At 8.00pm on Wednesday 26th June, News broke that Parliament had passed the Landlord and Tenant Bill 2019 in its original form despite several pleas from landlords, tenants, the financial sector, and more recently some enlightened members of parliament and Cabinet ministers to review the bill and make it fit for purpose. So, what does this mean moving on?
My newspaper article last year (https://www.ceo.co.ug/taxing-landlords-real-estate-should-not-be-treated-like-fast-moving-consumer-goods/), labored to explain the dire consequences of passing the bill as had been originally drafted. For the record, and avoidance of doubt, I will reiterate some of the points I raised in that article. I am a proponent of legislation. Good legislation that will enable a strong and stable property market by encouraging and attracting local and foreign investment, creating employment in this sector, and growing our tax revenue and economy ultimately.
Contrary to what the parliamentarians are claiming, the bill as it is in no way protects the small trader or tenant, actually, it has just made their situation worse, by making them more prone and susceptible to the consequences of a weakening shilling and arbitrary rent increments. On a more macro level, the bill has diminished the comparative advantage of Uganda over other countries as a real estate investment destination for foreign and local investors who invest in hard currencies like the US dollars, for hard currency rental income streams and better yields on investment.
It would have been more practical to separate the act regulating commercial and residential tenancies, instead of having them regulated under the same Act. For obvious reasons, these tenancies are different and cannot be regulated the same way. The law regulating an apartment, will not be applicable to that regulating a shopping mall. For example, the capital costs incurred by a residential tenant to fit out their apartment with movable fittings, cannot be compared to those incurred by a retailer in a shopping mall. Some retail anchor tenants incur fit out costs of up to $5m! As such, the latter will require guaranteed tenure for the lifespan of their tenancy whereas residential tenants require the flexibility of notice periods. The bill as passed, has protected small traders from the fixed term of a lease but will impact significantly on commercial tenants as they are not in a position to set up business where they cannot guarantee the full tenure.
The cause of arbitrary rental increments, specific to Kampala City Traders Association (KACITA) tenants, is simply because the relationship between the landlords and tenants is informal. The tenants have no tenancy agreements, and landlords take advantage of this. Treating the symptom of increasing rents is pointless if the root cause has not been addressed. You cannot enforce the terms of a verbal agreement and this should not be an option if they hope to achieve their desired objective.
Question, why are these challenges of arbitrary and unfair rental increments not seen in the more prime malls where tenants are paying dollar rents? Answer: because the landlord / tenant relationship is formal, contractually bound by a lease agreement which is signed by a willing tenant and willing landlord prior to tenant taking occupation. The terms and conditions of the lease are very clear, both parties know what to expect and there are no surprises. A landlord cannot decide to wake up one morning and shut down an entire mall (which has become a habit downtown) to settle scores with their business partners, leaving tenants totally helpless. Is this also because of dollar rentals? This impunity from landlords is because there is no legal recourse.
All attention and focus have been given to the issue of currency in which rent will be paid, and this seems to be the fulcrum on which the need for a Landlord and Tenant Bill is turning. However, addressing this issue alone is pointless, if other aspects of property management, and financing are ignored. As I have argued before, this issue is bigger than KACITA, and KACITA is not Uganda. Neither do they control the property market of Uganda. In fact, even their contribution to the tax revenue of the country is incomparable to property developers / owners of commercial properties in the country at large.
How then do you ban dollar rentals, without giving due consideration to other factors in the property development cycle and value chain? It is inconceivable to outlaw dollar rents without bearing in mind the impact of such a regulation on the finance sector, and the economy as a whole. I am hoping that our Honourables are aware that dollar denominated loans are cheaper (8%) than shilling loans (20%), which is why most commercial properties are financed by dollar loans. This being the case, were the banks consulted on the feasibility of converting these dollars denominated loans to shilling loans? In order for the borrowers to afford their repayments they will have to increase the rent extortionately and the tenant will pay the price. However, there is also a possibility that the banks will not accept to reschedule these loans. Have the repercussions of this been thought through? Or the fact that non-performing loans will increase, repossessed properties will become the order of the day; crashing the property market to smithereens?
The arguments in parliament were that countries like UK, USA, Europe, China, insist on local currency rents. This is correct, but why? For example, the USD is found in a pair with all of the other major currencies and often acts as the intermediary in triangular currency transactions. This is because the USD acts as the unofficial global reserve currency, held by nearly every central bank and institutional investment entity in the world. It is for this reason that Uganda fixes her exchange rates to the USD to stabilize it, rather than allowing the free (forex) markets to fluctuate its relative value. Why is this the case? Because of the volatility of the shilling to many external factors. Pray I ask, is the shilling a globally traded currency? When our honourables travel to America, are they able to take shillings and exchange them for dollars at JFK Airport? Or London Heathrow for that matter? But you can exchange dollars in London, Japanese Yen in Switzerland, and the Euro in South Africa. The common thread being that these are strong, stable currencies.
You cannot pass a bill on the whims of 1 interest group (tenants) to the economic and social disadvantage of the rest of the country
No prudent investor will go to America, and get property development financing in Pounds Sterling or Euros, simply because it would not make any economic sense. It would be more expensive to borrow in any other foreign currency than the local currency – the USD. Why? Because the USD is a strong, stable currency, and there are several federal reserve banks with adequate deposits to lend at affordable rates. In Uganda it is cheaper to borrow in USD because the reverse is true. It will also make sense to make loan repayments in the same currency as you have borrowed, because 1. it is the terms and conditions of our financing institution and 2. dollar rentals are cheaper than shilling rentals because they are more stable (minimal fluctuation to CPI). At the end of the day, $10.00 per square metre converts to 37,550/- and can fluctuate up or down but mainly upwards, by up to 30% in 1 year. Rentals will still remain pegged to the dollar, but paid in shillings, subject to the exchange rate, and annual escalations on the shilling of over 20% to keep up with interest rates, instead of 3% escalations on the dollar as is the market rate. So, who will be most affected by the dollar rental ban? The bill attempts to limit the extent of the above collateral damage to the tenant by stating that rent increments per annum will be capped at 10%. Are they also going to cap interest rates?
I am sure the honourable Parliamentarians also appreciate why our finance costs are high? Put simply, our savings as a banked demographic are low, therefore banks do not have enough deposits to lend at affordable rates. They in turn need to borrow the money they require to lend to borrowers, and this comes at a cost (both of borrowing and hedge against forex losses). Shouldn’t we be focusing more on how we can increase savings and deposits as a means to lowering interest rates, and stabilizing the shilling?
The need to review this bill is not an option, it is a necessity, or our property market is going to be destroyed. The Uganda property market does not operate in a vacuum, and is a market which is open to both local and foreign investors, not just tenants. We must legislate for all with a long-term view on things. You cannot pass a bill on the whims of 1 interest group to the economic and social disadvantage of the rest of the country! China and America have shown increased interest in investing in Uganda’s real estate sector. I am not certain however, that with such legislation which makes the ease of doing business in Uganda rankings plummet, alongside facing the fear of being imprisoned for “annoying” a tenant, and the inability of a landlord to distress for rent pits Uganda as, an attractive investment destination for property.
I am appealing to His Excellency The President of Uganda, not to assent to this bill in its current state. Property experts and professionals have offered their free services to help draft a better bill which will stand the test of time and encourage a vibrant property market in Uganda, but to no avail.
Author is Judy Rugasira Kyanda, MRICS
Managing Director, Knight Frank Uganda
Presidential Committee recommends urgent and comprehensive sweeping Central Bank reforms
A committee appointed by President Yoweri Museveni to study several complaints made to the Inspectorate of Government and Parliament about Bank of Uganda, has recommended “urgent and comprehensive review” of what it believes is an archaic “legal regime governing the Bank of Uganda.”
“The Bank of Uganda Act Cap 51 was last amended in 1993, two years before the promulgation of the 1995 Constitution of Uganda. In the case of the Bank of Uganda by-laws established under Statutory Instrument 51-1, the situation is even worse as they were passed in 1968 and continue to be applied despite being inconsistent with the Constitution in some important respects such as the authority of the Governor versus the authority of the Board,” reads part of a leaked Confidential Report of the Presidential Tripartite Committee to the President.
The committee was formed by the president to partly investigate numerous allegations surrounding a decision taken by the Governor of Bank of Uganda, Prof Tumusiime Mutebile on 7th February 2018 to fire then Executive Director of Bank of Supervision, Justine Bagyenda.
The governor also made several staff transfers and made new appointments from without BoU to several senior positions. This included Dr. Twinemanzi Tumubweine who replaced Bagyenda. As a result of the Governor’s communication complaints were made to the Inspectorate of Government and the Parliamentary Public Accounts Committee on Statutory Authorities and State Enterprises (PAC-COSASE) challenging the legality of the governor’s decisions.
The Committee conducted interviews, document reviews and benchmarked the central banks of Kenya, Indonesia, South Africa and Rwanda. Various staff of BoU as well as current and former Board Members and Hon. Matia Kasaija, Minister of Finance, Planning and Economic Development were also interviewed.
In total, 74 people were interviewed.
Mutebile defends his decisions
In his defence, the governor said that the appointments were in in accordance with Section 28(4) of the Bank of Uganda Act and the by-laws created thereunder. He referred to Section 28(4) of the Bank of Uganda Act which provides that “except as may otherwise be provided in the by-laws of the bank, all appointments of employees shall be made by the Board. The Governor then went on to refer to Sections 8(2)(a) and 8(2)(e) of the by-laws of the Bank created in 1968 which he said entrusted the Governor with the responsibility of organization and management of the Bank as well as ensuring proper discharge of duties of the other officers and other employees of the Bank.
“In this particular case the governor made reference to responsibilities attributable to his office as Governor under the by-laws and yet the same responsibilities were constitutionally attributable to the Board of Bank of Uganda. A review therefore needs to be urgently undertaken and the Bank of Uganda laws (by-laws) brought into harmony with the Constitution along with any other matters necessary for the stability and smooth functioning of the central bank,” recommended the 8-member committee in their February 2019 report.
Although the committee did not reverse the decisions of the governor, it noted that the gaps in the legal regime governing the set up and running of the central bank “created a complicated situation from a corporate governance point of view whereby the Governor made a decision as a Chief Executive and yet also assumed the role of the Board within the same decision.”
It is for this reason that the committee recommended a “splitting or separation of the functions of the Governor and the Chairperson of the Board especially with regard to administrative matters”, noting that “most of the problems caused as a result of the Governor’s decision could have been avoided if the two roles were separate with no opportunity for the Governor to function as both Board and Chief Executive Officer.”
Growing voices to reform BoU
This latest recommendation adds weight on an earlier recommendation by MPs on the PAC – COSASE probing Bank of Uganda who also recommended amendment of Article 161 (4) of the Constitution that provides that the Governor and deputy Governor shall be Chairperson and Vice Chairperson of the Board respectively, so as to ensure “objectivity of the Board and its independence from management.”
Recently, two members of Parliament, Michael Mawanda (MP, Igara East) and Paul Mwiru (MP, Jinja Municipality East) said they were in the process of drafting a private member’s bill seeking to amend the Bank of Uganda Act so as to effect the above recommendations.
The MPs said this was because government has, despite promising to respond to the PAC-COSASE report in 90 days, has to date failed to act, more than 120 days later.
Several other experts, including Mr. Onegi Obel, an economist and capital markets expert, as well as economists and researchers Dr Fred Muhumuza and Dr Patrick Wakida, have previously called for a review of BoU’s powers in the face of recent failures.
More proposed reforms
The Committee also recommended that a new additional position of Deputy Governor be created to unburden the governor, who they said was “too overloaded in terms of responsibilities” some of which risked “exposing the position of Governor to unnecessary controversies.”
“It may therefore be prudent to consider the creation of an additional post of Deputy Governor, which Deputy shall largely be responsible for the general administration of the Bank while the Governor and the other Deputy are free to concentrate on the core functions of the Bank as stipulated in the Constitution,” recommended the committee.
The committee further recommended that there should be periodic individual-focused appraisals of the performance of all the Board members including the Governor. Relatedly, the committee also wants the Bank of Uganda Act be amended to operationalize Article 161(5) of the Constitution to provide for legal provisions which a President may rely upon to set in motion, the process of removal of any of the Board members including the Governor and Deputy Governor.
They also called for a review of BoU’s administration manual to clarify ambiguities surrounding entry requirements and job descriptions.
Regarding human resource management, the committee called for the removal of the board from direct involvement in recruitment. They also want the process of internal promotions reviewed while the ratification of externally recruited persons is outsourced.
It is not clear when the president received the report, but in a recent interview with NTV, then, acting Information minister, Dr. Chris Baryomunsi said that cabinet has considered the PAC-COSASE report and will be able to give a report on the progress so far in addressing the COSASE recommendations in the coming weeks.
MPs to move bill to trim Central Bank powers
Two members of Parliament are in the process of drafting a private member’s bill seeking to amend the Bank of Uganda Act so as to streamline governance at the central Bank.
Michael Mawanda (MP, Igara East) and Paul Mwiru (MP, Jinja Municipality East) say the failure by government to act on the report of the Public Accounts Committee on Commissions, State Authorities and State Enterprises (PAC – COSASE) on seven defunct commercial banks prompted their move.
Following the damning PAC-COSASE report, Dr. Ruhakana Rugunda, the Prime Minister and leader of government business in the House, said Government would respond in 3 months.
“Giving us three months would really be good time to do a thorough job” Rugunda said at the time.
Hon. Mawanda, at the time said, “If in 90 days they (the executive) don’t bring the amendments, you will allow me to seek leave of parliament to table my private members bill in respect to amendments to BoU Act.”
Nearly four months have since passed without any action from government, prompting Hon. Mawanda to make good on his threat.
According to a report by NTV, Uganda’s leading television station, the private members bill, to be known as Bank of Uganda Amendment Bill, seeks to amend the constitution and the Financial Institutions Act (2004) to among others, separate the office of Governor and his Deputy from that of the chairperson and vice chairperson of the BoU board respectively.
MPs on the PAC-COSASE probe, recommended amendment of Article 161 (4) of the Constitution that provides that the Governor and deputy Governor shall be Chairperson and Vice Chairperson of the Board respectively, arguing that the “objectivity of the Board and its independence from management may be strengthened by the separation of the role of the Chief Executive and Chair.”
COSASE also recommended that all the implicated officials in the now infamous bank closures be held liable and punished accordingly.
“The executive implements what the board tells it. If you are the chief executive (Governor), you cannot again be the chairman of the board to implement what you have already decided on in the board. We would like to see the board of the bank independent and management independent,” said Mawanda in an interview with NTV.
Hon Mwiru added that the central bank had abused its constitutional independence as shown by the PAC-COSASE probe, and therefore the said bill would seek to trip the central bank’s independence.
“We had thought that by giving autonomy to the bank (BoU), we would achieve some degree of independence of the bank, but we have also not achieved that,” he said, adding that the planned bill, “also seeks to empower parliament to carry out an appropriation and oversight role on BoU as it is with other government institutions.”
“We have not been appropriating money to them (BoU) – they have been presenting their money to the board and as a result they would spend and consume their own reports,” Mwiru said, adding that this is the reason that BoU has previously snubbed Parliament attempts to hold them to account.
“It is through the power of the purse that you can force someone to account or improve on certain other issues,” Mwiru said.
Several experts and economists, have also previously called for sweeping reforms both in the governance and the mandate of the Central Bank.
The experts who include: Mr. Onegi Obel, an economist and capital markets expert, as well as economists and researchers Dr Fred Muhumuza and Dr Patrick Wakida, have called for a review of BoU’s independence, but also called for BoU mandate to be expanded from just monetary policy management to include jobs growth.
In an interview with NTV, acting Information minister, Dr. Chris Baryomunsi said that cabinet has considered the PAC-COSASE report and will be able to give a report on the progress so far in addressing the COSASE recommendations in the coming weeks. The calls to reform BoU come at a time when the Central Bank is embroiled in a currency transportation scandal, where some illegitimate cargo belonging to private business people found its way on a top-security cargo flight carrying currency notes.
BUDGET: Kasaija to spend UGX982, 187 on every Ugandan in 2019/20
Next year, in 2019/20, the government of Uganda plans to spend 23.8% more money than it has spent, this year financial year. According to a national budget read yesterday, by Finance, Planning and Economic Development (MoFPED) minister, Hon Matia Kasaija, Uganda will in 2019/20 spend UGX40.5 trillion, up from UGX32.7 trillion in 2018/19.
Given Uganda Bureau of Statistics (UBOS) population projections of 40 million and 41.2 million people for 2019 and 2020 respectively, that is an increase of 20.2% from UGX817,433 to UGX982,187.
But where will he get this money from?
According to Kasaija, out of the UGX40.5 trillion, UGX20.9 trillion (51.6%) will be tax and non-tax revenue raised locally. As a result Uganda Revenue Authority (URA) must collect 25% more revenue- their targets have been raised from UGX16.4 trillion in 2018/19 to UGX20.45 trillion next financial year.
KAsaija also expects to borrow UGX2.8 trillion (7%) from local financial markets. The finance minister also plans to borrow from external sources, as well as receive project support from Uganda’s foreign development partners, altogether, UGX9.4 trillion (15.9%).
He also expects general budget support of up to UGX675.2 billion (1.7%) and aid of up to UGX201.1 billion.
Because of the heavy debt burden, domestic debt re-financing will account for UGX6.5 trillion or 15.9% of the resource envelope- this is not actual money though.
According to Kasaija, the stock of Government debt rose to UGX42.8 trillion (USD11.5 billion) as at end-December 2018, up by 15.1% from UGX37.2 billion (USD10.2 billion). Of this external debt constitutes is 66.5%- UGX28.4 trillion or USD7.7 billion.
How will the money be spent?
Thanks to a burgeoning debt and the attendant need to restructure, Uganda will spend UGX10.6 trillion on debt repayment.
Kasaija however insists that our debt, although high, it is still sustainable- at 41.8% of GDP in nominal terms and 31.7% of GDP in present value terms, as of December 2018. This is well below the threshold of 50% Debt to GDP ratio contained in the Charter for Fiscal Responsibility and the East African Community (EAC).
Works and transport will take UGX6.46 trillion, while security will account for UGX3.62 trillion and education and sports UGX3.37 trillion. The government will spend UGX3.14 trillion on interest payments, UGX3 trillion on the energy and minerals sector, UGX2.62 trillion to health and UGX1.73 trillion to the Justice/Law and order sectors.
The accountability sector will be apportioned UGX1.54 trillion while local governments will get UGX1.25 trillion. The agriculture, animal industry and fisheries as well as water and environment sectors will each get UGX1.1 trillion. Others are: public administration (UGX979.1 billion), Public Sector Management (UGX857 billion), legislature (UGX687.8 billion) and Lands, Housing and Urban Development at UGX227 billion. Trade and industry will get UGX202.8 billion, social development UGX219.2billion, tourism will get UGX193.7 billion and Science, Technology and Innovation, UGX186 billion.
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