centres is a prudent measure as it will ensure ongoing compliance with regulatory standards and promote continuous improvement in the quality of fertility services in the Country. The Minister, upon Council recommendation, can suspend or revoke a center’s designation for non-compliance; the regulations will prescribe the grounds for such action.
Additionally, the Bill mandates the establishment of a bank within fertility centers, subject to Ministerial approval based on Council recommendation and compliance with prescribed conditions. The Minister may issue or refuse a certificate of approval for the bank, with reasons provided for refusal. Similar to the designation process, the Minister, in consultation with the Council, can suspend or revoke a bank’s approval based on prescribed grounds.
We propose that the approval of banks be issued on annual basis. This is intended to ensure that the bank continuously meets requisite standards to operate.
Provision of Human Assisted Reproductive Technology services
Part of the Bill articulates a comprehensive framework governing assisted reproductive services, delineating specific regulations and restrictions. To begin with, only registered medical practitioners certified by the council to undertake HART services can provide the said services, and these must be provided within a fertility center. Before providing the services, a medical practitioner must offer patients information on available services, potential outcomes, facilities, confidentiality policies, consent procedures, complaint handling, fees, and other relevant details. However, under clause (h) of section 12 “any other relevant information” is vague and subject to misinterpretation or abuse as it gives undefined discretion to the medical officer. We propose that it should be deleted.
In addition to the information provided to the intending parent to use human-assisted reproductive technology services, such decision to use HART should be made in the presence of an independent person, and the intending person or surrogate must receive independent advice on the terms and conditions of surrogacy.
A medical examination by the practitioner is mandatory before providing HART services. If a genetic disease is found in a potential gamete donor, harvesting of gamete is prohibited. Harvesting gametes from persons under the age of eighteen is prohibited. Fertility centers must maintain a comprehensive register of all information collected. Section 15 allows donation of gametes or embryos, with agreements required between donors and recipients. Conditions include consent, terms for usage of the gamete or embryo, storage duration, recipient limits, posthumous use, and any other mutually agreed conditions.
Registered medical practitioners will collect detailed information from donors, including age, identity, health history, and professional qualifications, to assess suitability; and recipients or persons intending to use the donated gamete or embryo will be informed of this information.
Gametes or embryos harvested or received by a fertility centre must be stored in a designated bank within the centre, with an agreement for storage between center(s), the donor, and recipient. Costs of storage are borne by the parties involved. The Council shall be mandated to prescribe clinical guidelines for storage of gamete or embryo.
It is imperative to note that advances in reproductive technologies could raise concerns about the potential for eugenic tendencies. While the technologies hold promise for preventing genetic diseases and improving health outcomes, they also raise ethical questions about the potential misuse or abuse of genetic interventions for eugenic purpose. The bill should explicitly forbid individuals from engaging in genetic manipulation and address the ethical concerns linked to such practices.
Surrogacy
The bill defines surrogacy to mean a practice where a woman carries and gives birth to a child for another person. Under part V, the bill ensures legal and ethical conduct of surrogacy arrangements. To begin with, it grants intending parents the right to use surrogacy if they suffer from infertility or health challenges affecting their reproduction. An intending parent as interpreted by the bill means a man and woman who enter into a surrogacy agreement with a woman (surrogate mother) for her to carry and give birth to a child for that man and woman.
The bill only allows intending parents suffering from primary or secondary infertility, or the intending parent suffering health challenges that affect the intending parent’s ability to reproduce to use a surrogate; it excludes other people without fertility issues from accessing it. Although limiting surrogacy to individuals with fertility issues or health challenges that affect reproduction may be a way of prioritizing those who have a medical need for assisted reproduction, it excludes others who may desire surrogacy for other reasons such as single individuals, those who have ethical or moral objection to other reproductive methods among others. Opening surrogacy to everyone could promote reproductive autonomy and choice, recognize the diversity of families and relationships, and address issues of equality and inclusivity.
Therefore the definition of “intending parent” as being exclusively a man and woman is problematic and could be seen as discriminatory and exclusionary. Firstly, it denies single individuals the opportunity to pursue surrogacy as a means of becoming parents. Secondly, this restriction is discriminatory as it bases access to reproductive rights on marital status. This narrow definition undermines reproductive freedom as it restricts access to surrogacy based on factors unrelated to an individual’s ability or suitability to become a parent. A more holistic approach to the definition of intending parents is needed, one that is inclusive of all individuals regardless of marital status or relationship status.
Surrogacy agreement
Intending parents must enter into a written surrogacy agreement with the surrogate mother or authorize a fertility center to do so on their behalf, prior to the provision of any reproductive technology services. Section 22 provides that a surrogate mother must be 18 and above. It is our opinion that the decision to become a surrogate should be made by a person who is fully informed, emotionally prepared, and legally competent. Although an 18 years old person is competent to enter into a surrogacy agreement, that person is barely an adult, and the majority of 18 years have never even had a child, based on the above, The surrogate mother should at least be 21 years and above and has given birth to at least to one child to minimize complications and also show that the surrogate mother understands what being pregnant entails.
Section 23(5), on surrogacy agreement, requires a registered medical practitioner to in as much as possible, take into account the terms and conditions of the surrogacy agreement. We are of the view that the medical officer should not have the discretion to determine what provisions of the agreement to take into account. The wide discretion may be subject to abuse.
A surrogacy agreement typically delineates the rights and responsibilities of the intending parents and the surrogate mother. It covers financial arrangements like compensation for the surrogate mother, reimbursement of expenses related to the surrogacy process, and any other financial obligations agreed upon by the parties; It also specifies medical procedures involved in the surrogacy process, such as screening, fertility treatments, IVF, embryo transfer, prenatal care, and childbirth, as well as arrangements for medical insurance coverage and health care decisions; it addresses establishment of parental rights and legal parentage, including procedures for the legal recognition of the intending parents as the child’s legal parents after birth; It includes provisions regarding confidentiality and privacy; it also outlines procedures for terminating the agreement in case of unforeseen circumstances or disagreements between the parties; legal compliance; among others. Parties should seek independent legal advice and carefully review the agreement to ensure clarity and protection of their rights throughout the surrogacy process.
Section 25 on medical care of a surrogate mother, provides that an intending parent shall provide medical care for a surrogate mother during surrogacy. The medical care should be extended for period outside surrogacy in unfortunate situations where the surrogate mother gets into medical complication as a result of surrogacy arrangement.
Parentage in surrogacy and assisted reproductive technology
Section 24 recognizes intending parents as the legal parents of the child born through surrogacy. The surrogate mother is not considered the child’s parent. Intending parents must appoint a guardian in the surrogacy agreement to take parental responsibilities of the child if the intending parent dies before the child’s birth. Additionally, Clause 19 specifies that regardless of whether a man and woman use their own gametes or embryos or those of another person, they will be recognized as the parents of the resulting child. Therefore the provisions have the effect of stipulating that the surrogate mother relinquishes all parental rights at the birth of the child. This indeed will reduce the potential for legal and moral claims over the child.
Parentage defines who is considered the legal parent of a child and outlines the associated rights and duties, such as custody, support, and heritage. Traditionally, parentage has been determined based on biological ties or legal recognition through birth or adoption. On the other hand, the surrogate mother, despite carrying and giving birth to the child, is not considered the child’s legal parent under the provisions. This is because the surrogacy agreement typically outlines the intention of the parties involved, specifying that the surrogate mother is acting as a gestational carrier and not as the intended parent of the child. The provisions thus reflect a legal framework that prioritizes the intentions and agreements of the parties involved in the surrogacy arrangement.
In many jurisdictions, including those with clear legal frameworks for surrogacy such as the United Kingdom, United States, Thailand, among others, the intended parents are typically recognized as the legal parents of the child from the moment of birth, even if they are not biologically related to the child. However, this legal recognition of parentage is often facilitated through pre-birth or post-birth orders granted by court, it is this parental order that transfers legal parenthood from the surrogate to the intended parents. Subsequently, the intended parents’ names are listed on the child’s birth certificate.
While the bill doesn’t expressly articulate the different rights of children born out of assisted reproductive technology, it appears to ensure that those children acquire the same rights and protection as those born through natural conception. However, should the HART bill pass, Section 31 of the Registration of Persons Act 2015 (RPA) would need to be aligned to reflect this position as to matters of who does the registration of the child. In the context of the Bill, which stipulates that intending parents are recognized as the legal parents of a child born through surrogacy, the RPA may need to be updated or interpreted in conjunction with the surrogacy provisions of the bill. Therefore, the duty to notify the registration officer of the birth would fall on the intended parents, rather than on the surrogate.
Prohibited activities
Registered medical practitioners are prohibited from using a person’s genetic material without their consent or implanting human admixed embryos or other non-human embryos into a woman’s uterus. Advertising for surrogacy is prohibited. The effect of these prohibitions is that any contravention of them will potentially result in a colossal fine or even life imprisonment.
Conclusion
The proposed Human Assisted Reproductive Technology Bill stands as a landmark effort to balance the ethical, regulatory, and access considerations in the realm of reproductive technology and healthcare. Surrogacy and other reproductive technology practices are here to stay and the least we can do is regulate them.Top of Form
Prepared by
Resty Nalwanga
Resty is an associate in the law firm of Angualia Busiku & Co. Advocates (www.lawyers-uganda.com). She holds Bachelor of Laws degree of Kampala International University (first class) and Post Graduate Diploma in Legal practice from Law Development Centre (first class).
Email address: nalwanga360@gmail.com
Angualia Daniel
Daniel is the managing partner in the law firm of Angualia Busiku & Co. Advocates. He holds Bachelors of laws degree from Makerere University (2007), Post graduate diploma in legal practice from Law Development Centre (2008), Master of Laws (2011), Qualifications in Construction Law and International commercial Arbitration, Member Chartered Institute of Arbitrators (UK).
Email address: dangualia@yahoo.com, angualia@lawyers-uganda.com
ZACHARY JOHN OLUM VERSUS BONGOMIN JOHN ODORA and 4 OTHERS
Brand Protection and the Imperative of Trademark Registration in Uganda and Beyond.
In the fast-paced realm of global commerce, where competition is fierce and consumer choices abound, a brand is the silent identity of a business and its most valuable asset. Yet, despite its undeniable importance, many businesses overlook the critical need to protect their brand. This failure or negligence to protect a business brand can have far reaching consequences. Not only does it rapidly diminish the brand’s value, unauthorized use of brand elements like trademarks, logos etc dilutes its uniqueness and can lead to confusion among customers. As a result the brand may lose its distinctiveness and competitive edge in the market place.
So what exactly does it mean to protect your business brand? At its core, brand protection is about safeguarding the integrity and uniqueness of a business brand identity. This mainly involves legally registering trademarks and or other intellectual property assets to prevent unauthorized use or infringement, and taking quick action to address any form of infringement. Therefore, central to this venture is the establishment and protection of trademarks, those invaluable symbols, words, or names that encapsulate a brand’s character.
A trademark is a distinctive symbol, word, sign, logo, phrase or design or a combination of those, capable of being represented graphically, that distinguishes the products or services of a business from those of competitors. In the dynamic world of commerce, businesses rely on their distinct names, words, or symbols to stand out in the crowd. Trademark protection is a vital tool in ensuring the integrity of these brand identifiers. Simply put, once a business’s distinctive identifier is trademarked or registered, the owner is granted exclusive rights, and others are prohibited from using it to distinguish their own good or services. Registered trademarks are also easy to enforce as they usually carry a belief of ownership.
Trademark registration in Uganda is overseen by Uganda Registration Service Bureau (URSB). The first step in the process is to conduct a preliminary search from the URSB database to ensure that the proposed trademark is not similar or identical to an existing one. If the search does not reveal any conflicting trademarks, you can then file your application. The application must include a clear representation of the trademark and a list of goods or services to be covered by the trademark. URSB will then examine the application to ensure that it complies with the requirements of the law. It will also determine whether the trademark can be registered or if it infringes upon any existing trademarks. Once the application passes the examination, it is published in the Uganda Gazette in order to give third parties the opportunity to challenge the registration of the mark, within a period of 60 days from the date of publication. If no objection is filed in relation to the mark, or if any objection is resolved in favor of the applicant, the mark is registered and the applicant is granted a certificate of registration.
Enlisting the expertise of a trademark agent is highly recommended for businesses and individuals who desire to undertake the trademark registration process in Uganda. This is because the process is meticulous and requires strict adherence to specific legal requirements. Without proper knowledge and experience, applicants attempting to file independently may encounter numerous challenges and pitfalls along the way. A qualified agent will ensure all the necessary requirements are met accurately and efficiently and thereby mitigate the likelihood and risk of encountering rejections, objections and delays from URSB. You will also have the assurance of ongoing support and maintenance for your trademark portfolio.
Once a trademark has successfully been registered in Uganda, the registration certificate will only confer territorial protection of the mark or the rights of the proprietor. Simply put, imagine you have a bakery (business) called “Sweet Delights” based in Uganda, and you have trademarked your brand name and logo with URSB, you’re doing well and you want to expand you business to neighboring Kenya or even beyond. You start advertising your treats in Kenya using your trademarked name and logo. Now, let’s say there’s another bakery in Kenya, unaware of your existence, and they decide to use the same name “Sweet Delights” for their business. Since you have not registered your trademark in Kenya, you cannot legally stop them from using the same name, even though you were using it first in Uganda. Therefore the territorial nature of trademark protection means that trademark proprietor’s rights are limited to the country where the trademark is registered. Without protection in Kenya, a trademark proprietor in Uganda cannot enforce their rights there, leaving their brand vulnerable to infringement in that territory.
In today’s interconnected world, businesses often expand beyond their home border to tap into new markets and opportunities; the above scenario poses significant limitation which emphasizes the importance of extraterritorial trademark protection, especially in regions like Africa where market integration is on the rise. One of the primary hurdles faced by businesses operating in Africa is the cost associated with securing trademark protection in multiple countries. The expense and administrative burden of individual registrations across numerous jurisdictions can be prohibitive, particularly for small and medium sized enterprises (SMEs). As a result, many businesses may forego comprehensive protection, leaving their trademarks vulnerable to infringement in untapped markets.
However, the solution to overcome limitations of territorial trademark protection is to pursue extraterritorial protection through regional or international trademark registration systems. In the case of African countries, businesses can opt for regional frameworks such as those provided by the African Regional intellectual property Organization (ARIPO) or the Organization Africanne de la Propriate Intellectuelle (OAPI). These registration systems allow businesses to obtain protection in multiple member states through a single application. Instead of going to each country separately to protect your trademark, you can just go under the ARIPO or OAPI umbrella once, and it covers you in all the designated countries it oversees. So if you have a bakery in Uganda and you want to expand it to Kenya or Tanzania and beyond, you can register your brand with ARIPO, and it confers a protective shield over your brand in all those countries at once. This approach not only reduces administrative burdens but also provides a cost-effective way of protecting intellectual property rights across diverse markets.
ARIPO’s current membership includes: Uganda, Kenya, Rwanda, Tanzania, Botswana, Eswatini (Swaziland), Gambia, Ghana, Lesotho, Liberia, Malawi, Mozambique, Namibia, Sao Tome and Principe, Sierra Leone, Somalia, Sudan, Zambia, Zimbabwe and Mauritius. Whereas OAPI’s membership includes: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritius, Niger, Senegal and Togo.
ARIPO trademarks are registered on behalf of the contracting states of the Banjul Protocol on marks which was adopted in 1993. Under the protocol, a trademark applicant can designate any one of the Banjul protocol contracting states in which the applicant wishes the trademark to be protected by filing only one application. This means that before filing application the business must identify the ARIPO member states where they intend to conduct commercial activities such as selling or advertising their goods or services and designate those states within the application. Note that one may designate any or all the member states.
One must conduct a trademark search before filing with ARIPO. You can think of it as doing due diligence in the intellectual property realm. This allows the applicant to evaluate the landscape of existing marks within ARIPO’s jurisdiction, and identifying any conflicting mark or prior rights hence making informed decisions about the viability of the proposed mark. A trademark application under the protocol can be made directly through ARIPO’s online portal or by submitting a physical application to the ARIPO headquarters in Harare Zimbabwe. Upon receiving the application, ARIPO conducts an examination to ensure that it complies with the necessary requirements. Once the application passes the examination stage, ARIPO publishes the mark in the ARIPO Gazette, giving third parties an opportunity to oppose the registration if they believe it infringes on their rights. This opposition period typically lasts for 90 days upon which oppositions, if any, are reviewed. If no oppositions are filed, or if oppositions are successfully overcome, ARIPO proceeds with registration of the mark, and the trademark owner is issued a certificate or registration, confirming their exclusive rights to use the trademark in the designated ARIPO member states. The registration details are published in the gazette, to provide public notice of the trademark’s registration and the rights associated with it. An ARIPO trademark is valid for an initial period of 10 years, after which it must be renewed to maintain protection.
An application may be filed by an individual or a business, and this can be done in person or through an authorized trademark agent. An authorized agent is a trademark representative or legal practitioner who is duly recognized by the national intellectual property office of the contracting state as having the right to represent the applicant. Working with a trademark agent experienced in ARIPO filings can streamline the application process. They understand the requirements, paperwork, and procedures involved. A trademark agent will provide guidance on trademark selection, registration strategy, and potential conflicts. They will ensure your application meets all ARIPO’s requirements and this reduces the risk of rejection and delays in the registration process. We strongly advise enlisting a qualified trademark agent’s specialist advice and guidance for the ARIPO registration process.
The Applicability Of The Welfare Principle In Child Adoption Matters In Uganda
1.0 Introduction
Adoption is the creation of a parent child relationship by Judicial Order between two parties who are unrelated creating a lifelong relationship of parenthood between the child and adoptive parent.[1] Before the order is made, court must be satisfied that the adoptive parent is suitable and committed to being a parent of the child and that the child is available for adoption. Since the adoption order creates lifelong relationship, the best interest of the child is of paramount.[2] This article discusses the application of the welfare principle in child adoption matters and the considerations for granting Adoption in Uganda.
1.1 Adoption and the Welfare Principle in the Children Act
Section 48 of the Children Act as Amended is to the effect that the Court shall, before making an adoption order be satisfied that it is in the interest of the welfare of the child, due consideration being given to his or her age of understanding.[3] Section 3(1) 1thereof further emphasizes that the welfare of the child shall be of paramount consideration whenever the state, a court, a tribunal, a local authority or any person determines the question in respect to the upbringing of the child, the administration of a child’s property, or the application of any income arising from that administration.[4]Further Section 3(3) of the Act emphasizes that in determining any question relating to circumstances set out in the Act, the court shall have regard in particular to:-
In his decision of David Twesigye (an infant)[5] Justice Chigamoy Owiny Dollo ( As He then was) while considering an application for guardianship gave some useful insight to the welfare Principle. He held that:-
“…while the primary right of a child is to grow up under the tutelage of his or her parents, or parent, for the obvious reasons of emotional attachment; if it is shown to the satisfaction of a competent authority, and in this case the court, that vesting legal guardianship of the child in the applicants, it would serve the best interest of the child, then it would be proper for this court to make an order removing such child from the parent. Court has to weigh the emotional loss of staying with one’s parents against the opportunities that would come with the relocation away from the hands of the parents…….”
In determining Adoption Matters Court in particular considers the ascertainable wishes and feelings of the child in light of his or her age. The High court in the case of Re. Victoria Babirye Namutosi,[6] noted that,
“As a general rule, the social worker is required to work for eventual reunification of a child with his/her family or community if possible. This approach must therefore be carried out within a framework of planning for permanence in the child’s life which must be balanced with understanding the need for stability of the child’s life.”
The decision in J Vrs C[7] emphasizes the welfare principle as it was held that
“…more than that, the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. [Welfare] connotes a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare as that term in now understood … [it is] the paramount consideration because it rules upon or determines the course to be followed.
However in applying the welfare principle, courts are to consider individual assessment of each case but not to entirely rely on precedent.[8] Further according to Bromley “…in applying the welfare principle, the Court must act in the child’s best interests…it should be appreciated that the Judge is not dealing with what is ideal for the child but simply what is the best that can be done in the circumstances…”[9] this manifest the rationale of the welfare principle in children matters and in adoption in particular.
1.2 Legal Requirement for Adoption
The Children Act Cap 59 provides for conditions that the adoptive parent must fulfill before he/she can qualify to adopt a Ugandan child.
Section 45 (1) of the Children Act as amended provides that an adoption order can be granted to a sole applicant or jointly where the applicant or at least one of them has attained 25 years and is at least 21 years older than the child.
Section 45(4) of the Act as Amended by sec 13 of the 2016 Amendment provides that the application shall not be considered unless the petitioner has fostered the child for a period not less than 12 months under the supervision of a Probation and Social welfare officer.
Under Section 2 of the Act, the term foster care placement is defined to be “. placement of a child with a person who is not his or her parent or relative and who is willing to undertake the care and maintenance of the child”. A foster parent means “a person not being the biological mother or father or relative of the child who assumes parental responsibility of the child by way of a care order. On the other hand, parental responsibility means …” all rights, duties, powers responsibilities and authority which by law a parent of a child has in relation to the child”.
An important policy emanating from the above provisions is the realization that foster parents and children can form a close relationship which should be recognized and protected by the law in force. The common law position is that a parent cannot transfer or surrender parental responsibility by private agreement or arrangement exceptions being when a child is entrusted for example, into a school, to child minders or a recognized institution.[10]
This fostering is not limited to physical fostering but also “constructive fostering” Justice Mukiibi in Adoption Cause No. 10/2017 in the Matter of Innocent Turyahabwe (Child) held on page 8 that-:
“…….the requirement for fostering a child for one year does not solely mean having physical custody of the child. It includes any conscious effort made by prospective petitioners to assist/support a child through any practical arrangement. Support may be channeled through a parent or other relative of the child, or any other person having physical custody of the child who has a special arrangement with the prospective petitioners for receiving and administering such support. Should there be need for a term of this art, this may be called “constructive fostering”.
However, Section 14of the Children (Amendment) Act 9 2016 amended section 45(4) by permits Court in exceptional circumstances to waive any of the specified requirements. In the case of Re Victoria Babirye Namutosi,[11] Wherein, the petitioner had not fostered the child for the required 12 months yet the child needed urgent medical attention and court held that; “Fostering the child for one year is a temporary condition that cannot be used to frustrate the process that leads to permanence in a child’s life.”
In regards to staying in Uganda, in the matter of Saunders Terry Tobin and Semujju Cromweel Clifford (Minors)[12] Court observed that the requirement for an applicant to have stayed in Uganda for a period of one year was meant to ensure that all applicants acclimatize to our culture and way of life and also bond with their charges. This would entail that the applicant has first understood the culture and way of life of the child to a sufficient degree. That knowledge and experience would empower him to prepare the child for the foreign culture and way of life which is quite different from what they have been accustomed to.[13]
Section 46 (c) (d) and (e) set down more conditions that should be fulfilled by the petitioner as follows;
Under Section 47(1) of the Children Act, the consent of the child’s parent is necessary for the adoption order to be made if the parents are known, but this requirement may be dispensed with under Section 47(2) of the Act if the parents are incapable of giving it.
1.3 Conclusion
It is important to check if you meet the requirements for adoption before petitioning court for an adoption order. Since adoption creates a lifelong relationship of parenthood between the child and adoptive parent, courts always ensure that adoption matters are decided in total consideration of the welfare principle and in the best interest of the child.
Prepared by
Alituha Jacob
[1] IN THE MATTER OF A PETITION FOR THE ADOPTION OF EDSON MUGAGA (A CHILD) BY ANASTASIOS MOUTAFIS AND GEORGIA NELLI GIANNIOTI, HCT-14-FD-AD-0015-2019
[2] ibid
[3] Section 48 of the Children Act as Amended
[4] Section 3 of the Children Act as Amended
[5] HCMA No. 0004 of 2008 (at page 4, 5 and 6)
[6] Adoption Cause No. 9 of 2017)
[7] (1970) AC 668 at page 710-711
[8] S.M. Cretney and J.M. Masson, Principles of Family Law ( London: Sweet and Maxwell 6th Edition) 2008 at page 723
[9] Bromley’s Family Law, 8th Edition at page 338.
[10] Jonathan Herring in Family Law 2nd Ed. At page 651.
[11] Adoption Cause No. 9 of 2017
[12] Misc cause No. 10/2017
[13] In The Matter Of Nakitende Aisha Jenny Namugeri (An Infant), Adoption Cause Nos. 016 And 017 Of 2018
Duty of Government to Provide Decent Housing for Police Officers in Uganda
Legal Aspects Of a Surrogacy Contract in Uganda
By Ninsiima Irene
Introduction
This article is intended to address the definition of surrogacy, surrogacy contract/agreement. An examination of the law in Uganda that regulate surrogacy procedures and what a prospective biological parent should look out for in a surrogacy contract.
What is surrogacy
Surrogacy is when a woman (surrogate mother) carries a baby for a couple who are unable to conceive or carry a child themselves for medical or physical reasons. The intended parent(s) are person or persons who become the legal parent(s) of a child born through surrogacy.
There are two types of surrogacy;
Traditional Surrogacy: This is a pregnancy where the surrogate provides her own egg, which is inseminated with the commissioning parent’s sperm. This can be done using in vitro insemination (IVF) or artificial insemination. In this case, the baby is biologically related to the surrogate (genetic surrogate). A traditional surrogate is the baby’s biological mother because her egg is fertilized using a sperm, either from a prospective biological father or sperm donor. Traditional surrogacy has been regarded as legally risky in jurisdictions with legislation where genetic surrogates may decline to release their babies at birth.
Gestational surrogacy: Also known as host surrogacy is when IVF is used, either with the eggs of the intended mother, or with donor eggs. The surrogate mother therefore does not use her own eggs, and is genetically unrelated to the baby. Eggs from the mother (or an egg donor), are fertilized with the sperms from the father (or a sperm donor), and the embryo is placed into the uterus of a gestational surrogate. The surrogate then carries the baby until birth. The surrogate does not have any genetic ties to the child because it wasn’t their egg that was used.
What is a surrogacy contract
This is an agreement/legal document that provides for the relationship between the surrogate and the intended parents of the child to be carried, specifying the terms and conditions of the relationship between the parties. Surrogacy arrangements are therefore usually supported by a legal agreement that binds all the parties thereto.
Does the law in Uganda Regulate surrogacy procedures?
Uganda does not have any principal legislation on surrogacy procedures and this delicate area remains unregulated. Substantive rights and obligations of the parties to such a procedure are usually incorporated in a private contract between the parties, which usually seeks to protect, on one hand, the rights of the Surrogate mother and on the other, the rights of the intended parents as well as providing for their respective obligations. Recently, Parliament granted leave to Tororo Woman member of Parliament to introduce a Private Members Bill on surrogacy procedures ‘The Surrogacy and Assisted Reproductive Technology Bill’.
The Surrogacy and Assisted Reproductive Technology Bill will make legal provisions for surrogate mothers, prohibition of certain practices in connection with embryos and gametes as well as establishment of a committee under the Uganda Medical and Dental Practitioners Council. The Bill proposes remedies to regulate the environment for couples who are unable to have children owing to infertility, women who want to singularly mother a child as well as couples with issues with genetic make up to have children.
Hon Sarah Opendi observed that biological advancements of surrogacy and fertility treatment have made it possible that any woman who desires to enjoy her God given heritage of child bearing can do so notwithstanding malformation of the womb, recurrent pregnancy loss or repeated In vitro fertilization (IVF) implantation failures. She also noted that there are many IVF clinics operating in Uganda and providing fertility care and surrogacy services, but with no regulation or government supervision to ensure quality service and promote ethical medical conduct. She noted that a legal framework will not only regulate the donors but also the doctors and physicians involved in this which will protect the donors as well as the children born out of these processes.
What should a prospective biological parent look out for in a surrogacy contract?
The answers to the above questions are particularly in relation to gestational surrogacy.
Disclaimer: This information has been designed to help you understand some of the legal issues relating to surrogacy. However, this does not replace seeking your own independent legal advice which we strongly advise that you do before proceeding with surrogacy treatments
Implications Of Striking Off Non-Compliant Companies For Failure to file Annual Returns with the Registrar of companies
Prepapred By
Resty Nalwanga
Angualia Daniel
Company annual returns
When a company is formed, it has obligations imposed on it among which includes updating its file at the company registry (URSB), with the changes that have taken place in the company during the year. This statutory obligation is what is known as Filing of company annual returns. Annual return means the return or a yearly statement required to be filed to the Registrar of companies which highlights the information about the company’s various aspects pertaining to its composition, activities, and financial position.
According to section 132 of the Companies Act 2012 (‘the Act’), company which has a share capital must file annual returns with the registrar, at least once in every year stating information such as, the registered office of the company; members and debenture holders; shares and debentures; indebtedness of the company; past and present members; directors and secretary; if the register of members or debenture holders is kept elsewhere than the registered office of the company, the address of the place where it is kept.
Section 133 of the Act requires a company which has no share capital to file annual returns with registrar, at least once in every calendar year, stating information such as; the registered office of the company; if the register of members, or of debenture holders, or any duplicate of any such register, is kept elsewhere than the registered office of the company, the address of where it is kept; particulars of the directors and the secretary; and to what extent the company has complied with the principles of corporate governance.
Annual returns must be completed within 42 days after the annual general meeting for the year.
Non compliance of a company with the above requirements attracts a penalty of UGX500, 000 on both the company and every officer in default.
Only a dormant company may be exempted from filing annual returns for a grace period of 12 months. However, the directors must have notified the registrar within 15 working days from the date of the resolution for dormancy.
Striking-off a company from the register
This is a form of enforcement mechanism used by the Registrar of Companies to compel entities to comply with statutory obligations. If the company is carrying on business for five years without updating its file as discussed above, the registrar is entitled to assume that the company does not exist. However, beyond this assumption, the law prescribes that the registrar notifies the company to file a statement of solvency and notice to show cause why the company should be maintained on the register. Under Section 134(5) and (6), if the company does not respond to the notice or show cause why it should not be struck off the register, the registrar is brought to the conclusion that the company merely exists on paper but is not in operation and therefore issues a notice of striking the company off the register in the gazette and newspaper of wide circulation.
What next for a company struck off the register for non-compliance?
Striking off a company in effect places a temporary hold on a company to transact until certain conditions are met or until an inconsistency is resolved. Striking off a company as distinguished from dissolution merely puts a company on a suspense register for a specified period of time in order to enable it comply. If a company that has been struck off has a running license, the license also ceases to exist.
Whereas there is a bit of a grey area regarding legal provision on the procedure of restoration of a company that has been struck off the register, the Registrar of companies has powers to amend the register.
Therefore, a company that has been struck off for non compliance may be restored after complying with filing annual returns. A company or creditors of the company may apply to have the company restored or reinstated on the register. The application has to be made within a reasonable time, generally within 6 months from the date of striking off.
If the company still fails to comply within 12 months upon being struck off, it is exposed to de-registration.
Conclusion
The process of striking off a company for non compliance with filing annual returns serves as a critical mechanism to uphold the integrity of the corporate landscape. The enforcement of timely and accurate submission of annual returns is not merely a formality; rather, it safeguards transparency, accountability and economic stability. The repercussions of non compliance extend beyond the confines of the company itself. Stakeholders and creditors rely on up-to-date information to make informed decisions about the company.
Buying Gold in Uganda; avoid a scam transaction. Effective duediligence investigation that you should do before wiring that moneyin a gold purchase transaction.
Are you buying or planning to buy gold in Uganda? There is need for effective due diligence investigation before wiring that money in a gold purchase transaction to avoid scam transactions and loosing your millions of dollars. Preliminary investigation will guide you on whether you are dealing with a genuine gold dealer licensed to deal in gold in Uganda; whether the shipping agent has the requisite licenses; whether the relevant documents, licenses, certificates involved in the transactions are genuine or authentic among others.
Majority of the time, buyers consult lawyers for investigations after being scammed and loosing large sums of money. Its highly recommended to do due diligence investigation to avoid being scammed. The law in Uganda regulates dealing in minerals like gold and a purchaser will be caught by the common law rule of “buyer be ware” Thus a buyer should investigate first using publically available information and should as well ask the seller to fully disclose material information in the sellers possession or known to the seller at the time of the transaction. A prospective buyer should investigate the particulars of the seller; whether the seller is a legal person and has the requisite licenses and certificates among others. The services of a lawyer experienced in such transaction is very important before any payment is exchanged.
A buyer should have a gold purchase agreement which clearly describes the parties, the shipping agents if any, the obligations of the seller; the time lines for delivery; recovery of purchase price in case of failure to deliver among others. Given the large sums of money usually involved in the gold purchase transactions, it is always prudent for a buyer to seek experienced and reliable legal representation in the transaction from an attorney in Uganda well versed in gold purchase due diligence investigations. Purchaser should consider escrow services and or collateral arrangements to secure down payments.
The Law Of Mortgages In Uganda: What Are The Duties Of The Mortgagor And The Mortgagee?
1.1 Introduction
A mortgage is a legal agreement by which the mortgagee (a bank, building society or money lending company) lends money at an interest in exchange for taking title of the debtor’s property, with the condition that the conveyance of the title becomes void upon the payment of the loan.[1] Default on the side of mortgagor entitles the mortgagee the rights to appoint a receiver, take possession of the property, and lease the property or even sale off the property.[2]
The mortgage Act, 2009 which is the major law governing mortgages in Uganda defines a mortgage to include any charge or lien over repayment of an existing or future or contingent debt or other money’s worth or performance of an obligation and includes a second or subsequent mortgage and a third party mortgage.[3] A charge as used in the definition is defined as a right created by the borrower on the property to secure the repayment of a debt (principal sum and the interest thereon) in favor of the lender (mortgagee) that advanced funds to the mortgagor.[4] The creation of a charge on property gives the charge holder (mortgagee) the right to sell or transfer the property of the charge creator (mortgagee). Section 3 of the Act[5] gives powers to any person holding land under any form of tenure to mortgage his/her interest in land or part of it to secure the payment of a loan. The power to create a mortgage is exercised upon executing the duties under the law. This article will discuss the duties of both the Mortgagor and Mortgagee in creating a legal mortgage.
1.2 Duties of the Mortgagor
A mortgagor is a person who has mortgaged land or an interest in land.[6] The person who gives in his/her land as security to secure a loan is the one referred to as the mortgagor while the bank or any financial institution that advances the loan is referred to as the mortgagee. These terms are sometimes confusing and therefore they need to be understood from the beginning. The duties of the mortgagor include:
1.2.1 Duty to disclose information
The mortgagor has the duty to act honestly and in good faith and disclosing all relevant information relating to the mortgage.[7] The mortgagor has the duty to disclose to the mortgagor whether the property intending to be mortgaged is comprises matrimonial or family home and whether he/she is married for purposes of obtaining Spousal consent which is an important requirement when it comes to mortgaging matrimonial property.
1.2.2 Duty to disclose whether property subject to the mortgage comprises of a matrimonial home or Family land
To execute this duty, what constitutes family land and matrimonial home ought to be understood and by way of definition, Family land means the land that enjoys statutory proportion of a spouse who is not the owner or registered proprietor on which is situate the ordinary residence of the family and from which the family derives substance.[8]Matrimonial home on the other hand is defined as a building or part of a building in which a husband and wife or, as the case may be, wives, and their children ordinarily reside together and this includes where a building and its curtilage are occupied primarily for residential purposes. It also includes where a building is on or occupied in conjunction with agricultural land or pastoral land, any land allocated by one spouse to his or her spouse or in the case of a husband, the spouse for his or her exclusive use.[9]
Lawyers have interpreted differently the phrase “a building or part of a building in which a husband and wife….” As used in the definition of a matrimonial home under section 2 of the Act.[10] The lawyers seem to suggest that if a husband and a wife occupy one apartment on a block comprising four apartments then the whole of the block is matrimonial property. Indeed their reasoning is supported by the case of Kinzler Vs. Kinzler[11] where court found that a whole of the hotel not only the living quarters occupied by the couple to be matrimonial home since the whole hotel had only one door and one kitchen. However Judge Owiny-Dollo ( As he then was) in the case of Hellen Kipsoy Wafula V Equity Bank & Anor[12] gives the proper interpretation as he notes;
“There is one point of law I need to clarify here, as is shown above, section 2 of the Act clearly states that marital home is “a building or part of a building in which a husband and wife….the law refers to a building and in the alternative part of the building. it does not say a building or part which a husband and wife…. This is quite instructive. The plain meaning of the phrase ‘part of a building’ in the provision of the law is that it envisages a situation where a family may occupy only part of a building and as such, it is not the whole of the building so occupied that qualifies as matrimonial property.
This therefore means that if a family occupies an apartment on a block of four apartments, the whole Block is not matrimonial property but rather the part that is occupied by the family is what is termed as matrimonial property in the context of section 2 of the Mortgage Act, 2009.[13]
The mortgagor therefore has the duty to disclose to the Mortgagee that the property intended to be mortgaged is a matrimonial home or family land and this explain the reason to understand the definitions of both family land and Matrimonial home as discusses above.
1.2.3 Duty to disclose his or her marital status
An intending mortgagor has the duty to make full disclosure to the intending Mortgagee his or her marital status. This is mandatory under section 5(2) (b) of the Mortgage Act, 2009. This duty is to ensure that spousal consent is obtains in case the land to be mortgaged is a matrimonial home or family land. Who then is the Spouse of a mortgagor? A spouse is a husband or wife recognized by law. This means that for anyone to qualify as a spouse in Uganda he/she must be married in accordance with the marriage laws of Uganda. The forms of marriage recognizes in Uganda include Civil and Church marriage celebrated under the Marriage Act,[14] Customary Marriage under the Customary Marriage (Registration) Act,[15] Mohammedan Marriage under the Marriage and Divorce of the Mohammedans Act[16] and Hindu Marriage under the Hindu marriage and Divorce Act.[17] It should therefore be noted that if you are not married in accordance with the above laws you do not qualify as a spouse for purpose of giving spousal consent.
1.2.4 Legal effect of none disclosure
The Mortgagor who fails or neglects or refuses to disclose relevant information to a mortgage and which is in his or her possession commits an offence and is liable on conviction to a fine not less than 960,000 but not exceeding 2,400,000 Ugx or Imprisonment of 24 months but not exceeding 64months.[18] In Natty Ntare V Equity Bank & Anor[19] A mortgagor who lied about her marital status and that the property to be mortgaged is not matrimonial home to the mortgagee was found liable under section 4(2) of the Mortgage Act, 2009.
1.2.5 Duty to inform the Mortgagee on the intention to commence a suit
A mortgagor who intends to commence a suit or action in court in respect of the mortgaged land has the duty to notify the mortgagee. The mortgagee is informed through a notice in writing of the intentions and the nature of action which is to be commenced by the mortgagor.[20]
1.3 DUTIES OF A MORTGAGEE
A mortgagee is a person in whose favor a mortgage is created or subsists and includes any person deriving title under the original mortgage.[21] A mortgagee may mean an institution that advanced a loan to the mortgagor for example it can be a bank or a company licensed to carry out a money lending business. The Mortgagee has duties to perform before advancing a loan to an individual and these include;
1.3.1 Duty to conduct Due diligence
Due to fraud associated with land transactions, the mortgagee is under duty to carryout due diligence before advancing the loan to ensure that it does not involve legal risks. The mortgagee has the duty to conduct a search at the land registry to help to confirm the authenticity of the information on the title. The search at the registry helps to ascertain the right property ownership, identifying conditions on the land, pending rates or finding out if there is any other encumbrance on the title. The Mortgagee is also duty bound to visit the land intending to be mortgaged to see if there is any body in occupation of the land other than the mortgagor or if there are people with adverse interests on the land. This visit offers an opportunity to gather some information that the Registrar might not provide especially in regards to the history of the land.
1.3.2 The duty to ascertain whether the intended mortgager is married or not
This duty is intended for purposes of ascertaining Spousal Consent. Spousal consent is an important aspect as it provides for the security of occupancy of the spouse. As already discussed a spouse is on that is married under the marriage laws of Uganda. Where the Mortgagor discloses that he or she is married, the mortgagor is required to state the name and address of his/her spouse in a statutory declaration.[22] Similarly where the mortgagor states that he/she is married, the spouse of the person is required to make a statutory declaration to that effect. The mortgagor is then required to attach a copy of the marriage certificate or any other evidence of the marriage in the declaration.[23] In a similar way, when the mortgagor informs the mortgagee that he or she is not married, this information is given in a statutory declaration. The duty to find out whether the intended mortgagor is married extends to visiting the mortgagor’s home and surrounding areas to inquire in the marital status of the mortgagor. It also involves inquiries from local leader (LC leaders) on the marital status in the village where the mortgagor resides.[24]
1.3.3 The Duty to Ascertain Whether Or Not the Property Intended to Be Mortgaged Is Matrimonial Home or Family Land
The purpose of ascertaining whether property is matrimonial home is to enable the mortgagee obtain spousal consent which is very important issue when it comes to mortgages. Many banks have lost cases in courts of law for failure to obtain spousal consent which is a mandatory requirement when dealing with matrimonial property. This is because many intending mortgagors lie about their marital status while mortgaging matrimonial property and the bank do not carry out their due diligence to find out whether the properties subject to the mortgage is matrimonial property and therefore go ahead advance loans to such mortgagors. In the end the Mortgage is nullified by court and the banks suffer loss.[25] It is therefore paramount that banks effectively execute their duties in ascertaining that property is matrimonial property and obtain the necessary spousal consent.
1.3.4 Duty to provide independent Advice
In instances where matrimonial home is subject to an application for mortgage, the mortgagee has the duty to provide independent advice to the mortgagor’s spouse(s) for purposes of obtaining spousal consent. This duty is deemed to be executed when the mortgagee explains the terms and conditions of the mortgage in the presence of an independent person and when the Mortgagee advises the mortgagor that he or she should ensure that his/her spouse received independent advice on the terms and conditions of the mortgage which is being applied for and the spouse signed and witnessed documents to the effect that they received independent advice.[26] Not everyone is qualified to give independent advice, independent advice can only be given by an officer of the government, a justice of the peace, an advocate, a notary public, a bank manager, a minister of any religion authorized to celebrate marriages and a medical practitioner.[27]
1.3.5 Duty to disclose information
The mortgagee like the mortgagor has the duty to act honestly and in good faith and to disclose all the relevant information relating to the mortgage. The Mortgagee who fails or neglects or refuses to disclose relevant information to a mortgage and which is in his or her possession commits an offence and is liable on conviction to a fine not less than 960,000 but not exceeding 2,400,000 Ugx or Imprisonment of 24 months but not exceeding 64months.[28]
1.3.6 Duty to notify the mortgagor in case of default
A mortgagee is under duty to server a notice of default where a mortgagor fails to meet any obligations to pay the principal sum on demand or interest after a period of 30 days from the date when the obligation to pay becomes due.[29]The notice of default stipulates the nature and extent of default made by the mortgagor, the amount that must be paid to rectify the default, and the time in which the default must be made[30] and this time must not be less than 21 days.[31]The notice must be in writing and requiring the mortgagor to rectify the default in 45 working days.[32]
1.4 Conclusion
In conclusion to minimize the risk of losing money to dishonest mortgagors who fail to disclose vital information relating to the mortgage for example those who tell lies about their marital status and whether property to be mortgaged is matrimonial property, the mortgagees have to take all reasonable steps to investigate all information relating to the mortgagors including finding out if they are married and if the property to be mortgaged forms part of matrimonial home or family land. This means mortgagees have to move an extra mile of visiting the local areas of the mortgagor to ascertain whether they are married and whether the property intending to be mortgaged is matrimonial home to avoid financial risk.
[1] Oxford Dictionary
[2] Rights of the Mortgagee under section 20 of the Mortgage Act, 2009
[3] Section 2 of the Mortgage Act, 2009
[4] www.keydifferences.com/difference-between-mortgage-and-charge.html
[5] The Mortgage Act, 2009
[6]Section 2 of the Mortgage Act, 2009
[7] Section 4 of the Mortgage Act, 2009
[8]Section 38A (4) of the Land Act, Cap 227 as Amended
[9] Section 2 of the Mortgage Act, 2009
[10] Mortgage Act, 2009
[11] [1985] Fam Law 26 CA
[12] HCCS No. 153 of 2013
[13] Hellen Kipsoy Wafula V Equity Bank & Anor (HCCS No. 153 of 2013)
[14] Cap 251
[15] Cap 248
[16] Cap 252
[17] Cap250
[18] Section 4(2) of the Mortgage Act, 2009
[19] HCMA No. 16 of 2015
[20]Section 13 of the Mortgage Act, 2009
[21] Section 2 of the Mortgage Act, 2009
[22]Regulation 3 of the Mortgage Regulations, 2012
[23]Regulation 3 of the Mortgage Regulations, 2012
[24]Julliet Dushabe Twongyeire Vs. Orient Bank and 2 others ( HCCSNo. 131 of 4014)
[25] ibid
[26] Section 6(1) of the mortgage Act, 2009
[27] Section 6(2) of the Mortgage Act, 2009
[28] Section 4(2) of the Mortgage Act, 2009
[29] Section 19(2) of the Mortgage Act, 2009
[30] Section 19(3) of the Mortgage Act, 2009
[31] Section 19(2) (a) and (b) of the Mortgage Act, 2009
[32] Section 19(1) of the Mortgage Act, 2009