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How to form a SAACO in Uganda

If you are a regular Ugandan living in this current economy, you have probably joined or thought about starting a SACCO. A SACCO (Savings and Credit Cooperative Organization) is a group of people with similar interests who come together to form a credit union. The union is registered with the Ministry of Cooperatives, which in turn authorizes the SACCO to receive deposits and provide loans to its members.

SACCOs are a unique, democratic, member-driven, and self-help cooperative organization where members agree to save their money together and offer loans to each other at reasonable rates of interest. Interest is charged on loans, to cover the interest cost on savings and the cost of administration. SACCOs are a great way to save money and grow your income base.

To form a SACCO, members must satisfy the conditions under S. 4 of the Cooperative Societies Act. A SAACO must be comprised of at least 30 members, and all must be qualified by S.13 of the Act. Said member to qualify must have attained the age of 18 years and should be a resident or in occupation of land within the society’s area of operation.

“Small amounts saved daily add up to huge investments in the end.” 

– Margo Vader

REQUIREMENTS

A SAACO is a legal entity and therefore is required to satisfy all the legal requirements to be registered.

1. Name of community

Like anything, the name of any organization or company is the most important thing. While picking a name, the law requires that said name should reflect elements of domicile, and economic activity of its members and should bear the words Saving and Credit Cooperative Society.

2. Members

The minimum number of members required to start a SAACO is thirty members. This means that once a group has below 30 members/ individuals, it cannot register as a cooperative company. The beauty of it all is that the law does not really provide for an upper cup and therefore the members can be as many as possible.

Another major requirement for members is for them to have a common bond with other members. A person should either be a resident or own land in the area where they are registering the cooperative society. This is a form of accountability for members and makes it easy for members to trace each other in case loans are taken on and members disappear without a known identity. 

Requirements for Registration of a Cooperative Society

A license or Permit to operate a SACCO can be obtained from Uganda Microfinance Regulatory Authority. A SACCO shall not carry on the business of financial Services unless it is

  1.  A  registered society
  2. Licensed under the Act.

Prepare the necessary background and relevant information then fill up the appropriate application form as described by the Microfinance Regulatory Authority. The documents to be attached to the application form include:

  1. a certified copy of the certificate of registration issued under the Cooperative Societies Act;
  2. the organizational structure and management of the registered society;
  3. the business plan of the registered society;
  4. the credit policies and lending policies of the registered society.

After filling out the form proceed to pay the prescribed fee. Submit the duly filled-in form and attached it with the pay slip to the Finance Officer in charge of SACCO Registration.

Ensure that the application fee is submitted and all required information is included with the application.

Collect your SACCO License certificate from where your application was submitted within 21 days from the date the application was received at Microfinance Regulatory Authority in case there is no rejection.

Instructions To Register SACCO In Uganda

OFFENCES: The Computer Misuse (Amendment) Act 2022

The industrial age is done and we now live in the present digital age. You must have noticed that the generation that we live in today is practically a digital kingdom. Every household today will possess a computer, phone or digital device. With this fact, we are constantly transferring information daily with a simple double tap and click of the share button.

While this may be the world we live in today, the Ugandan Computer Misuse Act that was enacted in 2011 was drafted to enhance safety and security in our increasing digitalized environment through the prevention of unlawful access, abuse or misuse of information systems. Since then, the Computer (Amendment) Act 2022 has officially been passed into law. The Act promoter emphasized that the existing laws did not specifically address any regulations of information sharing on social media.

The need to amend the Computer Misuse Act, of 2011 rose due to advances in technology, an upsurge in cybercrime, and controversial provisions that rendered the law a tool for suppressing dissent.

The objectives of the amendment Act include;

i) To enhance the provisions on unauthorised access to information or data;
ii) Prohibit the sharing of any information relating to a child without authorisation from a parent or guardian;
iii) Prohibit the sending or sharing of information that promotes hate speech;
iv) Prohibit the sending or sharing of false, malicious and unsolicited information;
v) To restrict persons convicted of any offence under the Computer Misuse law from holding public office for 10 years.

“You are what you tweet.” 

Alex Tew, Founder & CEO of Calm

OFFENCES UNDER THE ACT.

An offence under this Act is committed when a person, without authorisation accesses or intercepts any program or data or video records, or voice or shares another person’s information that relates to that person commits an offence. This would mean that any tweet/retweet, share, or comment on any digital information without their permission would amount to an offence under the Act.

The Act also prohibits the unauthorised sharing of information about children. A person who wishes to share or transmit any information about a child on a computer must obtain consent from said child’s parent, guardian or any person having authority to make decisions on behalf of the child. This extends to social media as well.

Provisions in the Act tackle hate speech, providing that a person shall not write, send or share any information through a computer that is likely to ridicule, degrade, or demean another; creates division among persons; or promote hostility among the group of persons, tribe, ethnicity, religon or gender.

Sharing of unsolicited information, misleading or malicious information relating to that person is prohibited under the Act. Unsolicited information means information transmitted to a person using the internet without the person’s consent but does not include unsolicited commercial communication.

Cyber harassment is prohibited under the Act. The use of a computer for making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent and threatening to inflict injury or physical harm to the person or property of any person or knowingly permitting any electronic communications device to be used for any of the purposes mentioned is cyber harassment.

Many concerns have arisen after the passing of the Act. The previous Act was used previously used to suppress digital rights including free expression and access to information which is a fundamental constitutional right. Despite this concern, the Act might be eminent to address the emerging technologies it seeks to address. Regardless like most laws passed only time will tell.

European Union’s resolution on EACOP Project

You might know a pipeline simply be a long pipe that runs underground for the sole purpose of conveying oil. The East African Crude Oil Pipeline Project is no different and started in 2006 when oil was first discovered in Uganda. The pipeline will transport oil produced from Uganda’s Lake Albert oil fields to Port Tanga in Tanzania where oil is to be sold to the would-be markets.

The completion of this pipeline gives East Africa an upper hand presenting them with opportunities to boost the economies of both Uganda and Tanzania, providing tax revenues for the two Host Governments, job creation, national content, new infrastructure, logistics, skills, foreign direct investment and enhancement of the trade corridor between Uganda and Tanzania.

The European Union parliament has recently condemned and urged Total Energies to postpone the project, to enable feasible studies to explore an alternative route to safeguard protected and sensitive ecosystems and the water resources of Uganda and Tanzania. Given the expectation that the oil transported will be permanently heated at about 50°C to transport, the EU has argued that this will make it the longest heated pipeline in the world causing fears of increased violation of human rights and a risk of poisoning Uganda’s water bodies and wetlands causing a dent in our environment.

This pipeline would transport 200,000 barrels of oil per day and generate up to 34 million tons of carbon emissions each year. While their arguments and fears may be valid, however, the question that remains to be answered is whether the European Union has a valid say in the affairs of African countries. 

It is very rare for a child of God to find gold and crude oil on the floor to fetch. He/she must dig and dig deeply well!

Israelmore Ayivore

The resolution arises after continued protests from several Environmental Activists against the project. President Museveni stated that the project will continue despite the European Union’s resolution. The resolution may have a massive effect on the social-economic growth of both Uganda and Tanzania. This includes a loss of job opportunities that were promised to several people and a decrease in investments. For the EU to have such a massive influence on the decisions that affect Africa’s economy is questionable given that both states are fully independent and able to address their internal processes. This decision carries the following implications;

i) In 1062, resolution 1803 passed by the United Nations general assembly gave countries permanent sovereignty over their natural resources. Every country after this was allowed to explore and utilize its natural resources as they deemed fit. The current resolution made by the European Union against the EACOP project is a violation of this right to sovereignty and freedom to their natural resources for their social-economic growth.

ii) The argument that the pipeline will have great environmental implications is quite invalid, given that majority of the global gas emissions is present within more developed countries than in Africa. This shows that this is a direct frustration of the project.

iii) The countries involved, that is Uganda and Tanzania, need to pursue measures that place the EU’s fears to rest providing for technical ways to ensure environmental management to avoid any environmental issues that may arise. 

iv) A definite setback is bound to occur incase Uganda or international companies that have committed to invest in the projects withdraw. It’s important to note that this decision is not binding but if any game players decide to comply, that would delay any processes that have started.

We do not agree with this decision, and to give our country a fighting chance to overturn this resolution and place the reins back in our hands we call you to sign the following petition below:

Denounce EU Parliament Resolution to halt EACOP! | SumOfUs Petitions

INTEL ON INTEL

A CASE STUDY

Brief facts:

In August 2022, the Commercial Division of the High Court in Kampala rendered a decision on the contentious issue of whether a company name registered in Uganda before a trademark owner can amount to trademark infringement.

In the case of Intel on Intel, the plaintiff, Intel Corporation was founded in 1968 by two pioneers in the semiconductor industry. They adopted the ‘dropped e logo’ as a trademark in that same year and first registered its INTEL trademark in class 9 in the US in 1972. The same mark was registered in Uganda in 1999, and subsequently in class 42 in 2011. 

Intel on Intel
Credit: Pixabay

The defendant, INTEL Computers Limited was incorporated in Uganda in 2002 and used the name INTEL in its company name, as well as using the dropped ‘e’ INTEL logo on its storefront. The defendant deals in computer equipment, repair, software installation and networking services. 

INTEL Corporation sued the defendant for trademark infringement based on sections 36 and 37 of the trademarks act 2010 and sought orders directing the defendant to change its company name to one that does not incorporate the INTEL mark. The defendant argued that it registered its company in good faith and that there is no likelihood of confusion between its company name and the business it does, with that of the plaintiff. 

INTEL Corporation presented evidence showing that the INTEL trademark is its primary trademark which it uses on or in association with virtually all aspects of its business, including products, services, packaging, communications, social media and advertising. The plaintiff also was not merely a microprocessor company but a multi-faceted business spanning health, computers and other areas which due to the internet are inter-connected. Further evidence was given to show that the use of the INTEL word in the defendant’s storefront with a dropped ‘e’ logo amounted to infringement, as it is a copy of its dropped ‘e’ logo. The plaintiff argued that the use of the defendant’s name INTEL Computers increases the likelihood of confusion as it is descriptive of the plaintiff’s field of operation.

The defendants argued that there was no trademark infringement because they had conducted a company search and found the name INTEL Computers was available for registration as a company, after which it was incorporated. There was a further argument for the fact that their core area of business is a provision of computer repair services which they began many years before the plaintiff registered its trademark in class 42 for computer-related services.

According to the defendant, there is no conflict between the parties’ interests as the plaintiff’s trademark was registered for the protection of goods and only much later did they file for trademark protection for services, after the defendant had registered their business. Lastly, the defendant claimed that over the 9 years it has been in existence, it has gained substantial goodwill and recognition in the repair and installation of software for its small-scale consumers.

The court decided in favour of the defendants that the use of the word INTEL and the dropped ‘e’ logo did not amount to an infringement on the part of the defendants. 

The designer’s role in the development, application and protection of the trademark may be described as pre-creative, creative and post-creative.”

Lester Beall

Analysis:

It would be undone if we analysed this case without properly understanding what a trademark is and what would constitute an infringement thereof. A trademark is a legal protection given to any word, name, symbol, or design that is used to identify the product of one manufacturer from another. With the rise of businesses, a trademark helps a layman identify one product from another. The commonest example of this is Coca-Cola. Its trademark helps us distinguish it from other sodas. The value of a registered trademark is not limited to the name alone but extends to other parts of a company’s brand, for example, the shape of a Coca-Cola bottle is trademarked to its brand. 

What amounts to the infringement of a trademark? 

Once a trademark is duly registered, it confers particular rights upon the owner thereof including the right to prevent unauthorised use of that trade mark by third parties concerning the goods or services specified on the register. A third party may use an identical mark on similar goods and services as in the case above, however, for an infringement to be established, it must be shown that:

This argument was argued by the plaintiff and to establish the above criteria the following factors, the court will take into account the following factors;

We beg to disagree with the court’s decision in the case, especially given that the use of a trademark should extend to all kinds of commercial recognition. The trademark INTEL is used widely in Uganda given the fact that close to 80% of computers operating within our borders run on INTEL processors. The defendant’s use of INTEL in their company name and their storefront is bound to cause confusion that the plaintiff feared given that the defendants are in the same line of business. The adoption of the dropped ‘e’ logo also amounts to an infringement of the plaintiff’s trademark. The use of the dropped ‘e’ logo may not have been as innocent as the defendants argued. 

This case overall sets a bad precedent in regards to the infringement of trademarks.

How to adopt a child in Uganda

It is said that in every person’s life, there is always a family we have, and a family we choose. Ideally, your natural family is one of the families we don’t get to choose. Legally, however, a family or individual may have the opportunity to defy these odds through adoption or guardianship.

Adoption is the legal process where a person permanently assumes parental rights and responsibilities for a child from his or her biological parents.

Guardianship, on the other hand, is the process whereby a person is appointed by the court to take care of a child, with this, they acquire temporary parental rights and responsibilities.

Credit: Pixabay

 “Adoption – because family isn’t made from blood, it’s made from love.”

Unknown

Who can Adopt?

Adopting a child may be simple enough on paper, however, the law presents a few conditions that allow a prospective parent to adopt. These are; 

A. Citizen Adoption 

i) A person at the age of 25 years can adopt a child however a prospective parent must be 21 years older than the child to gain custody. 

ii) A prospective adoptive parent must have fostered the child for at least 36 months under the supervision of a probation officer. 

iii) In circumstances where the prospective adoptive parents are a couple, they must be able to adopt a child jointly.

iv) A single parent can also adopt a child however, they are not allowed to adopt one of the opposite sex save for exceptional circumstances. 

v) Prospective adoptive parents must be in good physical and mental health as determined by a medical practitioner.

B. Foreign Adoption

i) For a foreigner to adopt a child, the prospective parent must have fostered the child for at least 36 months while in Uganda under the supervision of a Probation Officer.

ii) A foriegn adoptive parent must;

a) Have no criminal record 

b) Have been approved by their country of nationality to adopt

c) They must possess proof that their country will respect the Ugandan adoption Order.

d) Must meet the same requirements for adoption as a citizen.

CONSENTS

A prospective parent will require the following consent before they are allowed to adopt a child;

 a) Under circumstances where a child’s parents are; known, alive, of sound mind and can be found, consent must be given for the said child to be adopted. 

b) Children who are of 14 years and above must also consent to the adoption. 

c) A child or parent is at liberty to withdraw their consent to adoption before the adoption order is made. They are also allowed to challenge said adoption in circumstances where consent wasn’t obtained legally. 

ADOPTION ORDER

The adoption order must be registered with the Office of the Registrar General, Probation office and National Council for Children. Where the prospective parent is a foreigner, the court will order that the Adoption Order be registered with the Embassy of Uganda in the country of the adoptive parents. 

Bankruptcy in Uganda

If you have ever been broke, you may understand the concept of bankruptcy. While these two terms of brokeness and bankruptcy are different and yet are in most cases the same. A state of bankruptcy is created when you are unable (not in a financial position) to pay your debts. This is not a term one can pose on themselves lightly.

In reality, it is up to a court to decide whether an individual is bankrupt or not. In such an instance, the court will declare that said person cannot clear/pay their debts and meet their financial obligations. There is a misconception that when one is declared bankrupt then they would automatically be exempt from their debts. Like a free pass. Now, this may seem like the perfect dream it is absolutely untrue.  No, bankruptcy only allows bankrupt individuals the liberty to pay off their debt in their own time as they would have no alternative avenues to do so at that time.

Credit: differencebetween

It is said that the world is in a state of banckruptcy, that the world owes the world more than the world can pay

Ralph Waldo Emerson

Bankruptcy is not a private affair. Once an application for bankruptcy is made, it is required that all creditors are informed of your status. This is done through a public notice such as a newspaper. It is also required by law that once a person is declared bankrupt, they would not withhold this information from the public as this would mislead them.

Once the court has declared a person bankrupt, a court order known as a bankruptcy order is issued. This order carries the following implications;

i) The court shall appoint an official receiver who will take over management on behalf of one who’s been declared bankrupt. An official receiver is vital at the initial stages of a bankruptcy order as they will take over the property and assess how debts are to be paid. To do this, all creditors are called to discuss a way forward.

ii) All property will be transferred into the names of the official receiver. This is not a transfer of title, however, this step makes it easier for property to be sold off to settle the debt. This also means that one would lose total control of their property in such a situation.

Not all property is meant to be sold to settle debt and the court is at liberty to order this. These include;

a) Matrimonial home

b) Clothing

c) Property held in trust by the bankrupt

Can a person who is bankrupt acquire property?

One may be concerned about whether they may still be able to acquire property after being declared bankrupt. The assumption would be that they wouldn’t, however, a bankrupt person is allowed to acquire property by buying it, through inheritance or even a gift. Though this is a privilege they still possess, the condition would be that they would acquire said property through a Trustee. Once this happens, the bankrupt must inform his trustee that there has been an increase in his income and has been able to acquire property. Withholding this information from a trustee will be considered an offence.

The Kampala Protocol on the voluntary registration on copyright and related rights

The Protocol on voluntary registration of copyright and related rights is the fifth Protocol to be administered by the African Regional Intellectual Property Organization (ARIPO) which is an inter-governmental organization (IGO) that facilitates cooperation among the Member States in intellectual property matters, intending to pool financial and human resources and seek technological advancement for economic, social, technological, scientific and industrial development. The protocol aims to ensure that creatives benefit from their works and are commercially incentivised- through copyright to create more and explore new markets.

Credit: ARIPO

Intellectual property is the key aspect for economic development

Craig Venner

The Protocol has the following objectives:

  1. To establish, manage, facilitate and coordinate a system for voluntary registration
  2. To uphold common principles regarding voluntary registration and notification of copyright and related rights
  3. To provide copyright holders means of presumption to authorship or ownership of rights
  4. To ensure that creative industries contribute to the socio-economic development of countries. 

The Protocol governs the contracting states in the voluntary registration and notification of copyright and related rights. These states currently include; Botswana, Cape Verde, Kingdom of Eswatini, The Gambia, Ghana, Kenya, Kingdom of Lesotho, Liberia, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Seychelles, Sierra Leone, Somalia, Sudan, Uganda, United Republic of Tanzania, Zambia and Zimbabwe. To effect voluntary registration as per the protocol, the ARIPO has placed particular measures in place.

The Protocol was adopted  on August 28, 2021, in Kampala, here is what you need to know:

The ARIPO database. 

ARIPO has established a database into which data on copyright and related rights registered or notified under this Protocol shall be entered and kept. It will manage, update and maintain a database. This database shall be a point for reference and search by any person to whom access shall be granted by ARIPO upon fulfilling the requirements prescribed under the regulations. To have access to the ARIPO database for copyright and related rights, one shall make an application to ARIPO in a prescribed form upon payment of the prescribed fees.

National competent authority. 

A contracting state shall notify ARIPO of a body or entity designated as its national competent authority responsible for undertaking the registration of copyright and related rights at the national level; or may designate ARIPO to undertake the function of registering copyright and related rights on its behalf. It shall also be responsible for receiving and maintaining data on copyright and related rights at the national level.

Application for voluntary registration and notification of copyright and related rights. 

The author or the owner of, or other people interested in the copyright or related rights in, any work or production may make an application in the prescribed form accompanied by the prescribed fee to the national competent authority or ARIPO for registration of particulars of the work or production in the database. This procedure is prescribed under the respective regulations. 

Registration of copyright and related rights 

The national competent authority or ARIPO; may accept the application; or refuse the application where it does not comply with the requirements provided for in the Protocol and its regulations. Where an application is accepted, the copyright or related rights shall be registered and entered into the database. The registration of copyright and related rights shall be prima facie evidence of the particulars entered in the database and documents purporting to be copies of any entries therein. Extracts therefrom certified by ARIPO and sealed with the seal of ARIPO shall be admissible in evidence in all courts without further proof or production of the original.

Notification of registered copyright and related rights

 A national competent authority of a contracting state shall, upon registration of a copyright or related right, notify ARIPO within the period as prescribed in the regulations. The notification shall be made in a prescribed form accompanied by a copy of the registration certificate or proof of registration issued by the national competent authority. The owner of the copyright or related rights shall pay the prescribed fee as specified under the regulations. ARIPO shall upon receipt of notification and fees enter the copyright or related rights into the ARIPO database. 

Withdrawal of application 

A person who has fled an application may, in the prescribed form at any time before registration, apply for the withdrawal of the application. 

Cancellation of registration 

A national competent authority or ARIPO shall cancel the registration of a copyright or related right in the following circumstances: where the initial registration was erroneously made; where the initial registration was fraudulently procured; by an order of a court or any other competent authority, or according to the law of the contracting state. Cancellation may be initiated by: a national competent authority or ARIPO; a copyright or related rights holder; or a person aggrieved by the registration of a copyright or related right in the prescribed form. ARIPO shall within a prescribed period, notify a relevant national competent authority of the cancellation and where cancellation is made at the national level, the national competent authority shall notify ARIPO of the cancellation. 

Removal from ARIPO database 

ARIPO shall remove the copyright or related right from the ARIPO database where a cancellation has been made or there is a clear error made by the entry into the ARIPO database. 

Change in ownership or variation of particulars 

A person shall apply for a change in ownership of a copyright or related right to a national competent authority or ARIPO as the case may be. The owner of th3 registered copyright or related rights shall as soon as practicable apply for the registration of any variations to particulars through the national competent authority or ARIPO as the case may be. This application may be accepted or rejected. Where an application is accepted by ARIPO it shall be entered into the ARIPO database and ARIPO shall notify the national competent authority. 

Dispute Resolution 

Any dispute or claim arising out of this Protocol may be resolved through direct negotiations between or among the Parties in dispute. Where negotiations fail, the Parties shall submit the dispute to the dispute settlement forum as provided for in the regulations. Where a dispute arises between applicants and third parties on the application or interpretation of this Protocol, ARIPO, in consultation with contracting states, shall provide for dispute resolution mechanisms applicable to such a dispute.

The New Succession Act and Women

If you have been following the law in Uganda recently, you will notice that many of our laws have been subject to amendments and the Succession Act Cap 162 is not an exception.

Losing a spouse is devastating, however discovering that you may not be entitled to an inheritance based on your sex is double the trouble. The term ‘man’ may be used to mean both man and woman in some places but under the law, this has been subject to interpretation. As we discuss the law of succession, it would be unfair not to discuss the rights women have under the law concerning the property.

Originally, a woman only had rights as far as being a wife, however,  the case of Women in Uganda v. Attorney General ruled that several of the provisions in the Succession Act Cap.162  were unconstitutional as far as they discriminated based on sex and did not accord equal treatment in the division of property between male and female. The current Succession (Amendment) Act seeks to accord equal rights between men and women and bring the Act in conformity with the Constitution.

Credit: MIn of Justice and Constitutional affairs

The new legislation now says a woman, whether divorced, has a claim to the estate, especially on things achieved while the marriage subsisted.

Parliament of Uganda

Grounds for amendments (Sections of the Act that required Amendments.)

To tackle this query, we must look into Sections 2(n)(i) and (ii)of the Succession Act, which defined a ‘legal heir,’ as a male heir and neglected to mention a female one. This insinuated that only a man possesses the right to own property and yet the Constitution of Uganda under Article 26 gives rights to all citizens to own property. What would happen if the deceased only had female children or descendants?

The provisions of sections 14 and 15 provided only for the domicile of a wife during marriage to take the husband’s domicile and there was no provision for a husband to take the wife’s domicile. Domicile is the country a person treats as their permanent home or lives in. Therefore it was required that a wife by default would live where her husband was living.

Sections 26 and 29 of the Act and Rules 1, 7, 8, and 9 Schedule to the Act provided for occupancy of the matrimonial home. Under these sections, a woman ceased to occupy the principal residential property if she remarried but was silent on the same for men who remarried. 

The distribution of the property of intestate deceased persons was provided for Section 27 of the Act, which had no provision for when a female died intestate.

Under sections 43 and 44 of the Act, which provided for the appointment of the testamentary guardian, it was only a father who, by will, could appoint a guardian or guardians for his child during minority and there was no provision for a mother.

Amendments made in this regard:

Gender-neutral language: 

The previous Act used discriminatory words like “a married woman or woman.” The Succession (Amendment) Act changes these words to the spouse and “man” to “person. It inserts immediately after the word “his” the word “or her”, “father” the word “or mother”, “son” the words “or daughter.” This makes every provision gender neutral allowing both women and men to be catered for under the act.

Distribution of Property

The Act revises percentages for the distribution of an estate. Where an intestate is survived by a spouse, a lineal descendant, a dependent relative and a customary heir, they are now entitled to 20%of the property while reducing that of dependant relatives from 9% to 4%. In instances where there are no dependant relatives or children then a surviving spouse is entitled to 99% of the deceased property. This honours a spouse’s right to own property after the death of their loved one. This allows for fair distribution of property in instances that a person dies intestate. 

Residential Holdings: 

A spouse is entitled to the family home whether a will exists or not. A family home is not part of the property that is to be distributed and it is an offence to chase the surviving spouse from their family home. The residential holding of a deceased person shall devolve equally to the surviving spouse and lineal descendants who were normally residents and any person who evicts or attempts to evict them commits an offence and is liable to a penalty. The descendants shall be deemed to hold the property as joint tenants. This repeals the provision in the previous Act that allowed a female surviving spouse to lose her marital home upon the likelihood of her remarrying.

Domicile: 

The Acts introduce domicile of choice where a person may upon marriage, acquire the domicile of his or her wife and upon dissolution of marriage, a spouse may acquire any other domicile. In addition, the Bill repeals the provision that provides a woman’s domicile following her husband.

Maintenance

The Act extends maintenance to spouses, children, lineal descendants and dependants who can apply to the court for maintenance if they are left out in the will.

Money Lending as a Business

With the way the economy is moving, it’s no wonder that the money lending business is on the rise. If you have ever needed finances urgently, you have possibly considered contacting a money lender. If you are considering a business idea, and have some extra money laying around, money lending may just be the perfect business plan.

It is not uncommon for borrowers to choose this income line because of its high lending rates. Banking institutions offer a tedious process of accessing credit and yet when the demand arises, it will surely give you comfort to acquire the credit required urgently. This seems like a quick fix solution, however, money lending is not void of challenges.

While starting a money lending business may be lucrative, it has exposed money lenders to crook borrowers, not willing to pay and giving securities that are hard to realise. It has also exposed the borrowers to the vagaries of money lending sharks all out to grab securities instead of realising their money. Here is what you need to know about the business of money lending. 

Let us lend cheerfully, for the time is pretty sure to come when we will wish to borrow

James Ellis

The Tier 4 Microfinance Institutions and Money lenders Act was enacted to protect the borrowers against bad lending and unethical practices of the lenders, to build confidence in microfinance business, and promote financial inclusion. This Act repeals the Money Lenders Act Cap 273, which required moneylenders to simply apply for a Money Lending License from the Chief Magistrate’s court. The new Act however creates the Uganda Microfinance Regulatory Authority under section 6 as a body corporate with perpetual succession and a common seal with functions among others to regulate and supervise the money lending business in Uganda. 

The regulatory authority carries the following functions:

i) To grant, renew and revoking of money lending licenses

ii) To keep and maintain a register of money lenders

iii) Sensitising the public about the money lending business 

iv) To conduct inspection and examination of books of accounts, records, returns, and other documents or premises of a money lending business

v) To conduct an enquiry into the money lending business.

How to start a money lending business?

Only a private company registered under the law can start a money lending business. Individuals are prohibited from lending money in a business form but not on a friendly basis. This company must not be involved in the business of banking or insurance, a society registered under the Cooperative Societies Act, or a body incorporated or empowered by an Act of parliament to lend money. 

A company interested in venturing into this type of business can do so by making an application for a money lending license made by writing to the Authority and providing the certificate of incorporation of the Company, the particulars of the directors of the Company; a resolution of the particulars of the secretary of the company; the postal and physical address of the company and the prescribed fees. Upon application, the authority within three months after receiving an application shall consider the application and if satisfied that the applicant meets the requirements issue a license to the applicant. A license issued expires on the thirty-first day of December every year and shall specify the name, under which the address at which, the money lender is authorised to carry on business, and shall not authorise a moneylender to carry on business under more than one name. 

The Authority may however refuse to issue a license for money lending where shareholders and persons responsible for the management of the company or firm are not of good character or if the applicant or any person responsible for the management of the company is convicted of an offence relating to embezzlement or any other financial impropriety and failing to comply with the requirements of the Act. The condition of good character is ambiguous as the Act does not specify the condition that amounts to good character.

The Authority can only effectively refuse to grant a license based on one’s antecedents or criminal record where they synchronize information management systems with National Identification and Registration Authority; the security systems and the judiciary.  The license is issued upon payment of the prescribed annual fees in respect of the money lending licensing. Its renewal is triggered by an application for the same. The Authority has the discretion to renew the license or decline to do so where the moneylender violated provisions of the law or conditions of the license.

It is an offence for a person to carry on business as a moneylender without a moneylending license or in a name or at a place other than the name or address specified in the money-lending license. The court may order such a person’s money lending license to be revoked or disqualify that person from engaging in money lending business. To address the discrepancies and extortionist contracts, the Act prescribes a form of money lending contracts. A money lending contract shall be in writing and shall be signed by the money lender and the borrower and shall be witnessed by a third party. It shall state the date the loan is disbursed; the amount of the principal loan; the interest charged on the loan expressed in terms of a per cent per year; the nature of the security, if any; the duties and obligations of the borrower; the mode of repayment; the nature of guarantors, if any; and the duties and obligations of the borrower; the mode right to early repayment. 

A money lending contract is only illegal and unenforceable if it directly or indirectly provides for a compound interest or the rate or amount of interest being increased because of a default in the payment of sums due under the contract. A lender can only charge simple interest on the sum due from the date of default till payment in full. Charging an interest bigger than the prescribed maximum interest rate commits an offence.  A money lender is required to issue receipts to the borrower immediately for every repayment made on a loan and to keep a record which shall contain the date on which the loan was disbursed, the amount of the principal loan, the rate of interest, the sum repaid on the loan and the date on which the repayment is made. 

Understanding an arbitration agreement

In the past weeks, we have been discussing Alternative Dispute Resolution and why it would be the perfect option for aggrieved parties who would desire to resolve a conflict or a case.

Though ADR is the most desirable path for parties to take, it is not one that one can just stumble into. Our law provides for three major avenues through which prospective disputants might find themselves in arbitration proceedings. Of course, to establish we must first understand which cases can be brought to court for arbitration. 

Credit: differencebetween

Abritration is justice blended with charity

Nachman of Breslov

What can be arbitrated?

The Arbitration and Conciliation Act does not expressly state which matters can be arbitrated and those that cannot. By implication, however, only matters that fit the requirements for arbitration can be arbitrated, and therefore all other matters that do not meet the requirements are not competent for arbitration. 

For this to happen, there must be a valid arbitration agreement. This means that the arbitration agreement must first and foremost meet all the requirements of a valid contract. An arbitration agreement must be in writing, and this includes other means of telecommunication that provides a record of the agreement. 

According to the Act, the reference in a contract to a document containing an arbitration clause shall constitute an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. In that case, the dispute in question must relate to those matters in the contract that the parties have agreed to refer to arbitration. 

An arbitration agreement creates contractual obligations and is governed by the very rules that govern the law of contract. It, therefore, has the same binding and enforceable effect as any other contract. The act provides that arbitration may be challenged if, inter alia, a judge finds that the arbitration agreement is null and void, inoperative or incapable of being performed. The same tests and standards applied to challenge contracts would be used to determine the validity of any arbitration agreement. 

In the case of Tullow Oil Vs Uganda Revenue Authority, an oil and gas agreement existed between Tullow oil and Uganda, it provided for arbitration in case of a dispute. A dispute arose concerning taxes owed to Uganda Revenue Authority. Tullow oil attempted to refer this dispute to arbitration in London as per the contract however, the Ugandan courts disagreed stating that in principle, there can be a contract relating to tax obligations between parties because tax obligations are imposed by law and are not negotiated by parties. Therefore there cannot be a valid arbitration agreement concerning a matter determined by law. 

After a case has been submitted for arbitration given a valid arbitration agreement, an arbitration award is issued to the parties. An arbitration award carries the same effect as a decree of court as it is enforceable as though it were an order of the court. The successful party is to apply to the court for enforcement and furnish proof of a valid arbitration agreement and the original arbitral award or a duly authenticated copy of it.

The following are the arbitration avenues available under Ugandan Law:

1. Before a case commences, during scheduling. 

This procedure is a scheduling conference. This step is mandatory as it demands both lawyers for the prospective litigants to meet before a judicial officer to agree on what questions they will present to the court, not forgetting the facts of said case and the evidence they intend to furnish during said proceedings. The purpose of this is to reduce the backlog that may come with pursuing court proceedings. We have mentioned how much court proceedings are a tedious affair. Under this procedure, the judicial officer will determine beforehand, if the case is suitable for arbitration. 

For a judicial officer to come to this conclusion, it must be established that there are no questions of law involved or that both parties are guilty in some respect and cannot agree on who takes more blame. The court will refer the matter to arbitration even before it is set down for hearing. 

2. Court Referral:

Under this procedure, a court hearing a case, at any time during the proceedings, refer the case to arbitration, if the court deems that the case can best be concluded by arbitration. A party to ongoing court proceedings may make also make a formal application to the presiding judge for the case to be referred to arbitration. However, the court may in the exercise of its discretion refer a case to arbitration even without application from either party. 

The perfect example of this is in domestic cases or other cases where the court determines that it is in the interest of the parties that their relationship is preserved. Similar to the first procedure, parties are free to appoint their arbitrator, but if they cannot, then the court appoints one for them. 

3. By Nomination:

Parties to a dispute may decide on arbitration as a preferred form of dispute resolution concerning disputes that arise out of a legal relationship between them. This is voluntary, and all that is required is the existence of a valid arbitration agreement. In this instance, parties nominate their preferred arbitrator, the rules applicable, the seat of arbitration and even the procedures to be followed as long as the procedure does not derogate the minimums guaranteed by the law like the right to be heard or to be represented by counsel of one’s choice.

What is the role of the courts in arbitration?

The Arbitration and Conciliation Act expressly forbids the intervention of courts except as permitted under the act. A court’s role is limited to the following:

  1. The enforcement of awards
  1. Determination of questions of law that may arise only if parties so elect
  1. Taking evidence where required
  1. Hearing appeals and challenges to awards
  1. Provision of interim measures.