THE EFFECTIVENESS OF ENVIRONMENTAL LAW IN PRESERVATION OF WATER RESOURCES; A CASE STUDY OF RIVER RWIZI-MBARARA DISTRICT
SSELUNGYEGYE DEUS KYOMYA REG. No.: LLB/12331/61/DU
A RESEARCH DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF A BACHELOR OF LAWS DEGREE OF KAMPALA INTERNATIONAL UNIVERSITY
2010 Effectiveness of Environmental Law in Preservation of Water Resources
TABLE OF CONTENTS
Declaration ...... i Approval...... ii Acknowledgement ...... iii Dedication ...... iv
CHAPTER ONE 1.0 Background of the Study ...... I 1.2 Statement of the problem ...... 2 1.3 Hypothesis ...... 3 1.4.1 Main Objective ...... 4 1.4.2 Specific objectives ...... 5 1.4.3 Research Questions ...... 5 1.5 Scope of the study ...... 5 1.6 Significance of the study ...... 6 I. 7 Area of the study ...... 6 1.8.0 Literature Review ...... 11 1.8.1 Introduction ...... 11 1.8.1 Related cases ...... 13
CHAPTER TWO
2.0 Principles of environmental law ...... 16 2.1 The concept of sustainable Development...... 16 2.2 The principle oflntergenerational equity ...... 22 2.3 The precautionary principle ...... 35 2.4 The polluter pay principle ...... 38
Sselungyegye. Deus. Kyomya Effectiveness ofEnvironmental Law in Preservation of Water Resources
CHAPTER THREE
3.0 Environmental laws and policies that participate in exploitation preservation of water resources ...... 41 3.2 The National Environmental Action Plan (NEAP) ...... 44 3.3 Assessment of the policy and legal framework of Biodiversity in the Uganda ...... 45 3.4 The basic element of a comprehensive and holistic framework of environmental law of Uganda includes the following ...... 45 3.5 The National Environment management Policy for Uganda ...... 45 3.6 Environmental Administration ...... 4 7 3.7 Environmental administration at Local Level...... 50 3.8 Decentralization and Management of Water Resources and Associated Services ...... 51
CHAPTER FOUR
4.0 Presenting and Discussion of the Study Findings ...... 53 4.1 Some of human activities practiced in environmental degradation along R. Rwizi .. 53
CHAPTER FIVE 5.1 Possible recommendations to curb down environmental degradation ...... 61 5.2 Ramsar Convention ...... 63 5.3 Mitigation ...... 65 5.4 Pollution Control...... 65 5.5 Control of water use ...... 66 5.6 Recommendations based on study findings ...... 67
Sse/ungyegye. Deus. Kyomya Effectiveness ofEnvironmental Law in Preservation of 1Vater Resources
LIST OF MAPS Map of Uganda Showing Mbarara District ...... 8 Map ofMbarara Showing Mbarara Municipality ...... 9 Map of Mbarara Municipality Showing River R wizi ...... 10
LIST OF PHOTOS Photo 1 Shows Farming Activities along River Rwizi ...... 55 Photo 2 Shows Oil spills from Heavy Trucks that collect sand from River Rwizi...... 56 Photo 3 Shows Water Pump used to get water from River Rwizi ...... 57 Photo 4 Shows Wastes damped along River Rwizi ...... 58 Photo 5 Shows Sewage Pond along River Rwizi ...... 60
Sselzmgyegye. Deus. Kyomya Effectiveness ofEnvironmental Law in Preservation of Water Resources
DECLARATION I Sselungyegye Deus Kyomya do hereby declare that this dissertation report is mine and has never been submitted to any other Institution of learning by any one for academic award.
Signed
MR. SSEIUNGYEG DEUSKYOMYA
DATE:. ~~Etm .U ......
Sselungyegye. Deus. Kyomya Effectiveness ofEnvironmental Law in Preservation of Water Resources
APPROVAL This research has been submitted with my approval as University Supervisor.
Signature...... ::1.':e .f...... FFREY ATWINE SUPERVISOR
Sselungyegye. Deus. Kyomya 11 Effectiveness ofEnvironmental Law in Preservation of Water Resources
ACKNOWLEDGEMENT I wish to express my sincere thanks to all those who have assisted me in making this dissertation. Special thanks go to Mr. Patrick Mukozi of Directorate of Public Prosecutions at Nakawa Office and entire directorate whose policies allowed me to pursue further studies, Mr. Jeffrey Atwine; my Research Supervisor and my fellow students who tirelessly assisted me through various activities which have enabled me to come out with this Dissertation.
May God bless you.
Sse/ungyegye. Deus. Kyomya iii Effectiveness ofEnvironmental Law in Preservation of Water Resources
DEDICATION I dedicate this dissertation to my entire family members especially my children whose presence inspired me to go back to school for further studies before they attain Secondary School going age and my wife Mbarebaki Winnie who kept providing for my family while I am at school, my father Mr. Alex Kyomya for his inspiration, guidance and financial assistance which have contributed much towards my study.
May the Almighty God reward them.
Sselungyegye. Deus. Kyomya iv Effectiveness of Environmental Law in Preservation of Water Resources
CHAPTER ONE
1.0 Background of the Study
Environment is defined to mean the physical factors of the surroundings of human beings, including land; water atmosphere climate, sound, and odor taste the biological factors of animals and plants and the social factor of aesthetics and include both the natural and the built environment. 1
Environmental law is a body of law which is a system of complex and interlocking statutes, common law treaties, conventions regulations and policies which seek to protect the natural environment which may be affected, impacted or endangered by human activities some environmental laws regulate the quantity and nature of impacts of human activities for example setting allowable levels of population. Other environmental laws are preventive in nature and seek to assess the possible impacts before the human activities can occur'.
In subject of environmental law, enforcement relates to those set of actions that government or other persons take to achieve compliance with in the regulated community and to correct or halt situation that endanger the environment or public health. In all cases it is vital to note that effective environmental legislation must always be accompanied by increased environmental education and public awareness in order to achieve environmental protection and changes in behavioral norms.
The National Environment Act Cap I 53 introduced a fundamental change in the management of all aspects of the environment. Before the introduction of the
1 Section I of the National Environment Act chapter 153 2 Section 2 of the National Environment Act chapter 153
Sselungyegye. Deus. Kyomya Effectiveness ofEnvironmental Law in Preservation of Water Resources
Act, however, the principle themes in as far as criminal aspects in environment related laws was that most of the laws had outdated or outmoded criminal provisions and lacked effective actions to deter infraction.
Since then, the situation has not been different in Uganda and even has gone to extreme, fresh water ecosystems are threatened as a result of policies that emphasis exploitation rather than conservation. This policy emphasis could be a result of limited understanding of dynamic fresh water ecosystem integrity in the midst of increased human pressure.
The law requires that every developer of any project to undertake an environmental impact assessment (EIA) to determine the impacts of the proposed development on the environment. After conducting an E1A, the developer of a project is under legal duty to ensure that the requirements of the ElA are complied with. This requirement is both under the Act cap 153 and the E1A regulations 1998. However, this is quite different from the study findings.
It was revealed that along river Rwizi in Katete Zone, a serious commercial construction had occurred in terms of a recreational centre called Katete Beach, poor wastage disposal, farming, and many more illegal activities. This contravenes NEMA regulations which state that no activity is allowed along river banks. This compelled the study to be undertaken so as to asses the effectiveness of the law in Mbarara municipality using River Rwizi as a case study.
1.2 Statement ofthe problem Water is a resource needed for man to survive, he needs it for drinking, household needs, livestock, transport, as a raw material for industries, cooking machines and used to mix components and needed for agriculture.
Sselungyegye. Deus. Kyomya 2 Effectiveness ofEnvironmental Law in Preservation of Water Resources
Water resource has been exposed to degradation and the trend seems to be on an increase due to increase in population, growth of slums, industrial development (mostly small scale poor sewage disposal, human activities like construction and farming on river banks. This has threatened sustainable livelihoods. of people living along river banks and those that rely on the water bodies for livelihoods.
Recent trends and statistics have shown an increased scarcity of water resource for most citizens due to degradation of water resources. This is majory attributed to weak and poor enforcement of environmental laws towards resource preservation and exploitation. It is not surprising that the existing laws only affect the low income earners and try to favor the rich who reach an extent of contracting social centers like Beaches for commercial purpose.
The study therefore analyzed the effectiveness of relevant laws in preservation of water resources using River Rwizi as a case study.
1.3 Hypothesis According to mainstream scientific opinion, aquatic species and plants are presently disappearing at a rate which is 100 to 1,000 times higher than the average rate of extinction since life on Earth originated and water in rivers and lakes is significantly reduced to its water table. The main causes of recent extinctions are well-known, and all of hnman origin. In order of significance, they are: (i) the removal, degradation and/or fragmentation of species' habitats; (ii) the introduction of alien species; (iii) overexploitation and (iv) pollution. 3 Frequently, extinctions have been the result of a combination ofthese factors •
3 Haven 1992 p.243;
Sselungyegye. Deus. Kyomya 3 Effectiveness ofEnvironmental Law in Preservation of Water Resources
Broad agreement exists that the current rate at which biodiversity is being reduced amounts to a major concern, for reasons varying from ethics to economics. In 1992, biodiversity conservation was accordingly recognized as a 'common concern of humankind' Ten years later, the states attending the World Summit on Sustainable Development (WSSD) in Johannesburg committed themselves to 'the achievement by 2010 of a significant reduction in the current rate ofloss of biological diversity.
The pledge to attain this 2010 Biodiversity Target' was repeated at the 2005 UN World Summit in New York and in various other global and regional settings. Somewhat predictably, however, the closer the 2010 deadline approached, the stronger the doubts which have been expressed regarding the likelihood of the target's attainment. In this connection, the environment ministers gathered at the recent G8/G20 meeting in Siracusa, while recognizing the 'importance of the 2010 target,' called for an 'ambitious and achievable post-2010 common 4 framework on biodiversity, based on the lessons learned from the2010 target •
In writing this report; the following assumptions have been proposed; 1. That the environmental laws in place are not effective enough to protect the environment. 2. That relevant organs in environmental management do not have clear policies and demarcations to protect the environment. 3. That relevant organs in environmental management do not have enough manpower to enforce environmental policies and regulations.
1.4.1 Main Objective To examine the effectiveness of environmental law in preservation of water resources.
4 Lond B 1867 p.193
Sselungyegye. Deus. Kyomya 4 Effectiveness ofEnvironmental Law in Preservation of Water Resources
1.4.2 Specific objectives. (i) To identify some of the environmental laws and policies that participate in preservation of water resource (ii) To identify some forms of environmental degradation practices carried out along River Rwizi. (iii) To suggest possible mitigation measures that can curb down
environmental degradation basing on study findin~s
1.4.3 Research Questions (i) What are some of the environmental laws and policies that are used in preservation of water resource? (ii) How effective have these laws and policies been in preserving water resources? (iii) What are some of the environmental degradation practices carried out along river Rwizi? (iv) What possible recommendations can be used to curb down environmental degradation along R. Rwizi?
1.5 Scope of the study The study was carried out in Mbarara Municipality using the case study of River rwizi. The study focused on circumstances surrounding the environmental degradation practices around River Rwizi and policy innovations designed to protect the environment.
The study was conducted usmg a descriptive and exploratory study. Both primary and secondary data were used in the study whereby relevant sources were used to generate information that supported the secondary data from books. In this case relevant authorities and personalities were contacted like environment department in Kamukuzi, local council officials in their respective cells/villages around river Rwizi.
Sselungyegye. Deus. Kyomya 5 Effectiveness ofEnvironmental Law in Preservation of Water Resources
1.6 Significance of the study The study will help broaden and widen the awareness about water resource and environmental policies. This will help local masses get acquainted with environmental regulations that prevent water resource from degradation.
The study will also be used by other researchers and development practitioners who might be interested in water resource preservation. This will help such environmental gazetted areas like swamps and other wetlands like rivers from being degraded since this literature will be availed to the public for consumption.
More so, findings of the study will be used by the local leaders and the environmental officers to sensitize the local masses about the dangers of water resource degradation. This will be based on the responses given by the local masses concerning their awareness on existing environmental regulations in place.
1.7 Area of the study The study was carried out in Mbarara Municipality in Mbarara District, South Western Uganda, Mbarara Municipality is 266km from Kampala city Geographically, it is on longitude 30°, 37° East to 30°, 42° West and Latitude. 20°, 35° North to 0.06° South of the Equator. Mbarara Municipality lies at an attitude 1432ms above sea level and experiences 2 rainfall seasons separated by 2 dry seasons. The average rainfall is 1125mm with an average temperature of 25°C.
Administratively Mbarara Municipality has 3 divisions of Kakoba, Nyamitanga and Kamukuzi. The population is currently at 69.208 people. Kakoba has 34,689 people, Kamukuzi has 22,840 and Nyamitanga has 11,679 people respectively. Soils are generally sandy, loam, clay; vegetation ranges from
Sselungyegye. Deus. Kyomya 6 Effectiveness ofEnvironmental Law in Preservation of Water Resources
grassland to Savannah and wood. The hills within this district are Kaburangire, Nyamitanga and Kamukuzi among others. The river that flows through Mbarara Municipality is River Rwizi. This River acts as the main drainage system where majority of the population derives water for domestic and commercial purpose.
Due to weak and poor environmental regulations, urban population have encroached on river banks, thereby degrading water resources through human activities like construction and farming.
The area has annual rainfall of 120mm with 2 rainy seasons of Mid-Feb to mid May and August to December.
These are separated by dry seasons. The temperatures are moderate ranging from 15° to 30°C. Most of the year relative humidity ranges from 90% to 80% in the mornings and 60% to 48% in the evenings. It is worth nothing that during dry season, river Rwizi dries up to its bottom end which calls for deliberate efforts from relevant authorities to set up strict regulations that aim at preserving water resources in this river if aquatic lives are to be saved from extinction.
Sselungyegye. Deus. Kyomya 7 (
/ Effectiveness of Environmental Law in Preservation of Water Resources
MAP OF UGANDA SHOWING MBARARA DISTRICT
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Key
Q Mbarara District
Source: Uganda District Information Handbook
Sselungyegye. Deus. Kyomya 8 Effectiveness ofEnvironmental Law in Preservation of Water Resources
MAP OF MBARARA SHOWING MBARARA MUNICIPALITY
'. •JY 1\BUH;;(Yt 't("f E. l »Vm: • ' "t
U I ~IJIN:i.t. I • , I :·:a~ ...... ~ 8UHWEJU NYAB U SHOZ .I :<.I'SHftnfl l K K A I :> I ~'Kd .. I ( ' "Ktt)lt., \ I ' ..· \ I ~.~ ' I f\ 1 "~ ...... _...... -.. •~ •• '..!' .• \.;1, ,... -r• , ,~.~·, ' rtiJOAY•\ ,·. ' ' • I ' A s ,H" A t R J• ' ·~ •:..•·m ,· Mbarara · s..·fr, .i c 1J I KEY: 0 Mbarara Municipality SOURCE: Uganda District Information Handbook Sselungyegye. Deus. Kyomy a 9 Effectiveness ofEnvironmental Law in Preservation of Water Resources MAP 3: MAP OF MBARARA MUNICIPALITY SHOWING R.RWIZI - ..... _._ -·--··- -·---~· .. - ··--·---- ...... -- ...... ,__... 4····-· ... -· ______ '"- ..... - NuftM:i,Oiftt COUIICil h\fftdOty ---- 0\li.tr. 'tOO'l .. ~ ...... Oi~isitn boUft40ry ' aD Ctft1rot ;"''"tss Dis''''! ~-..- ·M•In ro.ed•· 0 ... ______...... ' Source; Mbarara district lands survey department Sselungyegye. Deus. Kyomya Effectiveness ofEnvironmental Law in Preservation of Water Resources 1.8.0 Literature Review 1.8.1 Introduction The right to a clean and healthy environment IS an emergrng right. At Independence, Uganda adopted the colonial law "whole sale". These laws did not provide for the right to clean and healthy environment. The laws were more interested in utilizing than conserving and protecting the environment. The 1970s and 1980s saw no major development in environmental law because of the turmoil Uganda was undergoing. The 1990s ushered in the legal and institutional frame work of environmental law in Uganda. In 1991 the government of Uganda launched the National Enviromnent Action Plan. It intended to provide among other things a framework for integrating environmental considerations into the country's overall economic and social 5 developrnent • In 1994, the government endorsed the National Environment Management Policy (NEMP). The overall policy was to achieve sustainable and economic social development which maintains and enhances environment quality and resource productivity on a long term basis that meets the need of the present generation without compromising the ability of future generations to meet their 6 ownneeds • In October, 1995, a new constitution came into force, chapter 4 of the constitution sets out a detailed bill of rights. For the first time in history the bill contained the right to a healthy and clean environment which is fundamental right. Every Ugandan has a right to a clean and healthy environment.7 5 State of environmental report 1998, environmwentallaw hand book for practitioners and judicial officers: p.242). 6 ibid 7 Article 39 of the constitution; 1995 Sse/ungyegye. Deus. Kyomya II Effectiveness ofEnvironmental Law in Preservation of JVater Resources The scope of this right entails the right to clean water, conservation of resources, prevention of pollution and protection from diseases that result from 8 sanitation and poor environmental conditions , centrally to the provisions of the constitution, the study findings revealed that, whereas the constitution provides for the attainment of healthy environment, in some sections of river Rwizi, residents pour dustbin and construct pit latrines along river banks. This threatens the lives of aquatic species and both human beings who use the water domestically. To the analysis of the situation this is mainly brought by weak and poor enforcement of environmental laws by relevant stakeholders who thought corrupt tendencies allows human activities on the river banks. The Constitution; 1995 provides that it is the duty of every citizen ofUganda to 9 create and protect a clean and healthy environment . The constitution is reinforced by S.3 of the National Environment Act Cap 153 which provides that every person has a right to a healthy environment. This section encompasses every person including non - Ugandans hence it is more universal than the Constitution. However, S.3 of the Act does not provide for a clean environment making it nan-ower than the constitution The Constitution in furtherance of its recognition of the right to a clean and healthy environment set out in its national objectives provides under objective XXVII. That "the state shall take all possible measures to prevent or minimize damage and destruction to land, air and water resources resulting from pollution or other causes". The enforceability of directive principles of state policy in general has been addressed by Indian Courts. Courts have held that (a) "the directive principles of state policy are not justifiable but as the soul of the constitution provide the fi:amework according to which governments of the future should act. 8 Constitution of republic Uganda 1995, Chapter 4 article 39) 9 Article 17(j) ofthe constitution; 1995 Sselungyegye. Deus. Kyomya 12 Effectiveness of Environmental Law in Preservation of Water Resources In more than one sense, the directive principles are the backbone of state action and planning and emphasize the social economic responsibility of the state towards its citizens(C) The Indian Supreme Court holds the opinion that fundamental rights should be understood with in the framework of directive prmC!p. . 1es 10 . Article 39 of the Constitution obliged state to protect the environment for enjoyment of its citizen and parliament is empowered to make laws that ensure observance of this right. Article 50(4) provides that parliament shall make laws for the enforcement of the rights and freedoms of the citizens, Article 245(a) reads that parliament shall by law provide for measures intended to protect and preserve the environment from abuse pollution and degradation. Article 50 provides that any person who claims that a fundamental right or either right has been infringed or threatened, he is entitled to apply to a competent Court for redress which may include compensation. In international law the state is liable for the activities of private person are not the subjects of international law. Private persons may not have the means of compensating the victims11 pointed out that; it is a well established principle of international law, that the international liability, a state may incur for activities of a private person is a function of the state's control over the activities concerned. Likewise in international law the state seeks redress on behalf of its citizens. In the trial smelter Arbitration, the government of Canada was held liable for the acts of a smelter company. 1.8.1 Related cases In the Philippines case of .Juan Antonia Oposa and others V Fulnesia right to a clean and health environment was equated to the right of life. 10 Apollo N. Mukubuya 1992; the significance of human rights for the Africa Continent. 11 Hans Hand 1980; state liability for accidental transnational environment damage by private persons Vol 74 P.5 27 Sselungyegye. Deus. Kyomya 13 Effectiveness of Environmental Law in Preservation of Water Resources It was observed by the Supreme Court that; as a matter of fact these basic rights need not even be written under the constitution for they are assumed to exist from the inception of human kind if they are explicitly mentioned in the constitution. It is because of the well founded fears of the framers that unless the right to a balanced healthy ecology are marked as state policy by the constitution. This means that life and the environment are inseparable. That is why of all the bodies in the universe, life exists on the planned simply because 12 the environment on earth is conducive to life • The rule in Rylands V Fletcher13 established that if a person keeps dangerous substances on his land and these substances escape and cause damage in the land of a neighbor, then such a person who brings unto or keeps on his land anything not naturally there is strictly liable. This rule is relevant to environmental law as it is concerned with overflowing premise, noxious fumes and hazardous material. The locus stands vests in the neighbor who is aggrieved. 1 Richard Kanyerezi V management committee of Rubaga girls \ the high court ordered an injunction to stop nuisance of smelly gases from a pit latrine. As wintered and Jolocwizi stated; Nuisance is the breach of law of tort most closely concerned with protection of the environment. Thus nuisance action has caused pollution by oil or noxious fumes, interference with leisure activities, offensive smells from premises used for keeping animals or noise from Industrial installations. However, to the dismay of study findings, most human activities along river Rwizi have sprung up for example industries and factories like Mwebesa Steel rolling factory has been established in closeness to River Rwizi which pour its fumes to the river. This makes the law ineffective in its 12 Cherry loots 1993, the impact of the constitution on environment; Associate Professor of law of the wit water's land in South Africa") 13 H+C 724(Court ofExchaquer 14 High Court Civil appeal no 3 1996. I Sselungyegye. Deus. Kyomya 14 Effectiveness ofEnvironmental Law in Preservation of Water Resources nafufe and needs nnmedmfe re&ess. I he conshfuhon reqmres c1tizens to protect 15 the environment • It would be difficult to exercise this duty if they cannot compel statutory bodies to carry out their functions. 16 In Byabazaire Grace Thaddeus V Mukwano Industries , the court held that National Environment Management Authority (NEMA is the only person vested with power and duty to sue for violations committed under the statute, further that the only recourse available to every person whose rights under the state is violated is to inform NEMA or the local environment committee of such violation. In Green watch V Anthony general another17 the learned judge observed that the applicant was a Ugandan Company; it was entitled to a clean and healthy environment that every Ugandan has a right to. The judge concluded as follows; "the state has failed or neglected its duties towards the promotion or preservation of environment. The state owes this duty to all Ugandans. By so failing or neglecting the government is in breach of its duty towards the citizens of Uganda. Any concerned Ugandan has a right of action against the government. The judge observed that NEMA had a statutory duty to ensure that the principles of environmental management were observed. 18 In British America Tobacco Ltd V the environmental Action Network , it was held that the constitution of Uganda does recognize the existence of the needy and oppressed persons and therefore, it allows actions of public interest group to be brought on their behalf. The above authorities show that courts in Uganda are gradually accepting public interest litigation, unlike private law does not require the motion of personal interest, personal injury or sufficient interest over and above the interest of the general public. 15 Article 17(j) of the constitution; 1995 16 HCCS 466, 2000 17 Misc.clause 140; 2000) 18 (HCC 27 of2003 Sselungyegye. Deus. Kyomya 15 Effectiveness ofEnvironmental Law in Preservation of Water Resources CHAPTER TWO 2.0 PRINCIPLES OF ENVIRONMENTAL LAW 2.1 The concept of sustainable Development The concept of "sustainable development", at its very core, addresses the operational relationship between numerous wastes, brought by virtually each and every kind of present day strategy of economic prospelity and the concern for future availability of such resources like water. The notion of "development is everywhere typically associated with growth and enhancement of people's access to goods, services and values that provide what is seen as a better life. The values associated with "the good life", however, are complex and susceptible of adverse interpretations, especially depending on a country's state of economic achievement and the dominant world view. The position prevailing in the developing countries of Africa is particularly intriguing. These countries are deeply involved in endeavors aimed at consolidating their nationhood (through political and constitutional arrangements) enhancing their material living conditions (through greater industrialization and increased agricultural production and the creation of more wealth), and refining and 19 perfecting their arts and other cultural experiences • In such countries, the notion of "development" is most noticeably concerned with certain particular objects and situations. Countlies are largely concerned with the search for political consensus in quest of civil order as well as international credibility; the promotion of economic goals, in the interests of the individual, the family and the community, the improvement of life in such vital spheres as environmental safety, public health, education and leisure; the 19 Seidman, The State Law and Development (London: Helm, !978).B. Turok(ed). Development in Zambia: A reader Zed Press London, 1979 Sselungyegye. Deus. Kyomya 16 Effectiveness ofEnvironmental Law in Preservation of Water Resources enhancement of cultural life in such fields as the arts, scholarship, such elements in the development agenda are closely inter-related and in certain respects they seem to form a constellation around economic and social phenomena. Development thus characterized is now reaching its limit. If life is to continue as a precious gift of nature, then this limit must be overcome; and is now recognized that the ideal framework for dealing with this problem is that which expresses itself in the principle of "sustainable development" Our common future20 the well-known report of the World Commission on Environment and Development, one of the authoritative documents on the concept of "sustainable development" it defmes the concept as "development that meets the need of the present generation without compromising the ability 2 of future generations to meet their own needs '." The Concepts has also been defmed as "improving the quality of human life 22 while living within the carrying capacity of supporting " Anthropogenic activities in the name of social and economic development are leading inexorably to grave consequences touching on the viability of natural ecosystems, natural resources and the common amenities of nature. Examples of these consequences are: air pollution leading to global warning, acid rain and the depletion of the stratospheric ozone shield; irreparable damage to bio resources -deforestation, desertification, water contamination, specres extinction, etc: adulteration and poisoning of soil and water by pesticides, herbicides and toxic wastes; disruptive and unhealthful conditions flowing the effects of noise pollution; etc. 20 WCED, 1987 21 Ibid:p8 22 systems !UCN/UNEP/WWF: 199l:Weisis, 1989 Sselungyegye. Deus. Kyomya 17 Effectiveness ofEnvironmental Law in Preservation of Water Resources Such consequences have led in recent to serious rethinking of the design and effect of 'normal' human and economic activities. Debate on this subject has been guided by the theme of "enviromnental management and sustainable development". Sustainable development as a notion entered the development discourse around the time of the 1972 United Nations Stockholm Conference on the Human Enviromnent. Before and during the Conference, developing-country perspective largely viewed the new enviromnent imperative ad an undesirable constraint on development ambitions. For the developing countries, an important issue was the apparent conflict between the imperatives of development and those of environmental protection. It was even asserted that enviromnental degradation was simply the cost these countries had to pay in order to achieve economic development. One of singular achievements of the Stockholm Conference was the recognition of a fundamental interrelationship between enviromnent and development. In several instances, the Stockholm Conference was the recognition of a fundamental interrelationship between enviromnent and development. the 23 Stockholm Declaration , adopted at the Conference, emphasized this interrelationship. In the Preamble it noted that "the protection and improvement of the human enviromnent is a major issue which affects the well being of peoples and economic development throughout the world" Consequently, although it affirms the necessity of developing countries directing their efforts to development, the development process must take cognizance of the "need to safeguard and improve the enviromnent.The need to integrate enviromnent and development and to safeguard the needs of future generations was thus already an important theme at the Stockholm Conference. 23 UN, 1973 Sselungyegye. Deus. Kyomya 18 It is these twin imperatives that concretized in the late 1980s and early 1990s into tll'C' ll\JtlUll \Jl ~U~'LU.illd.Ul~ UtVt.:auplllClit. lllCi lllU.:.g,lctUUH Ui \...HV llUlllHClil dHU development was re-emphasized by the World Character for Nature24 adopted by 1he Uni1c<.l l'latiurJ:o ocnclai Assembly in ()<.,iober, I 982. The Character underlines that in the planning and implementation of social and economic development activities, due account shall be taken of the fact that the conservation of nature is an integral part of those activities."25 The 1987 World Commission on environment and Development Report (the Brundtland Commissionf6 that popularized the concept of sustainable development. The Commission was established by the General Assembly of the United Nations through its resolution 38/161 adopted at its 38th session in December, 1983 to inter alia, "propose long-term environmental strategies for achieving sustainable development by the year 2000 and beyond27 could only be achieved if the environment in which we live was used in manner that would "meet the needs of the present generation without compromising the ability of 28 future generations to meet their own needs • The interface between environment and development constituted the central theme of the report. The report thus noted; "There has been growing realization m national governments and multilateral institutions that it is impossible to separate economic development issues from environment issues; many forms of development erode the environmental resources upon which they must be 29 based, and environmental degradation can undermine economic development . 24 UN 1982 25 Article 7. 26 Opeit footnote 2 27 lbid .. Pix 28 lbed.p.i8 29 ibid.p.3 Sselungyegye. Deus. Kyomya 19 Effectiveness ofEnvironmental Law in Preservation of Water Resources fhe solution according to the report is to make development sustainable. Sustainability in this sense implies that development is ecologically viable. Ecological viability denotes an appreciation of the limits inherent in the carrying capacity of supporting eco-system and the need to maintain their long term potential to sustain future lite and human activities. The concept of sustainable development recognizes that important limits exist on the ability of the biosphere to absorb the fuH impact of human activities. Sustainable development is , therefore, " a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations]", in its recommendations the Brundtland Commission called upon the United Nations General Assembly to commit itself to preparing a universal declaration on environmental protection and sustainable development. One of the most important achievements of the United Nations Conference on environment and Development (UNCED)31 which took place in Rio de Janeiro in 1992 was i:o build international consensus on and provide political legitimacy to sustainable development as a central global agenda. However, the same tensions that had characterized the Stockholm Conference were largely evident at the UNCED and its preparatory process. The group of 77 and China were largely convinced that the new envirolliuent ideology would be used to undermine their development imperatives. Now were they prepared to sacrifice their national sovereignty to an all-embracing "globalism". The "African Common Position on Environment and Development", adopted at the Second n..H1Cfu!.A"'-' 1v"·1· illiStena1 . . ' PiCparatory 0vOfuei\3TICe .c. ""101 tue._ UNcnn1 _L .iTI rt.Ab"d· i ~ful Ill November, 1991 best illustrates the bi-polarity that underpinned the 30 ibid.p.46 31 UN. 1992 Sselungyegye. Deus. Kyomya 20 Effectiveness ofEnvironmental Law in Preservation of Water Resources Conference.J-' The countries represented declared; "ln view or the critical role of the environment in the growth and development of the African economies, we intend to participate in the UNCED negotiations process in a spirit of co operation and solidarity with other nations and countries ... but compromising our interests given the critical situation facing the continent. We believe in and call for a new era of development strategies that emphasize economic growth which combines poverty a!Ieviation and environmental protection." (Emphasis 3 addedi · Thus, although the document re-emphasizes Africa's commitment to sustainable development it underlines economic growth as the central concern to African governments. As regards the new "globalism" which views natural resources as a common good of humankind and constitutes the "home-State" into guardiru."l of the resources on behalf of all the people of the planet, the African governments asserted: "We further reaffirm the legitimate right ofthe African countries to exploit their natural resources for development purposes and that activities to protect the environment should not frustrate the development process. To this end, we reaffirm our commitment to continue to participate in the management and conservation of global environmental commons for this and future generations. The protection of our natural resources should not be used as a precondition by developed countries and funding agencies ±br financing the development of our 34 countries" (emphasis added) • In this circumstances, both the Rio Declaration ru.1d Agenda 21, respectively the political and programmatic documents of the Conference, largely comprised 32 ECA/ENV.UNCED/AFRICOM/ABJ/l.Nov.l991 33 Ibid.para 37 34 Ibid. para 56 Sselungyegye. Deus. Kyomya 21 Effectiveness ofEnvironmental Lmv in Preservation of Water Resources documents representing '"delicately interests" of both the North and the Sough. In the Conference's balancing act, the original conception of sustainable development might have suffered, as one commentator has pointed out, there might be a "regression" to sustained growth35 there are numerous provisions in the Rio Declaration on the need for "sustained economic growth", to lend credence to this largely pessimistic viewpoint. In the second instance, the legally-binding instruments adopted at the conference expressly jettisoned any pretenses at a "new globalism" and forcefully reaffirmed the sovereign rights of states to exploit the own resources pursuant to their own environmental . . 36 po1 lCies . Emerging principles of environmental management for sustainable development in the quarter-century since the Stockholm Conference, several important principles of environmental management for sustainable development have emerged. The key objective of these principles has been the deliberate attempt to take sustainable development fi·om the conceptual to the policy implementation levels. Most of these principles first appeared as "soft law" in the Stocl<.110lm Declaration, the World Charter for Nature and the Rio Declaration. They have subsequently, been incorporated into treaty law and national legislation, policy documents and the development practice of a growing number of pioneering states. The rest of this Chapter analyses these principles. 2.2 Tbe principle of Intergenerational equity This principle calls for equity in the exploitation of environmental resources between generations. The principle demands that the present generation should 35 Pallanneters. 1993. p.16 36 CBD, 1992. Article 3 Sselungyegye. Deus. Kyomya ' 'i . , z a ~-t~ 22 Effectiveness of Environmental Lcrw in Preservation qf Water Resources ensure that the health diversity and productivity of the environment IS maintained for the benefit of present and future generations. The principle, therefore, confers rights on future generations and in1posed a correlative duty of good stewardship over environmental resources on present generations. The basic premise of this principle has been forcefully articulated both by Edith Brown Weasel in her seminal work. In fairness to Future Generations: International Law, Common Patrimony and intergenerational Equity·" and by the GAO Guidelines on Inter-general equity. Brown Weiss argues that all members of the human community, both present and future, have an equitable right of access and use of the common patrimony of natural and cultural resources of our planet. Consequently the theory of inter-general justice requires that each generation has an obligation to future generations to pass on the natural and cultural resources in no words condition than received and to provide reasonable access to the legacy for the present generation"38 The GAO Guidelines were adopted by the Advisory Comn1ittee established by the United Nations University project on "International Law, Common Patrimony and inter-generational 39 Equity" • The Guidelines affirm that "All members of each generation of human beings, as a species inherit that "all members of each generation of humat1 beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations. 40 The central juridical problem however, is t'wo-fold: how to dete1mine the needs, requirements and aspirations of future generations-the issue of whether future 37 Open footnote 4 38 Weiss.op at pp. 35-36 39 Weiss.op cit as Appendix A 40 Ibid .p. 293 Sselungyegye. Deus. Kyomya 23 Effectiveness ofEnvironmental Law in Preservation of Water Resources generations wiH require (and in what quantities) the environmental resources as we know them today, and what legal techniques should be used to enforce the "future rights" of future generations. As regards the first issue, it has been argued that the principle does not require that we predict the preferences of future generations since the values upon which these are predicted may change over time, or technological developments may change the options available to them.41 Assuming that a change in values and technological developments increases the options available to future generations to meet their needs. Then the goals of intergenerational Justice are not met by constrairllng the ability of the present generation not use existing environmental resources. An all-embmcing preservations is therefore theoretically untenable yet it is legally more feasible to enforce the preservation of the diversity of nature than to require the legal system to determine the "bundle" of options" that should be bequeathed to future generations. With regard to the second issue, the GAO Guidelines propose among the elements of an implementation strategy, (a) representation by states not only of present but also of future generations; and Designation of ombudsmen or commissioners for protecting the interests of future generations42 National legal systems through legislative measures and judicial interpretation arc already addressing the issue regarding the enforcement of the rights of future generations and interesting juridical solutions are emerging. The principle of intcrgcncrational equity was first authoritatively articulated in Principle 2 of the Stockholm Declaration in the following terms: 41 Ibid.p. 39 42 lbid,p.294 Sselungyegye. Deus. Kyomya 24 Effectiveness of Environmental Law in Preservation of Water Resources The natural resources of the earth including the air, water, land, flora and Fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate". The principle of inter-generational equity has been progressively reaffirmed in various posts Stockholm international legal instruments. In its preambles paragraphs, the World Charter for Nature called for the sustainable use of natural resources and the preservation of species and ecosystems for the benefit of present and future generations. The 1992 Rio Declaration for its part states that "the right to development must be fulfilled so as to equitably meet the development and environmental needs of present and future generations." According to principles 1-6 of the Charter, inter-general equity entails the following imperatives: not compromising genetic viability on earth: maintaining populations of all life forms at least at levels sufficient for their survival; applying conservation principles to all areas on earth, with special protection in unique and representative areas and for endangered species; and utilizing natural resources so as to ensure optimal sustainable productivity. The principle has since been incorporated in Article 3 of the United Nations Framework Convention on Climate Change (1992), which calls on the Parties to "protect the climate system for the benefit of present and future generations of humankind .. .'in the preamble to the Convention on Biological Diversity (1992), which underlines the determination of the parties "to conserve and sustainably use biological diversity for the benefit of present and future generations" and in preamble to the United Nations Convention to Combat Desertification (1994), which states that the Parties are "determined to take Sselungyegye. Deus. Kyomya 25 Effectiveness of Environmental Law in Preservation of Water Resources appropriate action in combating desertification and mitigating the effects of drought for the benefit of present and future generations" The principle of inter govermnental equity has thus become part of modem international environmental law. Since 1992 the international Court of Justice has, no two occasions, alluded to the interests of future generations in the environmental. In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the court stated as follows; \'The environment is not an abstraction but represents the living space, the quality of life and the very health of humans, including generations unborn." (emphasis added)43 In the recent case between Czehoslovakia and Hungary concemmg the Gabeikovo Ngymaros Project the Court noted that: "Through the ages, mankind has for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind for present and future generations of pursuit of such interventions at unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades"44 Thus, both in international treaty law and international opinion, the principle of intergenerational equity is progressively developing as an acceptable and well recognized juridical precept. It is, however, at the national level that the principle is increasingly being concretely operationalized. A number of countries have since the 1980s been including the principle of intergenerational equity in their national laws, especially as a constitutional 43 IG)Reports, 1996-242, para 29 44 Kaniaru and Kulukusuliya (eds). 1997, p. 197 Sselungyegye. Deus. Kyomya 26 Effectiveness ofEnvironmental Law in Preservation of Water Resources prov1s1on, as one of the basic principles of environmental management for sustainable development. In this regard, Article 36 of the Constitution of Guyana (1980t5 provides that: "In the interests of the present and future generations, the state will protect and make rational use of itself and mineral and water resources, as well as its fauna and flora and will take all appropriate measures to conserve and improve the environment." The constitution of Namibia (1990), for its part, provides that the State shall actively promote and maintain the welfare of the people by adopting policies aimed at, inter alia: "the maintenance of ecosystems, essential ecological processes and the biological diversity ofNamibia and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future"46 Similar constructional provisions, imposing duties on the state to ensure rational management of the environment and its resources, have been used by the courts in India and the Philippines to enforce and protect the rights of future generations. In India, in the case of M.C Mehta v. Union of India and Others47 the court, in ordering the closure of polluting tanneries, stated as follows. What is needed is an enthusiastic but calm state of mind and intense but orderly work defend and rmprove the human environment for present and future generations has become an imperative goal. ...Achievement of this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level. However, it is in the Philippians that the rights of future generations have been forcefully affirmed by the courts. 45 The Constitution of the Co·operative Republic of Guyana, Act No.2 1980 46 The Constitution ofNamibia, 1990, Article 95. 47 AlR 1988 SG 1037 Sselungyegye. Deus. Kyomya 27 Effectiveness ofEnvironmental Law in Preservation of Water Resources In the case of Juan Antonia Opasa and others v The Honorable Fulgencias, Facto ran and Another48 the petitioners were a group of Filipino minors who brought a suit on their own behalf and on behalf of generations yet unborn, through a representative action. They argued that the country's natural forest cover was being destroyed at such a rate that the country would be bereft of forest resources by the end of the decade if not sooner. They prayed for and order directing the secretary to the Department of Environment and Natural Resources to cancel all existing timber license agreements and cease from accepting or approving new agreements. In disposing off the suit, the Supreme Court recognized at the outset that this case raised the right of the people of the Philippians to a balanced ecology and the concept of inter-general responsibility and inter-generational justice. The court held, inter alia, that (1) the petitioners had the right to sue on behalf of succeeding generations because every generation has a responsibility to the next to preserve the rhythm and harmony of nature for the full enjoyment of a balanced and healthful ecology; and (2) the petitioner's complaint focused on one specific fundamental right, namely the right to a balanced and healthful ecology, which was incorporated in Article 16 of the 1987 Phillipine Constitution. The court further noted that the fact that this right was included under Declaration of Principles and State policies rather than under the Bill of Rights aid not make it any less important. In this regard, the court remarked." As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind, if they are now explicitly mentioned in the fundamental character. 48 Kaniaru and Kurukusuriya.op.cit.p.ll7 Sselungyegye. Deus. Ky01nya 28 Effectiveness of Environmental Law in Preservation of Water Resources It is because of the well-founded fear of its farmers that unless the rights to a balanced and healthful ecology and to health are mandated as State policies by the Constitution itself, thereby highlighting the continuing importance and imposing upon the State a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only to the present generation, but also for those to come-generations which stand to inherit nothing but parched earth capable of sustaining life."49 The emerging juridical philosophy is that future generations have a stake and enforceable rights in the present generation's stewardship ofthe environmental resources of the earth. These rights can be enforced through legal action by members of the present generation. The principle of the Integrating Environment and Development in Decision-making. The integration of environment and development m the national socio economic planning process and in the planning and implementation of development activities has become one of the key instruments in the practical operationalization of sustainable development as a concept. In these activities, environment and development are no longer to be viewed as separate and mutually exclusive categories but as reinforcing components of a development process that is sustainable. The Stockholm Declaration has emphasized in several of its articles the need to incorporate environmental consideration in the development planning process. Principle 13, for example, provides:" In order to achieve a more rational management of resources and thus to improve the environment, states should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the human environment for the benefit of their population" 49 Kaniaru and Karukulasuriya op.cit.p.ll9 Sselungyegye. Deus. Kyomya 29 Effectiveness of Environmental Law in Preservation of Water Resources The Word charter for Nature was even more explicit demanding in its Article 7 that in the planning and implementation of social and economic development activities, due account shall be taken of the factor that the conservation of nature is an integral part of those activities. One of the identified means of implementation of the Charter is the national planning process. In this regard, Article 16 of the Charter requires that "all planning shall include, among its essential elements, the formulation of strategies for the conservation of nature, the establishment of inventories of ecosystems and assessments of the effects of proposed policies and activities "More recently, both the Rio Declaration and Agenda 21 have respectively, underlined the integration of environmental protection in the development process as a means to achieve Sustainable development, and defmed the measure to be taken by Government 50 in order to integrate environment and development in decision-making • Agenda 21's programmatic measures for ensuring this integration include integrating environment and development at the policy, planning and management levels; providing an effective legal and regulatory framework; making effective use of economic instruments and market and other incentives; and establishing systems for integrated environmental and economic accounting. It is at the first two levels that most developing countries, including several African countries, have taken concrete measures to guarantee this integration Institutional structures and mechanisms have been put in place to facilitate the integration of environment and development in decision-making. Besides strengthening their environmental ministries and departments, Governments have created high-level policy-making bodies. Most of these 50 UN. Vol. I New York. 1992 Sselungyegye. Deus. Kyomya 30 Effectiveness ofEnvironmental Law in Preservation of Water Resources bodies bring together representatives of different ministries dealing with environmental and development Issues and other stakeholders such as environmental NGOs, the private sector and the academic community for national consensus-building on environment and development issues and for the harmonization of policies across sectors. In Philippines, Presidential Decree No 1121 of 18 April 1977 established an inter-ministerial National Environmental Protection Council chaired by the President. The council is responsible for inter alia, renationalizing the functions of government agencies charged with environmental protection formulating policies and issuing guidelines; promoting research and environmental 51 education and reviewing environmental impact statements • In Zambia, the Council is an inter-ministerial body, with private sector and non governmental representation. Its mandate includes providing advice to Government on environmental and natural resources policies coordinating the activities of all ministries and other bodies concerned with the protection of the environment; and identifying projects, plans and policies for which environmental impact assessment is necessary52 The above trend is noticeable in several other countries in Uganda. In Uganda the National Environment Act 1995 establishes a semi-autonomous national environment management authority whose governed body, the board consists of relevant ministries, academic institutions, non governmental organizations and 53 the private sector • The principal functions of the authority include the implementation of government policies; ensuring integration of environmental 51 Presidential Degree 1121, 1977, Article 3 52 Environmental protection and Pollution Control Act, 1990, Article 4 and 6 53 The National Environmental Statute, 1995 Statutes Supplement No. 4 19th May Uganda Gazette No 21 vol !XXXVIII of 19th May, 1995. Article 5 and 9 Sselungyegye. Deus. Kyomya 31 Effectiveness of Environmental Law in Preservation of Water Resources concerns in overall national planning and proposing environmental policies, 54 legislation standards and guidelines . The Act also establishes an interministerial policy committee on the Environment that is responsible for policy guidance, coordination of environmental policies, identification of obstacles to policy and programme implementation and liaison with the carbonate in issues affecting the environment55 these institutional structures and the institutional processes they entail are likely to improve and strengthen the decision making capacity and processes of government relating to the integration of environment and development at the policy and planning levels. The national planning process itself has evolved m most countries from a peripheral concern in development plans with a limited range of environmental issues through the formulation of national conservation strategies and environmental action plans to the formulation of sustainable development strategies. The incorporation of environmental concerns in national development plans began in the 1970s and was a direct response to the Stockholm declaration commitment. In the 1980s and 1990s it became clear that a more vigorous and detailed environmental process was imperative in order to set the basic national goals and objectives and to develop appropriate plans, strategies and programmes for their realization. In the 1990s IUSC inspired national conservation strategies were adopted in many developing countries. In African, they have been adopted in Ethiopia 54 Ibid, Article 7 55 Ibid, Article 8 Sselungyegye. Deus. Kyomya 32 Effectiveness of Environmental Law in Preservation of Water Resources Ghana, Botswana, Swaziland and Zimbabwe. Since the beginning of the 1990s, the World Bank (in collaboration with UNEP and UNDP) has imposed as one of its conditionalities for development assistance the formulation and adoption of national environment action plans. Actions plans have been adopted by nearly all African countries- including Mauritius, Seychelles, Madagascar, Mozambique, Lesotho, Tanzania, Uganda, Kenya, Nigeria, Ghana, cost d'lvoire 56 and the Gambia • The NCS and NEAP process have largely taken place outside the framework of the national development planning process. Yet the principle of integration demand composite rather than separate processes. The post UNCED developments, in cooperation with international organizations, to adopt national strategies for sustainable development. These strategies should be to ensure "socially responsible calls on Government in cooperation with international organizations. To adopt national strategies for sustainable development. These strategies should build upon national strategies should build upon the experience gained from the NCS and NEAP processes. The objective should be to ensure. "Socially responsible economic development while protecting the 57 resource base and the environment for the benefit of future generations • Over the last decade, a number of countries are in the process of formulating such strategies. For example, the Government of Australia in 1992 adopted in National strategy for Ecologically Sustainable Development. In Africa, the Government of Niger in 1996 set up the National environment Council for Sustainable Development whose mandate is to formulate and oversee the implementation of a National Environment plan for sustainable Development. 56 Donn, Adzobu , 1995 57 Agenda 2l,op.cit.,para8.7 Sselungyegye. Deus. Kyomya 33 Effectiveness of Environmental Law in Preservation of Water Resources This process is being supported by the World Bank, the UNDP and several bilateral donors. In Rwanda, the Government in 1996 adopted a National Agenda 21 whose primary objectives include the revitalization of sustainable growth, promotion 58 of sustainable quality of life, and efficient use of natural resources • The Agenda outlines priorities for action and defines strategies for and means of implementation. At the level of projects implementation the environmental impact assessment has become an important tool in many countries for integrating environment and development in decision making. Essentially EIA is a process or procedure where by information on likely environmental impacts of a proposed development activity and possible alternatives and mitigating measures become a prerequisite to development decision making. It is based on the sub mission of environmental impact statement or study to the relevant government agency describing the perceived environmental consequences of the proposed development activity or process. The underlined assumption is that such a statement will help decision makers arrive at informed choices so that development activities cause minimal degradation of environmental resources and do not reduce the productivity of natural resources. The Rio Declaration in its principle 17 has enjoined government to undertake EIA for proposed activities that are likely to have a significant adverse impact on the environment. Many countries in Africa have taken legislative/regulatory measures to defme and operationalise the EIA process. In Nigeria, the federal 58 Sec ministries de PENVIRONMENT ET DU Tourism, Agenda 21 Natural, Government de Ia Republique Rwandaise Kigali, Nov. 1996 Sselungyegye. Deus. Kyomya 34 Effectiveness ofEnvironmental Law in Preservation of Water Resources environmental protection agency Decree of 1992 empowers the Agency, inter alia, to "prepare a comprehensive national policy for the protection of the environment and conservation of natural resources, including procedure for environmental impact assessment for all development projects"59 Detailed regulations concerning EIA have been established by the Environment Impact Assessment. Decree, 1992. These regulations lay down the general principles which are to inform EIA, define the EIA procedures and the minimum content ofthe /environmental impact study, and provides a list of the activities for which an environmental impact study is mandatory. Similar provisions of EIA are to be found in the Zambian Environmental protection and pollution control Act, 1990, The Burkina Faso Environment Code, 1994, the Republic of Congo's Loisur la protection de Environment, 1991 and the Senegalese Environment Code, 1983.Such legislative and regulatory measures are likely to improve the effectiveness in the practice of EIA as an instrument for decision-making in support of sustainable development. 2.3 The precautionary principle The precautionary principle in its current form is a child of the United Nations Conference on Environment and Development (UNCED) documents. Some commentators, however, assert that the principle appeared in rudimentary form in both the Stockholm Declaration and the World Charter for Nature. 60 Our own research reveals no references in the two documents to anything akin to the principle as we know it today. It should be noted, however, that the Ozone instruments (the Vienna convention for the protection of the Ozone Layer, 1987) which predate the UNCED are based on the philosophy of the precautionary principle. 59 Fedral Environmental Protection Agency Degree, 1992, No. 59 of 1992, Article 4 60 Russowa,1996, para 10 Sselungyegye. Deus. Kyomya 35 Effectiveness of Environmental Lmv in~ Preservation of Water Resources The principle is best articulated by the Rio Declaration in its principle 15. It states that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." There are significant scientific uncertainties regarding the environmental consequences of huQ1an production and consumption activities. This uncertainty arises because of gaps m scientific knowledge with respect to nature, the linkages and inteiTelationships therein, and the interplay between ecological factors and socio-economic activities. The fact that environmental effects are generally long-term consequences of anthropogenic activities further complicates issues since it is not always possible to predict with scientific precision the probable environmental impact of a chosen course of action. Yet if preventive and coiTective measures were to be based only on the availability of hard scientific evidence or "good science" as is often refeiTed to, substantial and, perhaps, iiTeversible environmental damage could be occasioned before such evidence becomes available. A cautious approach in decision-making and largely in favour of environmental protection is called for in cases of such scientific uncertainty. The precautionary principle therefore, demands that preventive action should be taken notwithstanding the lack of fall scientific certainty about environmental consequences. The best application of the principle is to be found in the United Nations Framework convention on Climate change, opened for signature at the Rio conference in June, 1992 predictions, particularly with regard to timing, magnitude and regional patterns. It is precisely because of this, that Article 3 calls on the parties to take precautionary measures to anticipate prevent or minimize the causes of climate change. It thus underlines that: "Where there are threats of serious or irreversible damage, lack of full scientific certainty should Sselungyegye. Deus. Kyomya 36 Effectiveness of Environmental Law in Preservation of Water Resources not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost" Similar language has been used in the preamble to the convention on Biological Diversity, 1992. It notes that "where there is a threat of significant reduction or loss or biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat". The precautionary principle has remarkably found expression at the national level in a fairly short period of time. In Australia, the land and Environment court ofNew South Wales in the case ofLearch v National parks and wildlife 61 service and shoalhaven City Counci1 • A suit was brought challenging the issuance of a licence to take or kill protected fauna in the course of carrying out a road development project. The court quoted verbatim the preamble paragraph of the convention on Biological Diversity cited above. The court further noted that this principle is directed towards the prevention of serious or irreversible harm to the environment in situations of a scarcity of scientific knowledge of species population, habitat or impacts. The supreme court of Pakistan in the case of Mr. Sheia Zia and others W APD62 after booting the inconclusive nature of scientific evidence regarding the possibility of adverse biological effects from exposure to power frequency fields as well as the possibility of reducing or eliminating such effects, affirmed that in such a situation the precautionary principle should be applied. It emphasized that "to stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence and precaution. 63 61 Kaniaru and Kurukulasuriya op cit, at p 12x 62 Kaniaru and Kurukulasuriya op cit, at p 2x 63 Kaniaru and Kurukulasuriya op cit, at p 12x Sselungyegye. Deus. Kyomya 37 Effectiveness of Environmental Law in Preservation of Water Resources Similar authoritative statements have been made by the supreme court of . 64 I n d1a .. The precautionary principle, though the most recent to a growing number of juridical principles aiming at sustainable development, is fast becoming a practical legal tool for integrating the theory of sustainable development into national decision making processes on environment and development. The case with which judicial authorities have embraced the principle is perhaps due to the fact that it strikes a better and familiar conservation cord . 2.4 THE POLLUTER PAYS PRINCIPLE Community and member states to apply the polluter pay principle. The recommendation defined the principle in the following terms. "natural or legal persons governed by public or private law who are responsible for pollution must pay the costs of such measures as are necessary to eliminate that pollution or to reduce it so as to comply with the standards or equivalent measures laid down by the public authorities."65 In 1986 the EEC Treaty was amended to provide that EC action m the environment field shall be based on the principle that "the polluter should pay."66 Principle 16 of the Rio Declaration provides as follows with respect to the polluter pays principle: "National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting intemational trade and investment. In sharp contrast to the EC and OECD positions, the language of the Declaration is not mandatory. 64 Ibid, at p.83 dlure citizen welfare 65 Council Recommendation 75/463/FURATOM, ECSE of3 March 1975, Annex. Para2 66 1957 EEC Treaty (as amended) Article 130r (2) Sselungyegye. Deus. Kyomya 38 Effectiveness of Environmental Law in Preservation of Water Resources Provides that where a discharge of pollutants occurs or is apprehended the owner of the responsible establishment shall take the necessary measures to prevent or mitigate the effects of such discharge. 70 In cases where a public authority or agency takes any remedial measures the expenses thereof are to be recovered from the responsible establishments together with any interest accruing. 73 The Uganda National Environment Statute, 1995 provides that one of the principles to guide authorities is "to ensure that the true and total costs of environmental pollution are borne by the polluter,"74 The Act further provides that pollution license fees contributing the greater amount of pollution shall bear the largest burden in paying for cleaning the environment. The imposition of criminal penalties on polluters who discharge pollutions in contravention of legal provisions is the many countries. However, criminal and administrative fines may not be effective where their levels are modest compared to the gains that accrue from not compliance. To be effective, those levels must be regularly revised to conform to the actual environment cost incurred by society. Such regular revisions are rarely undertaken by governments, thereby not only reducing the deterrent value of the penalties but also imposing an unacceptable environment cost on society. 70 The enviuronment *Protection( Act, 1986,No. 29 of 1986, Article 9 Sselungyegye. Deus. Kyomya 40 Effectiveness of Environmental Law in Preservation of Water Resources CHAPTER THREE 3.0 Environmental laws and policies that participate in exploitation preservation of water resources 3.1 The National Water Policy The National Policy for conservation and management of method resources 1995 seeks to promote the conservation of Uganda's wetlands in order to sustain their ecological and socio-economic functions for the present and future wellbeing of the people. In support of the above aim, the policy strives to end the existing unsustainable exploitative practices in wetlands to avert the decline 71 in their production • A long River Rwizi in Mbarara Municipality, it was noted with a concern that residents have encroached vigorously on the River banks thereby carrying out agricultural practices like crop and animal husbandry. Such practices especially along Rivers not only bring silting of river banks but also promote water pollution through defecation of animals. These make water resources unfit and unhygienic for human consumption. The Policy makes provisions for recovery of previously drained wetlands through restoration. As a strategy therefore, government may require that some wetlands which have already been drained, should be allowed to regenerate. For this purpose, government aims at restoring the soil hydration so as to reestablish the wetlands vegetation. The Policy lays down specific strategies which are deemed to be of great importance for the success of the policy. The policy for instance requires environmental impact assessment and monitoring activities in wetlands where they are likely to have adverse impacts on wetland resources. 71 The National WaterPolicy,l995 Sselungyegye. Deus. Kyomya 41 Effectiveness of Environmental Law in Preservation of Water Resources Assessment and evaluation of such impacts would help to minimize the economic and socio costs of damaged wetland as compared to restoring degraded wetland. It was noted however that all these efforts of govermnent are always frustrated by weak enforcement and corrupt tendencies by law enforcement officers who normally enforce laws on the poor leaving the rich and well-to-do citizens exploiting the environment.72 Chapter four of the policy deals with water resources management. The overall objective of the policy in this regard is to manage and develop the water resources of Uganda in an integrated and sustainable manner, so as to secure and provide water of adequate quality and quantity for all the social and economic needs ofthe present and future generations with the full participation of the stakeholders. It was observed that for effective monitoring of water resources like swamps and rivers, it is the duty of local council one to monitor the activities of residents along river Rwizi. However such initiatives are always frustrated by corrupt Local council one chairpersons who tend to favor their residents when they are arrested . 73 The policy lays down strategies for instance institutional development; planning and prioritization of water resources management issues; data collection and data dissemination; water resources management functions; development of management structures; and involvement of the private sector in water resources management. Chapter two of the policy acknowledges that fresh water is a key strategic resource vital for sustaining life and promoting development. That rapid population growth, increased agriculture, urbanization and industrial activities 72 The National Water Policy, 1995) 73 ibid Sselungyegye. Deus. Kyomya 42 Effectiveness of Environmental Law in Preservation of Water Resources and poverty in rural and peri-urban areas and habits of environmental carelessness are causing a serious depletion and degradation of the available water resources. This is evidently note in the study that due to the blast of population in Mbarara municipality and lack of enough space for expansion, residents have vigorously encroached on reserved wetlands of River Rwizi for both domestic and commercial purposes, like construction of buildings, farming along river banks and industrial developments. The Policy provides that human activities have an increasing impact on the availability and conservation of water. Increasing population pressure leads to deforestation, draining of wetlands, overgrazing and intensive cultivation of land, soil erosion and siltation of water bodies and may affect the hydrology and the water balance with the risk of including unfavorable micro climate changes (drought and floods) and desertification trends. Chapter five of the policy deals with domestic water supply. In this regard, the objective of the policy is sustainable provision of safe water within easy reach and hygi~nic sanitation facilities, based on management responsibility and ownership by her users, to 75% of the population in rural areas and 100% of the urban population. The strategies laid for realization of this are: technology and service provision; financing, subsidies and tariffs, management and sustainable aspects; and private sector participation. The constitution of Uganda of 1995 is the Supreme law and provides for environmental protection and conservation. It sets out the norms, standards, rights and obligations at national level. The constitution also sets out National Objectives and Directive Principles of state policy. The National Objectives and Directive principles provides that the state shall protect important natural Sselungyegye. Deus. Kyomya 43 Effectiveness ofEnvironmental Law in Preservation of Water Resources 3.3 Assessment of the policy and legal frameworkofBiodiversity in the Uganda Since 1990, a number of policies and laws have been put in place the Uganda environment, including the conservation and sustainable utilization of biodiversity. The next section reviews policies, strategies and plans that been made. 3.4 The basic element of a comprehensive and holistic framework of environmental law of Uganda includes the following A legal framework covering all environmental issues as well as all levels of policymaking and implementation. Although Uganda has a clearly cut out environmental policy, a careful perusal through various government policies and legislations reveals that environmental conservation strategies cut across government policies, as enumerated below. 3.5 The National Environment management Policy for Uganda The National Environment Management policy (1994) provides guiding principles on the management of the environment in Uganda. The main bjective of the policy to further the principles of the environmental management by facilitating the conservation and enhancement of the environment. The policy is a framework policy that addresses broadly the management of all matters on the environment and natural resources in Uganda. The policy is implemented by the National Environment Authority (NEMA) which is charged with coordinating, monitoring and supervising all environmental matters in Uganda. Other main aspects of natural resources management, including fisheries Wildlife, lands and forestry although they are managed increasingly under separate sect oral policies, are managed by sectoral lead agencies in coordination with NEMA. The National Management policy provides for conservation of biological resources. Key policy -ol?jeotive& , ''\ \... I 1I include: -....." <\ Sselungyegye. Deus. Kyomya - 7 / (/ ..._ ~ D.\ I I :. . . .•• ... .•••. .. \ ~; I Effectiveness ofEnvironmental Lmv in Preservation of Water Resources (a) To enhance the health and quality of life of all people in Uganda and promote long term, sustainable socio-economic development through sound environmental and natural resources and use .. (b) To conserve, preserve and restore ecosystems and maintain ecological process and life support systems, especially conservation of national biological diversity. (c) To have the water sources safeguarded and provide safe water to the Communities NEMA is empowered to issued guidelines for land use methods, which are intended to conserve biological; diversity. The policy also provides guidance on the selection and management of protected areas and buffer zones near protected areas. The policy does not specially mention conservation of great apes but generally provides for collaboration between protected areas and the local communities, identification of valuable biodiversity, development and implementation of strategies, legislation and actions for biodiversity conservation. The NEMP resulted from the process of preparing the NEAP and a component of the NEAP document NEMP sets overall goals and objectives for environment and provides a broad policy framework for harmonizing sectoral and cross-sectral policy objectives Key initial actions are identified as necessary. These include the creation and establishment of an appropriate institutional and legal framework. (ii) The development of a new sustainable conservation culture. (iii) Revision and modernization of sect oral policies, legislation, and regulations, and (iv) the establishment of an effective monitoring and evaluation system to assess the impact of policies and actions on the environment, the population and the economy. Sselungyegye. Deus. Kyomya 46 Effectiveness ofEnvironmental Law in Preservation of Water Resources With the policy objective of promoting environmentally responsible social and economic growth, the NEMP recognizes biodiversity conservation as a form of natural resource management that is critical to meet the needs of both present and future generations of Ugandans. The Law states that protected areas are the comer-stones ofUganda's biodiversity conservation efforts. Strategies to accomplish these objectives include comprehensive and coordinated policies and legislation for biodiversity conservation in and out of protected areas, developing a framework for managing buffer zones, and developing mechanisms to integrate local communities into protected area management and be sure that they reap some portion of the benefits NEMP also mandated that natural resources agencies would be coordinated under a common management authority and the framework for this institution is now reflected in NEMA. This policy in Uganda is operationalized by framework legislation. 3.6 Environmental Administration It is essential for a system of environmental management to be backed by an efficient system of environmental administration. In the last 30 years, environmental administration has evolved tremendously since the establishment of the first such administration that is, the Environment protection Agency (EPA) of the United States in 1970. The Environmental Protection Agency was established by an executive order of the President as a means of implementing the National Environment Policy Act, which was passed in 1969. Since 1970, environmental administration has evolved in the following directions:- a) the establishment of government departments within ministries responsible for the managing of natural resources. Sselungyegye. Deus. Kyomya 47 Effectiveness ofEnvironmental Law in Preservation of Water Resources b) The establishment of ministries responsible for the environment as a separate portfolio like state ministry of water. c) The establishment of multi-sectoral co-ordination mechanisms independent of ministries with separate personality, with statutory power and variously named as commissions (for example the Environment council of Zambia), Authorities (for example, National Environment Management Authority NEMA- Uganda), Agencies (for example, Nigerian Environment Protection Agency). All these institutional innovations had one aim- to improve the management of Environment resources. However, the choice of a form of institution depends largely on the needs of each country and the level of the complexity of its general administrative Standards. Whatever form is chosen however, must take into account the following factors; !) The environment cuts across various government sectors and therefore an environment administration must be basically a co-coordinating institution. 2) Since the environment cuts across all sectors, the environment administration must be inter-disciplinary in character. 3) An environmental administration must perform supervisory roles over sectoral departments and ensure that priorities set are properly observed. It is this supervisory role which is problematic when the chosen form is a department. This is because a department may be unable to impose its will on other equally established departments. The same applies to ministries. The doctrine of ministerial responsibilities enfeebles such structures. 4) Environment management revolves around standard setting and environment administration, therefore, must be capable of setting the necessary standards, which are binding upon all persons, government functions and functionaries. Sselungyegye. Deus. Kyomya 48 Effectiveness ofEnvironmental Law in Preservation of Water Resources 5) I he mshfuhonaiiocahon of an environment admtrustrahon may be essenhal to its effectiveness. Institutions located in the office of the president for example, or a Prime Minister or such like high offices tend to carry with them the prestige of their location and tend to be effective. On the others hand, administration located in sector agencies such as ministries tends to be less effective. 6) Environment management involves the management of a multitude of day to day activities of the people. The cumulative effects of those activities may have serious repercussions on the environment. Therefore an environmental administration should to a larger extent involve local governments and civil society at the lowest level. 7) An environmental administration should be legally bound to collaborate and co-operate with other government agencies to be effective. Under S.5 the NEA establishes NEMA as the principal agency of the Government for the management of the environment and bestows upon it corporate personality S.6 spells out its general functions. At the apex of NEMA, the policy making body, is the policy committee on environment which is composed of 12 ministries (spelt out in the first schedule of the Act whose ministries deal with environmental issues. The policy committee is chaired by the prime minister. The reason for including the composition in the schedule was to make it possible to amend the schedule by a ministerial order as and when circumstances demanded. The Act also established a board of directors whose duty is to supervise the functions of the secretariat and to appoint the staff of the secretariat. The board may appoint technical committees to advise it as and when it is deemed necessary. However, the Act goes ahead to spell out the establishment of the following standing technical Committees of the board: Sselungyegye. Deus. Kyomya 49 Effectiveness of Environmental Law in Preservation of Water Resources (i) On Environment Impact Assessment (ii) On licensing of pollution (iii) On bio-diversity (iv) On soil conservation The day to day administration of affairs ofNEMA is entrusted to the executive director and the secretariat. The board with the approval of the policy committee appoints the executive director and his deputy, while the other senior staff is appointed by the board as well. The executive director and his deputy have security of tenure. 3. 7 Environmental administration at Local Level The Act provides for the establishment of district environment committees and local environment committees at the lowest local government. Both committees are committees of the appropriate local council and are charged with the management of the environment at the level with specific emphasis on identification of environmental threats, environmental planning and mobilization of local people for management activities like protection of water sources like rivers. The Local Governments Act Cap 243, has changed the situation by providing for production and Environment committees at all local levels. Co-ordination with other Departments and Agencies NEMA is required in executing its duties to collaborate and co-ordinate with all 75 lead agencies • A lead agency is defined under the Act as any department, ministry or agency of government in which the law vests responsibility for the management of a segment of the environment. The department also covers local governments. 75 S.7 of the NEA Cap 153 Sselungyegye. Deus. Kyomya 50 Effectiveness ofEnvironmental Law in Preservation of Water Resources The Act in general, in most of its provisions requires NEMA to collaborate and consult with lead agencies in carrying out any management measures and standards setting. 3.8 Decentralization and Management of Water Resources and Associated Services. Constitutional Perspective The Constitution provides that the central government has a responsibility for matters specified in the sixth schedule. Matters not specified in the schedule 76 are within the competence of the districts and lower local governments'. • Item 7 of the sixth schedule specifies that land mines, minerals and water resources and the environment are the responsibility of the central government. It should be noted that unlike in the other areas, such as Agriculture, health, research forests and game reserves and energy the central government is not just responsible for policy. It should be noted further that item 29 of the schedule, the central government remains responsible for any matter incidental to or connected with the functions and services mentioned in this schedule. 77 From the above discourse, it follows that matters to do with water resources and all issues incidental to or connected with that function and service are vested in the central government. If this view is followed, water act would be implemented as it is without any further ado. 78The district councils and councils of lower government at their own request to be allowed to exercise functions reserved to the central government, or such functions may be delegated to them by the government or by parliament by law. In making the schedules to the Local government Act cap 243, parliament 76 Article 189; The constitution of republic ofUganda 1995 77 Section 3 of the Local Government Act cap 243 78 Article 189(2) of the constitution of republic of Uganda 1995 Sselungyegye. Deus. Kyomya 51 Effectiveness of Environmental Law in Preservation of Water Resources seems to have delegated some functions related to water management to the districts and lower local governments. The delegation of these functions should however, not be construed as constituting an inherent power of local government. Any future review of such power should take into account various factors including the capacity of local government to do the function, the nature of water supply and sewage management and the experiences in other countries i.e how do they do it. The Local Government Act cap 243 provides for the system of local government which is based on the district. Under the district, there are lower local governments and administrative units. This system provides for elected councils as key components in their decision making mechanisms. 79 79 Section 4 of the Local Government Act Sselungyegye. Deus. Kyomya 52 Effectiveness of Environmental Law in Preservation of Water Resources CHAPTER FOUR 4.0 Presenting and Discussion of the Study Findings 4.1 Some of human activities practiced in environmental degradation along River Rwizi Water pollution Under the National Environmental Act, S.l thereof defines a pollutant to include any substance whether liquid, solid gaseous which directly or indirectly alters the quality of receiving environment .arguably, the substance referred to as in s.l is dealt with nuisance. Nuisance is a useful tool for environmental protection, because the remedies awarded by courts not only to protect applicant's private interests but often the environment too. Contamination of streams, lakes under ground water bays or oceans by substances harmful to living things. Water is necessary for life on earth. All organisms contain it, some live in it, some drink it. Plants and animals require water that is moderately pure and cannot survive if their water is loaded with toxic chemicals or harmful micro-organisms. If severe, water pollution can kill large number of fish, birds and other animals, in some cases killing all members of species in an affected area. Pollution makes streams, lakes and waters unpleasant to look at, to smell and to swim in. People who ingest polluted water can fall sick, and with prolonged exposure, may develop cancers or bear children with birth defects. In Haward v walker 80defmes pollution as un lawful interference with a persons use or enjoyment of land or of some right over in connection with it. These include smoke, noxious gasses and fumes, discharge of effluent into water bodies and disposal of hazardous garbage on a persons land. 80 (1947) 2ALLER197 Sselungyegye. Deus. Kyomya 53 Effectiveness of Environmental Law in Preservation of Water Resources Major types of pollutants Major water pollutants are chemical, biological or physical materials that degrade water quality. Pollutants can be categorized/classified groups each of which presents its own set of hazards. Petroleum products Oils and chemicals are used for fuel, lubrication, plastics manufacturing and many other purposes. These petroleum products get into water mainly by means of accident spills from ships, tank trucks, pipelines and heavy underground storage tanks. Many petroleum products are poisonous if ingested by animals and spilled oil damages feathers of birds or of animals often causing death. All these are sourced from the factories, petrol stations that were constructed near river Rwizi and water tank Lories that fetch water from river Rwizi too. 81 There is a legal requirement for environment impact assessment report • It is to the effect that before any project or construction is to be done there must be assessment whether it will have any advance impact on the environment. Environmental impact assessment is very fundamental in sustainable right of wetlands even its implementation is below required standards. Its limited application is due to lack of inter agency cooperation due to fragmented authority for instance when multiple agencies /departments are responsible for safeguarding laws. It is worth noting that most of the human activities along river Rwizi were already in place before the enactment of National environment act. But even after the enactment of this act it is fraudulently violated due to corruption. The challenge here is that although there are various policies and laws that govern these different institutions/organs in assessing through environmental "Section 19 ofNational environment Act Cap 153 Sselungyegye. Deus. Kyomya 54 Effectiveness of Environmental Law in Preservation of Water Resources impact assessment for the establishment of factories and petrol stations, most often these guidelines are always ignored by the directors due to the inefficiency of environmental laws in place. For example, it was established that in Rwebikona Kamukuzi Division, Bam fuel filling station was constructed immediately on the banks of river Rwizi. This threatens both aquatic lives in River Rwizi and both residents who use the water domestically. Pesticides and Herbicides Photo 1 shows Farming Activities along River Rwizi Chemicals flowing from farms nearby the river (Rwizi) are collected by rainwater runoff and carried into streams. Some of these chemicals are biodegradable and quickly decay into harmless or less harmful forms, while others are non biodegradable and remain dangerous for along period and up in the river stream and animals at top of food chains may as a result of these chemical concentrations, super cancers, reproductive problems and health. it was established that along river R wizi, some farmers have tomato and cabbage Sselungyegye. Deus. Kyomya 55 Effectiveness ofEnvironmental Law in Preservation of Water Resources gardens in which they use herbicides and pesticides which obviously end up in river Rwizi, this makes its water unfit for human and animal consumption. 82 In Whalen v Union Bag and Paper Co , A new mill polluted a creek, a down stream farmer sued the mill for making the water that passed by his land unfit for agricultural use. He had to look for alternative water source for his crops and animals. Court granted an injunction ordering the mill to end harmful pollution with in one year or close the operations. The National Agricultural Advisory Services (NAADS) calls for urban farming as one way of enhancing people's income under the government policy of prosperity for all. As a result many people have encroached on the banks of river Rwizi for agriculture in order to get food to eat and sell hence contaminating the water. Heavy Metals and Oils Photo 2 Shows Oil spills from Heavy Trucks that collect sandfrom the River Banks 82 208 N.Y.J (CT APP.N.Y.I913 Sselungyegye. Deus. Kyomya 56 Effectiveness ofEnvironmental Law in Preservation of Water Resources Photo 3 shows Water Pump used to get water from River Rwizi Heavy metals, such as copper, lead: and aluminum, also get into water from many sources, including industries and factories. Heavy metals become more acidic as a result of rusting. Heavy metals can be poisonous, or can result in long term health problems similar to those caused by pesticides and herbicides. Due to lack of adequate water supply especially during the dry season, many people have resorted to use of pump generators at the banks of River Rwizi to ferry and supply water with water track carriers. There is oil spill over from both the trucks and pumping generators which ends in the main stream and finally contaminate water. The above photos clearly illustrate the facts earlier alluded to. Factories near River Rwizi like GBK Milk Processing Plant, Mwebesa Steel Rolling Factory. These and many processing plants like bakeries do emit their waste products into river Rwizi which makes the water unsafe for human and animal use. It is Important to note that all these challenges are mainly attributed by lack of effective laws in place to protect water resources. Sselungyegye. Deus. Kyomya 57 Effectiveness of Environmental Law in Preservation of Water Resources mode of mining and even if it had constitutional preference for access to water, it had not to dump injurious materials into the stream. Excess organic matters It was noted during the research that fertilizers and other nutrients used to promote plant growth on farms and orchards along river Rwizi may find their way into water. At first, these nutrients encourage the growth of plants and algae in water. However, when the plant mature and algae settle under water, micro organisms decompose them. In the process of decomposition, these micro organisms consume oxygen that is dissolved in the waters. Oxygen levels in water may drop to such dangerous low levels which may lead to death of oxygen dependant animals. This process of depleting oxygen to deadly levels is called eatraphication. This situation is common along Rwizi because there are farms of cabbage, and tomatoes and other fruits that use a lot of fertilizers to have more harvests on scarce and small pieces of land as explained above, there is also no fishing along the river despite some swamps around it. This can be attributed to low levels of oxygen. Sselungyegye. Deus. Kyomya 59 Effectiveness ofEnvironmental Law in Preservation of Water Resources Waste dumping Photo 4 Shows Wastes damped along River Rwizi There is a lot of indiscriminate waste damping along River R wizi. The situation is made worse by the chemical wastes from Mbarara Teaching Referral Hospital under Mbarara University of Science and Technology.These chemicals are hazardous to both human and animal life. These are chemicals wastes that are either toxic (Poisonous), reactive capable of producing explosive or toxic gasses corrosive (capable of corroding steel), or ignitable (flammable) if improperly treated or stored, hazardous wastes can pollute water supplies. For instance in 1969 the Cuyahoga River in Cleveland, Ohio, was so polluted with hazardous wastes that it caught fire and burned. 83 In Bunker Hills and Sullivan mining and concentrating company V Polak • A farmer down stream from a mining operation sued for damage to his farm caused by acids dumped in the Coe d'Alene River which was used by the farm. It was held that even if the mining operation was in the ordinary and usual 83 7F 2"d 553( 9TH cir,(l925 Sselungyegye. Deus. Kyomya 58 Effectiveness ofEnvironmental Law in Preservation of Water Resources Sewage ponds Photo 5 Shows Sewage pond along River Rwizi Arrow shows the position ofRiver Rwizi towards the Sewage ponds. These are found below the University (MUST) and the Mbarara referral hospital. In these areas (sewage ponds) both the University and hospital dispose their wastes and this waste contains lab and hospital chemicals which are hazardous to both human, plant and animal health. The situation is made worse during rainy season when there is over flow of sewage ponds which normally pollute river R wizi Sselungyegye. Deus. Kyomya 60 Effectiveness ofEnvironmental Lmv in Preservation of Water Resources CHAPTER FIVE 5.1 Possible recommendations to curb down environmental degradation States have long recognized that the threats to species and the benefits of conserving them are partly international or even global in scope. The need for international cooperation has been especially obvious for species in the global commons, like fish in the high seas, and of organisms moving across jurisdictional boundaries. International treaties have thus been adopted, for instance, to conserve migratory birds through commitments to the protection of breeding, stop-over and wintering sites which may be located in many different states. Other typical obligations in nature conservation treaties concern the regulation of exploitation or trade. Many treaties contain lists of species and/or habitats to be protected. The earliest legally binding international conservation agreements were concluded more than a century ago, forming the beginning of a proliferation that led to the large number of treaties presently in force which aim at conserving what is alternatively termed 'wildlife', 'wild fauna and flora', 'living natural resources', 'biological resources' or, most state-of-the-art, 'biological diversity'. Some of these agreements concern single species like polar bears or tuna; others concern defined terrestrial or ocean regions, while still others are global. Notable examples of the latter are the 'big five', consisting of the 'big four' concluded in the 1970s the Ramsar Wetlands Convention, the World Heritage Convention, the Convention on International Trade in endangered Species (CITES) and the Bonn Migratory Species Convention (CMS) and the 1992 BiodiversityConvention(CBD).84 84 The Royal Society, London 2008 P.l46 Sse/ungyegye. Deus. Kyomya 61 Effectiveness of Environmental Law in Preservation of Water Resources It is important in the present context to note that broad acknowledgment of the need for international nature conservation law to shift from reactive and adhoc approaches to proactive and holistic ones. The primary vehicles for the associated law reform are the precautionary principle and the ecosystem approach. At the intergovernmental level, the 1992 UN Conference on Environment and Development (UNCED) marked the worldwide breakthrough ofthe awareness that fundamental changes to international nature conservation law were called for. The Biodiversity Convention and a number of instruments adopted in UNCED's wake are testimony of a paradigm shift from ad hoc endangered species conservation towards the proactive and holistic conservation and sustainable use of biological diversity. States formally reaffirmed the notion that species are inextricably linked to each other and to their environments, forming complex ecosystems, and that these ecosystems themselves are interconnected across the globe. 85 The two novel approaches have since been incorporated to varying extents in newly negotiated instruments and infused into pre-existing regimes like the 'big four'. In accordance with these international developments, states have also begun to implement the precautionary principle and the ecosystem approach in their relevant domestic laws and policies. Although reform of the law is thus underway, there is concern as to whether its speed and comprehensiveness are satisfactory when accepting the existence of an urgent need for a precautionary and holistic approach to nature conservation. 86 85 TR McClanahan et a!, 2008. 86 TR McClanahan et al, 2008 p.48). Sselungyegye. Deus. Kyomya 62 Effectiveness of Environmental Law in Preservation of Water Resources Obviously, international nature conservation regimes cannot stop climate change from happening, but they could facilitate adaptation by dealing with the other stressors to biodiversity. Adaptation encompasses both promoting resilience to change (in other words, reducing vulnerability to change) and accommodation of change. A wide variety of adaptation measures has been identified or proposed in the pertinent conservation biology literature and in various policy reports broadly speaking, there appears to be a consensus that adaptation action must be at a minimum: (i) Promote the dispersal of species; (ii) Increase available habitat; and 87 (iii) Reduce pressures not linked to climate change • The pressing need for these and other adaptation measures outlined above adds a wholly new dimension to the need for international cooperation in the field of nature conservation. What is more, climate change is now placing demands on international nature conservation law which are fundamentally different from, and more severe than, the demands for which most conservation treaties were originally negotiated. Rather than a limited number of migratory species, huge numbers of species which are normally stationary such as reptiles and, indeed, entire ecosystems will (try to) relocate, irrespective of the existence of political boundaries). 88 5.2 Ramsar Convention Wetlands such as rivers can play important roles in terms of ecological connectivity, so that their conservation will be conducive to the dispersal of species. The most recent, lOth Conference of the Parties (COP) to the Ramsar Convention accordingly acknowledged that the 'conservation and wise use of 87 The Royal Society, London 2008 p.139. 88 Lovejoy; 1992 p.93 Sse/ungyegye. Deus. Kyomya 63 Effectiveness ofEnvironmental Law in Preservation of Water Resources wetlands enables organisms to adapt to climate change by providing connectivity, corridors and flyways along which they can move.' Similarly, as for resilience, the protection of large and unflagmented wetlands will buffer associated species and ecosystems against extreme weather events. These features would seem to indicate a potential role of significance for the Ramsar Convention with regard to the facilitation of biodiversity adaptation to climate change. At the 8th COP in 2002, parties had already highlighted the 'limited adaptive capacity' of some wetlands, 'including reefs, atolls, mangroves and those in prairies, tropical and boreal forests and arctic (including permafrost) and alpine ecosystems,' and the associated danger of 'significant and irreversible damage' to these wetlands. To curtail such damage, Ramsar parties are called upon to 'manage wetlands so as to increase their resilience to climate change and extreme climatic events, inter alia by reducing 'the multiple pressures they face. 89 Notwithstanding these non-legally binding decisions, and the additional relevant guidance contained in the extensive collection of 'Ramsar Handbooks on the Wise Use of Wetlands which has been compiled under auspices of the Convention, the legally binding obligations set out in the Ramsar Convention itself for its 159 parties are relatively weakly and Generally phrased and having been drafted in 1971 not tailored to climate change. In particular, states parties are to 'formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory'. The List of Wetlands of International Importance referred to here contains over 90 18,000 wetland sites covering about 173 million hectares • 89 The Royal Society, London 2008 p.l64). 90 The Royal Society, London 2008p.248. Sse/ungyegye. Deus. Kyomya 64 Effectiveness of Environmental Law in Preservation of Water Resources Parties are also under an obligation to 'promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not.' Furthermore, parties must consult with each other about the implementation of the Convention, especially with respect to transboundary wetlands. A less crucial provision which is nevertheless intriguing for present purposes commits each party to informing the Ramsar Secretariat promptly 'if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference91 5.3 Mitigation This means subsequently avoiding and minimizing impacts to the extreme practical and then compensating un avoidable impacts of the proposed action. Environmental impact regulations provide mit9igation measures include engineering works, technological improvements, management measures and ways and means of some working losses suffered by individuals and communities including compensation and settlement. It was noted however that due to the fact that most of the developers are policy makers like politicians, rich men that fmance the campaigns of such politicians have massively exploited wetlands in terms of development which has led to inefficiency in application of environmental regulations/laws 5.4 Pollution Control The act is created in such a manner as to ensure the conservation of the quality and quantify of the water resource. Pollution control is addressed through the 91 .(The Royal Society, London 2008 p.256 Sselungyegye. Deus. Kyomya 65 Effectiveness of Environmental Law in Preservation of Water Resources issuance of waste discharge permits Under section 28, 29, 30 and 31 of the Statute Minister is empowered to prescribe with wastes which may not be discharged, trades which may not discharge wastes and classes of premises which may not discharge wastes without a discharge permit. Any discharge contrary to this requirement is the commission of an offence. Under the Water (Waste discharge) Regulations 1998, these wastes, trades and premises have been specified. The regulations specify the discharge to be issued for these activities. The permit systems as envisaged under the act and the regulations implement the polluter pays principle. Persons who discharge pollutants into water bodies are required under Regulations 18 to pay armual waste discharges fees. These fees are calculated to take into account the volume of, characteristics and components of the wastes. This calculation is based on the kind of components disclosed by the discharger in his application (See the Fourth schedule to the Regulations), which may be verified by independent inspection, by Directorate of Water Development (DWD) through its authorized officer. 5.5 Control of water use The control of the use of water resources governed by the water act the national water act provides that all rights to investigate, control, protect and manage water in Uganda for any use is vested in the government and is exercised by the minister responsible for water and director for water development 92 thus a person who wishes to construct any work or take any use may apply to the director for water permit. 93 the water permit is also required by a person who occupies or intends to occupy any land or wishes construct, own, occupy or 94 control any works on or adjacent to the land. • 92 ibid 93 Ibid section I 8 94 The water resource regulations, 1998,regulation 3 Sselungyegye. Deus. Kyomya 66 Effectiveness of Environmental Law in Preservation of Water Resources In considering the application of a water permit, the directorate of water development has to consult public authorities for their considerations and comments" , a drilling permit is also required by a person who wishes top engage in the business of constructing boreholes and construction permit is required for a person 3ho wishes to construct a bore hole on his .!her land for the purpose of using water, recharging an aquifer or fitting a motorsed pump to a bore hole•'. 5.6 Recommendations based on study findings Environmental law show should be taught on a multidisciplinary basis and integrated into ongoing curricula and not as a separate or additional subject. Environmental education and public awareness progammes should be targeted to all those in public and private sectors whose activities significantly affect the environment. Environmental law conferences should be held more regularly. These would help participants to exchange information and experience. Training programs in environment and natural resource management should be coordinated and strengthened. Demand - driven, basic and applied programs are critical for environmental management and these programs should be prioritized. Strengthen existing higher level institutions offer more programs tailored to produce environmental economists, planners, trainers, lecturers, lawyers and enforcement officers knowledgeable in environmental law. 95 ibid regulation 5 96 ibid 16 Sselungyegye. Deus. Kyomya 67 Effectiveness ofEnvironmental Law in Preservation of Water Resources Provide in service training in specialized areas such as environmental planning, economics, law, information systems, impact assessment, pollution control and waste management. Establish an environmental research fund to support research programs m environmental management. Facilitate better understanding of factors affecting resource use by promoting and supporting research programs on environmental concerns and develop appropriate technologies for sound environmental management and resource use. Sselungyegye. Deus. Kyomya 68