Advocates Coalition for Development and Environment v. Attorney General

Miscellaneous Cause No. 0100 of 2004
Download Judgment: English
Country: Uganda
Region: Africa
Year: 2004
Court: High Court at Kampala
Health Topics: Environmental health
Human Rights: Right to a clean environment, Right to health
Tags: Environmental degradation

The government of Uganda issued a 50 year permit to Kakira Sugar Works Ltd (the company) for growing sugar cane on the Butamira Forest Reserve. This amounted to defacto degazetting of the protected land. The company failed to conduct an Environmental Impact Assessment. Once the company had the permit, it tried to clear the existing forest and replace it with sugar cane plantation. A government committee found the permit had been issued fraudulently and without due regard to the law. The line minister then took the matter to the Parliament and a motion passed in favor of the company.

The petitioners claimed this was a violation of Ugandan citizen’s rights to a clean and healthy environment as well as the protection of the natural resources of the country. The petitioners requested a removal of the permit and for Kakira Sugar Works Ltd to clean up the impacted area.

The Court held that the permit, if ever granted, was null and void as it was issued without a project brief or an Environmental Impact Assessment. The alienation of the Reserve could only be done after consulting with the local community.

(1) Locus Standi

The Court held that the petitioners did have standing. The company claimed that because the petitioners were a non-governmental organization and did not live near the reserve, they did not have standing. They further claimed that the company workers did live there and would not “endanger their own lives by polluting the environment in which they live.” Under Article 50 of the Constitution, which permits any person claiming that a fundamental right guaranteed by the Constitution has been violated to bring suit, the Court held that the petitioners did have standing because the issue was a matter of a fundamental right.

(2) Whether there was a breach of the Doctrine of Public Trust

The court held there was breach of the Doctrine of Public Trust (which governs the legal right of the public to use certain lands and water and sets forth that the the interest of private owners in land must be subservient to the public right to use and enjoy land) because the Butamira Forest Reserve was land that the Ugandan government held in trust for the people of Uganda and it was the legal right of the public to use such land and waters. The protests of the people who live there was an indication of this breach.

(3) Whether the National Environment Management Authority failed in its statutory duties under the National Environment Act

The Court held that the National Environment Act required the government to, inter alia, ensure the rights of all persons to a healthy environment adequate for their health and wellbeing. The Court noted that the effect of the permit would be to change the use of land from forestry to agriculture, and that the law dictated an Environmental Impact Assessment be carried out for any such prospective change. The Court also noted the right to health did not include only physical wellbeing, but also “intellectual, moral, spiritual, political and social wellbeing.” Politically and socially, the reserve belonged to the local community and the government should not have consented to a change in use without consulting that community. In the present situation, an Environmental Impact Assessment was mandatory under the National Environment Act and the government had neglected its duties when it failed to conduct such an assessment.

(4) Remedies available to the parties

The Court held that the applicants were entitled to all the orders sought except the restoration orders against the respondents, because such orders could only apply to those responsible for the environmental damage.

 

“The right to health does not therefore stop at physical health. It covers intellectual, moral, cultural, spiritual, political and social wellbeing. Politically and socially, Butamira Forest Reserve belongs to the local community in Butamira. The people of Butamira also have a moral, cultural economic and spiritual attachment to Butamira Forest Reserve as a source of sports, worship, herbal medicine, economy etc.” Page 11.

“Butamira saga is more delicate because it involves the interest of the local community whereby even common sense should have demanded that an Environmental Impact Assessment study be carried out to determine social, political, cultural and economic impact of the project. If it is true that land in Uganda belongs to the people as provided in the laws, it should be equally true that the local community in Butamira should have been consulted as a matter of transparency, accountability and good governance as demanded by the public trust doctrine which I have alluded to above.” Page 10.

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