THE ROLE PLAYED BY THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA) IN ENSURING SUSTAINABLE ENVIRONMENT UTILIZATION IN UGANDA: A CASE STUDY OF KAMPALA.
BY
WILEMBESANDRAH
DIL/45549/143illU
A RESEARCH DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN
PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE
A WARD OF DILPLOMA IN LAW AT KAMPALA
INTERNATIONAL UNIVERSITY
NOVEMBER, 2-017 DECLARATION I WILEMBE SANDRAH Registration Number DIL/45549/143/DU declare that the content of this report is purely my original work, unless otherwise quoted. To the best of my knowledge, the same work has never been submitted, acknowledgement has been made:-
WILEMBE SANDRAH
Date... 13. / .U .. .I.:b..OJ 1::...... Sign...... ~ - APPROVAL I certify that this report has been submitted for examination with my approval as university supervisor.
Supervisor
Sign .... , ......
Date...... ··J3-r-!)
ii DEDICATION
I dedicate this research of mine to my family members first and far most my mother Alum Betty, my uncle Ekwaro Andrew, sisters- Katushabe Apofia, Paean Lucy, Akiteng Favour, Angwech Jacky and brothers Okonkwo, Ocen Isaac, Elem Je1Ty and Baby Lulu.
May God bless you endlessly!
iii ACKNOWLEDGEMENT
I wish to thank everyone who supported me in one way or the other pruiiculaT my family members who suppo1ied me financially, spiritually and materially, the Ministry of Water and Environment which allowed me to ca1Ty out my research in their library and also guided me in research compilation most advice from Mr. Simon Peter Renge.
I am also thankful to the Almighty God who provided me with good health and strength to complete my research with out falling sick and other health unconditionalities.
I also thank Mr. Kakona Joel Geofrey of Kampala International University who supervised me during my research and provided the necessary guidance.
I am also indebted to the Head ofDepaiiment of Law and the legal lecturers who taught me well which led to the completion of my course:
I can not forget the struggle and encouragement provided by my work typists, photocopists and other computer individuals who helped me organised this piece of a research proposal.
I am also indebted to my fellow classmates, course mates and colleagues who helped me morally during the course of research and study.
May the merciful Almighty God bless you abundantly!
iv LIST OF ACRONYMS ACODE: Advocates Coalition for Development and Enviromnent
AEWA: African-Eurasian Migratory Water Bird Agreement
DLCs: District Local Govermnents
BIA: Enviromnental Impact Assessment
IPC: Integrated Pollution Control
IUCN: International Union of Conservation ofNatures or World Conservation Union
KCCA: Kampala Capital City Authority
MDG: Millennium Development Goals
MEP: Minist1y of Enviromnent ·Protection
MP: Member of Parliament
NDP: National Development Plan
NBA: National Envirorunent Act, Cap 153
NEMA: National Enviromnent Management Authority
PPP: Polluter Pays Principle
TEAN: The Enviromnental Action Network
UFA: Uganda Forestry Authority
UWA: Uganda Wildlife Authority
WSSD: Word Summit on Sustainable Development
WWF: World Wide Fund
V LIST OF STATUTES The Constitution of the Republic of Uganda, 1995
The National Environment Act, Cap 153 .
The National Forestry and Tree Planting Act 2003
The National Water Act, Capl52
The Penal Code Act, Cap 120
vi LIST OF CASES 1. ACODEV. Attorney General, Misc Cause No. 0100 of2004 2. Amooti Godfrey Nyakaana V. NEMA & Others, (Constitutional Appeal No.5 of 2011) [2015] UGSC 14 (20tl1 August 2015) 3. Babu Omar and Others V. Edward Mwarania & Another (UR) HCCC 1/96 4. British American Tobacco (U) Ltd V. TEAN (2001) LLR 3 HCU 5. Dr. Richard KanyereziV. the Management of Lubaga Girls' School, H.C.C.A No. 3 of 1996
6. Greenwatch & ACODE V. Golf Course Holdings Ltd H.C Misc. Appl. No. 390 of2001 7. GreenwatchV.UWA and the Attorney General, misc. Application No. 92 of2004 8. Juan Antonio Oposa & Others V. Honorable Fulgenco S. Factoran & Others, (1967) HARE,365 9. O'Neill V. Carolina Freight Carriers Corp. 156 Conn. 613,244 A.2d 372 (1968) 10. Reed V. Smith (1914) 19 BCR 139 11. Rev. Christopher Mtikila V. the Attorney General, H/C of TZ Civil Case No. 5 of 1993 12. Rural Litigation and Entitlement, Kendra Dehradun & Others V. State of Uttah Pradesh & Others, AIR 1985 Supreme Court 652 13. Sirajie Waiswa V. Kakira Sugar Works Ltd H.C Misc. App. No. 230 OF 2001
vii TABLE OF CONTENTS Declaration ...... i
Approval ...... ii
Acknowledgement ...... iv List of Acronyms ...... v
List of Statutes ...... vi
List of Cases ...... vii
Abstract ...... xi
CHAPTER ONE ...... 1
1.0 General introduction ...... I 1.0.1 Operational Definitions ...... 6 1.1 Back ground of the study ...... 7 1.2 Statement of the problem ...... 7 1.3 Objectives of the Study ...... 8
1.3.1 General Objectives ······························'.······························································································8
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1.3.2 Specific Objectives ...... 0 8 1.4 Research Questions ...... 9 1.5 Hypothesis ...... 9 I .6 Scope of the Study ...... 9 1.6.1 Subjective scope ...... 9 1.6.2 Geographical Scope ...... 9 1.6.3 Time Scope ...... 9 I. 7 Justification of the Study ...... I 0 1.8 Literature Review ...... I 0 1.9 Limitation of the Study...... 12 I.IO Synopsis ...... _...... 12 CHAPTER TWO ...... 13
LITERATURE REVIEW ...... 13
2.0 Introduction ...... 13 2.1 Concepts, opinions and ideas from authors and experts ...... :...... 23 2.2 Conceptual Framework ...... 30
viii 2.3 Conclusion ...... 31 CHAPTER THREE...... ;...... 32
RESEARCH METHODOLOGY ...... 32
3.0 Introduction ...... 32 3 .1 Research Design ...... 3 2 3 .2 Study Population ...... 32 3.3 Sampling Techniqnes ...... :···· .. ···· ...... 32 3.4 Sample Size ...... 32 3.5 Data Resources ...... 33 3.6 Data Collection Instruments ...... 33 3.7 Data Management ...... 33 3.8 Data Analysis ...... , ...... 33 3.9 Quality Control ...... 33 3 .10 Validity and Reliability ...... 34 CHAPTER FOUR ...... 35
DATA ANALYSIS OF THE RESEARCH ...... 35
4.0 Introduction ...... :...... 35 4.1 What NEMA has done to ensure sustainable utilization ,of the environment? ...... 3 5 4.2 The mandate ofNEMA as stipulated by the legal framework ...... 37 4.3 Challenges faced by NEMA while ensuring sustainable utilization of the environment ...... 38 4.3.1 Possible Solutions to the Challenges Facing the Authority ...... 42 4.4 The role of other stakeholders and their impact on NEMA in ensuring sustainable utilization of environment in Uganda ...... :...... 44 4.4.1 Role ofparliament ...... 44 4.4.2 Role Played by Non Governmental Organizations (NGOs) ...... 44 4.4.3 The role played by Lead Agencies ...... 45 4.4.4 The role played by the government and local governments ...... 45 4.4.5 The Role played by KCCA ...... 46 4.5 Conclusion ...... 48 - CHAPTER FIVE ...... 49
DISCUSSION OF RESEARCH FINDINGS, CONCLUSION AND RECOMMENDATIONS ...... 49
5.0 Introduction ...... :...... 49
ix 5 .1 Discussion of research findings ...... 49 5 .2 Conclusion ...... 52 5 .3 Recommendations ...... 53 5.3.1 Adequate funding NEMA by the Government ...... 53 5.3.2 Supporting Local Governments ...... 53 5.3.3 Proper monitoring of the Lead agencies ...... : ...... 54 5.3.4 Public sensitization ...... 54 5.3.5 Engaging various Donor Organizations and NGOs ...... 55 5.3.6 Enforcement ofEnviromiiental Laws ...... : ...... 55 5.3.6 Application of Common law principles (torts) in Environmental Law ...... 56 REFERENCES ...... 59
APPENDICES ...... 61
APPENDIX I ...... 61
CONSENT FORM ...... 61
APPENDIX II ...... 62
QUESTIONNAIRE ...... 62
APPENDIX III ...... 65
INTERVIEW GUIDE ...... , ...... 65
X ABSTRACT This research will focus on the rol_e of National Environment Management Authority (NEMA) in ensurin~ sustainable environment utilization in Uganda and _Kampala city in particular considering its success and challenges. It will begin by giving an introduction that defined generally the environment, NEMA and Sustainable Development or Utilization and gave their historical background internationally and at the national.
The study will be carried out with an aim of establishing environmental laws that have helped NEMA in ensuring sustainable utilization of the ·environment and how it has established solutions to the challenges it is faced with, which among others include frustration from the government itself and population pressure on the environment. The study will thus enlarge the scope of knowledge in the field of Environmental Law in Uganda which will be of great importance to policy makers if they are to properly help NEMA in ensuring sustainable utilization of the environment in the country.
Data collection in the research study will be acquired using both qualitative and quantitative methods since it was the only way the researcher had to reduce the fatigue of data collection.
The research will conclude by providing recommendations to address the challenges NEMA is faced with.
xi CHAPTER ONE
1.0 General introduction The Oxford Learners Dictionary defines environment as anatural condition like air, land and water in which people, animals and plants live.
Environment is also defined as the totality of physical, economic and social circumstances and factors that surround and affect the desirability and value of people as well· as the quality of people's lives. 1
That environment consists all or any of the air, water and land media and the medium of air include the air within buildings and the air within other natural or manmade structures above or below the ground. 2
Environment also means the physical factors of the surroundings of human beings, including land, water, atmosphere, climate, sound, odour, taste, the bioiogical factors of animals and plants and the social factor of aesthetics and includes both the natural and built environment. 3
After defining environment, it also important to define environmental law as a major area that motivated the research. Thus, an organized way of using all the laws in our legal system to minimize, prevent, punish or remedy the .consequences of actions which damage or threaten the environment, public health _and safety. 4 This therefore includes a system of complex and interlocking statutes, common law, treaties, conventions regulations and policies which seek to protect the environment which is at a risk of being endangered by human activities.
1 Black's Law Dictionary 2 Osborn's Concise Law Dictionary, 10th ed. at page 159 3 Section 1 National Environment Act, Cap 153 . . 4 Christopher L. B., William F. B., Ronald E. C., David R. C., Lynn M. G., Daniel J. K., Stanley W. L., Marshall L. M., Karen J. N., Austin P. 0 ., Joseph M.-5antarella Jr., John M. S., James W. S., Daniel M. S., Thomas F.P Sullivan& Rolf R. Von 0., Environmental Law Handbook, Sixteenth Ed, Government Institutes, ABS Group Inc, Rockville, 2001 at pg 2
1 The study of environmental law involves a rich mixture of ethics, economics and public interest issues that are related toward a common goal of ensuring protection of human health and the environment from harmful effects of pollution. 5
Environmental law is derived from the formal sources of law say, statute law which includes Acts of Parliament and Subsidiary Legislation, common law, customary law and international law like treaties and conventions. For example the Ugandan constitution of 1995 gives parliament power to malce laws protecting, preserving, managing and promoting environmental awareness6 and international instrnments like the African Charter on Human and People's Rights which states that all people shall have a right to a general environment favorable to them. 7
It should thus be noted that ii compilation of the parliamentary environmental statutes does not include the entire body of environmental law since other statutes outside this scope also play a fundamental role in this area of law for example under the Penal Code Act, Cap 1208 a person who fouls water and air commits a misdemeanor and is thus liable on conviction to imprisonment for a period not exceeding two years according to section 22 of the Act. This has been referred to as criminal law application in environmental law.
The constitutional right to a clean and healthy environment therefore almost encompasses everything such as provision of clean water, protection from diseases that. result from poor environmental conditions among others. 9 For exan1ple in Dr. Richard Kanyerezi V. the
Management of Lnbaga Girls' School IO court held that the smell from the pit latrines the defendant had built adjacent to the plaintiffs property-constituted a nuisance which violated the plaintiffs right to a clean and healthy environment w1der article 39 of the 1995 Constitution of the Republic of Uganda.
5 Linda A.M. and William M. T., Environmental Law, Policy and Practice, American Casebook Series, Thomson West, 2007 at pg 2. 6 See Article 245 Constitution of the Republic of Uganda, 1995 7 Article 24 African Charter on Human and People's Rights 8 See Section 176 and 177 Penal Code Act, Cap 120 9 Article 3 Constitution of the Republic of Uganda, 1995 10H.C.C.A No. 3 of 1996
2 11 Thus the right to a clean and healthy environment is co:istitutional , Section 3(1) NEA, Cap 153 provides that every person has a right to a healthy environment which means that the comis of law do not have to tolerate any actions that contaminate the environment in any way.
This also demands the population to fight against any environmental abuse and this was evidenced in 2007 when president Yoweri Kaguta Museveni gave away Mabira forest to Mehta Group for sugarcane plantation, the Ugandan masses led by Beatrice Atim Anywar "Mama Mabira" the MP of Kitgum district as she was then successfully protested against this action as it would injure the environment and in the end frustrate sustainable development. Other Ugandans like the king of Buganda kingdom went ahead to give Mehta alternative land on which to plant sugarcane so as to save the environment. ·
Life and environment are inseparable since human life cannot exist in a vacuum but in an environment. Thus it has been noted that if the environment is changing significantly then there is a likelihood that life is changing too. Environment covers all forms of natural resources both biotic and non-biotic such as air, water, soil, fauna and flora as well as their mutual interaction such as the habitual and ecological balances.
The state plays a fundamental role in the protection of impo1iant natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda in regard with the laid laws and policies. 12
On the other hand, sustainable utilization has been defined as the utilization of the environment that meets the needs of the present generation without compromising the ability of future generations to meet their own needs. 13 Sustainability requires that human activity only uses natural resources at a rate at which they can be naturally replenished.' The common use of the term sustainable utilization is attributed to Our Common Future (the World Commission on Environment and Development). 14 However in Uganda there are encroachments on the wetlands due to · population pressure which act has in fact frustrated sustainable utilization of the environment.
11 Article 39 Constitution of the Republic of Uganda, 1995 12See Objective xiii National Objectives and Directive Principles of the State Policy, 1995 Constitution of Uganda. 13Sustainable Development report 1987 14The Brundtland commission repo1t of 1987, at 32
3 The position of the law on sustainable utilization or development was appreciated as one of the most important principles of-environment and the stat~ is required to promote public awareness 15 of the desire to manage land, air and water resources in a balanced and sustainable manner. Inherently the concept of sustainable utilization has been intertwined with the concept of carrying capacity.
For exi;unple in the case of Juan Antonio (?posa & Others .V. Honorable Fulgenco S. Factoran & Others16 the petitioners a group of minors brought a suit on their own behalf and on behalf of the future generations through a representative action. They argued that the country's natural forests were being destruct~d at such a rate that the country would _be bear .of forest resources by the end of the decade. Court ruled in their favor stating that the minors had a cause of action to sue on behalf of the future generations.
In Uganda the NEA requires maximum participation of all the people in ensuring development and management of the environment which has of course based on the.campaign for sustainable development.17 For example in ACODE V. Attorney General18the respondent argued that the applicants did not have locus st_andi to take up the action since they were not living near Butamira Forest Reserve and therefore not directly affected by the environment of this area. Court rejected this argument indicating that article 50 of the 1995 constitution of the Republic of Uganda gives any person or organization power to bring an action against the violation of another ·person's or group's human_or other rights guaranteed by the constit1:1tion. And this in Environmental Law is called public interest litigation or a representative action.
It was appreciated that the long-term result of environmental degradation is the inability to sustain humanity. Such degradation on a global scale implies extinction of human nature. Therefore it is a necessary requirement that the environment is used by the present generation in a manner that does not impair the right of future generations to use the same to meet their own needs.
15 See objective xxvii Constitution of the Republic of Uganda, 1995. 16 (1967) HARE, 365. . 17 Section 2(2) National Environment Act, Cap 153 18 Miscellaneous Cause No. 0100 of 2004 High Court of Uganda
4 Finally, NEMA is a semi-autonomous institution established in May 1995 under NEA cap 153 and became operational in December 1995. NEA establishes NEMA as the overall body charged with management of environmental issues in Uganda- with power to co-ordinate, monitor and supervise all activities in the field of environment19 for example in ACODE V. The Attorney Generai2°court said that it was upon the second respondent (NEMA) to ensure that principles of environmental management set out in the above sections, 5 and 6 ofNEA are observed.
Before 1995 when the National Environment Statute was enacted, Uganda lacked a piece of legislation to coordinate environmental issues. The enactment of this statute together with the promulgation of the 1995 Constitution of the Republic of Uganda has closed this gap in law.
NEMA activities focus on providing support to the government's main goal and ensuring sustainable development through the NDP in accordance with the policy framework of the MDGs.
Environmental restoration orders and improvement notices: the Authority decides on whether to issue a restoration order requiring a person to cease activities with negative impacts on the environment or to restore the environment as much as possible to its original state. The order may be given pursuant to an action brought by an individual or upon the initiative of the authority and it can be enforced by the authority even without a court order and at the cost of the person violating the law.21
Its concerns on the environment are voiced at high levels of decision-making and policy formulation and have necessary political approval. The National Environment Statute is supplemented by various .sectoral laws which provide for regulation and control of environmental issues in specific areas.
NEMA is a body corporate with perpetual succession and a common seal, it can in its own name be capable of suing and being sued and doing and suffering all acts and things as bodies
19 Section 4 & 5 National Environment Act, Cap 153 20Misc Cause No. 0100 of 2004 21 Sections 67-71 of the National Environmental Act, Cap 153
5 corporate may lawfully do or suffer and it is to be under the general supervision of the minister. 22Kampala is the capital city of Uganda a countJ.y located in the East of the African continent.
1.0.1 Operational Definitions
Environmental Audit is the systematic, documented periodic and objective evaluation of how well environmental organization, management and equipment are performing in conserving the environment and its resources. 23 It's a tool necessary · to make predictions of possible environmental effects to enable a decision on the commencement of a project. It is necessary to determine upon the completion of the project whether the actual performance of the project fulfills the environmental audit. 24
Environmental Education is the process of recognizing values and clarifying concepts in order to develop skills and attitudes necessary to understand and appreciate the inten-elatedness in a person, his or her culture and his or her biophysical surroundings. 25
Environmental Impact Assessment is a systematic examination conducted to dete1mine 26 whether or not a project will have any adverse impact on the environment. ·
Environmental Monitoring is the continuous detem1ination of actual and potential effects of any activity or phenomenon on the environment whether short te1m or long term.27
Sustainable Development means development that meets the needs of this generation without compromising the rights of future generations. 28
Sustainable Utilization meaps present use which does not compromise the right to use the same resource by future generations. 29
22 Section 4(4) National Environment Act, Cap 153 23 Section 1 (p) National Environment Act, Cap 153 24 Sectio~ 2 of the National Environmental Statute, 1995 25 Section 1 (q) National Environment Act, Cap 153 26 Section 1 (r) National Environment Act, Cap 153 27 Section 1 (u) National Environment Act, cap 153 28 Section 1 (hhh) National Environment Act, cap 153
6 1.1 Back ground of the study Uganda was a British colony and got her independence on the 9thof October, 1962 and adopted the colonial laws in place at the time. These laws were imported without modification and enforced regardless of the interests and opinions of the subjects. For example the law that created national parks and game reserves restricted public access to these areas without giving the people an option.
Therefore the laws geared specific resource use that led to over exploitation- of the environment, poor compliance, less conservation and rejuvenation leading to environmental to environmental degradation.
The term sustainable development was brought into common play by Our Common Future in 1987. On the coming into force of the National Resistance Movement government in 1986 Uganda's environment saw positive changes as shortly after, NEMA was established which encouraged sustainable utilization of the environment 30 an idea it bo1Towed from the Brundtland Commission Report of 1987.
It is from this time that the situation in Uganda changed drastically, other than the National Environment Statute of 1995, the Water and World Life statutes were also enacted to help NEMA in promoting sustainable utilization of the environment through coordinating, monitoring, regulating and supervising the natural resources of Uganda. 31 The activities of the authority are thus to be focused on providing supp01i to the government's main goal and ensuring sustainable development through the NDP in line with the policy framework of the government and the MDGs.
1.2 Statement of the problem It is noted that the role of NEMA in ensuring sustainable utilization of the environment in Kampala is highly characterized by limited skilled labor, insufficient resources like funding and population pressure on the environment and its effects. For example according to the 2014 population census Kampala had 1,507,080 people and today its population is estimated at over
29 Section 1 (iii) National Environment Act, cap 153 30NEMA's motto is to ensure sustainable development 31Section 5 of the National Environment Act, Capl53
7 2,000,000 people32 and this is great pressure on the environment especially the wetlands and thus, the immediately concerned problem is wetland reclamation in Kampala city whereby different human activity is being carried out on wetlands say, residential and commercial or business works for example Speke Resort Hotel Munyonyo and game stores at Lugogo are standing on former wetland~ and this has been the reason for environmental hazards in city suburbs like floods in Bwaise, Kawempe division. Such encroachment was evidenced in the case of Greenwatch & A CODE V. Golf Course Holdings Ltd33where the grounds for the suit were that the respondents/defendants and owners of the suit land in putting up the suit property were destroying the environment and if the application was not granted, the environment would suffer irreparable damage. The plaintiffs claimed that the constrnction of the Hotel on the suit land threatened the environment and that it contravened the law, as it was on the wetland and green areas. The plaintiffs were therefore seeking to stop construction and protect, conserve the environment and uphold the environmental law.
1.3 Objectives of the Study
1.3.1 General Objectives To critically examine the role played by NEMA m ensuring sustainable utilization of the environment in Kampala.
l.3.2Specific Objectives (a) To analyze how NEMA has been able to ensure sustainable utilization of the environment.
(b) To analyze the extent to which the present legal frame work has enabled NEMA to ensure sustainable utilization or development of the environment.
(c) To analyze the challenges NEMA has faced while ensuring sustainable utilization of the environment in Kampala looking at the possible solutions too . . (d) To analyze the role and impact of other stake holders and how they have interfered with NEMA.
32www.ubos.org 33 H.C Misc. Appl. No. 390 of 2001
8 (e) To make reco111111endations and proposals that may improve the role of NEMA in ensuring sustainable utilization of the environment specifically in Kampala.
1.4 Research Questions 1. What has NEMA done to ensure sustainable utilization of the environment? 2. What is the mandate ofNEMA as stipulated by the legal frame work? 3. What challenges has NEMA faced in its campaign and what are the possible solutions to these challenges? 4. What is the role of other stake holders and their impact on NEMA in ensuring sustainable utilization of the environment in Kampala? 5. What are the possible recommendations and proposals that have likelihood of improving the role NEMA in ensuring sustainability of the environment in Kampala?
1.5 Hypothesis
The social-economic activities and cultural behaviors of the population accelerate uncontrolled encroachments on the sun-otmdings of ml;lll like wetlands and forests in Kampala. However this has been fairly checked by the present laws and more laws and policies may be made to regulate ~ man's activity on the environment and this research came up with a clear way to reach sustainable utilization of the environment under the efforts ofNEMA.
1.6 Scope of the Study
1.6.1 Subjective scope
The study examined the role played by the NEMA in ensuring sustainable utilization of the environment in Kampala putting into consideration the legal and non-legal factors affecting the body.
1.6.2 Geographical Scope
This study covered the capital city of Uganda and its resource based areas because the area was most fairly accessible when carrying out the research.
1.6.3 Time Scope
The study was concerned with issues pertaining sustainable utilization of the environment of Uganda since 1986 when the NRA government came to power up to date.
9 1. 7 Justification of the Study
The study will be significant to the general public that is to say; students, lecturers, researchers and environmentalists who have been aided to easily understand the role played by NEMA in ensuring sustainable utilization of the environment.
The general public has not only been able to understand the role played by NEMA but that other stakeholders such as the Local Government, Parliament, Non-Governmental Organizations and KCCA in ensuring sustainable utilization of Kampala'·s environment and the shortcomings they encounter while ensuring this and the probable solutions to them which knowledge the study will provide.
The study will also be used by policy makers in formulating and implementing policies that will be useful in ensuring full participation ofNEMA in preserving the environment in Kampala.
1.8 Literature Review
The main purpose of this work was to overcome some of the deficiencies in the present literature on the topic ofNEMA in ensuring sustainable environment utilization in Uganda.The need for the reservation and protection of environn;ient is as old as society and every person is entitled to a right to clean and healthy environment34 and this means that every person in Uganda is required to use the available resources in a sustainable manner.
For example the parliament of Uganda was mandated to provide for measures intended to managing the environment in a sustainable manner.35This means that some· literature does exist on the subject and the study has analyzed this.
The concept includes notions of just sustainability, deep ecology, poor and good sustainability. 'Just sustainability' offers have effectively addressed what is called the 'equity deficit' of environmental sustainability. 36
Although there is significant amount of material on the national and international environmental law I failed to access any special reference on the role of NEMA in ensuring sustainable utilization of the environment, this means that I visited various works of different writers at both
34 Article 39 Constitution of the Republic of Uganda, 1995 35 Article 245(b) Constitution of the Republic of Uganda, 1995 36 Agyman http//En. Wikipedia.org.2005,.44 (accessed On April 2013)
10 the international and national level and related them to the functions of NEMA37 which helped me to appreciate the role ofNEMA.
Raina V ancouve defined sustainability as a process which ensures utilization of aspects of human life offering substance. It revolves the conflict between the various competing goals and involve the simultaneous pursuit of economic prosperity, environmental equality and social equality thus, the three dimensions together with the effect of technology. Therefore it is a continually evolving process, a process of achieving·sustainability which is obviously vital, but only as a means of scoring the goal.
John Ntambirweki discussed the common law position in his paper, "the legal and policy frame work for natural resources management" where he talked about the past and present on how the law is dominated by common law which is not susceptible to change. He said that it is not a means to be adopted to achieve immediate and revolutionary change. He points out the role of customary law practices as regards environmental conservation that can be best taken care of through community participation and awareness. He also says that there is no better means for bringing awareness to communities except through their own practices or customs. He further pointed out that the past laws lacked provisions aimed at conserving natural resource base. The force behind those laws was to encourage exploitation of resources and this is the case with the present law say, the Forest AGt, Mining Act and Timber Act.
Jones Kamugisha in his book "Management of natural resources and environment in Uganda, Policy and Legalization Land marks" tried to state the environment in colonial era looking at the evolution of legislation concerning the environment that started as far as 1890 under the African Order in Council (1889).38
He examined the implementation mechanisms which lead to environmental degradation due to factors like financial penalties provided for in some of the old laws being so old that they acted much lesser than the deterrents to infraction. While he looked at the deficient mechanisms which lead to environmental degradation, he did not give ways and means of eliminating these problems. However, he set out ways which the current legislation has been able to employ against such situations.
FThe functions of NEMA as established under section 6 of the National Environment Act, Cap 153 38 Jones K., "Management of the Natural Resources in Uganda" Policy and regulation remarks
11 John Kigula recognized the fact that the institutional structure for environment management which was established under National Environmental Act and the National Environment Management Authority may encounter a string of shortcomings which include; improper constitution of the relevant social institutions, institutional conflicts and lack of financial and logistical support. He also noted that there is problems concerning the people at a higher level of management position who may get money occupy it with personal aggrandizement. This has led to non perfonnance of the duties in environmental planning and enforcement of the relevant measures of the welfare of the lower social strata. He also pointed out that there are limitations associated with the financingufNEMA.
1.9 Limitation of the Study
Like other projects, a lot of impediments were countered by the researcher in the course of the study.
Much money was needed to enable the researcher reach out to all the target areas of this study in the city as well as other relevant areas as the study demanded. Also the researcher was negatively affected by time factor while working hard to come up with quality and material report.
1.10 Synopsis
This work was divided into five chapters ..
Chapter one gave a background to the study, the objectives of the study, significance or justification of the study, purpose of the study, scope of the study, research questions, limitations of the study and the synopsis.
Chapter two reviewed the literature related to the research problem. It has enhanced the history of sustainable utilization of the environment in the country as well as the role of NEMA in ensuring this.
Chapter three gave the method how the research was can·ied out thus; the research methodology
Chapter four analyzed the data of the research.
Chapter five contains my research findings which were acquired by the use of a questionnaire that has been shown in the appendix, recommendations and a conclusion to the study.
12 CHAPTER TWO LITERATURE REVIEW
2.0 Introduction Development of environmental Law at the International Scene
Since the desire to utilize the environment in a sustainable manner is a requirement of international environmental law the researcher saw of great importance to look at the development of environmental law right from the international scene where the principle of sustainable utilization begun and this was divided into different stages or periods looking at the laws that were brought into play thus;
a) The period before 1940
The concern for environment begun to appear on the international agenda during the early 201hCentury with the conclusion of a number of international Conventions; the first of such agreements include among others the following: .
I. Convention for the Protection of Useful Birds to Agriculture of 1902
2. The Treaty for the Conservation of Fur Seals, Washington, 1911.
3. Convention Concerning the Use of White Lead in Painting, Geneva 1921
4. The Convention Relating to the Preservation of Flora and Fauna in their Natural State, London 1933
b) The period between 1940 and 1972
The number of international treaties increased dramatically during this period.
There were approximately sixty international agreements completed by 1970 and they included the International Planet Protection Convention of 1951 whose major objective was to protect component parts of the environment considered valuable in human terms.
The most significant development during .this period was the establishment of the United Nations system and more importantly1 the United Nations that was established in 1945. In order to carry
13 out its broad mandate, the United Nations entered into agreements with several specialized agencies and by 1970, various United Nations bodies and other International organizations were involved in issues of environmental management, and they include among others WHO (World Health Organization), WMO (World Metrological Organization) and ICAO (International Civil Aviation Organization).
c) The period between 1972 and 2002
In 1972 the Stockholm Conference was held and produced the Stockholm Declaration. It recommended the creation of an environmental agency known as UNEP. It also recommended the adoption of the Stockholm program. UNEP played a very important role in the development of various international agreements. These included Convention on the control of International Trade in Endangered Species of Wild Flora and Fauna of 1973 among other developments like WWF and UNEP.
Other developments included;
1. The World Conservation Strategy 1980 thatwas prepared by IUCN, with assistance of the World Wide Fund (WWF) and UNEP. The World Conservation Strategy identified a range of objectives like sustainable use of species.
2. The World Charter for Nature 1982. This was initiated by the World Conservation Union in collaboration with other organizations like UNEP. It is divided into three sections which include; general principals, functions and implementation.
3. Caring for the earth. This was adopted in 1991 and it was a successor of the WCS. It was also prepared in collaboration with UNEP. It concentrates on energy, forestland among others.
4. The Rio conference (also called the earth summit) 1992. This adopted the Rio declaration. It built on the Stockholm declaration of 1972 and introduced the concept of sustainable development as the basis for global, national, and local action. The Rio declaration recognizes important elements like, Intergenerational equity, which is the use of resources today in a way that future generation can also benefit from them and adopts the precautionary principle, which is against postponement of problem solving among other elements.
14 The impact of this is that m_ost of the environmental legislations have been developed on the basis of the Rio principles.
The Rio conference also produced Agenda 21 as a program of action to implement the commitments. Agenda 21 provides mechanisms in the formation of policies, plans, programs and guidelines for national government by which to implement the principles contained in the Rio declaration.
The RIO conference was also responsible for the development of other conventions like the CBD 1992, the convention to Combat Desertification 1992 as well as the WSSD.
It was vital for the researcher to also look at the sources of international environmental law and these are refened to under Article 38(1) of the Statu~e of the International Court of Justice and they include among others International conventions, international custom accepted as law (international customary law) and the general principle of law recognized in civilized nations for example the Stockholm Declaration, Rio Declaration and World Charter for Nature.
The res.earcher looked at some of the Environmental Law Instruments of Africa and of the East African Community like; l. The AEWA of 1995
The Agreement on the Conservation of African-Eurasian Migratory Water birds (AEWA) is the largest of its kind developed so far under CMS. It was concluded on 16thJune 1995 in The Hague, the Netherlands and entered into force on 1st November, 1999 after the required number of at least fourteen Range States, comprising seven from Africa and. seven from Eurasia had ratified.
2. The Treaty of the East African Community of 1999
One of this treaty's main objectives is to promote sustainable utilization of the natural resources of the partner states. It has articles on the environment and natural resources Article 111 deals with the management of the environment and natural resources, Article 112 deals with management of the environment alone, Art.114 deals with management of natural resources.
15 3. The East African Community Memorandum of Understanding on Environment
This is part of the East African Community Treaty It provides for the development of harmonized national and sectoral mechanisms for the management of shared resources of Trans boundary resources and ecosystems especially the forests, water, wild life and marine.
4. The Protocol for Sustainable Development of Lake Victoria Basin -2003
This protocol is a detailed document aimed at sustainable development of L. Victoria The preamble of the protocol recognizes the following aspects of L. Victoria as a shared water resource;
a) Those development activities may have negative impact on the environment leading to degradation of the en".ironment and depletion of natural resources. b) That a clean and healthy environment is a prerequisite for sustainable development. c) That water is a finite and vulnerable resource essential to sustain and development. d) That water must be managed in an integrated and holistic manner linking social and economic development with protection and conservation of natural resources. e) That water is an economic good haying social and economic. value whose utilization should be priority to its economic use, taking cognizance of basic human needs and safe guarding ecosystems
Application of International Environmental Law in Uganda
Uganda has recognized the need to participate in International environmental law. Article 123 of the constitution provides thaf the president may make ·treaties conventions, agreements or other arrangements between Uganda and any international organizations in respect of any matter. The article further adds that parliament shall make laws to govern ratification of any treaty, conventions, agreements or other arrangement.
Section 106 ofNEA provides that here Uganda is party to any convention or treats, concerning the environment, after the convention or treaty has been ratified" under Article 123, the minister may by statutory order with the approval of parliament by resolution;
16 a) Set out provisions of the convention or treaty, b) Give the force of law in Uganda to the convention or treaty or any part of the convention or treaty required to be given force oflaw in Uganda c) Amend any enactment other than the constitution the purpose of giving effect to the convention. d) Make such other provisions as may be necessary for giving effect to the convention or treaty in Uganda, or for enabling Uganda perform its obligation or exercise its rights under the convention or treaty..
This section applies to any convention or treaty, whether adopted before or after the coming into force of the Act and to that effect Uganda has ratified various environmental treaties into its judicial system including the ones that have been provided for earlier in the study, the Vienna Convention on the Protection of the Ozone layer of 1985 which Uganda acceded to on 24th June 1988. The objectives of this convention include the protection of human health and against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer, adoption of control human activities found to have adverse effects on co Operate in scientific research and systematic observation and to exchange information in the legal, scientific, and technical fields.
The convention establishes the secretariat as theregulating body. It lists the chemical substances of natural and anthropogenic origin that are thought to have the potential to modify the chemical and physical properties of the ozone layer. These include: carbon substances like carbonn1onodioxide (CO), carbon dioxide (CO2), methane (CH4); nitrogen substances including nitrous oxide (N2O) and chlorine substances. The convention therefore targets the reduction in the production and use of tl~e chemicals by the parties and last but not least, the Stockholm - Convention on Persistent Organic Pollutants 2001 which was finalized and adopted as the Stockholm Persistent Organic Pollutants at the Conference of Plenipotentiaries in December 2000. Uganda signed the Convention on 20th July 2004 and objective of this convention is to protect human health and the environment from persistent organic pollutants as per Article 1 of the instrument.
17 Historical background of Environmental Law in Uganda
The development of environmental law in Uganda can be divided into five phases thus the pre colonial phase, colonial phase, post-independence phase, Amin's regime phase, and post 1986 phase.
a) Pre-colonial phase
Prior to the establishment of colonial rule in Uganda, rural communities had evolved various customary rules, which governed use of natural resources, such as forests and wetlands. There was communal use of natural resources such as water and forests and the management of resources was based on rules of nature such as nomadic pastoralism and shifting cultivation. Certain flora and fauna species were given special protection due to medicinal or religious reasons. Certain vegetation for instance were protected for herbs, among the Masai gan1e meat was not eaten in which way animals were protected. Traditional religion also saw the conservation of certain features which were regarded as abodes for the gods. For example Lake Nalubaale was considered a home for the "balubaale". · b) Colonial Phase
During this phase, several laws related to the environmental management were developed. These were intended to regulate use of specific resources and collect revenue. The laws however did not consider elements of sustainable development and applied command and control theory. These laws dealt with specific resource and they were designed to regulate resource use and collect revenue. They included;
• The Forestry Act of 1947 • The Timber Export Act • The Fish and Crocodile Act • The Game parks preservations Act
These Acts were particular and therefore had a significant contribution to sustainable management of resources. There were no issues like public paiiicipation and sharing of revenue under the Wild life Act.
18 c) Post- independence phase
When Uganda gained independence in 1962, most basic aspects of the policies and laws governing natural resources remained intact. All that was done was substitute words and names such as 'public' for 'crown' and 'Uganda' for 'Britain.' The failure to develop 'home-grown' concepts and laws to govern' use of natural resources became an expensive premium on the enviromnent. Apart from the forestry and fisheries sector, the management of other resources (soil, water, wildlife arid vegetation etc.) was on the bas numerous laws and regulations often without a gazette policy. More over these laws were so scattered that their implementation, has often resulted in pitched conflicts between government departments (the similarity of basic principles, interests and goals not withstanding), which in turn undermined their effectiveness on the ground.
The colonial laws were re-enacted and adopted Therefore, there was no significant change in the laws The Forestry Act of 1947 became the Forestry Act of 1964 The Game Parks Preservation Act 1952 became the National Game Parks and Preservation Act of 1964.
d) Amin's regime phase
During this phase, the economy and infrastructure started to crumble Enviromnent degradation grew rapidly as a result, of the political instability that ensued and the dictatorial and undemocratic systems of government that followed. There was no meaningful development policies during this period and this led to poor enviromnent management. Attention was not given to the natural resources and the enviromnent of the country in general and government investment in this area was practically zero, except that one was enacted thus, The Prohibition of Burning Grass Decree which required permission from the Agricultural Officer, with the supervision of the officer before one could burn grass. It has today been re-enacted. e) Post1986 Phase
It was not until 1986 when the National Resistance Movement (NRM) ascended to power that a number of measures to address the enviromnental problems were embarked on. The cabinet portfolio and MEP were established. The mandate of the ministry was to coordinate and
19 regulates national efforts in the 'wise management of life supporting natural resource so as to ensure their availability for sustainable development.
In 1991, the government initiated a participatory and consultative process to improve environmental governance through the NEAP. The NEAP was a major milestone in Uganda's development of environmental law because it provided strategies for addressing concerns in the areas of policy, legislation, institutional reforms and new investments with a view of promoting sustainable development. Tlie NEAP process was closely followed by the adoption of the National Environment Management Policy for Uganda 1994, which sets out the overall policy goals, objectives and principles for environmental management. In order to achieve the overall policy goal of sustainable development, the NEMP recommended four initial actions which aided inter alia, the creation of an appropriate institutional and legal framework as well as the revision and modernization of sectoral policies, laws and regulations. It was through this process that the current legal regime relating to the management of the environment emerged.
The research also looked at the National State Report 2010 concern on environment that covered the following;
The United Nations Conference on Environment and Development (UNCED) or Rio Summit of 1992 that was a landmark event for the sustainable development agenda. It highlighted the commitment of the international community to providing public and political support for addressing environment and development issues in a holistic and integrated manner.
The main outcome of the Rio 1992 meeting was Agenda 21 (UN 2009). It is a blueprint for environment management at global, national and local level; and considers every area in which human beings are likely to impact on the environment. The requirement for State of the Environment (SOE) reporting was promoted during the Rio Summit in 1992. Indeed Agenda 21 calls on countries to improve the provision of environmental information for decision making and development. SOE reports have since become very popular around the world and are widely published on the Internet. For instance, Uganda's SOE reports are available on www.nemaug.org. SOE reporting in Uganda has grown by leaps and bounds. Since 1994, there have been initiatives at different levels in the country to promote environmental reporting. District State of the Environment Reports is now being produced; and there.have been efforts to
20 move towards sectoral environmental reporting. Indeed the Environment Act Cap I 53 requires the lead agencies to report annually to NEMA on environmental aspects of their portfolio.
Following on from 1992, a five year review conducted in 1997 (Rio 5), reported that little progress had been made in implementing the global sustainable development agenda. In view of this, the World Summit on Sustainable Development (WSSD) was convened in Johannesburg, South Africa in 2002. The goal of the WSSD was to conduct a further (IO year) review of the implementation of the outcomes of UNCED, particularly Agenda 21, and to reinvigorate global commitment to sustainable. development. The ke_y output, the Johannesburg Plan of Implementation, further affirmed the pledge to full implementation of Agenda 21, the MDGs and other multilateral environmental agreements.
Uganda actively participated in both world summits. The national report (GOU 2002) to the Johannesburg Summit indicates that little progress in implementing Agenda 21 has been made. The report specifically highlights land degradation as a major problem. The main underlying drivers being population pressure, land fragmentation, inappropriate farming practices and lack of non-farm income generating opportunities. The report however provided impetus to the discussion on improving access to safe water and proper sanitation and highlighted government's commitment to meet the MDGs targets on safe water and sanitation.
The UN General Assembly-resolved in 2009 to organize the United Nations Conference on Sustainable Development (UNCSD) in June 2012 in Rio de Janeiro, Brazil. The purpose of the conference was to secure renewed political commitment for sustainable development, assess progress to-date and the remaining gaps in the implementation of the outcomes of the major summits on sustainable development, and to address new and emerging challenges. The focus of the upcoming conference was twofold. First the conference discussed the green economy in the context of sustainable development and poverty eradication. The conference also discussed institutional frameworks for sustainable development.
In Uganda today it is a constitutional right to have a clean and healthy environment. 39Section 3 of the NEA also provides for a right to a decent environment. In the case of Dr. Bwogi Richard Kanyerezi V The Management Committee of Rubaga Girls School court of appeal was
39 Article 39 Constitution of the Republic of Uganda, 1995 21 guided by Article 39 of the constitution of the republic of Uganda to establish that the smelly gases from the respondent's twelve VIP latrines caused a private nuisance to the appellant's resident which caused great inconvenience and discomfort to his family by violating their right to a clean. and health environment. This means that every person in Uganda is required to use the available natural resources in a sustainable manner.
The parliament of Uganda was mandated to provide for measures intended to manage the enviromnent in a maimer that enables the present generation to meet its demands as well as the generations to come having chance to meet theirs. 40
On top of this parliamentary-mandate, any person is allowed to apply to a competent court for redress when they claim that a fundamental or other right or freedom guaranteed by the 1995 constitution is being infringed or threatened41 and this is majorly possible under the principle of public interest litigation for instance in the case of A CODE V. Atto~ney General 42 the respondent argued that the applicants did not have locus standi to take up the action since they were not living near Butamira Forest and thus were not directly affected by the enviromnent of this area, court rejected this argument indicating that Article 50 (1) and (2) of the I 995 constitution of the Republic of Uganda gives any person or organization power to bring an action against the violation of another person's or group's human or other rights and freedoms guaranteed by the constitution in fact, court went ahead to put this aiiicle in a biblical sense hence, it "makes all ofus our_'bother keeper'."
However in the need to conserve the enviromnent courts have considered the necessity of development in the country. For instance in the Indian case of Rural Litigation and Entitlement, Kendra Dehradun & Others v. State of Uttah Pradesh & Others43 limestone quarrying twned out to be hazardous to the enviromnent and the population and court detennined that the matter was related to the enviromnent and ecological balance which brought into a sharp conflict between development and conservation and that there was a need of reconciling the two
40Article 245(b) Constitution of the Republic of Uganda, 1995 41 Article SO Constitution of the Republic of Uganda, 1995 42 Misc. Cause No. 0100 of 2004 43 AIR 1985 Supreme Court 652 22 in the interest of the country. Limestone quarries wer.e however stopped so as to conserve the environment.
Since the right to a clean and healthy environment is a constitutional right, it means there is quite a good level of literature on the subject that the study reviewed say; Raina Vancouve (Rio Earth Summit, 1992), Allan Smith, Schlosberg (Earth Charter, 1999) among others.
2.1 Concepts, opinions and ideas from authors and experts
The concept of sustainable development includes notions of just sustainability, deep ecology, poor and good sustainability too. 'Just _sustainability' offers effective address to the 'equity deficit' of environmental sustainability.44
It is the egalitarian conception of sustainable utilization that generated a better definition of sustainable development thus, "the need to ensure a better quality of life for all, now and into the future in a just amicable manner, whilst living within the limits of supporting eco systems. ' '45 For example in Greenwatch V. UWA & the Attorney G~neral46 a temporary injunction was sought and granted to the applicant majorly on the ground that the export of chimpanzees to the Peoples' Republic of China violated a fundamental right to a clean and healthy environment under Article 39 of the 1995 constitution of the Republic of Uganda and would result into irreparable damage among other grounds. The main reason for this is because such exportation will result into extinction of the chimpanzee species thereby frustrating sustainable utilization of the environment including fl~ra and fauna.
Haina Vancouve who defined sustainability as a process that ensure~ utilization of aspects of human life offering substance.47 It revolves on the conflict among the various competing goals and involve the simultaneous pur~uit of economic prosperity, environmental equality and social equalitr thus, the three dimensions together with the effect of technology. Therefore is a continually evolving process, a process of achieving sustainability which is obviously vital, but only as a means of scoring the goal.
44Agyman http//En. Wikipedia.org.2005, 44 (accessed On April 2013) 45 By Jacobs in Earth charter 1999 at 32 15 Miscellaneous Application No. 92 of 2004 47 Rio Earth summit of 1992 at Pg. 33
23 The problem of natural and social capital deterioration lies in their partial irreversibility. For instance the loss in biodiversity is often definite. Cgnsumption of natural and social capital seems to have no observable impact until a certain threshold is reached; lakes for example contain absurd nutrients for a long time while actually they increase productivity. Once a ce1iain level agreed is reached, lack of oxygen causes the taker's ecosystem to breakdown.
At this level this research filled the gap of irreversibility and looked at the possibility of reversing the wrong acts that endanger the environment hence causing a loophole to sustainable development. For instance Part IX of the National Environment Act provides that a person is be required to restore the environment as near as possible to the state in which it was before the taking of the action for which the order is made.48
Power of a restoration order was witnessed in A~ooti Godfrey Nyakaana V. NEMA& Others.49In this case the appellant was the registered proprietor of land comprised in Leasehold Register Volume 3148 Folio 2 Plot 8 Plantation Road, Bugolobi, and Kampala. He had obtained the lease from the then Kampala City Council for the purpose of constructing a residential house and he subsequently applied for and obtained the necessary approvals for the said construction and commenced work. In June 2004 environmental inspectors from the first respondent carried out an inspection ofNakivubo Wetland located in Nakawa Division. According to the inspectors, the appellant's house was in the critical wetland. A meeting of residents and the inspectors was arranged which the appellant attended whereby the residents were briefed about their properties being in the wetland. The appellant refused to heed all calls to halt his construction. The I st respondent then issued a restoration order which required the appellant to comply with ce1iain conditions, including demolition of the house, within a period of 21 days and had it served on him. He refused to do so; consequently the I st respondent demolished the building on 8th January 2005. The appellant argued that the demolition contravened Articles 21, 22, 24, 26, 27, 28, 43, 237 and 259 of the Constitution. Court held in favor of the respondents that the restoration order supported the constitutional right to a clean and healthy environment that benefited the general public, the appellant and the generations to come.
48 section 67(2)(a) National Environment Act, Cap 153 th 49 (Constitutional Appeal No.5 of 2011) [2015] UGSC 14 (20 August 2015)
24 The idea of policy integration to which the secretary of state lastly refers, is a· principle that has been able to assume increasing impmiance of the law and strategies that a consideration of environmental policy forms i_in integral part of all other policy decisions in particular those that relate to transport and energy.
Protection of the environment for sustainable development is a component of other environmental coordination policies; implementing sustainable development requires to a ce1iain extent a shift in policy away from environment protection towards environment management. There is likelihood for existing legislation to concentrate on regulating the release of polluting substance from industrial processes rather than on the use of processes that make energy and natural raw materials.
As Raina Vancouve is more concerned with transport and energy development as a major outcome of sustainable development, this study also looked at the development of the environment by protecting water bodies from reclamation and forests from deforestation. For example Juan Antonio Oposa & Others V. Honorable Fulgenco S. Factoran & Others50 Court ruled in favor of the petitioning minors because the forests were not meant to only benefit the present generation but the generations to come too.
In Uganda in 2007 a one Hon. Beatrice Atim Anywar "Mama Mabira" then the Woman MP for Kitgum district among other Ugandans protested against the giveaway of Mabira forest to the Mehta Group for sugarcane plantation by President Yoweri K. Museveni as the action would frustrate sustainable development.
"She walked out on that sunny Thursday :morning of April 12, 2007 to lead a protest against the planned giveaway of the forest. She was dressed in a blue kitenge, handkerchief in hand, a watch on her left wrist and her hair in a puff. But the protest went horribly wrong. It turned violent, with the targeting of Ugandans on Asians. Police arrested her. She spent a night in jail. On her time in jail, Anywar spoke of sleeping in cells that were like toilets, of spending the entire night
50 (1967) HARE, 365. 25 without food, without bathing and of male inmates who peep at female detainees as they bathe."51
52 According to Schlosberg _the concept of sustainable utilization equally focused on fow conditions to improve our quality oflife and well-being on meeting the needs of both present and the future generations (intra-and intergenerational equity). On justice and equity in terms of recognition process, procedure and outcome and on the need for utilization within the eco system limits.
In sustainable development, everyone is a user and provider of information considered in the broad sense that includes data, information, appropriately packaged experience and knowledge. It will be realized that infonnation is vital in te1ms of sustainable development so that decisions are properly made and that the population is able to understand the need hence an individual can understand the environment. 53
However, Schlosberg ignored the importance of inspection or supervisory role which this research has looked at as being vital in terms of sustainable development.54 In Amooti Godfrey Nyakaana V NEMA & Others55 the wetland at plantation road was restored as a result of the supervisory work ofNEMA.
The research also looked at the application of criminal law56 in environmental law in order to promote sustainable utilization of the environment in the country, for instance section 100 NEA provides for offences related to pollution (the polluter pays principle) and where any person discharges any pollutant into the environment commits an offence and is liable on conviction to imprisonment for a term not less than eighteen months or to a fine not less than one hundred and eighty thousand shillings but not exceeding eighteen million shillings or to both. 57
51 John K. Abimanyi, News Reporter 52 Earth charter, 1999 at Pg. 33 53 Source: agenda 21, 40 54 See section 6(3) National Environment Act, Cap 153 55 (Constitutional Appeal No.5 of 2011) [2015] UGSC 14 (20th August 2015) 56 Part xiii of the National Environment Act establishes offences and penalties 57 Section lOO(b) National Environment Act, Cap 153
26 I In the case ofVellore Citizen's Welfare Forum V Union of India & Others58court held that the precautionary and polluter pays principles are essential features of sustainable development and went on to assert that,
"The Polluter Pays Principle has been held to be a sound principle. The Polluter Pays Principle as interpreted by the Supreme Comi means that the absolute liability for hann to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is paii of a process of "Sustainable Development" and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the dan1aged ecology."
Sustainability educator Michael Thomas59 refers sustainable utilization to the ability to meet the needs of the present while contributing to the future generations as a responsibility to improve the future generations' life by restoring the previous ecosystems dainaged ai1d resisting contribution to fuliher ecosystem damage.
Uganda has continued to pursue a development agenda which takes cognizance of sustainability and main stream environm-ent protection in its implementation strategies. The Country's economy has continued to be natural resource based that emphasizes the need for access of up-to date and timely information on other status and dynamics as critical input in the national strategic plaiming process.
The NEMA has continued to play a key role in gniding a development in the country by providing critical information on the resource dynamics. Therefore there is an urgent need to continuously review and refocus the utilization strategy to bring it in conformity with the overall goal of sustainable utilization being pursued by the government. As earlier observed, this is only possible through continued availability of up-to-date and timely information on the state of the resources and this has been crucial in rai~ing public awareness and participation in the vital area of environmental management. 60
Uganda like any Country in the World has faced many challenges resulting from the global financial crisis. The interconnection of our economies and the lack of liquidity on the World Market have resulted into mass job losses and the closure of some companies thereby
58 (1996)5 Supreme Court Cases 647 59 3'd Wo'rld Congress of the United Nations on league (totals at 21) 60 Hon. Henry M.K., The State of Environment Report for Uganda, 1998 pg. 4
27 challenging our commitment to the climate and environmental changes which gap this study has filled.
The Authority as a highly placed institution in the country has supported other institutions and ensured that the general public also supports sustainable utilization of natural resources in the country.
There is a need to activate sustainable utilization which determines the environmental problems that are approached from a wide and social perspective which has led to awareness that there are particular shortcomings inherent in handling the problem of environment management and protection through traditional or legal mechanisms. It was recognized that solving environmental problems requires that the law adopts novel and innovative approach. 61
For some time now the primary benefit of how sustainable utilization affects the environment is to the environment itself and the practice has allowed decisions which do not destroy the environment for immediate gains but rather utilization that considers how future generations are affected as well as deciding wisely on how to use resources in a way that supports this.
The interdependent and mutually reinforcing pillars of sustainable development are the economic-social development and environmental protection according to the United Nations. 62 Basing on the triple bottom-line (economic prosperity, environmental and social equality) numerous sustainability standards and certification systems will be established particularly in the food industry. Well known standards include rainforest alliance, fair trade and many others.
John Ntambirweki discussed the common law position in his paper, "the legal and policy frame work for natural resources management" where he talks about the past and present on how the law has been dominated by common law which is not be susceptible to change. He said that it is not a means to be adopted to achieve immediate and revolutionary change. He pointed out the role of customary law practices as regards environmental conservation that can be best taken care of through community participation and awareness. He also said that there is no better means for bringing awareness to communities except through their own practices or customs. He as well pointed out that the past laws lacked provisions aimed at conserving natural resource base. The
61 http//:enwikipedia.org.2011.gf (accessed 05/Oct.2013) 62 2005, World Summit document 6
28 force behind those laws was to encourage exploitation of resources and this has been the case with the present law.
However this study has examined the role of played by NEMA in protecting the environment to encourage sustainable utilization as this has employed methods that help the environment to naturally replenish so that it may meet the needs of the present generation as well as those of the generations to come. . Utilization was generously differentiated from sustainable utilization in that the utilization prioritizes what its proponents consider to be environmental sustainability over economic and cultural considerations as per Allan Smith. 63
Different organizations have tried to measure and monitor the proximity of what they consider sustainability by implementing what is called sustainability matrices and indices. This has engaged considerable political debate about what is being measured since sustainable utilization seems to set limits on the developing world.
Environmental Law is a fast changing and rapidly developing area of law. It is clear that Environmental Law has come of age offering its own distinctive methodology and approach to problem solving tln·ough a combination of regulatory approaches that include licensing . conditions, inspection procedures, and the use of courts of law as well as different modes of self- regulation. This is a period of wide perceptions about the role of NEMA and the State in the regulation that seek to provide in many instances a regulatory structure to prevent pollution of the environment and avoid excessive costs of maintaining the environment. Environmental Law will offer its own distinctive conceptual framework found in developments such as IPC, EIA and adoption of new institutions and ideas.64
The Concept of sustainable utilization has comprised four elements that is to say; the need to preserve natural resources for the benefit of future generations, the aim of exploiting natural resources in a manner that is sustainable or rational, the equitable use of natural resources which implies that use by one State must take account the needs of other States and the economic together with other utilization plans, programs and projects and that the development needs are to be talrnn into account in applying environmental objectives.
63 National Report on Progress on the Implementation of the Rio Commitments on Sustainable Development in Uganda, at Pg. 7 14 John and Sharron M. K., August 1995 at Pg. 52
29 According to Kenneth Kakuru individuals are required to take responsibility over the environment from then in environmental law as it evolved from the English law of torts since for one to understand enviromnental law they have to appreciate the history and nature of the law of tort. In Reed V. Smith65 it was successfully argued for the defendant that "he did not grow the trees, he did not root them and he did not blow them down" though the law has changed position to cover liability in nuisance from the escape of things from the defendant's land to the plaintiff's even when they are naturally on the defendants land.
In the case of Knight Brace V Walter66it was said thaf;
"ought this inconvenience to be considered, as more forceful more than one mere delicacy or fastidiousness as an inconvenience materially interfering with the ordinary comfort physically of human not merely modes and habits of or dainty modes and habits of living but according to plan living and sober and simple motions among the English people."
From all the above reviews the researcher found that none of the experts or authors laid down the salient principles of "Sustainable Development" as culled out from Bruntland Report and other international docwnents which gap the study has covered say, the Inter-Generational Equity, use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing ~ountries among other principles.67
2.2 Conceptual Framework
Environmental law has practically touched eve1y facet of society. It has been basically more interested in protecting human health, manage natural resources and sustain the biosphere. These goals have been attained through laws that set standards for environmental planning, management of wildlife, plant, mineral resources, land use and other activities that can affect the air, water, soil and other resources.
The raise of large urban centers has seen the development of laws seeking to allow people to live in harmony with nature where the environment will not be interfered with at any level or jealous
65 1914 19 BCR 139 at 140 66 Unreported 67 Vellore Citizen's Welfare Forum v. Union of India & Others (1996)5 Supreme Court Cases·647
30 guarding of resources. 68Then for the sarue urban areas there is need for building chimneys to prevent excessive smoke or threat of fire which will give a better environment and good sanitation thereby supporting sustainable utilization of the environment in Karupala. 69
Many countries have adopted a fraruework of environmental laws which usually establish a National Agency or vest powers with the ministry of environment that include provisions of EIA and set out a number of basic provisions for environmental sectors that require development or harmonization with existing implementing legislation or such fraruework laws.
2.3 Conclusion
Environmental law being a fast changing and rapidly utilized area of law, considering the literature of Uganda, the government has continued to support the National Environment Management Authodty to ensure sustainable utilization of the environment in Uganda and Karupala city for that matter.
68 Robert P., Environmental Regulation: Law Science and Policy 69 Frank P. G., Environmental Law, 1971 at pg. 101
31 CHAPTER THREE
RESEARCH METHODOLOGY
3.0 Introduction This chapter shows how the researcher collected data from the respondents. It is sub-sectioned into research design, study population, sampling techniques, sample size, data resources, data collection instruments, data management, data analysis, quality control and validity and reliability.
3.1 Research Design The research study involved both qualitative and qu_antitative methods of data collection. It particularly relied on text books, journals, environment repmis and related laws that contained other necessary information. This means that libraries like the NEMA iibrary, and the Makerere Institute of Natural Resources was consulted, the internet too was of paramount use establishing the role ofNEMA in ensuring sustainable utilization of the environment in Kampala.
3.2 Study Population The study involved individuals (respondents) men and women above the age of eighteen who included officials and staff from NEMA, university students and other members of the society. For the convenience of the researcher the individuals were either working or staying in Kampala.
3.3 Sampling Techniques - In this study the researcher used the simple random technique to pick respondents who paiiicipated in the reseai·ch study. This technique was preferred to other.s because it would enable the researcher pick respondents without bias and each person in the study would have an equal opportunity of participation.
3.4 Sample Size These are the respondents the researcher liked to participate in the reseai·ch study. The researcher thus used a sample size of eighty respondents who represented .the study population in Kampala. Fifteen of these respondents were ·officials and staff from NEMA, another ·fifteen university students and fifty from the general public.
32 3.5 Data Resources The researcher collected data from both primary and secondary sources say, data collected from books from libraries, administering questionnaires to the respondents; use of interview guides and through observation.
3.6 Data Collection Instruments This involves what the researcher used to collect data from the research area, thus;
(i) Use of interviews: The researcher conducted personal interviews with some respondents during the data collection stage in finding the role ofNEMA iri ensuring sustainable environmental utilization in Kampala. (ii) Observation: Where possible ·the researcher just used eyes to observe and acquire information related to study. (iii) Questionnaires: The researcher also gave out questionnaire~ to the respondents who provided information basing on the questions asked therein.
3. 7 Data Management When data was collected, the completed questionnaires and conducted interviews were analyzed by the researcher to find out whether everything had been filled in on the questionnaires and checked carefully the number of questionnaires too to verify. if they were the ones given out during data collection.
3.8 Data Analysis Data was analyzed manually by the researcher and find_ings were presented in paragraphs, tables, pie-charts, bar graphs among others for easy interpretation of the results.
3.9 Quality Control A research assistant was trained on how questionnaires are managed and how to use interview guides during research. Questionnaires and interview guides were also pre-tested before use in the field to ensure their accuracy.
33 3.10 Validity and Reliability The questionnaires and interview guides were pre-tested to find out their easmess of interpretation by the respondents. They were filled and· then later used in the field after verifying their reliability in data collection.
34 CHAPTER FOUR DATA ANALYSIS OF THE RESEARCH
4.0 Introduction
In this chapter the researcher analyzed the findings of his work that he acquired through questionnaires which has been shown in the appendix. Most questions have been carried out from NEMA house along Jinja road in Kampala city mostly centered at what NEMA has done to ensure sustainable utilization of the environment, its mandate as stipulated by the legal frame work, the general challenges faced in its campaign, the role of other stake holders in helping NEMA to see to it that sustainable utilization of environment in Kampala is achieved as well as their impact on the body and the laws applicable to protect the environment so that sustainable development is realized in the country.
4.1 What NEMA has done to ensure sustainable utilization of the environment?
NEMA has done a lot to ensure sustainable development by fulfilling its obligations and mandates conferred to it by the Act (NEA). NEMA's achievements include among others the following;
As a provision of Section 14 of the Act, NEMA has established District Environment Committees for each district to cater for environmental conservation at the district level through coordination with the authority. This has been strengthened by appointment of District Environmental Officers in each district70 and this has helped to promote sustainable utilization of the environment straight from the grass root which has helped to boost sustainable development in Kampala.
The Authority has work hard to control _pollution of the environment despite the high rate of industrialization especially in Kampala. The country is currently pursuing a policy of rapid industrialization and industries that have come out have been found to be major sources of pollution for example the direct discharge of untreated industrial effluent from Uganda Breweries to Lake Victoria which forced the Authority to intervene and stop Uganda Breweries from discharging untreated industrial effluent to Lake Victoria and as if this was not enough, the authority also established the Lake Victoria Management Project purposely for addressing
70 Section 15 National Environment Act, Cap 153
35 environment threats on the lake thereby ensuring sustainable development or utilization of the environment.
NEMA has helped in strengthening and improving conservation of biodiversity in the country. The most effective form of conservation is the situ conservation which refers to the protection of threatened biodiversity in its-natural habitat; it has ent,riled the establishment of protected areas of natural or Semi natural eco-systems of which natural forest reserves, national parks and wildlife reserves are good examples the best including Entebbe Botanical Gardens and Entebbe Wildlife Education Centre as the major sites. More so Lake Victoria Environment Management Program (L VEMP) has aimed at maximizing the sustainable use of the lake resources by riparian community with the basin as well as conserving the biodiversity and genetic resources in the lake.
NEMA has ensured public awareness programs that have been mainly conducted through mass media and publicity during International and National Environment days, also normally, approximately 20 radio and various TV stations in the capital city run programs on environment every week.
The Authority has also published a quarterly newsletter covering topic issues on the environment. In addition, environmental posters, charts, brochures and other visual materials have been be printed and widely distributed within the country. Such awareness has thus made it a duty of each public individual to seek court redress. For instance in Rev. Christopher Mtikila V. The Attorney Generai7 1Justice Rugakingaira stated that;
"Given all these and other circnmstances, if there should string up a public spirited individual and courts intervention against legislation or actions that prevent the constitution, the comi as guardian and trustee of the constitution and what it stands for is under an obligation to rise up the occasion and grant him standing."
The Authority has worked with Makerere University _School of Education and the Institute of Teachers Education Kyambogo (ITEK) through a series of workshops to integrate
71 H/C ofTZ Civil case No. 5 of 1993 at 551 36 Environmental Education (EE) into their cmTiculum. A Degree of Environmental Management has been introduced in Makerere University other m1iversities too have offered the same thereby ensuring sustainable utilization of the environment in Kampala.
Since every part in the world has a responsibility to contribute to the protection of the Ozone layer, while ensuring sustainable utilization in the coU11try, NEMA has prepared draft Ozone depleting substance regulations responsible for controlljng the Ozone depleting substances which among other things cover import and export of controlled Ozone depleting substances. This has assisted developing coU11tries in capacity building and in the implementation of the Montreal Protocol and Uganda has been very active at the regional level which activeness has to be attributed to NEMA in its campaign of ensuring sustainable utilization of the environment.
The Authority being a Public Statutory Body, it has established a horizontal Environmental Information on Management (EIM) that targets an expanded mega data base to approximately eighteen institutions which among others include; National Early Wanning and Food Information System, Fisheries Research Institute, Uganda Fisheries Research Institute, Kawanda Agricultural Research Institute and the Department of Animal Product (Ministry of Agriculture, Animal Industry and Fisheries) and cmTently info1mation from over twelve institutions has been developed into a Mega Data Base which originally was from five institutions.
To ensure this kind of data base, NEMA has enabled and ensured computer training programs focusing on Kampala city. The training has aimed at building capacity at the city level so as to operationalize a dynamic EIS and the objectives are to enable them handle digital database which supports development plam1ing and environmental reporting. This has targeted various sector departments including; agriculture, veterinary, fisheries, health, education, lands, planning and economic development. Environment officers and plauners in Kampala are required to undergo a specialized training in applied GIS in natural resource management to foster this hence promoting sustainable utilization of the coU11t1y's environment which has encouraged the same in the capital city.
4.2 The mandate ofNEMA as stipulated by the legal framework
NEMA's mandate is generally established in the National Environment Act, Cap 153 and above all, the authority ensures that the principles of environmental management are realized that is to say; to assure all people living in the country the fundamental right to an environment adequate
37 for their health and well-being, . to encourage the maximum participation by the people of Uganda in the development policies, plans and processes for the management of the environment, conserve the cultural heritage and use the environment and natural resources of Uganda for the benefit ofboth the present and generations to come72 among other obligations.
NEMA is mandated to perfonn its functions enshrined in section 6, NEA for instance; to coordinate the implementation of government policy and the decisions of the policy committee, to ensure the integration of environmental concerns in overall national planning through coordination with the relevant Ministries, departments and agencies of the Government, to liaise with the private sector, intergovernmental organizations, NGOs and government agencies of other states on issues relating to the environment, to propose environmental policies and strategies to the policy committee among others.
The authority is also mandated to establish District Enviromnent Committees and District Environment Officers73 for each district to help protect and conserve the environment at district level which has helped boosted its campaign of ensuring sustainable utilization of the environment in the country which directly reaches the capital city.
NEMA is has full mandate to bring actions against anybody violating the environment to frustrate the can1paign of ensuring sustainable development. In Byabazaire V Mukwano Indnstries 74 court stated thafthe NEMA had to establish air quality standards before the totality of the right to a healthy environment could be gauged.
4.3 Challenges faced by NEMA while ensuring sustainable utilization of the environment
Though NEMA has played its role to ensure sustainable utilization of environment in Kampala, a couple of challenges have been encountered by the authority as shall be discussed hereunder;
It should be noted that most of the challenges if not all that are faced with NEMA are a result of difficulties in enforcing the laws set to protect the environment of Uganda in general which fact has greatly contributed to perpetration through such laws to encroach on the environment .
72 Section 2(2) National Environment Act, Cap 153 73 Sections 14 and 15 respectively, National Environment Act, Cap 153 74 (2001) LLR 1 (HCU)3
38 According to the executive director of NEMA Dr. Tom 0. Okunit, the highly increasing population in the capital city has highly put pressure on the city's environment75 which fact has resulted into among other problems swamp reclamation and pollution of land, water and air resources as earlier discussed.
In countries where environmental protection has to a great extent been a success, there are laid down strategies to ensure that the population in such countries is controlled to beat the pressure that it may put on the environment. This is because there is a direct relationship between population growth and environmental degradation. Therefore population growth in Kampala that is to say, over 2,000,000 people76 has greatly led to environmental degradation in the capital city a challenge NEMA has faced for over three decades.
Pollution probably industrial pollution since Uganda's economic growth strategy is led by industry though the base is still small. Despite carrying out enviromnent impact assessments with specific mitigation measures, the technologies installed by many established industries fall short of expectations. More so, the inspection role of the relevant lead agencies and ministries is incapacitated due to lack of financial resources and improved logistics.
Another form of pollution in Kampala is public smoking, though there are legislations to cub down this act. It is a problem that courts of law have also failed to criminalize. For example in British American Tobacco (U) Ltd (BAT) V The Environment Action Network (TEAN)77 Ntabgoba J. dismissed the ap_plication after tackling substantive matters that were the subject of . the fonner suit. He held that the court lacks power to create a criminal offence therefore rendering BAT's interest in the case moot. He also observed that a declaration against unregulated public smoking would not materially affect BAT' s interests.
Also in Eryan V The Environmental Action Network 78 the applicant claims to a former tobacco industry employee who smokes and was concerned with the respondents that is AG and NEMA' s request for enforcement of criminal penalties for smoking in public places. Court said that the criminal aspects of the respondent's case were dismiss.ed so that it could no longer be a ground for the current application. Court also took judicial notice of the fact that smoking and
75 A report submitted on the "Impact of Population Growth on the Country's Environment." 2004, Makerere University 76 Ibid, chapter one 77 (2001) LLR 3 HCS 78Civil Application No. 39 of 2001, High Court at Kampala
39 . especially second-hand smoke is dangerous to public health. The court dismissed the application as an "obstructionist" and refused to be heard so as to seek a ban on smoking in public places.
NEMA has not escaped the problem of inconsistence in the monitoring of different ecosystems and species which has affected the authenticity of the data and information generated that has greatly resulted from contradictory assessments especially in the forest sector thereby complicating the process of establishing preventive and corrective measures. This means that the authority still needs to establish a coherent monitoring program for biodiversity and other environment resources as well as harmonizing the methods of monitoring among lead agencies.
The problem of inconsistent monitors emanates mainly from inadequate funding of the authority. Thus, NEMA does not have a:rpropriate funds to employ all the resources it may need to monitor . all its activities in Kampala which fact has accelerated environmental destruction as people have continued to put up building structures in prohibited areas especially wetlands. 79
Basing on the record of our nation, various state bodies are interfered with by corruption and dirty political games and of course NEMA has not been an exception from this in its campaign to ensure sustainable utilization of the enviromnent in Kampala. For example the financial and logistical resources meant for garbage collection are often stolen hence causing inefficiency in garbage collection. According to Bukenya (2009), the challenges that NEMA is facing are partly attributed to the power tl1at many politicians have that are even evidenced by breaking the supreme law of Uganda for instance by breaking the environmental laws80 say, interfering with the right to a clean and healthy environment. Such political interferences have worsened com1ption in NEMA thereby frustrating its campaign· of ensuring sustainable utilization of the environment in Kampala.
The desire for foreign investment has also become a challenge to NEMA in .its bid to protect the environment for sustainable development. The power given to NEMA has on various occasions been overridden by top government officials by giving away land gazettes ofNEMA to investors to put up industries and commercial structures in the guise of providing jobs to the citizens. For the Shoprite and Game mall in Lugogo and Munyonyo Resort hotel are standing on former wetlands, the climax of this was seen in 2007 when the president of Uganda gave away Mabira
79 The Best Way to Manage and Preserve the Environment in Uganda, a paper presented to NEMA management by CIDI, 2009 80 John K., the Law Relating to Water and Wetland Resources in Uganda, faculty of law, MUK unreported.
40 forest to the Mehta group for sugar cane ·plantation which would be no more by now had it not been for the high spirited protests from the masses popularly spearheaded by Hon. Betty Anywar. 81 Investors have therefore ended up degrading the environment and NEMA in its authority may not have a say to stop these investors for having been endorse~ by the top officials in government like the president.
Despite efforts by NEMA and the Wetlands Management Department in the Ministry of Water, Lands and Environment to conserve wetlands in Kampala, they have continued to suffer from encroachments causing reclamation. Recent estimations indi_cate that more than 7% of the original wetland areas in some parts of the city will be converted for other uses. It is from this that loss of biodiversity has emanated especially for species that thrive in wet habitats like aquatic birds and fish, more so, aquatic· systems been affected by various negative processes including pollution and siltation which adversely have affected aquatic biodiversity.
Lack of research and institutional development is yet another problem that NEMA has encountered. Kampala just like any other district still lacks a regular air quality monitoring and management system. The only in_stitution with the mandate to manage atmospheric data is the Depart_ment of Meteorology and though there are efforts by-the authority and the Department of Meteorology under the environment management capacity building projects to rehabilitate and build more weather stations to give more countrywide data coverage, it has remained a challenge.
According to Lubega George, a natural resources management specialist working with NEMA, the problems also arise from failures ·at different institutional linkages for environmental management. 82
Whereas for instance wetlands are held in trust for the Ugandan people by the central government, recent examples of wetland abuse have included cases . where government authorities have been the very violators of these constitutional and legal provisions and where this has happened local authorities have always indicated that they converted wetlands let's say, for the sake of providing their communities with economic growth opportunities. It is therefore a dilemma that the very institutions entrusted with the protection of wetlands have on various
81 Ibid chapter two and three 82 A Research Report submitted at Kampala International University on the Role NEMA in Protecting the Environment in Uganda at pg. 32
41 occasions not assisted in the campaign for their conservation so that they may help NEMA in achieving its goal of ensuring sustainable development.
Lastly, the quality of surface and ground water has deteriorated as a result of increasing urbanization, population growth and anthropogenic activities. This has raised the population's vulnerability to water-borne and other water-related diseases such as typhoid, dysentery and cholera. This is common in slum areas of Kampala such as Kivulu, Katanga, Bwaise, Kansanga Nabutiti among others.
4.3.1 Possible Solutions to the Challenges Facing the Authority
Enabling Environmental Audits
An environmental audit is a systematic, documented, periodic and objective evaluation of how well environmental organizations, management and equipment are performing in conserving the environment and its resources.83 NEMA through undertaking environmental audits has checked compliance with environmental policies and legislative requirement hence identifying risks and exposing them for collection. Environmental audits have also enabled expansion planning where there is need to obtain an environmental permit which involves time consuming negotiations with the regulatory agency NEMA and the need to carry out time consuming environmental monitoring. An audit if caiTied out will have all this information at hand since it aids decision making when considering investments by assessing the risks associated with the investment as well as serve as a variable exercise and the audit repo1i can be used as a material for employee training purposes.
Improving the Status of Environment Information Management
Every person has freedom to access any information relating to the implementation of the statute. 84 NEMA and the relevant institutions have served as developing guidelines and principles to improve environmental : information collection, processing, exchange and dissemination.
"section 2 (interpretation) National Environment Act, Cap 153 M . Section 86 of the NEA, cap 153 42 Strengthening District Environment Profiles and State of Environment Reports (DSOER).
District environment profiles are documents containing details of the resources and endowments of a given District. They outline the oppo1iunities and constraints for the utilization of resources for district development. The profiles have been improved in Kampala an act that has encouraged positive changes in the environmental state of the city.
Strengthening Environment Standards
Environment standards are one of the tools developed for the management of environment in the country. The standard has allowed for enforcement by applying specific quality and quantity measurements. The strengthened environmental standards offers those conducting an activity the opportunity to gauge their behavior and maintain it within prescribed limits for example, standards of water quality specify very strict limits for purity and these limits have for instance specified that drinking water should contain no more than some infinitesimal specified level of certain contaminants such as toxic chemicals, bacteria or pathogens.
Ensuring Proper Procedures of Can-ying out Environmental Impact Assessment Development activities and land use practices have impact on the environment and therefore the assessment and evaluation of these impacts has been essential. It is to be unde1iaken by the developer using his or her own manpower or practitioners or finns registered by NEMA. The Authority has ensured that the assessment is conducted before projects are licensed or approved for implementation by the responsible licensing and or approving agencies.
Programs to promote sanitation facilities
In order to improve accessibility to sanitation facilities, rnral sanitation programs have been implemented in the country more so Kampala at varying levels of intensity to reduce the likelihood of diseases the common ones being water related; Most of the existing sanitation facilities have been catered for by various donor organizations and NGO's including UNICEF/SIDA, DANIDA, LWF, Water.Raid, and Care International among others but under approvals ofNEMA.
Programs to reduce biodiversity Joss
At the Government level, NEMA as the Principal Agency has collaborated with existing institutions in the country to ensure sustainable development as the major ·program whereas at
43 community level, the authority has collaborated with the Non-Governmental Organizations which have dealt with management of the environment in the focus sites.
4.4 The role of other stakeholders and their impact on NEMA in ensuring sustainable utilization of environment in Uganda
It should be remembered that while performing its functions, NEMA is always helped by bodies of the government and nongovernment bodies for instance, the authority may in the performance of its functions delegate, by statutory instrument, any of such functions to a lead agency, a technical committee, the ex~cutive director or any other public officer. 85 Therefore analyzed hereunder are the roles of other stakeholders in ensuring sustainable utilization of the environment.
4.4.1 Role of parliament
Parliament as a body concerned with the enactment of laws has a great role in ensming sustainable utilization of the country's environment. Parliament has to see to it that the enacted laws embark on sustainable development and this is derived from the mandate of parliament to provide for measures intended to protect and preserve the environment from abuse, pollution and degradation, to manage the environment for sustainable development and to promote enviromnental awareness. 86 This is however evident in the couple of parliament laws has enacted - to conserve the environment right from NBA, NF A an16ng other laws.
4.4.2 Role Played by Non Governmental Organizations (NGOs)
To the extensive publicity and intensified environmental public awareness; many environment NGOs were formed in various fields of environment management. NEMA has registered all NGOs which among others include Gee watch and TEAN. It should be clearly noted that an annual environment consultative forum has been held since I 998 to review the performance of these NGOs and their contribution to environmental management, share to ideas and agreement on priority areas to take in the years to follow. The NGOs have been so active in public interest litigation on matters concerning violation of the right to a clean and health environment in accordance with article 50 87
85 Section 6(2) National Environment Act, Cap 153 86 Article 245 Constitution of the Republic of Uganda, 1995 87 Constitution of the Republic of Uganda, 1995
44 4.4.3 The role played by Lead Agencies
Under the various sectoral Policies and Legislation, there are Lead Agencies which are coordinated by NEMA for purposes of addressing environmental matters, this is done through environmental liaison units that have the responsibility to develop internal capacity to contribute to sustainable environmental management, collect data and disseminate information and promote environmental education and public awareness in their respective sectors. They also ensure enforcement, implementation, compliance and monitoring of laws, policies and activities within their mandates.
Lead Agencies are also expected to supervise within their legal Administrative set up the conduct of environmental assessment, set environmental standards and can·y out inspection of the various environmental aspects within their mandates.
The National Enviromnent Statute specifically provides for NEMA as a coordinator and supervisor of the Lead Agencies 88 as the agencies are envisaged as initial elements of the backbone for environmental management in the country.89
However, experience over the last decade, shows that most Lead Agencies do not perform their roles satisfactorily due to a number of reasons. For many lack environmental management capacity, are poorly motivated and facilitated and lack a clear ownership perception of the environment management programs within their respective sub-sectors. - 4.4.4 The role played by the government and local governments
The central government and local governments have also taken part in environmental protection for sustainable development, for instance in the Land Act, the government or local government is required to hold in trust for the people and protect natural lakes, rivers, ground water, natural ponds, natural streams, wetlands, forest reserves, national parks and any other land reserved for ecological and touristic purposes for the common good of the Ugandan citizens.90
The decentralization policy provided for in the Local Government Act 1997 involves devolution of powers from the central government to the district and other lower councils; the District Council is the highest level at the District_ to ensure the integration of environmental issues in the
88 Section 6 National Environment i\ct, Cap 153 89 The State of Environment Report, 2008 at pg. 62 0 ' Section 44 Land Act, Cap 227
45 development planning process. The District Council has direct communication linkages with the District Coordination Unit located within the office of the executive director ofNEMA. NEMA as the Principal Agency for the management of environment provides guidelines for the establishment of district environment committees in consultation with the DLCs.
The District Environment Committees ensure that environmental concerns are integrated in the district plans and projects,_ fmmulate bye-laws, promote dissemination of environmental information and prepare the District Environment Reports annually. Kampala being the capital has also prepared its City State of Environment Repmis with the assistance ofNEMA. In Babu Omar and Others V Edward Mwarania and another91 Court noted that there is nothing in the statutes relating to local authorities to exclude the comis ordinary jurisdiction to restrain ultra vires acts or nuisance or to prevent breaches of tiust. By 2007, more institutions such as Local Environment Committee, the District Environment Office and the District Technical Plarming Committee were established.
However, it has to be put into our minds that these institutions have little effect in curbing the destruction of the environment as the environment continues to deteriorate at an alarming rate. This ineffectiveness of the institutions has been attributed to nun1erous factors like High levels of non-compliance with environment policies, laws, regulations and standards, due to under delineation and assignment of roles, contradictory messages from leaders and many more.
4.4.5 The Role played by KCCA
KCCA is responsible for the operations of the capital city of Kampala in Uganda. It replaced the fonner Kampala City Council.
It is headed by the Executive Director Jennifer Musisi and other officials. The Authority is a body corporate with perpetual succession and common seal and is capable of acquiring property, sue or be sued in its own name. The Authority works hand in hand with NEMA to coordinate monitor and supervise all activities in the field of enviromnent within the capital city.
In Siraji Waiswa V Kakira. Sugar Works Ltd,92 H~n. Mr. Justice Yorokamu Banwine noted that the applicant does not have to wait until his presmned rights are violated before he lodges an application for a temporary injunction, the judge, basing on a balance of convenience restrained
91 (UR) HCCCl/96 92 HC Misc Application No. 230 of 2001
46 the defendant from uprooting the forest to establish a sugarcane plantation during the pendency of the main suit. Court held that the suit property of the respondent KCC and NEMA having been a great light on the project and them being the controlling and regulatory authorities respectively, leaves against applicants success in the legal suit.
Also in Green watch and ACODE V Golf Course Holdings Ltd,93 the plaintiffs claimed that the construction of the hotel on the wetland is threatening the environment which contravenes the law for being on a wetland -and greel) area. It was lleld that botl1 Kampala City Council and NEMA are public bodies which are put in place to ensure that private developers like the respondents conform to standards laid down by the law and since the respondents maintained that both the controlling authority (KCC) and the regulatory authority (NEMA) gave them a go ahead after carrying out an impa<;t assessment. In this view~ tl1ese public bodies are in place to ensure that the Forestry and Tr~e Planting Actprovisions are complied with and hence taking care of the public interest tl1e applicants are claiming to protect. Court further noted that the plaintiff has no locus standi ,o sue under this Act and the application was dismissed.
The previous Reports fronr KCCA show that large concentration of people in Kampala and many of the other urban centers, coupled with -lack of requisite waste management infrastructure has created a serious waste management problem in the area. Waste collection rates in Kampala are low at about 38 perco11t of generated waste. Many people resort to disposing waste crudely by dwnping or burning including release of waste into trenches locally known as "emyala". ( However, the esta.l>lishment of KCCA under the Act of 2010 has greatly in1proved solid waste disposing for ins';ance more J:han 28 private collectors now provide door-to-door waste collection services at a nominal fee of less than 18,000 UGX per household per month an act that has controlled waste dumping thereby preserving the environment for sustainable development.
The Authority has enm;ted laws banning the use of polythene carrier bags, reserved some areas of green pasture in the city. It has also encouraged planting of tree in the city to ensure conducive ' atrnospneres. This is among other actions evidenced by the demolition of Centenary Park . . builcl.ing which had been con11tructed in the reserved environment of the Authority.
" HC Misc. Application No. 390 of 2001 at page 23
47 ------
4.5 Conclusion
Given the fact that NEMA has been so instrwnental in seeing to it that the environment of Kampala is utilized in a sustainable manner, credit also ought to be given to other stakeholders that have helped the authority in its campaign both government _and non government bodies.
48 CHAPTER FIVE DISCUSSION OF RESEARCH FINDINGS, CONCLUSION AND RECOMMENDATIONS
5.0 Introduction This chapter describes the findings of the research as given by the respondents during data collection stage. It is restricted to these findings and gives an analysis thereof by the researcher.
5.1 Discussion of research findings On the type of sex, the research findings found out that there were more men who participated than the ladies. Out of all the respondents who took part in the survey 76% were men and 24 were women. The samples were randomly picked to paiiicipate in the survey however this trend showed that more men are interested in surveys than women. This is also because some of the women refused to participate in the survey since they were illiterate.
When it came to age, respondents between the age of 18-25 yeai·s were the majority and these were represented by 40%, those between 36-45 were represented by 22% which was the same percentage with respondents of45years and above and there least represented were those between 26-36years to is to say, 16%. During the reseai·ch, the researcher tried to balance the respondents but still the results showed that young people mainly at university level were interested in the study than those out of school.
About 56% of the respondents who were interviewed and those who. filled the questionnaires were mostly Baganda and this is paiily because Kampala where the study was carried out is commonly dominated by Bagai1da. The second were Banyankole who were represented by 25%, Basoga were I 0% and others were represented by 9%. The trends of the respondents can be visibly seen in Kampala and the researcher was not surprised by the figures.
On the education of the respondents, it was found out that 45% of all the paiiicipants in the survey had a degree as their education level. Those with diplomas were I 6% while those with secondary education were' represented by 9% and people with other levels of education were represented by 30%. The people with degrees were the majority because Kampala district has the biggest nun1ber of people with degrees than other are·a. It is also important to note that at the same time there are many people who live in the low income areas and these are mostly illiterate.
49 Catholics dominated the respondents that participated in the research study and these were represented by 52%. This is because Catholics are the majority in Uganda when compared to other religions. The Protestants were 22% while Muslims 12%, SDA5% and others from the remaining religions were represented by 9%.
On the question that the researcher asked which said 'Have you ever heard ofNEMA?' 72% of the respondents answered 'YES' while 28% answered 'No' meaning that they had never heard of NEMA in Uganda. This result means that the biggest number of the Ugandan population in Kampala has heard about NEMA as an authority that protects the enviromnent in Uganda. This also means that many people in Uganda degrade enyiromnent knowing that there is a body responsible for its protection.
When it came to whether NEMA has played its role of protecting the enviromnent to ensure sustainable utilization in Uganda, majority who were represented by 58% answered 'NO' meaning that the authority has not played its role. 42% however agreed meaning that the authority has played its role in the protection of the enviromnent. As a researcher I believe that both groups are right depending on what is going on in the country. Those who think that NEMA has not played its role some of them were basing on the way the environment is degraded especially in Kampala. Many gave me examples of how people say; politicians and businessmen are constructing in wetlands but the body is doing nothing to stop them.
The people who believe that NEMA has played its role also have their reason to believe because some of them gave me examples of some buildings demolished by NEMA because they were built in gazette areas and a lot of resettlements are cun-ently going on for the people who are living near lake Victoria and tl1is is all championed by NEMA.
In addition to the above, when the respondents were asked what NEMA has done to ensure sustainable utilization of the enviromnent in Kampala, many of them gave me examples of how the authority is rigorously sensitizing the public on enviromnental issues in the media. They also said that the authority is prosecuting those who violate enviromnental laws and the cases are many in court and the researcher was also inf01111ed that the authority has put up posters and notices in areas where people had started to encroach on the enviromnent stopping them from
so doing so and promising to prosecute them. They say these and many others have protected the environment.
Respondents during the study were asked if they know any laws protecting the environment in Uganda, 52% respondents answered 'YES' while the rest said they did not know any laws protecting the environment in Uganda. When the above respondents were asked to give some of the laws protecting the environment they were able to inform the researcher that there is a law that prevents people form building or doing any activity on wetlands, near the water bodies like lakes and rivers and mountains because it degrades the enviromnent. They also talked about the environmental law on waste dumping in Kampala where KCCA has been prosecuting those who dump wastes in illegal areas-. They also informed the. researcher about the environmental law concerning noise making and killing of certain species of animals.
It therefore clearly came to my knowledge tlmt people have infonnation. about the laws that protect the environment in Uganda but they stubbornly don't abide by the laws. This means that the people of Kampala just need to be sensitized about the importance of the environment and the love to protect their country from degradation.
The respondents also gave some of the challenges they think are facing NEMA in its campaign and these include the following;
Majority of them talked about the politicians and government officials as the most degraders of the environment in Uganda. They gave an example of the politicians who do nothing as they see the local people violate the environment just because they hope to ask votes from them. They also informed the researcher that some of the politicians and leaders in Uganda are using their political power to construct buildings and make businesses in illegal areas ·to for example they gave an example of Game (Shoprite Lugogo ), and the many shopping malls in Kampala that have been built in wetlands.
They also said that the authority is not given enough funds to cater for all its activities like monitoring the environment and all the activities undertaken on the land. They said NEMA does not have enough money to employ people who can monitor the environment.
51 Others talked about the challenge of illiteracy and ignorance as a factor that has affected the activities of NEMA. It is evident from the research results that some people in Kampala degrade the environment because of the fact that they are ignorant or illiterate. This has led to dumping plastics in trenches and others carrying out dangerous farming methods like burning the bushes which all have a negative impact on the environment.
The respondents were also asked the question, 'what can NEMA do to properly protect the environment so as to ensure sustainable development in Uganda?' the results of the research study include the following:
About 40% of all the respondents were of the view that the authority should closely work with other government agencies or institutions to properly monitor the activities that are carried out in the country. For example they said that if NEMA wolild closely work with KCCA, 80% of all the environmental violators would be stopped because KCCA is more .grounded than NEMA in Kampala and it would help it in cubing law violators. They also added that. the top government management like the president should try to follow up its officers who misuse their powers and violate .the environment to stop them from all their actions that frustrate the work of NEMA. Many also referred to the president as one person who is responsible for environmental degradation as he keeps on giving wetlands and forests to investors and these commonly affect the environment.
Some of the respondents also said that the authority should do more in sensitization so that the people could have knowledge regarding the importance of preserving the environment. People need to be reminded always about the need to preserve the environment and this NEMA cab do by investing more into sensitization through the media like radios, television, billboards and others which can reach the people in all localities.
5.2 Conclusion The National Environment Act created NEMA as the Principal Agency in Uganda for the management of the environment and it is thus charged with the duty of coordinating, monitoring and supervising all activities in the field of the environment in the country. The National environment Statute is supplemented with various sectoral laws which provide for regulation and control of environmental issues in specific areas. While protecting the country's environment,
52 NEMA has worked hand in hand with other bodies or agencies as created under the various sectoral statutes and these are-guided by principles and standards set by the authority.
The effect of this phenomenon is that there is adequate coordination between the various sectors. The bottom-top approach created under the Water Statute, the Uganda Wildlife Statute, Forest and Tree Planting Statute and the Local Government's Act, for instance coupled with the coordination of environmental issues provided for under NEA has helped Kampala to move from the old preservationist approach to the environmental issues to one where the public is involved in protection and conservation of the same which has greatly helped NEMA to realize its campaign as its motto states, ensuring sustainable development; thereby controlling the problem of wetland reclamation which has greatly resulted from high population in Kampala.
5.3 Recommendations The researcher's recommendations have been based on the Statement of the Problem of this report and the analyzed data thereof. Thus for sufficient utilization of the of the environment in the country especially in the capital city the researcher recommends;
5.3.1 Adequate funding NEMA by the Government It is clear that NEMA activities are focused on providing suppo1i to the government's main goal of giving a clean and health environment to its citizens as well as ensuring sustainable development through the NDP in accordance with the policy framework of the government and the MDGs and since the Autl1ority is one of tl1e highly placed institutions in tl1e country that can influence other institutions in the country and the general public, the government should fully finance the Authority for proper management and regulation of the environment as this will improve its work in ensuring sustainable utilization of the environment.
For instance when the funds are adequate precaution, management and preservation of the environment will be efficient otl1er tllan waiting to punish and seek compensation from violators as it is more expensive to cure the damage caused on the environment.
5.3.2 Supporting Local Governments NEMA being the principal agency in Uganda with the responsibility of coordinating, monitoring, regulating and supervising Environmental Management in the country should support institutions such as the District Environment Committees and the District Technical Planning Committees
53 through enabling a relatively effective and adequate Local Government ENR Management structure occasioned by the high status of the District Environment Officer and proper representation at lower levels-particularly at the sub county level.
The Authority should ensure Local Government level planning and budgeting process and place high emphasis on ENR management.
The Authority should also ensure compliance with enviromnent policies, laws, regulations and standards by the Local Government. It should also strengthen district level ENR information, monitoring evaluation and reporting systems.
Lastly the Authority should ensure sensitization of the local communities as regards to ENR management issues such as roles and issues.
5.3.3 Proper monitoring of the Lead agencies Important to note is that Lead agencies created under various sectoral statutes are guided by the principles and standards set by the National Enviromnent Management Authority under the National Environment Statute.
The Authority should ensure proper environmental management capacity within the lead agencies for them to perform satisfactorily their roles.
NEMA should also motivate and facilitate the lead agencies by ensuring a clear ownership perception of the Enviromnent Management Programmes within their respective sub-sectors. By doing this, the Lead agencies will clearly act as initial element of the backbone for environmental management in the country as envisaged in NEA.
5.3.4 Pnblic sensitization The environmental laws and regulations in Uganda should be accompanied with public sensitization and awareness to cub down environmental degradation. Our main problem being population pressure on the environment, the masses should be sensitized on the benefits of family planning to the environment other than just the economy.
54 5.3.5 Engaging various Donor Organizations and NGOs The Authority should work hand in hand with Donor organizations and NGOs such as Water Raid, CARE International, and DANIDA among others. And through their funding, the authority will be in position to improve accessibility of rnral population and sanitation facilities through implementing rural sanitation program in all districts of the Central Region of Uganda at varying levels of intensity.
5.3.6 Enforcement of Environmental Laws The enforcement of and compliance with environmental law is an important issue to be taken care 0£ The traditional forms of enforcement say means of fines and imprisonment may not be sufficient to ensure compliance. What has been urged and followed in many countries is movement away from the command theory of criminal laws to the use of economic incentives and disincentives in the form of taxes and charges for behavior deleterious to the environment and tax credits, tax exemptions, rewards for good environmental performance, soft loans and subsidies on the side of incentives.
Enforcement of the law: the Act provides for a variety of mechanisms which ensure that the law is enforced, The mechanisms go beyond the traditional command and control approach of criminal law which are envirorunental assessments, enviro1m1ent restoration orders and improvement notices, raising awareness, licensing and registration of activities and substances, the use of economic and social incentives, use of criminal law an10ng others.
Article 50 of the 1995 constitution of the republic of Uganda is for example a tool for individuals to enforce their own rights as well as those of others and in the same way a group would enforce its rights as a group. - Under this, unenforceable environmental laws should be revised to give a step allead in the struggle to revamp our environment. This is because we still have so many a law in the relevant statutes whose enforcement has nearly been impossible thereby continuing violation of environmental laws in the country hence frnstrating the campaign of sustainable development.
55 5.3.6 Application of Common law principles (torts) in Environmental Law
The application of torts in Environmental Law will greatly help in the preservation campaign of the environment as most people will be so keen so as to avoid suits against them resulting from injuries caused to their neighbors from violating the e~vironment hence encouraging sustainable development.
A tort arises from the existence of a generalized legal duty to avoid causing hmm to others through acts of omission and those of commission.94 The most common environmental law torts are nuisances and negligence.
A nuisance is defined as that activity arising from unreasonable, unwarrantable or unlawful use by a person of their property, working ai1 obstruction or injury to tl1e right of another or to the public and producing such material. annoyance, inconvenience and discomfort that the law will presume resulting damage.95
Nuisances include noise, odours, dust, smoke, pollutants and hazardous substances.
Noise produced by human activities must be of such inagnitude and intensity as to cause actual or psychological discomfort to persons of ordinary sensibilities for it to constitute a nuisance in tl1e legal sense. On the other hand, the noise from the operation of an industrial plant constitutes an actionable nuisance if it injures the health or comfort of ordinai-y people in its vicinity to an um·easonable extent.
Courts and legislatures have however had difficulties in setting an absolute standard and therefore determination of this rests on the facts of each case.96
In O'Neill V Carolina Freight Carriers Corp97 the plaintiffs showed fuat they were ordinary people and that the noise from trucks and loading operations at a terminal located inunediately adjacent to their home was unreasonable. That it caused them loss of sleep and prevented general
94 Christopher L. Bell, William F. Brownell, Ronald E. Cardwell, David R. Case, Lynn M. Gallagher, Daniel J. Kucera, Stanley W. Landfair, Marshall L. Miller, Karen J. Nardi, Austin P. Olney, Joseph M. Santarella Jr., John M. Scagnelli, James W. Spensley, Danie/ M. Steinway, Thomas F.P Sullivan & Rolf R. Von Oppenfeld, Environmental Law Handbook, Sixteenth Ed, Government Institutes, ABS Group Inc, Rockville, 2001 at pg 8 95 Black's Law Dictionary, Sixth Ed. 1990 at pg 1065 96 Christopher L. Bell, William F. Brownell, Ronald E. Cardwell, David R. Case, Lynn M. Gallagher, Daniel J. Kucera, Stanley w. Landfair, Marshall L. Miller, Karen J. Nardi, Austin P. Olney, Joseph M. Santarella Jr., John M. Scagnelli, James W. Spens/ey, Daniel M. Steinway, Thomas F.P Sullivan & Rolf R. Von Oppenfeld, Environmental Law Handbook, Sixteenth Ed, Government Institutes, ABS Group Inc, Rockville, 2001 at pg 9 97 156 Conn. 613, 244 A.2d 372 (1968) 56 enjoyment of their home. Court found that the facts in this case lead readily to a conclusion of injury to health because the noise during the night could logically cause loss of sleep and resulting injury to health and thus granted the home owner both an injunction and damages against the operators of the nearby business.
A cause of action against odours as a nuisance was brought in the American case of Lever V Wilder Mobile Homes, Inc 98 where the plaintiff sued because the defendant improperly maintained sewage treatment lagoon emitted offensive odours that interfered with gardening, family picnics and church groups at Lever's residence. Court found that anything causing inconvenience or damage or interfering with the eajoyment of life or property is a nuisance and that it was a nuisance to use property in such a way that annoying or injurious odours are emitted. Accordingly, the appellate court affirmed that Wilder Mobile Homes Inc was liable for maintaining a nuisance.
The same was witnessed in Uganda in Dr. Richard Kanyerezi V. the Management of Lubaga Girls' Schooi99where court held that the smell emitted by the pit latrines the defendant had built adjacent to the plaintiff's pr9perty made the plaintiff uncomfortable in his residence and thus constituted a nuisance which violated the plaintiff's right to a clean and healthy environment under Article 39 of the 1995 Constitution of the Republic of Uganda.
On the other hand, negligence has been defined as the omission to do ·something which a reasonable man guided by those ordinary considerations that regulate human affairs would or doing something which a reasonable and prndent man would not do. 100 Negligence is a tort that deals with acts not intended to inflict injury.
The standard of care required by law is that degree of care which would be exercised by a person of ordinary prndence under the same circumstances. This is often called the "reasonable man rnle" thus, what a reasonable man would do under all the circumstances. However, the defendant is not liable unless his act is Jhe proximate cause of the injury and the defendant is held strictly liable for their actions of negligence.
98 322 S.E2d 692 (S.C. ct. App. 1984) 99H.C.C.A No. 3 of 1996 100 Black's Law Dictionary, Sixth Ed. 1990 at pg 1032
57 Therefore;
"Persons harmed as a result of careless and improper disposal or handlings of hazardous waste can recover for their losses under a negligence cause of action. Indeed, state and federal courts have long recognized this common law theory of recovery against defendants who engage in the negligent disposal of pollutants such as hazardous waste."101
101 Christopher L. Bell, William F. Brownell, Ronald E. Cardwell, David R. Case, Lynn M. Gallagher, Daniel J. Kucera, Stanley W. Landfair, Marshall L. Miller, Karen J. Nardi, Austin P. Olney, Joseph M. Santarella Jr., John M. Scagnelli, James w. Spensley, Daniel M. Steinway, Thomas F.P Sullivan & RolfR. Von Oppenfeld, Environmental Law Handbook, Sixteenth Ed, Government Institutes, ABS Group Inc, Rockville, 2001 at pg 16 58 REFERENCES Legal:
Constitution of the Republic of Uganda 1995
National forestry and tree planting Act, 2003
The National Environment Act, Cap 153 ·
The water Act, Cap 152
Books and writings:
Christopher L. B., William F. B., Ronald E. C., David R. C., Lynn M. G., Daniel J. K., Stanley W. L., Marshall L. M., Karen J. N., Austin P. 0., Joseph M. Santarella Jr., John M. S., James W. S., Daniel M. S., Thomas F. P. S. & Rolf R. Von O.; Environmental Law Handbook, Sixteenth Ed, Government Institutes, ABS Group Inc, Rockville, 2001.
David J. Bakibinga, Principles of Land Law in Uganda, Fountain Publishers, Kampala.
De Fisher: Australian Environmental Law, Law Book Company, 100 HaITis Street, Py1mont NSW
Dr. Paras and Dr. Parag D., Environmental Management Law and Administration, first edition, Vanity Books, New Delhi, 1998.
Dr. Albert M., Background to Environmental Law Jurisdiction. A paper prepared at the symposium for environmental law lecture from African Universities, as quoted from Namboozo Josephine's dissertation at Kampala international University, (2010)
Emmanuel K., the Environment as a Human Right: Lesson from Uganda. Published by SIDA's Regional Conservation Unit (1993)
George L.M., the Challenges_in Monitoring and Enforcement of Environmental Laws in Uganda, Natural Resources management specialist with NEMA.A paper presented at a training workshop to strengthen and enhance the capacity of police investigators and state prosecutors to enforce the environment laws (2006)
5.9 Godber W. Tumusabe & Arthur B., Consolidating Environmental Democracy inUganda through Access to Justice Information and Participation, Accord Policy Research Series No. 3 2002.
John T. Mugambwa, Principles of Land Law in Uganda, Fountain Publishers Ltd, Kampala
Jone K., Management of Natural Resources and Environment in Uganda. Policy and Legislations Landmarks, 1997
Justine T. and Silas D., Environmental Law, Sweet and Maxwell's Textbook Series, Sweet and Maxwell Ltd, 1997
Kenneth K & Irene S., Case book on Enviromnental Law, Vol. I, Greenwatch, Kampala, 2009
Kenneth K. & Irene S., Handbook on Environmental law in Uganda, 2nd Ed. Greenwatch, Kampala, 2009.
Linda A. M. and William M. T., Environmental Law, Policy and Practice, American Casebook Series, Thomson West, 2007 l
Mark S., Materials on Environmental Law, West Group. St. Paul. Minnesota, 1999
Peter Callow, Encyclopedia of Ecology and Environmental Management, first Ed, Blackwell I Science Limited, London WCIN2BL, 1998 Professor Dr. Khan P., Primer on Environment Management, first Ed., Jayesh of multi-tech ' publishing company, Mumbai, 2001. Sustainable Development Series No.I, a guide to Environn1ental Impact Assessment process in I Uganda - Kenneth K., Rachel 0. M & Irene N., Greenwatch, Kampala, 200 I I
United Nations Environment Progranlffie for and on behalf ofNEMA. Guide to the practice of Enviromnental Law in Uganda: A hand book, second Ed., 2003. I Zygmunt J. B. Plater and Robert H. Abrams Wayne, Environmental Law and Policy, a Course Book on Nature, Law and Society, West Publishing Co!]lpany Minnesota, 1992
60 APPENDICES APPENDIX I CONSENT FORM I am Wilembe Sandrah a law student the Kampala International University carrying out a research on the "Role played by NEMA in ensuring sustainable utilization of the environment in Uganda." The respondents for this research are supposed to be living or working in Kampala District and above I 8years of age.
Respondents will be expecteg to answer all the questions given to them. All answers given will be important to the researcher.
However, the respondents should note that there is no direct benefit to them by doing so; the results will be used to devise ways of improving the role of NEMA in the protection of the environment.
NB: There is no risk attached and high level of confidentiality will be observed. The respondent has a right to refuse or withdraw at any time during the research.
Name ...... Sign ......
Date ...... : .. .
Thank you for participating.
Ms. Wilembe Sandrah
61 APPENDIX II QUESTIONNAIRE This is a questionnaire designed to collect data on 'The role played by NEMA in ensuring sustainable utilization of the environment in Uganda." The info1mation given will be treated with utmost confidentiality and it will be only for academic use.
Instructions
Tick where applicable and fill in where necessary (your name is not necessary)
Questionnaire number ...... Date ......
I. Sex a)Male 0 b)Female 0
2.Age a) 18-25 years D I b) 26-3 5 years D c) 36-45 years D d) 46-55 years D e) 56 and above D
3. Tribe a)Muganda D b)Musoga D c) Munyankole D d) Others specify D
62 -~
4. Level of Education a) Secondary 0 b)Diploma 0 c)Degree 0 d) Others specify 0
5. Religion a) Catholic 0 b) Protestant 0 c)Muslim 0 d) Seventh day 0 e) Others specify 0
6. Have you ever heard of National Environment Management Authority (NEMA)? a)YES D b)NO D
7. Do you think NEMA has played its role in the protection of the environment in Uganda? a)YES D b)NO D 8. If the answer to the above question is YES', what has NEMA done to protect the environment in Uganda?
......
63 9. Do you know some of the laws that protect the environment in Uganda?
a)Yes O
b)No 0
10. If the answer to the above question is 'YES', write down some of the environmental laws you know.
11. What are some of the challenges that NEMA is facipg in its campaign of ensuring sustainable utilization of the environment in Uganda?
12. What do you think NEMA can do to properly protect the environment in Uganda for sustainable development?
...... :, ......
13. Do you think illiteracy/ignorance is a factor that leads to enviI:onmental degradation in Uganda? a)Yes D b)No 0
Thank you for taking part in the survey. Your help in completing this questionnaire will help in identifying the role played by NEMA in ensuring sustainable utilization of the environment in Uganda.
64 APPENDIX III INTERVIEW GUIDE Respondents' particulars \ Name: ......
Occupation: ......
INTER VIEW GUIDING QUESTIONS
I. Have you ever had ofNEMA?
2. What is the role played by NEMA in ensuring sustainable utilization of the environment in Uganda?
3. Do you think NEMA has played its role?
4. What has NEMA done to protect the environment in Uganda?
5. Do you know of any laws in Uganda that protect the environment?
6. What challenges does NEMA face in ensuring sustainable utilization of the environment in Uganda?
7. What can NEMA do to properly protect the environment in Uganda?
65 I I I