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2023/02/21st

GOALS:

1. To give an understanding and appreciation of the

environment, and the ensuing environmental problems at
different levels.
a) Micro-level
b) Communal level
c) National level
d) Regional level
e) International level
2. To give an understanding of how Environmental Law and
Policy can be used to attain Sustainable Development and
Environmental Management.

KEY TERMS:

1. Sustainable Development
2. Environmental Law
3. Environmental Policy
4. Environmental Management

ENVIRONMENTAL POLICY: What the government decides to pursue

or not to pursue regarding the goals of the Environmental Law at
large. Policy is thus, more directive in nature.

ENVIRONMENTAL LAW: A set of legal instruments which work to

enforce the norms and rules for the management of the
environment.

1. Introduction
2. Framework of Environmental Law
3. Institutional Framework for Environmental Law

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4. Non-Sanctional Tools for Enforcement of Environmental

Law:
• Environmental and Social Impact Assessment
• Environmental Audit and Monitoring
• Environmental Standards
• Polluter Pays Principle
• Precautionary Principle
• Environmental Inspection
• Environmental Rights
• Environmental Reporting
❖ What is the tool?
❖ What is the legal basis of the tool in the
national and/or international legal framework?
❖ What is the practice?
5. Legal Aspects of Environmental Management:
• Biodiversity and its Management
• Lakeshores and Riverbanks
• Ozone Layers
• Hazardous Wastes
• Regulation of Oil and Gas
• Pollution Control
❖ Water Pollution
❖ Air Pollution
❖ Soil Pollution
6. Sanctional Tools for Enforcement of Environmental Law:
• Environmental Easements
• Environmental Offences
• Public Easements
• Judicial Remedies
• Common Law Tools

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• Restoration Orders
7. Environmental Damage to Other States and Areas Beyond
National Jurisdiction.

HOW DOES POLICY TRANSLATE TO REGULATION IN ENVIRONMENTAL

LAW?

In Environmental Law, Policy and Regulation are distinct concepts

which intersect to form an interconnection. In Environmental Law,
both are used in concert to attain sustainable development goals.

Policy: this refers to a set of principles, goals, or guidelines

established by governments or organisations to guide decision –
making and actions in a particular area. Environmental policy
works to set out the objectives, strategies, and priorities for
addressing environmental issues and achieving desired outcomes,
such as conservation, pollution reduction, or sustainable
development.

Regulations: these, on the other hand, refer to specific rules,

standards, and requirements established by legal instruments to
implement and enforce environmental policy. Regulations are
binding and have the force of law. They provide detailed
instructions and specific obligations for individuals, businesses,
and government entities to follow in order to comply with the
policy objectives and achieve the desired environmental outcomes.

Generally, Policy goals inform the development of regulations,

whereas the practical implementation of Regulations provide
feedback to refine and adjust policy objectives.

In answer to the question above, the translation of policy into

regulation takes the following chronological steps:

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i. Policy Formulation

The development of Environmental Policy begins with identifying

the Environmental Issues and goals to be addressed. This may
involve research, consultation with experts and stakeholders, and
the consideration of social, economic, and scientific factors. Policy
formulation results in the articulation of broad objectives and
strategies.

ii. Legislative Action

Once the policy objectives are established, they must be translated

into legal language. This involves drafting legislation or amending
existing laws to incorporate the policy goals and provide the
requisite legal framework for Environmental Law.

iii. Regulatory Development

Upon the enactment of the said legislation, regulatory agencies or

departments are usually responsible for developing the specific
regulations that operationalize the Policy. This process involves the
creation of detailed rules, standards, procedures, permits, and
enforcement mechanisms which align with the policy objectives.

iv. Public Consultation

This occurs during the development of Regulations to allow

stakeholders, including the public, businesses, environmental
organisations, and affected communities, to provide input, express
concerns, and shape the substance of the Regulations.

v. Adoption and Implementation

Once the Regulations are finalised, they are adopted and

implemented. The public is informed, with the guidance and
training to affected parties provided. Mechanisms for compliance

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monitoring, enforcement, and penalties for non-compliance are

established at this stage.

vi. Evaluation and Revision

Overtime, regulations are evaluated to assess their effectiveness in

achieving the desired environmental outcomes. Where necessary,
revisions aimed at improving the regulations are conducted,
addressing any gaps or shortcomings, or making amendments to
align the Regulation to the needs of society and the economy, that
it may adapt to changing circumstances or new scientific
knowledge.

In Asphar Leghari Versus. Federation of Pakistan the petitioner had

his and his neighbours’ crops threatened by water scarcity and
storms that were intensified by climate change. He sued the
Federation of Pakistan, arguing that their neglect of the climate
change policy posed a violation to his fundamental rights, arguing
that the government had demonstrated inaction, delay, and
unseriousness amidst the challenges posed by climate change,
threatening food, water, and energy Security in Pakistan. Whereas
the previous climate change policy was left to individual provinces,
the results of a study by the World Wildlife Fund and Lahore
University of Management Science established that neither
province in Pakistan had emplaced the policy as expected. Thus,
the Lahore High Court required every department to nominate a
person to ensure the 2012 policy was enforced, whilst creating a
list of ‘action points’ by 2015 December 31st. Consider that the
decision was delivered 2015 September 4th. The decision also
created a Climate Change Commission, made up of Non-
Governmental Organisations, technical experts, and
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representatives of ministries, to track the progress of the

government.

In the Arbitration of Trail Smelter (United States of America Versus.

Canada), the controversy in this case was whether an upwind
State should be held liable for the travel of emissions from its
borders into a downwind State, considering that air travels freely
over international borders. This case serves as the first
international air pollution dispute, whereby Consolidated Mining
and Smelting Company operated a Smelting Plant in Trail, British
Columbia, located in Canada, 7 miles above the border with the
United States of America. From around 1925 – 1935, air pollution
from the fumes of the Smelter, emitting Sulphur Dioxide, travelled
downwind across the border into Washington State, damaging the
crops of Washington residents, and surrounding forests. The United
States submitted its case for arbitration to the International Joint
Commission seeking damages, and injunctive relief. The issue was
that the laws of neither country seemed to be applicable, in as
much as the damage was caused in the United States of America,
and the conduct occasioning the damage occurred in Canada. The
arbitrators turned to American municipal law, particularly, the
decisions where the American Supreme Court had to determine
disputes within their own States. The arbitrators held in favour of
the United States, finding that no State had the right to use, or
permit the use of its territory in a manner that would occasion
injury of any kind to another States’ persons and/or properties.

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FEATURES:

1. Complexity: interaction of different phenomena within an

eco-system.
2. Legislation Amidst Scientific Uncertainty as long-term
impact of the act (in a scientific sense) in inconclusive and
mostly speculative.
3. Applies in Pre-Cautionary Situations or Where Precaution is
Necessary.
4. Applies in Dynamic Situations as the three pillars of
sustainable development, environmental protection;
economic development; and social progress, must be
considered.
5. Environmental Law Deals with the Question of Controversy.

The main purpose of the framework of Environmental Law, is to

attain the sustainable development goals.

Sustainable Development works to meet the needs of the present

generation without harming the capacity of future generation to
meet their needs.

An important consideration is the Capacity to Cope, which is

determined by one’s access to three things:

➢ Technology
➢ Human Resource
➢ Money

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Environmental Law is seen as a set of commands on what must

and should not be done. Rules are developed to govern human
interaction with the environment. The role of environmental law is
to establish principles, norms, customs, ethics, and morality to
protect the environment and achieve sustainable development.

Elements Assumed in Environmental Law: 2023/02/23rd

1. Rationality.
2. Ethics and Morality.
3. Law and Enforcement of Compliance.

These elements are assumed in Environmental Law to ensure

compliance with the goals of Environmental Law. The hierarchy is
chronological from rationality to law and enforcement of
compliance, as where one does not work, the next one is employed.
Where all fail, there is a crisis.

❖ Policy is distinguishable from the law.

❖ Law must be reduced into writing apart from custom.

Policy making is based on evidence collection and a study is

conducted to decipher environmental impact from the evidence
therein. Without the requisite evidence, the policy will fail or
outrightly be rejected.

CONCEPTS OF ENVIRONMENTAL LAW:

1. Equity: all are treated the same in Environmental Law.

 Environmental Equity gives to all an equal opportunity to benefit
from their interaction with the environment.

2. Governance: systems that govern environmental interaction.

3. Justice: describes the impact of environmental decisions on
different communities/groups of people.

Environmental Law serves three protractors: 2023/02/28th

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1. Harm and/or damage to the Environment.

2. Setting Environmental quality standards.
3. Remediation or clean-up following an event.

Motivations of Environmental Law:

1. Distinction of Species
2. Dealing With Pollution

Compliance Regulations in Environmental Law:

1. Ratification Requirements.
2. Point-of-Discharge or Waste-End Control to minimise or
prevent the release of pollutants, known as effluents, to
maintain exposure limits.
3. Process – Oriented Control and Pollution Prevention which
refers to requirements to reduce the quantities, prevent the
release, and minimise the hazardous characteristics of
generated waste.
4. Production Orientated Controls designed to assure the design,
formulation, packaging, and/or use of products, so that the
products do not present unreasonable risk to human health
and the environment.
5. Regulation of activities to protect resources, species, and
ecosystems.
6. Safe transportation requirements which provide the
standards facilitating the safe ferry of hazardous materials.
7. Response and remediation requirements to deal with
situations where environmental damage occurs or is likely to
occur.
8. Compensation Requirements in cases where environmental
damage occurs.

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COMPONENTS OF THE ENVIRONMENT:

➢ Biosphere

This the global summation of all ecosystems, extending from the

deepest root system of trees to the dark environment of ocean
trenches, to lush rainforests and high mountaintops. The biosphere
is made up the parts of Earth where life exists and is a virtually
closed system with regard to matter, with minimal inputs and
outputs.

➢ Atmosphere

A planet retains an atmosphere when the gravity is great, and the

temperature therein is low. An atmosphere is basically a layer of
gasses that envelop a planet and is held together by the gravity of
the planetary body.

➢ Hydrosphere

This is a component which is ever changing in shape, entailing the

combined mass of water found on, under, and above the surface of
a planet, or natural satellite.

➢ Outer – Space

This is an expanse between celestial bodies, existing beyond Earth

and its atmosphere.

EVOLUTION OF THE ENVIRONMENTAL MOVEMENT:

(1) 1900 saw the London Convention with the sole purpose of
protecting African wildlife.
(2) London Convention (1933) was the basis to establish protection
in British colonies of the wildlife therein.

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(3) In 1962, a one Rachel Carson wrote The Silent Spring

documenting the negative effect of pesticides on birds and the
aggregate environment.
(4) The Stockholm Conference on the Human Environment (1972) was
held resulting into the Stockholm Declaration on the Human
Environment.
(5) In the year 1973, in the city of Washington D. C., the Adoption
of the Cites Convention on International Trade of Fauna and Flora
happened.
(6) In the year 1983, the United Nations commissioned the World
Commission on Environment and Development.
(7) In the year 1987, following the United Nations Commission
Report of 1983, the publication Our Common Future was
released.
(8) The Rio Conference (1992) was held, yielding a lot of
developments in Environmental Law, such as the Rio
Declaration, Agenda 21, and The Forest Principle.
(9) The Climate Change Convention (1994) was executed.
(10) The United Nations Convention to Combat Biological
Desertification (1996) was executed.
(11) 2000 – Millennium Development Goals.
(12) 2015 – Adoption of the Sustainable Development Goals and the
Paris Agreement (2015).

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2023/03/02nd

❖ Principle of Common Interest.

The Global Environment is a common heritage of humanity, and its

protection is the common interest of all States and peoples.

❖ Principle of Intergenerational Equity.

Present generations ought to ensure the right, and interests of

future generations are not adversely compromised.

❖ General Duty of Prevention.

The Arbitral Tribunal in the Iron Rhine Case emphasized that there
is a duty to prevent, or at least mitigate, environmental harm. The
Tribunal accords that this duty has evolved into a principle not
only of International Environmental Law, but International Law in
whole. This principle applies in not only autonomous activities but
also in activities undertaken in implementation of specific treaties
between the State Parties. An example is seen in Article 192 – 193
of the United Nations Convention on the Law of the Sea which
provide that:

➢ States are obliged to protect and preserve the marine

environment, Article 192.
➢ Exploration of natural resources must be conducted
according to the duty of States to protect their marine
environment, Article 193.
❖ Integration Principle.

Encourages the integration of environmental considerations into

other areas of law and policy, such as trade, human rights, and

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development. This principle recognizes the interlink between

environmental issues and other societal concerns.

❖ Common but Differentiated Responsibilities.

Recognizes that whilst all States are obliged to protect the

environment, they have different capacities and historical
contribution to environmental degradation. Thus, developed States,
ought to take the lead in addressing environmental challenges, via
the principle of equity in burden – sharing.

❖ Cooperation and Transboundary Responsibility.

Environmental problems often transcend national borders,

requiring States to cooperate effectively to address them. Thus,
this principle enjoins States to engage in collaborative joint efforts
to manage shared resources and mitigate transboundary
environmental harm.

❖ State Responsibility for Transboundary Environmental Damage.

Via State Responsibility, the most prominent consequence visited

upon States that violate their international obligations is the
payment of reparations to the states that have been injured by the
responsible State’s actions. The forms of such reparations, via
Article 34 of the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, which may be imposed singly or in
combination include:

➢ Restitution:

Via Article 35 of the Draft Articles on State Responsibility, this is

an obligation that entails re-establishing the status quo of the
situation as it existed before the offending act was committed,

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provided and to the extent that restoration is not materially

impossible and does not unjustly burden the offending State, nor
enrich the offended State. Via the Commentary to Article 35 of the
Draft Articles on State Responsibility, the International Law
Commission defined materially impossible to refer to cases where
the damaged property has been permanently lost or destroyed or
has deteriorated to worthlessness, emphasizing that Restitution
does not become impossible on grounds of practical difficulties
even where the offending State may have to make special efforts
to overcome them.

➢ Compensation:

Via Article 37 of the Draft Articles on State Responsibility, the

offending State is obliged to compensate the damage caused in so
far as such damage is not remedied by restitution, and the
compensation shall cover any financially assessable damage,
including loss of profits, in so far as such is established. Via
Paragraph 4 of the Commentary to Article 36 of the Draft Articles
on State Responsibility, compensation is compensatory in essence,
operationalised to address the actual losses incurred resulting from
the internationally wrongful act, meaning that it is not invoked to
punish the offending State, nor does it enable nor legalise the
award of punitive and exemplary damages. The only recourse to
States facing large compensation sums in order to limit the
financial pinch arising from their obligation to compensate the
injured State, is the limit to the financially assessable damage to
that which is suffered by the injured State itself, including damage
suffered by its nationals, whether companies or natural persons.

➢ Satisfaction.

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Via Article 37 of the Draft Articles on State Responsibility this

form of reparation arises when the injury cannot be remedied by
restitution or compensation, and may constitute:

• An acknowledgement of the offence.

• An expression of regret.
• A formal apology.
• Any other appropriate modality.

Via the Commentary to Article 37 of the Draft Articles on State

Responsibility, the International Law Commission posits that
Satisfaction is the rarest form of reparation as in most cases the
injury caused by the internationally offensive act can be remedied
otherwise. Via Article 37(3) of the Draft Articles on State
Responsibility, Satisfaction shall not be out of proportion to the
injury caused and may not take a form humiliating to the
offending State, amounting to clear and unequivocal safeguards to
avert excessiveness.

❖ Precautionary Principles.

The Precautionary Principle works to determine whether the

development process of an activity is sustainable or not. Via the
Precautionary Principle:

➢ Essential measures ought to be taken which anticipate,

prevent, and attack the causes of environmental
degradation.
➢ Lack of scientific certainty is no excuse to postpone
measures to prevent environmental degradation, where there
are threats of serious and irreversible damage.

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The precautionary duty is preventive in nature, but goes further

that the ordinary prevention duty, applying to situations where
the proof of causal connection between activity and potential
damage is not obvious. Such uncertainty provides affirmative
justification for adopting the measures the relevant activities, as
precautionary tools, to avert the potential environmental damage.
Via the precautionary principle, disregarding potential risks a
particular activity or set of activities imposes to the environment
is a key element to the breach of the precautionary principle. Via
Principle 15 of the Rio Declaration (1992), scientific uncertainty is
no reasonable ground to post – pone cost effective measures to
prevent environmental degradation, where there are threats of
irreversible damage to the environment. However, the organs of
the World Trade Organisation have repeatedly observed that the
legal status of the precautionary principle remains an unsettled
phenomenon, whereas The International Tribunal for the Law of
the Sea regards the precautionary principle as non-binding.

❖ Polluter-Pays Principle.

This principle works to ensure prompt and adequate compensation

from the operator of an activity which violates the norms of
international environmental law, and it should be perceived from
the perspective of achieving cost internalisation, whereby States
conduct calculations to gauge whether an activity they intend to
conduct which results into transboundary pollution is worthwhile,
given the cost they will incur, against the benefit they speculate
they will receive. The polluter – pays principle argues in favour of
internalising the true economic costs of pollution control, clean-
up, and protection measures within the costs of the operation of
the activity itself. From this perspective, the polluter-pays

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principle refers to the primary rules of conduct, particularly

relative to operators’ liability. Its operation ought to adapt to the
general rules on State Responsibility, where it handles situations
involving actual environmental damage. Via Principle 16 of the Rio
Declaration (1992), national authorities are mandated to endeavour
to promote the internationalisation of environmental costs and
the use of economic instruments, taking into account the
approach that the polluter ought to fear the cost of pollution,
with due regard to the public interest and without distorting
international trade and investment.

❖ Public Trust Doctrine.

The Public Trust Doctrine accords that certain resources are

preserved for public use, and States ought to maintain them for
the reasonable use of the public. The Public Trust Doctrine is a
legal theory developed in Ancient Rome whereby certain common
properties such as rivers, the air, seas, the seashore, forests, et
cetera, were held by the government in trust for the free and
unrestricted use of the general public, as they are of great
importance to the public. Property under the Public Trust Doctrine
cannot be sold, and is restricted to particular kind of uses, which
do not affect the right of use and enjoyment of other States, such
as navigation, recreation, fishery, et cetera.

❖ Sovereign Equality.

This principle accords that States are considered equal in their

rights and obligations via International Law, thus, no State is
entitled to an unfair advantage over others in Environmental
matters.

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❖ Intergenerational and Intra – Generational Equity.

Simply put, under this principle, the present generation are

mandated and enjoined to utilise natural resources in a responsible
manner, ensuring the future generation(s) will be able to use the
same resources.

❖ Environmental Impact Assessment (EIA).

The International Court of Justice via the Pulp Mills Case observed
that there is a requirement under general international law to
undertake an environmental impact assessment where there is a
risk that the proposed industrial activity may have a significant
adverse impact in a transboundary context, particularly, on a
shared resource. This approach was consolidated via the Costa –
Rica Versus. Nicaragua Case in which the International Court can
be quoted stating that the underlying principle applies generally to
proposed activities which may have a significant adverse impact in
a transboundary context. Thus, to fulfil its obligation to exercise
due diligence in preventing significant transboundary
environmental harm, a State must, before embarking on an
activity having the potential to adversely affect the environment
of another State, to ascertain if there is a risk of significant
transboundary harm, which would trigger the duty to conduct an
environmental impact assessment. The Court further held that to
conduct a preliminary assessment of the risk posed by an activity
is one of the ways in which a State can ascertain whether the
proposed activity carries a risk of significant transboundary harm.
Thus, the Environmental Impact Assessment requirement can be
seen as an implication of the pre – cautionary duty, which has no

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subject matter limitation and can apply to all activities that may
involve environmental risk.

❖ Sustainable Development.

Sustainable Development is premised on three pillars:

➢ Economic Prosperity
➢ Social Development
➢ Environmental Protection and Conservation

The Brundtland Report of the World Commission on Environment

and Development (1987) emphasized the need for international
cooperation and responsibility to activity communal survival
interests and to reduce the exhaustion of resources and the
pollution of the environment. It emphasized the link between the
environment and development as a matter of sustainable
development. Sustainable Development was defined as
development that meets the needs of the present without
compromising the ability of future generations to meet their own
needs. The International Court of Justice via The Gabcikovo-
Nagymaros Case emphasised the need to reconcile economic
development with protection of the environment as aptly
expressed via the concept of sustainable development. In the Iron
Rhine Case the Tribunal stated that environmental law and the law
on development are mutually integral and reinforcing concept
which work not as substitutes, but compliments of each other.
Thus, Sustainable Development becomes a yardstick against which
the scope of due diligence, prevention and precaution duties
operate, determining the range of questions to be asked to
establish whether and how far prevention and precaution duties
are engaged in the course of certain activities. Thus, in finality,

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Sustainable Development aims at balancing utilisation with

preservation of a given resource or environmental asset.

 Environmental concerns will not form a discrete defence,

thus, even if property is expropriated for environmental
purposes, the duty to compensate still remains, as even
measures carried out in the best interest(s) of society
require compensation, via The Arbitral Tribunal ruling in
‘Santa Elena Versus. Costa Rica, ICSID Case Number
ARB/96/1, 2000 February 17th’.

The scope and nature of international environmental law:

The second half of the 1900s witnessed the increasing realisation

that the sheer scale and volume of industrial and trading activities
can involve environmental damage that may be widespread,
unpredictable, and irreversible. The United Nations Conference on
the Human Environment, held in Stockholm in 1972, was the first
truly international conference to address environmental concerns.
Subsequently, the United Nations Conference on Environment and
Development (UNCED) was held in Rio de Janeiro in 1992 June. The
instruments adopted at those two conferences are not formally
binding, but some of their provisions embody international
customary law.

Principles 21 and 22 of the Stockholm Declaration are generally

considered the cornerstone of modern international environmental
law.

➢ Principle 21 enjoins States to ensure the activities within their

jurisdiction and control do not cause damage to the

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environment of other States or areas beyond the limits of

national jurisdiction.
➢ Principle 22 enjoins States to develop further the international
law regarding liability and compensation for the victims of
pollution and other environmental damage by activities within
the jurisdiction or control of such States to areas beyond their
jurisdiction.

The Nature of Rules and Regimes:

The natural environment could be defined in contradistinction to

man – made things, and by reference to what is exhaustible and
renewable, to natural organisms and resources that grow, evolve,
and become extinct. In 2006, the International Law Committee
defined the environment as natural resources, both abiotic and
biotic, such as air, water, soil, fauna and flora and the interaction
between the same factors; and the characteristic aspects of the
landscape. The Arbitral Tribunal in the Iron Rhine Case defined the
environment as that which includes air, water, land, flora and fauna,
natural ecosystems and sites, the climate, and human health and
safety.

According to the International Law Commission, environmental

damage refers to damage caused by the hazardous activity to the
environment itself with or without simultaneously causing damage
to persons or property and hence is independent of any damage to
such persons and property. The United Nations Compensation
Commission established after the Iraq – Kuwait conflict referred to
the term environmental damage, as used in United Nations Security
Council Resolution 687 (1991), as that which includes pure
environmental damage meaning damage to environmental resources

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that have no commercial value. However, via the United Nations

Compensation Commission 2005 Report, damage to natural
resources which have commercial value was also included in the
Commission’s mandate.

The International Law Commission, via Paragraph 14 of the

Commentary to Article 2 of the Articles on Allocation of Loss from
Hazardous Activities, stated that the environment is not anyone’s
property and thus it is not always easy to appreciate who may suffer
loss of ecological or aesthetic values.

The issues dealt with in International Environmental Law are:

i. International Institutions and Processes.

ii. General Principles of International Environmental Law.
iii. Multi-lateral Environmental Agreements.
iv. Implementation.
v. Enforcement.
vi. Dispute Settlement.

Article 38 (1) of the International Court of Justice Statute accords

for the Sources of International Law as follows:

i. Treaties.

Treaties are the most frequented of the sources of International

Environmental Law since the Stockholm Conference (1972).
Overtime, there has been a proliferation of multi-lateral
environmental agreements (MEAs), one of the oldest and most
significant of these being the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (1973) alias CITES. There
are also other agreements such as the:

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➢ Convention for the Prevention of Pollution From Ships (1973).

➢ Vienna Convention on the Protection of the O-Zone Layer
(1985).
➢ Basel Convention on the Control of Trans-Boundary Movements
of Hazardous Wastes and Their Disposal (1989).
➢ Convention on Biological Diversity (1992).
➢ United Nations Framework Convention on Climate Change
(1994).
➢ Kyoto Protocol (1997).
➢ ETC...

In International Treaty Law, there are protocols to the main

agreements, such as The Kyoto Protocol to the United Nations
Framework Convention on Climate Change (1992), which work to
give further elaboration to particular provisions of the main
agreements.

ii. International Custom.

There are recognised principles derived from opinion juris and state
practice which formulate the customary norms via International
Environmental Law. Treaty frameworks do not exhaust the scope
of environmental law requirements, thus, International Custom
works to cover a wider ground in terms of actual, or potentially
applicable standards that could impose obligations on States in the
variety of activities involving risk to the environment.

iii. General Principles of Law as Recognised by Civilised States.

Compared to treaties and international custom, this source of

International Law is considered of less practical importance in

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determining the rights and obligations of States in the regular

relations. There are two broad interpretations here in:

• These principles refer to those which can be derived from a

comparison of the various systems of municipal law, of
nations considered sufficiently developed to serve as a
standard of comparison, and the extraction of such principles
as appear to be shared by all, or at least, most of them.
• The principles to be interpreted by the International Court of
Justice also include general principles generally applicable to
legal relations. Many of these exist as rules derived from
International Custom; others are in effect assertions of
secondary rules of International Law such as the pacta sunt
servanda principle, which works to bind all State parties to a
treaty. Some principles are applied as common sense, such as
the principles:
• The special prevails over the general.
• In a question of time, the latter prevails over the
former.
iv. Judicial Decisions and Writings of Learned Publicists.

Via Article 38(1)(d) of the Statute of the International Court of

Justice, Judicial decisions and the learned writings of publicists
constitute subsidiary means for the determination of rules of law,
as rules stated in judicial decisions and writings of learned
publicists are acquired from treaty law, international custom,
and/or the general principles of law, hence, rendering them
material sources with a special degree of authority, and not as
formal sources of international law.

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Sovereignty is an important concept under International

Environmental Law, which refers to the unlimited State control
toward the control and exploration of natural resources. Where an
area lies beyond the national jurisdiction of a State, it falls outside
the limit of a state’s sovereignty, thus, such an area is governed by
specific treaty regime.

SOFT LAW:

An example of these is the Draft Articles on State

Responsibility which are not exactly enshrined in
international conventions, and are thus, not a formal source
of international law. The reference and reliance on them in
international practice has, however, qualified their contents
as the recognised framework on State Responsibility.
Generally, soft law instruments are non – binding
instruments adopted overtime mainly in the forms of
declarations.

Elements found in all multi-lateral Environmental Agreements:

I. Clear statement of objectives and principles applicable.

II. Each agreement has substantive expectations stating the
common but differentiated responsibility toward working
to solving a common problem based on each States’
capacity to solve the Environmental problem at hand.
These agreements deal with the questions of finance,
technology, and technology transfer. These agreements in
the law make provisions for capacity buildings.
III. Institutional arrangements toward attaining the common
goal.

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IV. Amendment, dispute settlement, and provision for the

coming into force of the law.

The field of International Environmental Law has expanded

overtime, hence, the need to look at four given areas:

I. The Relationship between international environmental law

and trade.
II. Environmental law on an international level and foreign
investment.
III. International environmental law and human rights.
IV. International environmental law and development.

The existence of general obligations of States to ensure activities

within their jurisdiction and control, respect the environment(s) of
other States or of areas beyond national control, is now party to
the corpus of international environmental law.

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2023/03/07th

Biological Diversity is defined under the United Nations Convention

on Biological Diversity (1992) to mean the variability among living
organisms from all sources including marine, terrestrial, and other
aquatic ecosystems and the ecological complexes of which they
are part of. Biological Diversity includes diversity in species;
diversity between in species; and the diversity of ecosystems.

The United Nations Convention on Biological Diversity (1992) aims

at the conservation and sustainable use of biological diversity, the
fair and equitable sharing of the benefits from its use, and the
regulation of biotechnology. Article 2 defines biological diversity as
the variability among living organisms from all sources including:

➢ Terrestrial.
➢ Marine.
➢ Other aquatic ecosystems and the ecological complexes of
which they are part.

The Convention provides for national monitoring of and for

national plans, programmes and measures conserving biological
diversity, supplemented by international reporting obligations. The
Convention further deals with priority access of the source
country to results and benefits arising from biotechnologies based
upon its genetical resources, on mutually agreed terms. The 2000
Cartagena Protocol to the Biodiversity Convention, was enacted
aiming to ensuring an adequate level of protection in the field of
the safe transfer, handling, and use of living modified organisms
resulting from modern biotechnology, via Article 1.

Variations of Biological Diversity can be at different levels. Such

can be at:

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➢ Micro-Organism level
➢ Species level
➢ Eco-System level

There are generally three recognised types of Biological Diversity:

1) The Alpha-Diversity which deals with species diversity with a

given community or habitat. This comprises of two concepts:
(1) Species Evenness which works to maintain and restore
ecological integrity, safeguarding the long – term
sustainability of ecosystems and the benefits they
provide to human beings and other human beings and
other organisms. Species evenness is a measure of the
relative abundance of different species present in a
given area or habitat. Species evenness gives an insight
into how evenly or unevenly species are distributed
within one ecosystem.
High species evenness indicates that there is an
abundance of different species within an ecosystem,
thus, the ecosystem is relatively balanced, and no
single species dominates the ecosystem given the
relatively equal representation of different species.
Low species evenness suggests that one or a few
species dominate the ecosystem, while others are less
abundant.
Species Evenness reflects the health and resilience of
an ecosystem, as ecosystems with high species
evenness tend to be more stable and capable to hold
their own against disturbances, such as climate change
or human activities. They also support a wider range of

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ecological interactions and provide various ecosystem

services.
Environmental laws and regulations may adopt
measures to promote and protect species evenness as
part of broader biological diversity conservation and
management strategies. Such measures include:
➢ Protection of habitats that support diverse
communities.
➢ Prevention of invasive species that disrupt
evenness.
➢ The restoration of degraded ecosystems to
enhance species balance.
(2) Species Richness which refers to the total number of
different species present in a given area or habitat.
Species Richness is a measure of biological diversity
that quantifies the variety of species within an
ecosystem. Species richness provides priceless
information about the ecological health and diversity
of an area.
High Species richness suggests a diverse and vibrant
ecosystem with a wide range of species occupying
various ecological niches.
Low Species richness, on the other hand, indicates a
less diverse ecosystem with fewer species present.
Environmental laws and regulations are often
promulgated in pursuit to promote and protect species
richness as part of conservation efforts.
High Species richness is pursued for the following
reasons:
➢ Aesthetic and Cultural Value:

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Species richness provides opportunities for scientific

research, education, education recreation, and an
aesthetic appreciation of nature.

➢ Economic Functioning:

Each species within an ecosystem plays a specific role

and function. A higher species richness signifies a
greater variety of ecological interactions and processes,
such as pollination nutrient cycling, and predator – prey
relationships. These interactions contribute to the
overall functioning and productivity of an ecosystem.

➢ Economic Stability:

Species – rich ecosystems tend to be more stable and

resilient to environmental changes and disturbances, as
they are more resilient to disruptions such as climate
change, habitat loss, and/or the induction of invasive
species.

➢ Genetic Diversity:

Species richness is often associated with higher genetic

diversity within populations. Genetic diversity is crucial
for species’ adaptability to changing environmental
conditions, disease resistance, and long – term survival.

By safeguarding species richness, environmental law

seeks to maintain the integrity and resilience of
ecosystems, ensuring the long – term sustainability of
biological diversity and the benefits it provides to both
humans and the natural world.

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2) Beta – Diversity: this is the inter-community diversity

expressing the rate of species turn over by unit change in a
habitat.
3) Gamma Diversity: this relates to the overall diversity at
landscape level and includes both alpha and beta diversity.

These are the varying levels of Biological Diversity:

1) Genetic Diversity (diversity in the genes of species) refers to the

variation of genes with a certain species. Genetic Diversity
constitutes distinct populations of the same species, or
genetic variation within the population or varieties within a
given species.
2) Species Diversity refers to the diversity of species within a
region, and such diversity can be measured based on the
number of species in a region.
3) Ecological Diversity implies the intricate network of different
species present in ecosystems and the dynamic interplay
between them. An ecosystem generally consists of organisms
from many different species living together in a region that
are connected by the flow of energy, nutrients, and matter
that occurs as the organisms of different species interact
with each other.

❖ Mega Diversity Regions are those regions such as Madagascar

which are very rich in biological diversity.
❖ Biological Diversity Hotspots as opposed to Mega Diversity
Regions refer to the way in which species are distinctively
threatened by human habitation as represented via
biogeographic regions.

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The main goal of Biological Diversity Management is to deal with

the issue of Biological Diversity loss. With the current rate of
development, migration, and population growth, communities are
increasingly unable to meet their sustained needs. These human
activities are thus increasingly pressuring species and ecosystems.
The disruptive nature of anthropogenetic activities is disrupting
the survival capacity of Biological Diversity.

The threats to Biological Diversity are sevenfold:

1. Development Pressure via construction, irrigation programmes,

mining, oil drilling, transport, and pollution in general.
2. Encroachment, normally from agriculture habitat depletion,
new settlements, increased fisheries, et cetera.
3. Categories of Exploitation such as food gathering and hunting,
charcoal making, and firewood collection.
4. Human Induced Disasters, such as floods, forest fires,
epidemics, pandemics, et cetera.
5. Management of Natural Resources Involving the Introduction of
Alien and/or Exotic Species into an Ecosystem.
6. Management of Human Resources in the Increasing Demand for
Goods and Services, and the Inappropriate Change in Land Use.
7. Policy and Political Related Threats alter the biological area
such as military activities.

Conservation Strategies for Biological Diversity generally have a

minimum of 4 goals:

1. Reduction in Dependency of Non – renewable resources.

2. Conservation of Resources via the Reduction of Demand and
Activities of Greater levels.
3. Maintenance of Adequate Resources.
4. Maximum Use of Renewable Resources.
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In essence, there are two conservation strategies employed in

biological diversity:

1. In – Situ Conservation: which emphasizes the conservation of

crucial sites of biological diversity. Section 2 of The National
Environment (Access to Genetic Resources and Benefit
Sharing) Regulations [2005] defines in – situ conditions as the
conditions which domesticated or cultivated species are found
in the cultural contexts in which their specific properties
have been developed, via the case of genetic resources, their
ecosystems, and natural habits.
2. Ex – Situ Conservation: which emphasizes that conservation
work which is done outside the natural habitat of a given
specie ought to take place in the form of settings, such as
botanical gardens, and banks, such as germ banks; plasm
banks; and tissue culture banks. Section 2 of The National
Environment (Access to Genetic Resources and Benefit
Sharing) Regulations [2005] defines ex – situ conditions as
those conditions whereby genetic resources are found outside
their natural habitat.
2023/03/09th

The Management of Biological Diversity is set out in the United

Nations Convention on Biological Diversity (1992). The Convention
has since then been complimented by a series of other vital
instruments, such as:

1) The Cartagena Protocol on Biological Safety.

2) The International Treaty on Access to Plant & Genetic
Resources.

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3) The Nagoya Protocol on Access to Genetic Resources and the

Fair and Equitable Benefits Arising from the Utilisation of
Genetic Resources.

The above instruments are supplemented by other specialised

instruments, such as;

➢ The Convention on International Trade in Endangered Species in

Fauna and Flora (CITES).
➢ The Ramza Convention on the Protection of Wetlands of
International Importance.
➢ African Union Treaty on the Protection of Wildlife.

The United Nations Convention on Biological Diversity (1992)

reflects some of the governing principles of International Law and
Practice, generally in the field of Environment, and particularly the
conservation of Biological Diversity.

➢ The principle of Common Concern of Mankind is reflected in

Paragraph 3 of the Preamble to the Convention, which affirms
that the conservation of Biological Diversity is a common
concern of mankind.
➢ Via paragraph 4, the Convention resets the emerging
consensus regarding the principle of permanent sovereignty
of every State over their natural resources.
➢ Via paragraph 5, the principle of sustainable use is enshrined
in the Preamble to the Convention.
➢ Via Paragraph 8, the parties to the Convention note that it is
vital to anticipate, prevent, and attack the causes of
significant reduction or loss of biological diversity at the
source.
➢ Via Paragraph 9, where there is a threat of significant
reduction or loss of biological diversity, lack of full scientific
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certainty should not be used as an excuse for post – ponding

measures to avoid or minimise such a threat.

Paragraphs 8 and 9 work in tandem to reflect the growing

consensus on the application of the precautionary principle
generally, upon the principle of environmental management,
particularly, that of environmental protection.

The preamble to the United Nations Convention on Biological

Diversity also recognises the principle of common-but-
differentiated responsibility, reflected in the paragraphs that
commit the parties to provide new and additional financial
resources, and appropriate access to relevant technologies. The
recognition for special provisions required to meet the needs for
developing countries, and the recognition that economic and social
development, and poverty eradication of developing countries are
the first and overriding priorities.

2023/03/14th

Article 1 of the Convention on Biodiversity in essence is:

I. An express statement of the biodiversity convention.

II. Statutory provision which sets out to achieve biological
diversity.
III. Statutory provision which adds a number of elements to the
objectives.

Article 1 of the United Nations Convention on Biological Diversity

(1992) provides the objectives for the conservation of biological
diversity:

➢ The sustainable use of its components and the fair and

equitable sharing of the benefits arising out of the utilization
of genetic resources.

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➢ Ownership of Resources.
➢ Appropriate technologies therein.
➢ Appropriate funding.

The term biological resources is defined in Article 2 to include

genetic resources, organisms or parts thereof, populations, or any
other biotic components of ecosystems with actual or potential
use for humanity.

The Convention defines an ecosystem as the animal and

microorganism communities, their non – living environment
interacting as a functional unit, and plant resources.

The term genetic material is defined as any material of plant,

animal, microbial, or other origin containing functioning units.

The scope of the Convention via Article 4 is set out in the

following terms:

“Subject to the Rights of other States and except as

otherwise expressly provided in this Convention, the
provisions of this Convention apply, in relation to each
contracting party.

a) In the case of components of biological diversity, in

areas within the limits of it national jurisdiction and;
b) In the case of activities and processes, regardless of
where their effects occur, carried out under its
jurisdiction or control, within its area of national
jurisdiction, or beyond the limits of national
jurisdiction.”

Article 4 basically outlines the two situations in which the

Convention is applicable.

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Article 5 deals with international conservation, emphasizing the

need for growth in the participation of the international
community on biological diversity. The convention works to
outline a range of measures parties should take to ensure the
effective management of biological diversity in pursuit of the
objectives of the convention, set out in Article 1. They are at least
10 measures outlined in the convention:

I. Identification and Monitoring (Article 7)

II. In – Situ Conservation (Article 8)
III. Ex – Situ Conservation (Article 9)
IV. Sustainable Use of the Components of Biological Diversity (Article
10)
V. Use of Incentives (Article 11)
VI. Research and Training (Article 12)
VII. Public Awareness and Education (Article 13)
VIII. Impact Assessment (Article 14)
IX. Access to Genetic Resources in a Regulated Manner (Article 15)
X. Promotion of Access and Transfer of Relevant Technologies (Article
16)

These are broadly the conservation strategies and measures

undertaken by each party to the United Nations Convention on
Biological Diversity (1992). The Convention is basically a best –
endeavour treaty signifying a difficult in coming to an agreement.
The Convention requires State parties to be able to identify and
monitor genetic resources and biological products, to monitor the
trends in biological diversity. Sustainable use of biological diversity
is prioritised by imposing obligations on the parties such as the
integrating into national legislation of the conservation of
biological diversity.

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Article 11 of the Convention provides that each contracting party

shall as far as possible and appropriate, adopt economically and
socially sound measures that incentivize the conservation and
sustainable use of components of biological diversity. Part of the
objectives of the Convention is to facilitate access to genetic
resources to benefit humanity, and those that own, have access,
and control such resources. Access must be regulated to minimise
misuse of genetic resources.

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2023/03/16th

At the national level, Environmental Law can be broken down into

numerous categories, such as:

➢ Constitutional and Sustainable Development Legislation.

➢ Penal Codes, Common Law, and Civil Code Laws.
➢ Pollution Control Legislation.
➢ Planning Laws.
➢ Licensing and Environment Impact Assessing Laws.

Legal Hierarchy in the Environmental Context:

In the term of hierarchies, in the legislation side, it is as follows:

I. The Constitution.
II. Framework legislation.
III. Sectoral legislation.
IV. Regulations/Subsidiary Legislations.
V. Licences, Permits, and other authorisations.

The Principle of Subsidiarity, via the Rio Declaration, accords that

actions should be taken at the lowest level possible in the principle
of subsidiarity.

The Governmental Arrangement:

1. Central Government – The National Agencies of Government.

2. Provincial/State Government.
3. Local Government.

Other Actors:

1. Kingdom Government.
2. Civil Service Organisation.
3. Churches and other Religious Bodies.

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4. Actors in the Private Sector.

Dispute Settlement:

(i) Judicial System

(ii) Tribunals
(iii) Administrative Decision Making and Review Standards

Environmental Management in Uganda has evolved over the lost

more than sixty years besides the traditional aspects that were
governed by community rules or custom, most of the
Environmental Laws today were introduced during the colonial
period. By their nature, colonial laws adopted a command-and-
control approach, mainly restricting access of all forms and
prescribing a wide range of sanctions for non – compliance. The
colonial laws were also mainly designed to extract natural
resources covering all aspects of natural resources management
including fisheries, forests, mining, wildlife, and others. This
approach to environmental management did not change until the
genesis of the 1990s. Environmental Law in Uganda has
substantially changed since 1992, in which year the Rio Conference
was held, and the Rio Declaration executed. Most of the work in
the field of environmental is premised on the National
Environmental Action Planning Process (1988 – 1993). The National
Environment Action Planning Process was perhaps the most
comprehensive study on all environmental parameters undertaken
in Uganda. The World Bank financed the study and resulted into
the two main products, that formed the basis for subsequent legal
and Constitutional reform in the country of Uganda. These are:

1) The Uganda National Environment and Action Plan (1994).

2) The National Environment Management Policy (1994).

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Based on the work accomplished under the National Environment

Policy and articulated thereto, government embarked on a wide
range of reforms of existing institutions and legislation. The
National Environment Management Act (1995) was enacted and
subsequently published under the consolidated laws of Uganda as
Chapter 153 of 2000 Laws of Uganda [Statute Number 4 of 1995].
The Act set out to provide for the sustainable management of the
environment, an authority for coordinating, and a supervisory body
for that purpose. The National Environment Act is basically the
backbone of environmental management in Uganda. Almost four
months later, the 1995 Constitution was promulgated covering
environmental management and those of natural resources, and
the right to a clean and healthy environment as party to the Bill of
Rights.

2023/03/21st

Section 59 (1) of the National Environment Management Act

accords that the authority shall issue guidelines and prescribe
measures for the preservation of biological diversity. The National
Environmental Management Authority is an agency legally
established to work in tandem with other institutions in order to
promote the conservation of biological diversity. An example is the
preservation of Wildlife in which the lead agency would be the
Uganda Wildlife Agency and the National Environmental
Management Authority would work as the coordinating agency.
Via Section 59 (2), the Authority may, in issuing guidelines and
prescribing measures via Section 59 (1), do the following:

(a) Specify national strategies, land, and programmes for the

sustainable use and conservation of biological diversity.

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(b) Integrate the conservation and sustainable utilization of

biological resources, in existing government activities, and
activities of private persons.
(c) Identify, prepare, and maintain an inventory of Uganda’s
biological diversity, including indicative lists of categories
accorded via Schedule 7.
(d) Determine which components of biological diversity are
threatened with extinction, and those which offer the
greatest potential for sustainable use.
(e) Identify potential threats to biological diversity and devise
measures to investigate or remove their effects.
(f) Identify native and alien evasive species.
(g) Identify vermin to be managed under the Act.
 These, generally, are the measures to be taken to conserve
biological diversity.

Section 60 accords the measures to be employed for in – situ

conservation, which is basically Uganda’s approach toward in –
situ conservation of biological diversity.

Section 61, on the other hand, provides the measures to be

employed to achieve ex – situ conservation:

o Zoo’s.
o Wildlife Ranches.
o Germ – Plasm Banks.
o Botanical Gardens.
o Animal Sanctuaries.
o All other facilities considered necessary for ex – situ
conservation.

These facilities are technologically demanding, which is a

disadvantage to a developing country such as Uganda.
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Section 67 is the provision of the Act, which provides for the

payment for eco – system services.

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2023/03/28th

❖ Types of Pollution
❖ Sources of Pollution
❖ Characteristics of Pollution
❖ Regulatory Measures Concerning Pollution

Pollution is the introduction of harmful materials into the

environment. Collectively, these harmful materials are called
pollutants. Pollutants can be natural or crated by human activity.
Volcanic ash, for example, may be considered a natural occurring
pollutant. Trash, waste oil, and chemicals, as other examples, may
be considered human induced pollutants.

Generally, pollution always has a source, and a recipient. The

source is where the pollution comes from, thus, from where the
pollution is released into the environment. On the other hand, the
recipient is where the pollution ends up, which may be a part of
the environment, or people, or animals that become damaged, or
contaminated. There are several ways of identifying pollution.
These include:

➢ Finding symptoms of damage to aquatic plants and animals.

➢ Finding chemicals in the water.
➢ Comparing the previous and present water quality.
➢ Sometimes, getting complaints from citizens.

Pollutants may be in the form of:

➢ Energy

In urban communities, there is another form of waste that may be

characterised as energy waste, largely in the form of noise

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pollution. Noise pollution means unacceptable levels of noise in

work, residential, and recreational places.

➢ Gas

This consists of chemicals or particles in the air, such as sulphur

dioxide; volatile organic compounds; and nitrogen oxides, that can
cause damage to buildings, the health of animals, human beings
and plants, and generally create environmental damage, and
malignant diseases such as cancer.

➢ Liquid

Liquid pollutants usually come from liquid waste such as human

excitor, industrial water, and other wastes from human activity.
Factories generate liquid waste from activities related to washing
during the manufacturing process, cleaning objects, as well as
releasing chemicals. Another form of liquid waste is sewage, which
is largely a mixture of wastewater from houses and businesses,
and other wastewater from industries.

➢ Solid

Pollutants may also come in any solid material assumed to be not

useful and is thus thrown away. Households, business, and
factories, produce different kinds of solid waste, including plastic
materials, metals, chemicals, medical waste, and many other
undesirable solid materials.

Sources of Pollution:

➢ Domestic Sources.
➢ Transportation Sources.
➢ Agricultural Sources are a major of pollutants emanating
from their increased use of chemicals and fertilizers.

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➢ Industrial Sources given that many industrial processes

produce polluting waste substances discharged into the
environment. Among the most polluting industries are:

[1] Tanneries.

[2] Textiles with processing plants and factories that

produce liquid effluents dumped into the environment.

[3] food processing.

Sectors of the Environment Affected by Pollution:

1. Water Pollution:

Water pollution covers the whole range of water ecosystems which

are polluted such as soil moisture, ground water in aquifers,
oceans, lakes, and rivers. Water pollution is characterized by the
presence of excess physical, chemical, or biological substances,
which alter the quality of the water, and are capable of harming
living organisms.

2. Air Pollution:

Air pollution can exist at all scales from local to global and may
include gaseous and solid particles. In low developed countries
such as Uganda, the most common sources of air pollution include
the burning of wood, charcoal, and other biomass fuels. Air
pollution is defined as the presence, in the air, of abnormal
amounts of chemical constituents capable of causing harm to
living organisms.

3. Soil and Land Pollution:

These are largely linked to water pollution, and forms of solid

waste which make their way onto the land and pollute the soil by

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the introduction of solid waste materials which harm the quality,

capacity, and functionality of the soil and land.

Incentives for Pollution Control: 2023/04/18th

a.) Taxes

These have the principal purpose to raise revenue. However, they

may accidentally more or less, discourage the business or
behaviour subject to the tax, but they usually are not designed to
do so, as disincentives are. Occasionally, the intent of a tax
measure, is as much to guide behaviour as it is to raise revenues.

b.) Grants

Grants are granted from one level of government to another, to

facilitate activities considered important to other levels of
government.

c.) Payments

These are more or less like loans, which do not require the
recipient to pay back to the government. These are made to
entities that take on the duty of conservation and clean-up
operations.

d.) Fines

These are the most common sanction for pollution control, or

generally environmental damage. The objective of fines is to deter
undesirable behaviour, or sometimes raise funds for mitigation
actions. Fines are legal in nature, as they are statutorily provided.

e.) Forfeitures

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These are normally an incentive not to misbehave because they

pose the risk of deprivation of valuable property if the violation is
discovered.

f.) User Charges

These are charges paid by those who use or otherwise derive a

benefit from a service or facility, provided in whole or in part, at
public expense. These charges are compensatory in nature, often in
the form of fees, to help meet the costs of construction and
maintenance of a wide range of public facilities and infrastructure,
such as sewage treatment plants, parks, airports, and other
things.

g.) Performance Bonds

In some cases, legislation provides that the recipient of a license

to conduct an activity must bind themselves to the State for the
payment of money, unless certain conditions are complied with.
The performance bonds were first introduced in 1995 by the
National Environment Management Statute (1995) as a deterrent
for misconduct, thus, one must commit to pay a certain sum of
money for failure to meet the standard therein. These are normally
pegged to licenses.

h.) License Fees

These are usually analogous to user charges levied as a means of

funding public programmes, regulating the licensed activity, and of
compensating for the public resources the activity uses, or affects.
As a general principle, such a fee must bear a reasonable relation
to the cost of administering the programme, although in soe
circumstances, they may also be based on social costs, or on the
potential that the activity may become a nuisance.

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i.) Loans

Government loans to persons, businesses, or government agencies,

to facilitate or encourage action that government wishes to
subsidize. Sometimes, these are referred to as conditional grants
and/or conditional financing. These loans incentivize the recipient
to act in a certain manner to control pollution from their
activities.

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2023/04/21st

Generally, Environmental Torts are among the Sanctional Tools

employed in the enforcement of Environmental Law, given that
Environmental Law in the Common Law jurisdiction, evolved out
of Tort Law.

Riparian Rights:

Riparian Rights pertain to the rights of a Riparian Owner, who is

basically a person who lives downstream a water source, or one
who has rights to land adjacent to a natural stream. A Riparian
Owner is entitled to use the water of the stream which flows past
their land equally with other Riparian Owners. These rights are
acquired by one bordering a water body, and they cannot be sold
nor transferred. Riparian Rights are limited to water found on the
surface, and in that way, do not extend to water found
underground.

Via Riparian Principle, all landowners whose property is adjacent to

a body of water have the right to make reasonable use of it. If
there is not enough water to satisfy all users, allotments are
generally fixed in proportion to frontage on the water source.
Riparian rights also depend upon reasonable use as it relates to
other riparian owners to ensure that the rights of one riparian
owner are weighed fairly and equitably with the rights of the
adjacent riparian owners.

In Ugandan jurisprudence, Riparian Rights are subject to Sections 7

– 8 of the Water Act.

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In addition to the right to use water above, the occupier of land or

resident on land may, with the approval of the authority
responsible for the area, use any water under the land occupied by
him or her or on which he or she is resident on or any land
adjacent to that land. The Water Act emphasizes that these rights
do not per se authorise a person to construct any works. There are
however no Riparian Rights for undiminished groundwater flow
since groundwater saturates the soil and does not flow in a visible,
defined channel like surface water. Thus, a person who pumps out
water and thereby dries up a neighbours’ well cannot be sued for
infringement of Riparian Rights. Nevertheless, there is some
protection for the groundwater quality and quantity. Any pollution
of ground water is a nuisance. Moreover, it is illegal to pump out
substantial quantities of water without a permit from the
Directorate of Water Development.

Riparian Rights are two-fold:

➢ Natural Rights

Natural rights include those uses necessary for the existence of

the Riparian Proprietor and their family.
➢ Correlative Rights

Correlative rights are those which merely increase one's comfort

and prosperity and do not rank as essential to their existence. As
such, Correlative rights must be always reasonable and cannot
encroach or infringe unreasonably upon the use of the surface of
the lake or stream by other Riparian Proprietors and members of
the public.

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In the case of Pride of Derby and Derbyshire Angling Association

Limited and Another Versus. British Celanese Limited and Others
[1953] I Ch. 149, the position of the Common Law regarding the
rights of Riparian Proprietors was unequivocally laid down by the
House of Lords. It was pronounced that a Riparian Proprietor is
entitled to have the water of the stream, on the banks of which
their property lies, flow down as it has been accustomed to flow
down to their property, subject to the ordinary use of the flowing
water by upper proprietors, and to such further use, if any, on
their part in connection with their property as may be reasonable
under the circumstances. Every Riparian Proprietor is, thus,
entitled to their water, in its flow, without sensible diminution or
increase and without sensible alteration in its character or
quality. Any invasion of this right causing actual damage or
calculated to found a claim which may ripen into an adverse right,
entitles the party injured to the intervention of the court.
In Pride of Derby and Derbyshire Angling Association Limited and
Another Versus. British Celanese Limited and Others, an action was
filed in respect of pollution of the Derwent River East of Borrowash
Bridge, and up to the point of its confluence with the Trent River.
The claim also extended to some pollution of the Trent River itself.
There were two claimants; the second claimants, The Earl of
Harrington, were the Riparian Proprietor of a considerable part of
both rivers. The claimants successfully sued the defendants based
on nuisance, seeking a mandatory injunction restraining them
from causing any effluent to pass from their respective premises
into the Derwent River, or the Trent River, so as to pollute their
waters when they flowed past or over the claimants’ premises, or
from detrimentally altering the quality of the water, or from
interfering with the enjoyment of the plaintiffs’ rights of fishery.

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The claimants’ complaint against The Derby Corporation related

exclusively to the effluent which was discharged from the sewage
disposal works through the pipe or drain into the Derwent River,
whereas their claim against The British Electricity Authority
related to effluent passed from their premises which altered the
temperatures of the waters.

On appeal, The Derby Corporation argued that the fact that there
was no negligence on the part of the local body, and in fact none
was alleged by the claimants, they were relieved from any liability.
More so, that they were a local authority charged by special
legislation with the duty of providing a sewage system for the
county borough of Derby. Court held that the discharge through
the pipe of noxious effluent from the sewage disposal works was
not only something not expressly or impliedly permitted under the
law, but was in term expressly prohibited by it, via Section 17 of
the Public Health Act (1875); Section 3 of the Rivers Pollution
Prevention Act (1876); Sections 109 and 113 of the Derby
Corporation Act (1901); and the holding via Midwood & Company
Limited Versus. Manchester Corporation [1905] 2 KB 597. The Derby
Corporation had statutory authority to pour harmless effluent into
the river, but they had no authority to pour into the river an
effluent which was noxious or polluting. Thus, the appellants were
liable in nuisance to pay reparations to any Riparian Owner who
suffered damage caused by their actions.

On the other hand, The British Electricity Authority, on appeal,

asked to have the terms of the injunction against them altered so
that the injunction would not enure to the claimants against the
authority, so long as the Authority would comply with the proviso
of Section 37 (1) of the Derbyshire and Nottinghamshire Electric

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Power Act (1929); that is to say, the Authority would return water
abstracted from the Derwent River pursuant to Section 37 (1),
except that unavoidably lost to evaporation, in such a condition as
not to cause injury to the fish. On the other hand, the appeal of
The British Electricity Authority succeeded, as it was shown that
their effluent did not cause injury to the fish in the River, nor did
it have any detrimental effects to the quality of the water in the
Trent, nor Derwent River, thus, amounted not to an infringement
of the rights of the Riparian Proprietor.

Nuisance

(1) A Nuisance is continuous or recurrent in nature.

(2) A Nuisance is not actionable where the accused is proven to

have acted in a reasonable manner.

(3) An accused person is tortiously liable where their actions

caused a nuisance, even if they acted to the useful benefit of
the public.

(4) To determine whether a single act makes one to tortiously

liable via the tort of nuisance, Court considers the gravity of
the harm caused by the tortious action.

(5) Accused ought to have acted unlawfully and unreasonably.

Court considers the locality of the accused’s activities to
determine whether a nuisance occurred or not. In Crown River
Cruises Versus. Kimbolton Fireworks Limited and London Fire &
Civil Defence Authority [1996] 2 Lloyd’s Reports 533, the first
defendants were found tortiously liable for private nuisance
as the occasional fireworks displays upon the Thames were
not an ordinary and reasonable incident of river life, but an
unusual and potentially dangerous state of affairs, relative to
flammable property lawfully located within the fallout zone
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of the debris from the fireworks display. The first defendants

were, thus, tortiously liable for the damage caused to the
plaintiff’s cruise vessels, Surround and Suerita, as a direct
result of the hot falling debris from their fireworks display on
the night of 1990 September 15th as organised by the Royal
Air Force and Ministry of Defence to commemorate the 50th
Anniversary of the Battle of Britain.

(6) Possible Defendants:

➢ The Nuisance Creator.

➢ The Nuisance Successor if they continue the Nuisance.

➢ The Landlord, where they reserved the right to enter

and repair the premises, or where they knew of the
nuisance before they let out the premises.

(7) Defences

➢ Prescription

In the case of Sturges Versus. Bridgman [1879] LR 11 Ch. D 852, it

was held that where a nuisance uninterruptedly continues for at
least 20 years, the defendant acquires a prescriptive right, and as
such, the doctrine of laches estopps the claimant from having a
cause of action against them.

➢ Statutory Authority

In the case of Allen Versus. Gulf Oil Refining Limited [1981] 1 All ER
352, the claimant sued against the defendants in nuisance
characterized by noxious odours vibrations, offensive noise levels,
excessive flames from burning waste gases, consequent ill –
health, and the fear of an explosion. The claimant argued the
tortious actions of the defendant corporation caused herself and
her family to sustain person injury, damage, and expense. The

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defendant corporation denied liability and raised the authorisation

by the Gulf Oil Refining Act (1965) as a defence, claiming their
actions were statutorily authorized. Court held for the defendant
corporation, allowing them to rely on the Gulf Oil Refining Act
(1965) as a defence in any proceedings for nuisance where nuisance
could be shown as the inevitable result of the erection and
operation of the refinery.

This tort works to provide a remedy for air and water pollution,
noise, vibration, pungent smells, soil contamination, floodings, and
other intrusions upon peaceful use and enjoyment of property,
such as, and particularly land. A nuisance may be public, or private
in nature. In Crown River Cruises Versus. Kimbolton Fireworks
Limited and London Fire & Civil Defence Authority, court stated that
where an activity creates a state of affairs giving rise to risk of
escape of physically dangerous or damaging in material, the law of
nuisance comes about to give a remedy in respect of that state of
affairs, albeit brief in duration.

In the case of Crown River Cruises Versus. Kimbolton Fireworks

Limited and London Fire & Civil Defence Authority, court defined and
distinguished a private nuisance, from one of a public nature:

❖ A private nuisance occurs when an act or omission amounting

to an interference, disturbance, or annoyance to a person in
the exercise or enjoyment of their ownership or occupation of
property.

➢ The claimant ought to be directly affected in a claim

founded on private nuisance.

❖ A public nuisance occurs when one suffers damage over and

above the general annoyance or inconvenience caused to
members of the public at large extending to whoever acts in a

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manner unwarranted in the law, or omits to discharge a legal

duty, if the consequence of the act or omission obstructs the
public in the exercise or enjoyment of rights common to all.

➢ The requirement that the claimant ought to be directly

affected to pursue a claim does not extend to public
nuisance.

➢ One ought to attain the permission of the Attorney

General to sue via public nuisance and they ought to be
in a position whereby they suffered damage over and
above that suffered by the general public, as in normal
circumstances, the Attorney General has monopoly to
sue via Public Nuisance.

Trespass

What constitutes trespass?

Trespass to land occurs where a person directly enters upon

another's land without permission, or remains upon the land, or
places or projects any object upon the land. An intentional
trespass creates liability for damages for the mere fact of
intruding even if no tangible or ascertainable damage is done.

Ways in Which Trespass May Occur

1. Entering upon Land
Walking onto land without permission, or refusing to leave when
permission has been withdrawn, or throwing objects onto land
constitute examples of trespass to land.

2. Trespass to the Airspace

Trespass to airspace above the land can be committed. In Kelsen
Versus. Imperial Tobacco Company Limited [1957] 2 QB 334, the

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defendant was held to have committed trespass by allowing an

advertising board to project eight inches into the plaintiff’s
property at ground level and another above ground level.

Via Section 58 (1) of the Civil Aviation Authority Act, in Ugandan

Law, the mere overflight of an aircraft over a property at a height
above the ground in accordance with authority regulations made
under this Act shall is neither considered trespass, nor is it
considered nuisance. Section 58 (2), on the other hand, confers a
right of action in respect of physical damage caused by aircraft,
unless the loss or damage was caused or contributed to by the
negligence of the person who experienced the loss or damage.

3. Trespass to the ground beneath the surface

In the case of Bulli Coal Mining Co Versus. Osborne [1899] AC 351 the
defendants were considered trespassers for mining from their land
through to the plaintiff’s land, which was considered trespass to
the subsoil.

Who can Sue for trespass to Land?

This tort developed to protect a person's possession of land, and so

only a person who has exclusive possession of land may sue. Thus,
a landlord of leased premises does not have exclusive possession,
nor does a lodger or a licensee.

Continuing Trespass

A continuing trespass is a failure to remove an object (or the

defendant in person) unlawfully placed on land. It will lead to a
new cause of action each day for as long as it lasts. In Holmes v
Wilson & Others [1839] 10 Ad & El 503, the defendants built supports
for a road on plaintiff’s land. The defendants paid damages for the

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trespass but were held liable once again in a further action, for
failing to remove the buttresses.

Defences to Trespass
1. Licence

A licence is a permission to enter land and may be express, implied,

or contractual. A dictionary definition is as follows:

"In land law, a licence is given by Sean to Nantatya when Sean, the
occupier of land, gives Nantatya permission to perform an act
which, in other circumstances, would be considered a trespass,
e.g., where Sean allows Nantatya to reside in Sean's house as a
lodger. A bare licence is merely gratuitous permission. A licence
may be coupled with an interest, as where Sean sells standing
timber to Nantatya on condition that Nantatya is to sever the
timber; in this case the sale implies the grant of a licence to
Nantatya to enter Sean's land.”

If a licensee exceeds their licence or remains on the land after it

has expired or been revoked, then he becomes a trespasser.
2. Rights of entry
A person may exercise a lawful right of entry onto land, for
example:

➢ A private right of way granted to the defendant.

➢ A public right of way.

➢ A right given by the common law, such as the right to abate

a nuisance; and

➢ A right of access given by statute.

In Re an Award Filed by the Collector [1959] 1 EA 264, proceedings
were taken for the compulsory acquisition by the Ugandan

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Government of a plot of mailo land enshrined in the Mailo Register

as plot 76 Volume 112, folio 17, certificate 14153. On 1958 August
15th, the Government entered possession of the land via Section 16
of the Land Acquisition Act (1894), and the land became vested in
the Ugandan Government as such. The Senior Valuation Officer of
the Lands and Survey Department made an inquiry and awarded
compensation as required by the Land Acquisition Act (1894). Mr.
M. M. Luwalwa, the owner of the mailo land, rejected the award
and applied via Section 18 of the Land Acquisition Act (1894), to
have the matter determined by court. The owner of the mailo land
was dissatisfied by the award of 23, 674. 50/= apportioned to him,
demanding the money apportioned to the Government worth 46,
000/= to be added to his compensation. Whereas the Senior
Valuation Officer of the Lands and Survey Department argued the
mailo owner was disentitled to compensation for that part of the
land consisting of the railway track and the earthworks made for
the purpose of that track; the mailo owner argued the railway line
and works thereto were fixtures upon his land, entitling him to
the full compensation amount. In this case, the Government had
had inserted the fixtures on the suit land without first acquiring
the same, thus, court had to consider whether the Government
had trespassed upon the suit land. Counsel for the Government
successfully argued that the Government was a licensee via
Section 6 of the Buganda Land Law (1908), which accorded that a
railway line built on mailo land does not vest into the property of
the mailo owner, and the Government was entitled to deal with it
as if the owner. Court, thus, held in favour of the valuation and
award of the Senior Valuation Officer of the Lands and Survey
Department.

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3. Acquiesces or Adverse Possession

If a trespass is actionable and no action is taken within reasonable
or prescribed time limits (12 years), the landowner may forever
lose the right to seek a remedy and may even forfeit certain
property rights. In the case of Re an Award by the Collector, counsel
for the Government unsuccessfully argued that the mailo
proprietor had acquiesced the construction of the railway upon his
land by accepting damages from the Government as compensation
for the destruction to his crops in 1951. Court held that the
argument raised by counsel for Government was untenable, as the
landowner had outrightly protested the construction of the
railway upon his land, during the pendency of its construction.
More so, in Jones and Another Versus. Stones (1999) 1 WLR 1739,
court pointed out that at the heart of estoppel or acquiescence
lies an encouragement and/or allowance of a party to believe
something to their own detriment. This allowance ought to be
furnished by the claimant onto the accused person(s). In this case,
the failure of the defendants to establish that he relied on the
plaintiffs’ inaction and that he suffered any detriment by the
alleged acquiescence led court to hold that none of the essential
elements needed to sustain the defendants defence founded on
acquiescence and estoppel were shown, thus, their arguments
were baseless. Court, thus, held against the defendant.

Strict liability/The Rule in Rylands Versus. Fletcher [1868] LR. 3 HL

330

The notion of strict liability for harm caused by escape of

dangerous substances arises from the English decision of Rylands
Versus Fletcher [1868] LR. 3 HL 330 where it was established that:

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“A person who for their own purpose brings onto their land
anything likely to do mischief if it escapes must keep it at their
own peril; and if it does so is prima-facie answerable for all the
damage which is a natural consequence of its escape. They may
excuse themselves by showing that the escape was owing to the
native’s default, or perhaps was the act of God.”

From the above laid rule, for liability to ensue, three elements
must be established:
➢ First, that the defendant brought on their land something
which is not naturally there and therefore is a non-natural
user. In determining whether the defendant is a non-natural
user, there is no hard and first rule and therefore court will
consider the circumstances of each case independently. Thus,
using chemicals in a residential will be non-natural use of
land. However, this may not be the case with a situation
where such chemicals are being used in an industrial area. In
Mason V Levy Auto parts of England (1967) 2 All ER 62, Justice
Mckenna laid down some considerations regarding the rule in
Rylands Versus. Fletcher.

• For instance, the nature of the thing brought on

the land ought to be so dangerous, that it is more
likely to constitute a non-natural use of the land.
However, there are situations where the thing is
not eminently dangerous but stored in large
quantities to constitute a threat to the
neighbours.

• Secondly, the quality of storage is considered, and

court determines to what extent the thing has
been kept in such a way that it does not escape.

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Thirdly, Court considers the character of the

neighbour.

➢ The second requirement for liability is that the thing must

escape from the defendant’s land to the plaintiff’s land.
➢ The third element is that the plaintiff must suffer damage in
consequence of such escape.

Defences
Several defences have been developed to the rule in Rylands Versus.
Fletcher.
1. Consent
The express or implied consent of the claimant to the presence of
the source of the danger, provided there has been no negligence by
the defendant, will be a defence.

2. Common Benefit
If the source of the danger was maintained for the benefit of both
the claimant and defendant, the defendant will not be liable for its
escape. This defence is a relative to the defence of consent.
According to Winfield & Jolowicz on Tort at page 551, "common
benefit seems redundant (and indeed misleading) as an
independent defence".

3. Act of a stranger
The defendant will not be liable if a stranger was responsible for
the escape as seen in Rickards v Lothian [1913] AC 263, where court
found that the defendant was not liable as an unknown person
had blocked a basin on his property and caused a flood, which
damaged the claimant’s flat below.

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4. Statutory authority
A statute may require a person or body to carry out a particular
activity. Liability under Rylands Versus. Fletcher may be excluded
upon the interpretation of the statute. In Dixon Versus.
Metropolitan Board of Works (1881) 7 QBD 418, court held that the
principle in Rylands Versus. Fletcher was inapplicable unless there
was proof of negligence on the part of the body licensed by
Statute, where something dangerous is introduced onto one’s
property in the exercise of their statutory powers, whilst carrying
out a public duty; when it escapes and causes others damage.

5. Act of God
An act of God has been defined as an event which 'no human
foresight can provide against, and of which human prudence is not
bound to recognise the possibility'. In Nichols Versus. Marsland
(1876) 2 ExD 1 where exceptionally heavy rain caused artificial
lakes, bridges and waterways to be flooded and damage adjoining
land, court held that the defendant was held not liable in such a
situation. However, the dictum in Nichols Versus. Marsland was
doubted by the House of Lords in Greenock Corporation Versus.
Caledonian Railway [1917] AC 556, where the appellant corporation
constructed a concrete paddling pool for children in the bed of a
stream and obstructed the natural flow of the stream. Owing to a
rainfall of extraordinary violence, the stream overflowed at the
pond, and damaged the property of the plaintiffs. It was held that
the extraordinary rainfall did not absolve the appellant corporation
from responsibility, thus, they were tortiously liable in damages to
the Respondent via the Rule in Rylands Versus. Fletcher.

6. Default of the Claimant

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Where the escape is the fault of the claimant, there will be no

liability against the accused person and alternatively, there may
be contributory negligence on the part of the claimant.

Negligence

Negligence is the omission to do something which a reasonable

person, guided upon those considerations which ordinarily regulate
the conduct of human affairs would do; or doing of something
which a reasonable and prudent man would not do. Court held in
Blyth Versus, Birmingham Waterworks Company (1856) 11 Exch781
that for a person to succeed under negligence, they ought to show
that the defendant owed them a duty of care which the defendant
breached, causing the claimant to suffer damage.

These elements can be considered separately:

1. Duty of Care

To determine whether a duty of care exists, the vital question is

whether it was reasonably foreseeable to the accused person that
a particular conduct or omission on their part would likely cause
harm to the climate and persons who have suffered damage, or a
person in the same, or similar position. Lord Atkin via Donoghue
Versus. Stevenson (1932) AC 562 stated that one ought to take
reasonable care to avoid acts or omissions which they can
reasonably foresee would likely cause injury to their neighbour(s).
Neighbours in law are such persons who are closely and directly
affected by the acts of another, that they ought to have them in
contemplation as being so affected as and when one directs their
mind to the acts or omissions which are called into question.

2. Breach of the Duty of Care

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The facts must establish that the duty of care owed by the
defendant to the plaintiff was breached, with reference to the
circumstances of the case. In doing so, the standard of a
reasonable man is always adopted, that is; what a reasonable man
would hypothetically have done in the given circumstances. Thus,
negligence in such a case will be established if the defendant’s
conduct falls below that of a reasonable man.

There are however specific factors that are considered to

determine whether the defendant’s action fell below the
reasonable man standard. These are: The magnitude of the risk or
the amount of the risk which the activity presents. This has two
elements:

➢ The first consideration is the likelihood of injury, thus, if it is

high the defendant is expected to take adequate precautions
to avert injury, unlike a situation where the possibility of
harm is minimal. In Bolton and Others Versus Stone (1951) 1 All
ER 1078 Lord Potter stated:

“It is not enough that the event should be such as can reasonably
be foreseen. The further result that injury is likely to follow must
also be such as a reasonable man would contemplate before he can
be convicted of actionable negligence. Nor is the remote possibility
of injury occurring is enough. There must be reasonable probability
to lead a reasonable man to anticipate it. The existence of some
risk is an ordinary incident of life even when all due care has been
taken.”

➢ The second element is the seriousness of the consequences

from a particular activity on the individual. If the
consequences are so severe, then the magnitude of the risk is
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higher, and the defendant will not be permitted to neglect it.

In Paris Versus. Stepney Borough Council (1951)1 All ER 42, the
one-eyed claimant was employed by the defendants as a
fitter in their garage, a job which presented some risk of
injury to the eye, but the likelihood of the injury was almost
inconsequential, the employer neglected their duty to provide
protective measures. There was even evidence that it was
not the ordinary practice of employers to provide goggles in
the garages. The claimant was injured, and he became totally
blind. In the claimants’ suit for negligence, court held that
the consequences were so severe for such a one-eyed person,
thus, the defendants owed him a special duty of care.
Accordingly, they were not entitled to ignore such likelihood
of injury, and since they did, were obliged to pay the
claimant damages.

➢ The third factor which ought to be considered is the cost it

takes to avert the risk. If the cost is very high and the
measures are not taken, the defendant may be held to have
acted as a reasonable man. But if the cost is low and the
defendant did not provide such measures, to that extent he
will be guilty of negligence. In Edward Wilberforce Kaggwa
Versus. The Attorney General [1971] ULR 276 the issue was
whether the authorities of Butabika Hospital negligent in
allowing the plaintiff to have access to the use of a sharp
instrument, such as a razor blade, in execution of the
practice of the Hospital to allow non – suicidal or non –
homicidal patients and those that did not exhibit any
symptoms of violence to use razor blades to shave
themselves. The claimant was a patient admitted at Butabika
Hospital to have their slight mental breakdown treated by a

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one Doctor Bosa. According to the evidence of Doctor Bosa,

on 1968 January 14th, the claimant told him he had attested
to circumcise himself to materialize his conversion to Islam
and ended up slicing his own penis. The plaintiff sued the
defendant in negligence, arguing his penis was cut at
Butabika Hospital and the repair job done at Mulago was
disguised to look like a circumcision, as the alleged
circumcision was beyond normal size, and resulted in severe
and permanent scars, and impotence. Professor German, a
professor of Psychiatry at Makerere University argued that it
was not negligent to allow non – violent patients to use
blades, submitting there was need to consider what the
country could afford to determine whether or not a certain
measure is reasonable. He maintained that to have every
patient shaved by a member of staff would entail the
employment of a huge staff which a developing country like
Uganda could not afford. In the alternative, non – violent
patients would be allowed to use blades, as the risk of
calamity was so small it was reasonable to take. Court, via
Justice Saladanha, agreed with Professor German, and held
that failure of Government to provide staff to shave the
patients did not amount to negligence.

3. Damage

It is not enough that the defendant owed a duty to the plaintiff

and that the duty was breached. The plaintiff must suffer injury
because of that breach. He needs to show a causal link between
the defendant’s negligence and the injury suffered; that it was the
defendant’s act which caused injury.

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The requisite causal connection will be established if it appears

that the plaintiff suffered damage directly because of the
defendant’s actions. To determine whether the defendant is to be
held liable under this rule the generally agreed upon test is the
“but for” test. If the defendant’s form of conduct is the cause of
the injury, and it could not have happened “but for” such conduct,
then the defendant is guilty of negligence. This points to the fact
that a person is not liable in negligence if without his such
conduct the harm will still have occurred.

The Contribution of Environmental Torts Toward Environmental

Protection:
➢ Sometimes, they are the only way to air legitimate
grievances where government officials have refused to act, or
environmental law violators have failed to listen.

➢ They provide precedent for environmental issues.

➢ Courts, via Environmental Torts, acquire a decision-making

forum that is less prone to political pressures.

The Limitations of Environmental Torts Toward Environmental

Protection:
➢ A private legal action is always costly. Low-income people
may find litigation to be beyond their reach.

➢ Private legal actions rely on the motivation and financial

ability of the plaintiff.

➢ Private litigation cannot replace long-term environmental

planning processes.

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➢ Multiple polluters and each inflict low levels of damage and

unlikely to be held liable when the damage is shared by
many. For that reason, problems with air pollution caused by
automobiles cannot be handled effectively via Environmental
Torts.
➢ The collection of evidence in environmental cases requires
higher scientific levels that may not be available in countries
such as Uganda.
➢ Injuries and harm emanating from long gestation periods
present another challenge. Parties who can show evidence of
injury or imminent harm may have a common law cause of
action. However, efforts to obtain injunctions for speculative
harms are not generally successful. Statutory prohibitions
may be the only answer to limit actions that may cause
future harms such as cancer.

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2023/04/28th

Environmental Offences Defined:

An environmental crime is any deliberate act or omission leading
to degradation of the environment and resulting into harmful
effects on human beings, the environment, and natural resources.
An environmental crime includes all violations of environmental
laws attracting criminal sanctions. Thus, environmental crime
prosecutions refer to the prosecution of environmental cases in
the criminal courts.

Historically, traditional criminal law did not give mind about

environmental protection, hence there has been a tendency of
advocating for it to be included among those crimes that affect or
is affected by public order, morality, and socio – economic
development. As other crimes, environmental crimes were
introduced to deter detected violators from further violating and
other potential violators from violating the environment by
sending a message that they too may experience adverse
consequences for non – compliance.

Objectives of Environmental Law Enforcement:

The raging dilemma has always been whether the environment
warrants the response of criminal law. Via Environmental Law and
Policy, Environmental Enforcement, relative to those sets of
actions that the Government or other Administrative Authorities
pursue to achieve compliance within the regulated community and
to correct or halt situations the environment or public health, is
one of the vital components of the subject.
Environmental Enforcement usually includes:
➢ Compliance Promotions

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➢ Inspections
➢ Legal Actions of Civil and/or Criminal Nature
➢ Negotiations

Criminal Law is employed in Environmental Law Enforcement to

Achieve:
➢ Confirmation of the standards established in the interest of
the environment and/or public health.
➢ Insurance that Government Control and Credibility by Setting
Standards and Ensuring Fair Competition.
➢ Protection or Restoration of Environmental Damage to
Ensure Sustainable Development.

Legal Framework on Environmental Offences:

1. The Constitution of the Republic of Uganda [1995]
➢ National Objectives and Directive Principles of State Policy
XXVII requires the State to promote sustainable development and
public awareness of the need to manage environment for the
present and future generations. The utilisation of natural
resources should meet needs of present and future generations of
Ugandans. The State is required to take all possible measures to
prevent or minimize environmental degradation.

➢ Article 237 (2) (b) provides for the Public Trust Doctrine: The
Government or a local government hold in trust for and protects
natural resources on behalf of the people of Uganda.

➢ Article 245 empowers parliament to make laws for the

protection of the environment.

➢ Article 39 provides that every Ugandan has a right to a clean

and healthy environment.

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➢ Article 50 gives any person the right to take judicial action to

redress the breach of a fundamental right, irrespective of whether
the breach personally affects them or another person.

2. The National Environment Act [2019]

This repealed the National Environment Act (1995) which sought to
provide a more comprehensive and effective legal framework for
the criminalisation of, and sanctions against persons who commit
environmental offences, as one of the ways to ensure compliance
with the legal provisions on environmental protection. It
fundamentally changed the management of all aspects of the
environment, maintaining, amending, establishing new
environmental crimes when compared by one to the National
Environment Act (1995).
The Act provides for Environmental Crimes like:

➢ Waste littering (Section 97).

➢ Failure to conduct an Environmental audit (Section 126).

➢ Conflict of interest (Section 152).

➢ Failure to submit or prepare an Environmental and Social

Impact Assessment (Section 157).

➢ Failure by an establishment or individual to operate within

the prescribed minimum standards, criteria, and measurements
contrary to Part IX of the Act.

➢ Bribery (Section 154).

➢ Obstruction of environmental inspector or authorised officer

(Section 155).

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➢ Impersonation of environmental inspector or authorised

officer (Section 156).

➢ Failure to establish environmental management system

(Section 158).
➢ Compliance with Seizures (Section 159).

➢ Removing or defacing NEMA’s seals (Section 160).

➢ Unlawful dealings in hazardous chemicals (Section 161).

➢ Illegal management of waste (Section 162).

➢ Pollution contrary to the provisions of the Act (Section 163).

➢ Failure to comply with orders, notices, and environmental

easements (Section 164).

➢ Failure to comply with environmental standards (Section

165).

➢ 166. Failure to keep records, reports, and other

documentation (Section 166).

➢ Alerting offender (Section 167).

➢ Conspiracy to commit an offence (Section 168).

3. Uganda Wildlife Act [2019]

➢ Section 29 (a – f) General Offences in wildlife conservation areas
• hunts, takes, kills, injures, or disturbs any wild plant, wild
animal, or domestic animal.

• takes, destroys, damages, or defaces any object of

• geomorphological, archaeological, historical, cultural or

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• scientific interest, or any structure lawfully placed or

constructed.

• prepares land for cultivation, prospects for minerals or

• mines or attempts any of these operations.

• drives, conveys, or introduces any wild animal into a

• wildlife conservation area.

• wilfully drives, conveys, introduces any domestic animal.

• into a national park or negligently permits any domestic

• animal, of which he or she is for the time being in charge,

• to stray into a wildlife conservation area; or

• starts or maintains a fire without lawful authority.

➢ Section 30 Entering a Wildlife Protected Area without authority.
➢ Section 36 (3) Engaging in (any activity under Section 35)
without a wildlife use right.
➢ Section 43 (7) Failure to comply with a stop notice or any part
of the stop notice.
➢ Section 47 (10 – 11) Transfer, attempts to transfer or accepts or
attempts to accept a quota without permission.

➢ Section 52 (a) Conducting business as a professional hunter or

professional.
➢ Trapper without a licence.
• Section 52 (b) Advertising as a professional
trapper/hunter without a license.

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• Section 52 (c) Soliciting a contract or commission to act

as a professional hunter or professional trapper without
a license.
• Section 52 (d) Assisting another person to hunt a
protected animal for gain or reward without a license.
➢ Section 57 (2 – 3) Failure to report killing of a wild animal in
self-defence and or hand over of the carcass.
➢ Section 59 (1) and 51 (3) Failure to report accidental killing of
a wild animal.

➢ Sections 60 (1 – 2) Failure to capture/kill a wild animal upon

wounding or failure to report wounding a wild animal.

➢ Section 61 Failing to report wounding a dangerous animal to

an officer.

➢ Section 62 (2) (a) Imports/exports or re-exports/attempts to

import/export/or re – export any species or specimen without a
permit.
➢ Section 62 (2) (b) Imports/ exports or re-exports/attempts to
import/export/or re – export any species or specimen without
passing through a designated customs post or port a permit.

➢ Section 63 (2) Contravention of additional restriction on

import, export, re-export or transit of wildlife species or wildlife
specimen.

➢ Section 71 (1) (a) Taking, hunting, molesting, or reducing into

possession a protected specimen.

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➢ Section 71 (1) (b) Possession, selling, buying, transferring, or

accepting transfer of protected specimen.

➢ Section 76 (2) Failing to comply with court order on

disclosure of assets.

4. The Water Act [1995]

The Act provides for the use of water, protection, and supply.
Thereunder, the following offences are created by the Act:
➢ causing or permitting any waste to be discharged directly or
indirectly into any water without a waste discharge permit
(Section 28).

➢ prohibits the causing or allowing of water to be wasted,

misused, or excessively consumed; or taking or using water for a
purpose other than provided by the water permit (Section 39(1)).

➢ assaulting, threatening, resisting, obstructing, hindering, or

delaying an authorised person or a public authority in the
performance of any function or duty under the Act (Section 39(2)
and103).

5. The National Forest and Tree Planting Act [2003]

The Act provides for the conservation, sustainable management,
and development of forests for the benefit of the people of Uganda
and it establishes the National Forestry Authority. Via the Act, the
following offences are established by the Act:
➢ Cutting, disturbing, damaging, burning, or destroying any
forest produce, or removing or receiving any forest produce in a
forest reserve without the requisite authorization, or licence
(Section 14).

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➢ Cutting , taking, working or removing forest produce;

clearing, using or occupying any land for grazing; camping;
livestock farming; planting or cultivation of crops, erecting of a
building or enclosure; or recreational, commercial, residential,
industrial or hunting purposes; collect biotic and abiotic
specimens; or constructing or re-opening a road, tracking , bridge,
airstrip, or landing site in in a forest reserve or community forest
without a licence (Section 32 & 34)

➢ Export of timber without an export licence (Section 4).

➢ General Offences via Section 81 of the Act include:
• Contravening any terms or conditions of a license granted
the Act.
• without due authority, altering, moving, destroying or
defacing any boundary mark of a forest.
• failing to sustainably manage, maintain and control a
forest in accordance with the Act.
• failing to comply with a management plan.
• failing or neglecting to plant trees in accordance with this
Act.
• fails to comply with the order of an authorised person.
➢ General Offences via Section 82 of the Act include:
• Counterfeiting any licence or found in possession of a
licence which is fraudulently issued.

• Submitting false information in an application for a

licence under this Act.

• Counterfeiting, altering, obliterating, or defacing any

stamp, mark, sign, or licence issued under the Act.

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• Knowingly receiving or keeping any forest produce which

is fraudulently marked or which has been cut or removed
in contravention of this Act.

• Counterfeiting fraudulently uses on any forest produce, a

mark used by an authorised person.

• Transporting, dealing in, or storing timber with counterfeit

marks.
6. The Penal Code Act [1950]
The Penal Code Act creates the following environmental offences:
➢ Nuisances and offences against health and convenience are
prohibited (XVII).

➢ Provides for offences endangering life or health (XXII).

➢ Negligent acts likely to spread infection of disease are

(section 171).

➢ Adulteration of food or drink (section 172).

➢ Fouling water (section 176).

➢ Fouling air is prohibited (section 177).

7. The Kampala City Council Solid Waste Management Ordinance
[2000]
This Ordinance applies to all areas of the district, including private
premises, Government – Owned properties, and council properties.
➢ Via Rule 5 (1), it is an offence for any person to litter waste
on public or private property, in a trench, street, channel,
park, pond, stream, lake, river.
➢ Via Paragraph 20, it is an offence for a person:

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• Not authorised by the council to remove, collect, or

disturb solid waste in containers, or to remove solid
waste from a container.

• Other than the council or licensed solid waste

transporters to collect and dispose of solid waste.
• To use for any purpose other than its intended purpose,
a skip provided by the council.

• To scatter or litter solid waste upon any private or

public property to collect, transport, remove or dispose
of refuse at a fee or other consideration without a valid
permit from the council.
➢ Under Paragraph 26, it is an offence for any person to haul or
cause to be hauled on or along any public street, right of way
or alley in the city, any solid waste, unless the waste is in a
vehicle or receptacle so constructed or covered as to prevent
the contents from falling, leaking, or spilling and to prevent
any obnoxious odour escaping from the waste.

LEGAL TECHNICALITIES & PRINCIPLES RELEVANT to PROSECUTION of

ENVIRONMENTAL OFFENCES:
➢ Environmental law provides for anticipatory injury or
damage. Even where a violation of the law may not necessarily
result in any direct or immediate injury to person or property,
failure to comply with the law is an offence.

➢ Environmental laws work to punish violations of the legal

provisions. Unlike the traditional criminal offences under the Penal
Code Act which prohibit specific acts and impose penalties for

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those acts, environmental statutes tend to provide for criminal

penalties for violation of any of the provisions of the Statute.

➢ Environmental offences tend to impose strict and vicarious

liability. Although the burden of proof lies with the prosecution,
there is no need to prove means rea (criminal intent).

➢ Environmental laws are regarded as 'public welfare' statutes

(creating public welfare offences). These laws are aimed at
protecting human health and the environment.

Measures Used in Environmental Law:

➢ Prohibitions: These are absolute and dispense with the need

to prove intent or negligence – mens rea. Prohibitions attack the
act, and not the result. This makes the burden of proof easier, as it
is based on strict liability.

➢ Anticipatory Prevention: This requires prior activities to be

done before the environment is modified. Environmental Impact
Assessment and Environmental Audits are a couples of examples
herein.

➢ Permits and Licenses: These grant environmental regulatory

authorities the power to issue, revoke or incorporate conditions in
permits or licences.

➢ Improvement and Restoration Orders: These require an owner

or operator of a facility to adopt specific measures to help abate
the environmental degradation risk.

➢ Environmental standards: This refers to the setting of limits,

standards, and measures for emissions, discharges, and other
environmentally damaging activities.

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Processes of Environmental Criminal Law:

➢ Reporting of cases: The practice has been that aggrieved

members of the public or interested environmental concern groups
report a case to a lead agency, the District Environment Office, or
National Environment Management Authority headquarters.

➢ Investigations. Environmental inspectors established under

the National Environment Act [2019] play a key role to gather
scientific evidence and make reports. These are some of the expert
witnesses the courts should expect to see commonly, testifying in
environmental hearings.

➢ Decision to prosecute: The decision to prosecute is by the DPP,

but NEMA plays an important role. Other players and lead agencies
also inform and bring to notice the police and DPP.

➢ Courts: adjudicate cases, consider jurisdiction, and grant bail.

They impose punishments such as fines, imprisonment.
➢ The Use of Complementary Methodologies for Promoting Access
to Justice:
• Alternative Dispute Resolution (ADR)
• Tribunal Dispute Resolution Mechanisms (TDRM), such
as Tribunal Councils.
• Involvement of the Local Government, Customary
Authorities, Donors, Businesses, Civil Societies, and
Social Movements.

 The Environmental Police Protection Unit and its Role

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1. In 2011, the Government of Uganda through the Ministry of

Water and Environment set up the Environmental Protection
Police Unit to enforce environmental laws and prevent the
degradation of protected areas.
2. Section 25 of the National Environment Act [2019]
established the Environmental Protection Force to support
persons appointed by the National Environment Management
Authority in consultation with the Uganda Police Force.

The Limitations of Access to Justice Regarding Environmental

Offences:

➢ There is poor enforcement of existing legislation, mainly

because law enforcement agencies have limited capacity to detect
arrest and enforce the laws on environmental offences.

➢ Collection, testing, storage of evidence may be challenging.

➢ Inadequate community participation in the fight against

environmental crime undermines the credibility and integrity of
the entire regulatory regime.

➢ Inadequate sensitisation about environmental rights and

duties to the people at the grass root level.

➢ Limited use of traditional dispute resolution mechanisms

(TDRM) as tribal councils and involvement of customary
authorities.

➢ Corrupt institutions and citizens.

➢ Lack of familiarity.
➢ Need for Scientific Knowledge.

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2023/05/01st

Generally, this task is accomplished via a myriad of tools, such as

Administrative Enforcement which involves the issuance of
permits, consideration of Environmental Impact Assessment
Reports, Environmental Audits, monitoring, and inspection.

ENVIRONMENTAL AND SOCIAL IMPACT ASSESSMENT:

History:

Environmental Impact Assessment is a product of the 1960s,

emanating from the increase of environmental awareness.
Environmental Impact Assessment involved a technical evaluation
intended to contribute to more objective decision making. In 169,
Environmental Impact Assessment obtained a formal status in the
United States of America, via the enactment of the National
Environmental Policy Act [1969]. Environmental and Social Impact
Assessments are now a legal requirement in most of the
framework environmental legislation.

Definition:

An Environmental and Social Impact Assessment assess the

possible environmental impact of a proposed project, considering
the environmental, social, and economic aspects of the same.

According to the International Association for Impact Assessment

(IAIA), an Environmental Impact Assessment is the process of
identifying, predicting, evaluating, and mitigating the bio –
physical, social, and other relevant effects of development

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proposal, prior to relevant commitments being made, and

impactful decisions being taken.

Purpose:

The purpose of Environmental and Social Impact Assessment is to

ensure that the regulatory Authorities consider the environmental
and social impacts when deciding whether or not to proceed with
a particular project. This tool, Environmental and Social Impact
Assessment, serves the purpose of environmental protection. It
ensures that consideration is afforded to environmental impacts
during conception, design, and implementation of projects, along
with consideration of their financial and technical aspects.
Environmental and Social Impact Assessment is conducted to
ensure that important environmental resources are recognized and
protected early in the decision making and planning process.
Environmental Impact Assessment also works to provide
developers and decision makers the opportunity to examine likely
impacts of development proposals on the environment, thus,
recommend mitigative actions for adverse impacts before
decisions are made to approve such actions.

Functions:

➢ Avails the developer(s) and Regulatory Authorities, such

as the National Environmental Management Authority, the
opportunity to choose the projects with complete knowledge
of the environmental impact. This guides the decision of the
Regulatory Authorities on whether to approve or reject the
proposed project. This spares the developer time and costs
that would have been incurred, enabling them to develop
plans and policies for the mitigation of such impacts
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➢ Enables developers and decision makers to predict and

assess the potential impacts the proposed project on the well
– being of the environment, whilst identifying alternatives
via the recommendation of implementation of appropriate
modifications/ actions that integrate economic, social, and
environmental concerns.
➢ Enables the effects of an environmental project to be
weighed on a common yardstick with economic costs and
benefits. This enables planners to make environmentally and
economically viable decisions during planning and helps them
decide whether to continue or discontinue projects based on
their probable environmental impact.
➢ Improves the credibility by portraying a good corporate
image for an organization as an environmentally responsible
entity to the general public.
➢ Of great benefit to ban and other financial institution
which extend credit to their clients. It helps the institution
safeguard its investment by ensuring the project fulfils all
planning and legal requirements, particularly those
concerning environmental concerns.
➢ Avoids the punitive measures taken against a party
who elects not to take an environmental social impact
assessment, given that it is a legal requirement.
➢ Ensures the safety of both workers, and the public at
large.

Legal Framework on Environmental Impact Assessment:

I. The Constitution of Uganda [1995]

➢ The National Objectives and Directive Principles accord:

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• An obligation upon the Government to protect

important natural resources including water, wetlands,
minerals, oil, fauna, and flora, on behalf of the people of
Uganda (Principle XIII).
• An obligation upon the Government to take all practical
measures to promote a good water management
system at all levels (Principle XXVII).
➢ Article 17 (1) (i) obliges every Ugandan citizen to create and
safeguard a clean, and healthy environment.
➢ Article 39 accords that every Ugandan citizen is entitle to a
clean and healthy environment.
II. The National Environment Act [2019]
➢ Section 110
• Categorizes the projects to be evaluated for
environmental and social impacts, risks and other
concerns of a given project, or activity.
• The nature and scale of the proposed project or activity.
• The documented impacts of similar or related projects
or activities previously undertaken in Uganda.
• The anticipated magnitude of environmental, social,
economic, and cultural impacts of the proposed project
or activity.
➢ Section 111
• Requires a developer to ensure that a person carrying
out an environmental and social assessment for them,
either personally, or by employees, contractors, or sub –
contractors, complies with the administrative decisions
and applicable laws.
• The developer is responsible for the quality of the
assessment undertaken by any personal consultant, and

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they ought to use and integrate environmental and

social impact assessment, human rights risk
assessment, and environmental risk assessment in the
project design.
➢ Section 112
Requires a developer to undertake an environmental and social
impact assessment via a project brief. The project briefs to be
submitted to the lead agency include:
• Transport, transportation equipment, and related
infrastructure.
• Exploration and power generation, transmission, and
distribution.
• Utilisation of water resources and water supply;
housing and urban development.
• Agricultural investments; livestock; range
management; and fisheries.
• Forestry; metallurgy; extraction of non – mineral
products; and waste management facilities.
➢ Section 113
Accords that projects for the purposes of environmental and
social impact assessment are necessary. Such projects are:
• Utilisation of water resources and water supply;
housing and urban development; agricultural
investments; livestock; range management and
fisheries; the food and beverage industry.
• Transport, transportation equipment, and related
infrastructure; Communication facilities; Exploration
and power generation; transmission and distribution
infrastructure.

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• Nature Conservation areas; Forestry; Hotel Tourism and

Recreational Development; Wood Industries; Textile
Industry; Tanning and Leather Industry; Metallurgy;
Chemical Industry.
• Electrical and electronics industry; Mining and mineral
processing industry; Manufacturing of non – metallic
products; Assembling plants; Petroleum operations;
Extraction of Non – Mineral Products.
• Waste management facilities, such as:
o Installations for the capture of Carbon Dioxide
Streams for the purpose of Geological Storage
from installations covered by the Schedule to the
Act.
o Facilities whose annual capture of Carbon Dioxide
is 1.5 megatons or more.
o Tobacco Processing and Storage.
o Facilities for Aerial spraying Using Chemicals, and
those employed for the manufacture of veterinary
and medical equipment.
➢ Exemptions
• Construction of fishponds of 10 metres by 20 metres in
size.
• Establishment of no fishing zones, such as fish breeding
or nursery areas.
• Change of forest reserve to wildlife protected area and
vice versa, or any other protected area system.
• Construction of tourism trails in protected areas.
• Electricity distribution lines of voltage of 415 Volts and
below.

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• Health programmes, including nutrition and family

planning.
• Emergency repairs to facilities within the character of
the facility’s surroundings.
• Emergency situations reported to the appropriate
authority within 24 hours of occurrence, disasters
inclusive.
• Minor land changes in areas with slopes of less than
20%, including housing construction.
• Clearing of land for subsistence farming if the
cumulative impacts are not adverse.
• Construction or repair of individual homes.
• Environmental enforcement actions.

III. The National Environment (Environment and Social Assessment)

Regulations [2020]
These offer a detailed elaboration of the provisions of the National
Environment Act [2019] and present the details of the
Environmental Social Impact Assessment Process, along with the
roles of various stakeholders.
These Regulations advocate for the principle of full disclosure in
the conduct of Environmental Social Impact Assessments and
make it an offence to falsify an Environmental Social Impact
Assessment.
Via the Regulations, it is an offence to commence, proceed, or
execute any project without the approval of the National
Environment Management Authority.

IV. The National Environment (Conduct and Certification of

Environment Practitioners) Regulations [2003]

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Following concerns about the quality of Environmental Impact

Assessments done by Practitioners, and in order to provide a
uniform system of certification and registration by Environmental
Impact Assessment practitioners, these Regulations were gazetted
and set minimum standards and criteria for qualifications as an
Environmental Impact Assessment Practitioner.
The Regulations, secondly, establish an independent Committee of
Environmental Practitioners who work to:
➢ Regulate the certification, registration, practice, and conduct
of all environmental auditors and impact assessors.
➢ Take disciplinary action as it considers necessary to ensure
the maintenance of high professional standards, ethics, and
integrity of environmental practitioners whilst in the
exercise of their duties.

V. The National Environment (Wetlands, Riverbanks, and Lake –

shore Management) Regulations (Regulation Number 3 of 2000)
[2000]
Part IV of these Regulations accord that:
➢ Via Regulation 34, a developer desiring to install a project
likely to have a significant impact on a riverbank, lakeshore,
or wetland, ought to conduct an Environmental Social Impact
Assessment.
➢ The developer above, ought to conduct annual audits and
monitoring of such activities and submit reports to the Lead
Agency and Executive Director.
➢ Where a riverbank, lakeshore, or wetland has been degraded,
the Executive Director shall require it to be allowed to
regenerate or issue an environmental restoration order.

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➢ Where an inspector has reasonable cause to believe that any

person is violating the Regulations, they may issue an
improvement notice against them, or take measures they
consider necessary in the context of the circumstances.
➢ An offence is committed by one who:
• Reclaims or drains a wetland.
• Creels, constructs, or demolishes any structure that is
fixed in or over a wetland.
• Disturbs a wetland by depositing in, or under it a
substance, in a manner likely to have an adverse effect
upon it.
• Destroys or damages a Wetland, or fails, or neglects to
protect a lakeshore, or riverbank from environmental
degradation.
VI. The National Environment (Waste Management) Regulations
[2020]
➢ Regulation 12 requires one to conduct an Environmental
Social Impact Assessment in accordance with the
Environmental Social Impact Assessment Regulations in order
to obtain a licence to engage in the business of collecting,
transporting, storing, treating, or disposing of waste that a
waste treatment plant, or disposal site carry out.
➢ Regulation 97 requires every person who generates hazardous
waste and a waste handler to take precautionary measures,
such as warning, hazard, and safety systems appropriate, and
measures to prevent fire or explosions, emplaced and
maintained at a waste management facility.
VII. The Water Act [1995]
➢ Section 22 provides for the suspension or variation of a water
permit by the Executive Director where the water available

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in the area has become, or is likely to become, insufficient in

quality or quantity for the needs of the people using or
seeking to use it. This may be done by notice in writing to
the holder of the water permit for that area.
➢ Via Section 25, the Director may cancel ones permit where:
• They fail to comply with provisions of the Statute.
• Where they fail to make beneficial use of the permit
after 2 years.
• Uses water for purposes contrary to the permit or uses
more water than they were entitled to under the
permit.
VIII. The National Forestry Act [2003]
Via Section 38, any person intending to undertake a project or
activity which may, or is likely to have, a significant effect on a
forest, ought to make an Environmental Impact Assessment.
IX. The Uganda Wildlife Act [2019]
➢ Via Section 23, a developer desiring to undertake a project
which may have a significant effect on any wildlife specie or
community ought to undertake an Environmental Social
Impact Assessment via the National Environment Act [2019].
➢ The Uganda Wildlife Authority, unless the Authority is the
developer, must perform all functions required of a lead
agency for purposes of an Environmental Social Impact
Assessment via the National Environment Act [2019], and the
Regulations thereunder.
X. The Land Act [1998]
This Act regulates the ownership of land and controls land use.
➢ Section 44 obliges any person who owns or occupies land to
manage and utilize it according to the law relative to

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environmental protection, such as The National Environment

Act.
➢ Section 45 vests all natural resources in the Ugandan
government in trust for the benefit of the Ugandan people.
➢ Section 46 requires any use of land to comply with the Town
and Country Planning Act, and other laws. Herein, an
Environmental Social Impact Assessment is a useful tool to
guarantee that the proposed use of land does not infringe the
law in any shape, or formation.
Dispute Settlement Mechanisms/Procedures:

➢ The Ugandan Environmental Impact Assessment system

provides for appeals where any party may seek recourse
when they dissatisfied with any decision taken via the
Environmental Impact Assessment approval mechanisms.
➢ Regulation 38 (1) of the Environmental Impact Assessment
Regulations provides that any person who is aggrieved by any
decision of the Executive Director with respect to
Environmental Impact Assessment may, within 30 days of the
decision, appeal to the High Court.
➢ Away from courts there is no other forum to seek recourse.
As much as there are instances where aggrieved persons have
directly sought out the National Environmental Management
Authority for a remedy and been given an audience, such is
yet to lead to a reversal by the National Environmental
Management Authority.
➢ In practice, Environmental Impact Assessment in Uganda
affords opportunities for reconsideration where project
modification aimed at addressing outstanding environmental

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concerns could lead to re-consideration of decisions earlier

taken.

Institutional Framework for Environmental Social Impact Assessment

Implementation:

Via Section 9 of the National Environment Act [2019], the National

Environmental Management Authority has the following mandates
regarding Environmental – Social Impact Assessment:

➢ Issue environmental compliance certificates.

➢ To regulate environmental practitioners in the Environmental
Impact Assessment and Environmental Audit processes.
➢ To Review and make decisions on environmental and social
impact assessments, environmental audits, and other studies
or reports, submitted in accordance with the Act, or any
other applicable law.
➢ To issue permits and licences in accordance with the Act and
any other applicable law.
➢ To undertake and coordinate environmental monitoring,
inspections and compliance audits.

Department of Environmental Monitoring and Compliance:

➢ The Department of Environment Monitoring and Compliance,

within the National Environmental Management Agency, is
responsible for environmental monitoring and ensuring
compliance to environmental Regulations and standards.
➢ The Department also provides technical guidance on
Environmental Impact Assessment matters and coordinates
review of Environment Impact Assessments with other

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sectors/lead agencies and provides advisory services to

developers on Environmental Impact Assessment matters.
➢ The Department is also responsible for the preparation and
issuance of Environmental Impact Assessment Certificates
and also implements a follow up program to ensure that
negotiation measures as contained in the Environmental
Impact Assessment(s) and approval conditions stated in the
certificates of approval are implemented. The Department
also carries out training and capacity building on
Environmental Impact Assessment.
➢ In the process of Environmental Impact Assessment, the
National Environmental Management Authority is supported
by the statutory Technical Committee on Environmental
Impact Assessment that provides advisory services thereon.
The Committee’s multi – disciplinary membership reflects the
need for a multi – disciplinary approach while conducting
Environmental Impact Assessment(s), and the multi – faceted
nature of impacts of development on the environment.
➢ Membership on the Technical Committee represents the
following sectors:
• Mining and Energy
• Manufacturing/Private Sector
• Planning and Economic Development Aspects
• Pharmaceutical/Medical
• Public Health
• Ecology and Biological Diversity
• Social Aspects
• Infrastructure Development/Engineering
• Policy Development
• Agriculture

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 The Technical Committee has the freedom to co – opt other

experts as and when the need arises.

Who Qualifies to Conduct an Environmental Social Impact

Assessment:

➢ Via the National Environment (Conduct and Certifications of

Environment Practitioners) Regulations, for one to qualify to
conduct an Environmental and Social Impact
Assessment/Environmental Audit, they must be registered
under the Regulations.
➢ The Regulations establish an Independent Committee of
Environmental Practitioners whose powers, among others,
include:
• To regulate the certification, registration, practice, and
conduct of all environmental impact assessors and
environmental auditors.
• To take disciplinary as it finds necessary for ensuring
the maintenance of high professional standards, ethics,
and integrity of environmental practitioners in the
conduct of Environmental and Social Impact
Assessment and Environmental Audits.

Lead Agencies:

➢ Each lead agency is primarily responsible for ensuring that

Environmental and Social Impact Assessment is done for
development activities under their jurisdiction, as well as
reviewing the Environmental Impact Assessments for such
projects. The responsibility includes carrying out inspections
related to the environment and implementation of the
Environmental and Social Impact Assessment of such
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projects. This responsible includes conducting inspections

relative to the environment and implementation of the
Environmental and Social Impact Assessment requirements.
➢ Where the review of any one Environmental and Social
Impact Assessment mandates holding of a public hearing, the
responsible ought to take the lead in co-ordinating and
executing the holding of such a public hearing in accordance
with the guidelines that have been prepared by the National
Environment Management Authority.

Role of Developer:

An Environmental Impact Assessment is undertaken by the

developer, and the costs are incurred by the developer as well.
Among others, these costs include the costs for the conduct of
Environment Impact Studies, preparation, and production of the
Environmental Impact Study.

Role of the Public and Civil Society:

➢ The National Environment Management Act [2019] provides

for possible public intervention where development is carried
out in indifference to the requirements of Environmental
Impact Assessment.
➢ The role of the public includes advocacy and provision of
relevant information during the various stages of the
Environmental Impact Assessment process, including the
study and review stages.
➢ The Ugandan public has a vital role in ensuring the effective
application of the process of Environmental Impact
Assessment, particularly, their awareness and understanding
of the process enable the effective involvement and
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participation during the scoping and review and decision-

making stages of the Environmental Impact Assessment.

Basic Steps in the Ugandan Environmental Social Impact Assessment

Process:

1) The developer submits a project brief, outlining the

basic information on the proposed activity/project to
establish it will have a significant impact on the
environment, to the National Environmental
Management Authority and to any other appropriate
lead agency.
2) The National Environmental Management Authority, in
consultation with any appropriate lead agency/agencies,
guided by the contents of the project brief, will conduct
a screening to determine the adequacy of the project
brief, in term of the extent it addresses the
environmental issues, or level of Environmental Social
Impact Assessment Required.
 The premise of the screening phase is that not all
development projects may necessarily cause adverse
effects on the environment due to the differences in scale
of the operation, nature of the proposed project, and its
location. Thus, not all proposed projects requiring an
Environmental Impact Assessment shall undergo the same
level of assessment. The objective of the screening phase,
thus, is to determine the level of Environmental Impact
Assessment required, depending on the level of impact of
the proposed project.
3) The developer is informed of the findings and decision
whether further assessment is necessary. Approval is

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issued without further need for assessment, where the

Project Brief adequately addresses environmental
concerns.
4) If the project brief is inadequate, a full Environmental
Impact Study will be required and coping will be
conducted to determine the likely significant
environmental impact is done and Terms of Reference
are prepared for approval by the National
Environmental Management Authority, based on the
scoping output.
5) Basing on the Terms of Reference, an Environmental
Impact Study is conducted.
6) After the assessment, the Environmental Impact
Statement, is submitted to the National Environmental
Management Authority to review in consultation with
other relevant lead agencies and stakeholders.
Depending on the nature of environmental impacts at
hand, the review process may include the holding of a
public hearing, especially where there are contentious
issues of controversy, impacts of a transboundary
nature, or very outstanding social concerns.
7) Based on the review enshrined in the Environmental
Impact Statement, a final decision is taken on the
environmental aspects of the project, delivered in a
Certificate of Approval of the Environmental Impact
Assessment issued by the Authority.

ENVIRONMENTAL AUDIT:

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Section 2 of the National Environment Act [2019] defines an

Environmental Audit as a systematic, documented, periodic
evaluation used to determine how well specified projects, or an
organisation’s management system, facilities, and equipment are
performing in conserving the environment and its resources, and
conform to the requirements of the Act, and any other applicable
law.

Section 126 accords that the National Environmental Management

Authority or a lead agency, may do the following where there is
public interest or cause to believe that a project has, or may have
adverse impacts on human health, or the environment:

➢ Conduct an Environmental Enforcement Audit.

➢ Instruct the developer to conduct an environment
compliance audit, within the time given by the Authority.

Where a lead agency intends to undertake an environmental

enforcement audit it ought to notify the Authority at least 7 days
before the commencement date of the audit and submit an
environmental enforcement audit report to the Authority within
30 days after the completion of the audit.

An environmental audit ought to consider the need to prevent

harm to human health, or the environment, and it ought to
consider:

➢ Environment management and monitoring plans.

➢ Conditions via the Certificate of Approval of the
Environmental and Social Impact Assessment.
➢ Conditions contained in permits, licenses, and other
approvals.

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➢ Any other requirements found in the Act, and the law at

large.

A developer or operator of a project required to undertake an

environmental compliance audit is mandated to:

➢ Submit an environmental compliance audit report to the

Authority and lead agency, where applicable.
➢ Undertake mitigation measures to address and rectify any
non – compliance detected.

An environmental audit and/or an environmental management

and monitoring plan can not be used to substitute an
Environmental and Social Impact Assessment as mandated by
the National Environment Act [2019].

ENVIRONMENTAL MONITORING:

Section 24 of the Uganda Wildlife Act [2019] requires the Uganda

Wildlife Authority, in consultation with the National
Environmental Management Authority, to conduct audits and
monitoring, or cause audits and monitoring of projects that
impact the wildlife to be conducted via the National Environment
Act [2019] and any Regulation(s) made thereunder, such as the
National Environment (Audit) Regulations (2020) as enacted under
the National Environment Act [2019].

STRATEGIC ENVIRONMENTAL ASSESSMENT (SEA):

This is a systematic process for evaluating the environmental

implications of a proposed policy, plan, or programme, providing
means for assessing cumulative effects, and appropriately address

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them at the earliest decision-making stage, alongside social and

economic consideration.

This measure assesses the extent which a given policy, plan, or

programme, and works to:

➢ provide an adequate response to environmental and climate

change challenges.
➢ Determine how the given policy, plan, or programme, may
adversely climate resilience and the environment.
➢ Offer opportunities to enhance the state of the environment
and contribute to climate resilience and low-carbon
development.

Ideally, a Strategic Environmental Assessment should be integrated

into policy, plan, or programme preparation process from its infant
stages, and the Government must have a high degree of ownership
in it. More so, public participation is vital for a successful
Strategic Environmental Assessment.

The National Environment (Strategic Environmental Assessment)

Regulations [2020] provide the purposes of Strategic Environment
Assessment:

➢ Identify and describe the environmental, health, and social

objectives to be achieved by the policy, plan, or programme.
➢ Identify potential impacts on human health and the
environment of the proposed policy, plan, or programme.
➢ Identify public interests.
➢ Determine the cost effectiveness of the policy, plan, or
programme.
➢ Determine any other strategic goal.

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The regulations further provide the steps to be taken when

conducting a Strategic Environmental Assessment

Strategic Environmental Assessment, in comparison with the

Environmental Impact Assessment, provides recommendations at a
strategic level and allows there to be better control over
interactions, or cumulative effects. Strategic Environmental
Assessment have no single approach to them; thus, they can
employ different forms according to the specific needs of the
environment.

Via Section 47 of the National Environment Act [2019], a Strategic

Environmental Assessment ought to be undertaken for
government policies, plans and programmes being initiated or
reviewed, which are likely to have a significant effect on human
health, or the environment. This section further requires that
Strategic Environmental Assessment ought to be conducted for
activities in landscapes, or other areas where there are likely to be
large investments, or where cumulative impacts are likely to have
a significant impact on human health, or the environment.

A lead agency responsible for the policy, plan, or programme via

Section 47 (1) ought to carry out a Strategic Environmental
Assessment in accordance with the National Environment
(Strategic Environmental Assessment) Regulations [2020], in
consultation with the National Environmental Management
Authority.

ENVIRONMENTAL RESTORATION ORDERS:

Via Section 130 of the National Environment Act [2019], the

National Environmental Management Authority may issue an

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Environmental Restoration Order to any person whose activities

cause, or are likely to cause pollution, or any other form of
damage to the environment, or threat to human health, contrary
to the Act.

An environmental restriction order issued may contain a

prohibition, or a stop order, and the person on whom it is served,
without further notice, shall be required to:

➢ Immediately prevent the commencement of, or to cause any

activity that is deleterious to human health, or the
environment.
➢ Restore the environment, as near as possible, to the status
in which it was before the taking of the action which is the
subject of the order.
➢ Take such action as will prevent the commencement, or
continuation of any activity that is likely to cause, is
causing, or may contribute to causing pollution.
➢ Require clean-up of the pollution, or restoration of the
damaged environment, using the best techniques available.

A person served with an Environmental Restoration Order, by the

National Environmental Management Authority, may be required
to:

➢ Retore land and its full ecological, and ecosystem functions,

including the replacement of soil, the replanting of trees, and
the replanting of other flora which may have been damaged.
➢ Restore, as far as possible, outstanding geographical,
archaeological, or historical features of the land, or the area
contiguous to the land specified in the order.

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➢ Take preventive action against the commencement, or

continuation of any activity that constitutes an
environmental hazard, including an action that may
contribute to an environmental hazard.
➢ To remove, or alleviate any damage to the land, or the
environment, or to the amenities of the area.
➢ Prevent injury to other persons, or damage to land, or the
environment, aquifers beneath the land, flora, and fauna in,
on, under, or above the land specified in the order, or land, or
the environment contiguous to land specified in the order.
➢ To remove any material, waste, or refuse deposited in, on,
under, or around the land, or other area specified in the
order.
➢ To deposit waste in a place named in the order.
➢ To comply with such other directives as the Authority may
prescribe in the order.

An Environmental Restoration Order shall be in a format

prescribed by the National Environmental Management
Authority and shall specify:

➢ The activity to which it relates.

➢ The person(s) to whom it may concern.
➢ The time at which it shall take effect.
➢ The action which ought to be taken to prevent, or abate,
the pollution, or to remedy harm to human health, or the
environment.
➢ The powers of the Authority, or authorised officer, to enter
land, premises, facilities, vehicles, or other vessels to
undertake the action(s) specified in the order.

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➢ The power of the Authority, or authorised officer, to seize

any equipment, or substance used in commission of a
violation under the Act.
➢ The penalties which may be imposed if the action specified
in the order are not taken by the person responsible.
➢ The right of the person served with the order to appeal to
court against it.

Via Section 133 (1) of the National Environment Act [2019], where
an Environmental Restoration Order has not been honoured for
whatever reason, the National Environmental Management
Authority may:

➢ Enter, or authorize any person to enter, any land, area,

premises, facility, vehicle, or vessel under the control of
the person on whom the order was served upon.
➢ Take all necessary action in respect of the activity to
which the order relates and enforce the order as may seem
fit on behalf of the person on whom the order was served.

Via Section 133 (2) of the National Environment Act [2019],

where the Authority, or authorized officer, exercises the power
via subsection (1), the Authority, or authorized officer may:

➢ Require the payment of an administrative fine for

violation of the Act, or Regulations thereunder.
➢ Seize any equipment, or substance used in the violation of
the Act, or Regulations thereunder.
➢ Use the seized equipment, as pointed out above, to pursue
pollution abatement, or restoration of the degraded
ecosystem, or rectification of the environmental wrong
committed.
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➢ Require the payment of costs or expenses incurred by the

Authority, or authorized officer, in the exercise of that
power, including any costs which may incurred by any
government agency, or other person in pollution
abatement, or containment.
➢ Take any other action as may be necessary.

Via Section 133 (3) of the National Environment Act [2019], where
the person on whom an Environmental Restoration Order was
served fails to pay the administrative fine, costs, or expenses, or
abandons the equipment, or substances seized, an authorised or
the National Environmental Management Authority may:

➢ Dispose of the equipment, or substance, via public auction,

and recover the money due to the Authority, or authorized
officer, unless the owner claims, or removes the
equipment, or substance, within 30 days.
➢ Recover as a civil debt, by court action in a court vested
with the requisite jurisdiction, from the person referred to
in subsection (1), such administrative fine, including costs,
or expenses, not sufficiently defrayed by the sale by
auction, or where the Authority, or authorised, elects to
recover the costs, or expenses, as a civil debt.

Via Section 133 (4), any balance from the sale of the equipment, or
substance, ought to be paid to the owner of the equipment, or
substance abandoned via subsection (3), after deducting the costs
and expenses incurred by the Authority, or authorised officer, in
connection with the safe custody and sale.

Via Section 134, court may, in any proceedings instituted by any

party, issue an environmental restoration order against a person
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who has caused, or is likely to cause pollution contrary to the Act,

or has harmed, is harming, or is likely to harm human heath, or
the environment.

In the exercise of its powers, court may order the following:

➢ The payment of costs via reparations, restoration,

restitution, or compensation, to the person whose health,
or the environment, or livelihood has been polluted,
harmed, or otherwise adversely affected by the action.
➢ The payment of the costs and expenses of any action by
the Authority, or an authorised officer, to abate the
pollution; protect human health; or restore the
environment as near as possible, to the state which it was
before the taking of the action.

An environmental restoration order can also be granted by the

courts of law in any proceeding instituted by any person, against a
person who has harmed, is harming, or is reasonably likely to harm
the environment. The claimant is not obliged to show an interest
in the property, environment, or land alleged to have been harmed.

In Amooti Godfrey Nyakaana Versus. National Environment

Management Authority, Attorney General, Advocates Coalition for
Development and Environment, Environment Alert, Greenwatch,
Uganda Wildlife Authority, and The Environmental Action Network
(Supreme Court Constitutional Appeal Number 05 of 2011)
[2015]UGSC14, the appellant was the registered proprietor of
Leasehold Register Volume 3148 Folio 2 Plot 8 Plantation Road,
Bugolobi, Kampala – a plot he obtained via a lease from Kampala
City Council to construct a residential holding, and subsequently
successfully applied for the requisite approval for the said
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construction, and got down to work. The National Environmental

Management Authority, through its inspectors, inspected the
Nakivubo Wetland in Nakawa Division, and found that the
appellant’s residential holding under construction was in the
wetland, and thus, issued calls to the appellant construction and
demolish the project altogether via a restoration order requiring
the appellant to demolish his residential holding within 21 days. By
2005 January 8th, the appellant had failed, or refused, to act in
accordance with the restoration order, thus, his residential holding
was demolished by the National Environmental Management
Authority. The appellant, thus, instituted Constitutional Court
Constitutional Petition Number 03 of 2005 seeking to challenge the
actions of the National Environmental Management Authority,
premised on Sections 67, 68, and 70 of the National Environment
Act [1995], arguing that they contravened various Human Rights
Conventions and Instruments harmonised in the Constitution via
Articles 20 and 45 of the Constitution, but failed to receive a ruling
in his favour, thus, the appeal to the Supreme Court. Court held
against the appellant, in consideration the law pertaining to
environmental protection vis-à-vis individual property rights,
stating that Article 26 of the Constitution, when read along with
Article 237 (1 – 2); 242; and 245 in the context of the case, showed
that the appellant was advised on the improper use to which he
was putting his land, by constructing a residential holding in an
area said to be a wetland. More so, since the leasehold was subject
to provisions of the Land Act, particularly Sections 23, and 43 – 44,
the leasehold was meant to be administered in a manner
favourable to the environment. Court also noted that under Article
43 of the Constitution, persons should not prejudice the rights and
freedoms of others in the enjoyment of their own rights and

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freedoms, which would conceivably occur if one obstructed a

stream or wetland, as other persons would be affected, either by
suffering floods, or drying up water sources. Court, thus, concluded
that the appellant was merely prevented from misusing the land,
and that his proprietary rights were not violated, nor taken away
by the National Environmental Management Authority.

ENVIRONMENTAL EASEMENTS:

An easement refers to the use of land, or a right to restrict the

use of land. An easement is the right to do something, or the right
to prevent something over the real property of another. At
Common Law, an easement came to be treated as a proprietary
right, and it is still treated as a kind of property by most
jurisdictions. In some jurisdictions, equitable servitude is another
term used to refer to an easement, although easements do
originate from equity.

Via Section 117 of the National Environment Act [2019], an

Environmental Easement may be granted in accordance with the
applicable law, to facilitate the conservation and enhancement of
the environment, referred to in the National Environment Act
[2019], as the benefited environment, through the inspiration of
one or more obligations regarding the use of land or area, in the
National Environment Act [2019], referred to as the burdened land,
or ecosystem, being land or area in the vicinity of the benefited
environment.

An Environmental Easement may be imposed on, and shall

thereafter attach to, the burdened land or ecosystem in
perpetuity, or for a term of years, or for an equivalent interest via
customary law as the court may determine.
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The validity and enforceability of an environmental easement

granted shall not be dependent on the existence of land in the
vicinity of the burdened land, or ecosystem, which can be
benefited, or of a person with an interest in that land who can be
benefitted by the environmental easement.

Via Section 117 (2) of the National Environment Act [2019], an

environmental easement may be imposed on the ecosystem, or
burdened land, to:

➢ Preserve and conserve fauna and flora, and the ecosystem in

general.
➢ Create and maintain works on burdened land to limit or
prevent harm to the environment.
➢ Preserve a view.
➢ Preserve open space.
➢ Permit persons to walk in a defined path or area, across the
burdened land.
➢ Preserve or conserve the natural contours, and features of
the burdened land.
➢ Prevent, or restrict, the scope of any activity on the
burdened land which has as its object, the mining and
working of minerals, or aggregates.
➢ Prevent, or restrict, the scope of any agricultural activity on
the burdened land.
➢ Prevent the quality and flow of water in a dam, lake, river, or
aquifer.
➢ Preserve, or conserve, any outstanding geological,
physiographical, ecological, archaeological, or historical
features of the burdened land.

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Via Section 118 of the National Environment Act [2019], a

person may apply to court for the grant of an environmental
easement. An application for the grant of an environmental
easement shall be in accordance with the applicable laws, or
the procedure prescribed by court.

Via Section 120 of the National Environment Act [2019], where

an environmental easement is granted on registered land, the
environmental easement shall be registered according to the
Registration of Titles Act.

ENVIRONMENTAL IMPROVEMENT NOTICES and ENVIRONMENTAL

COMPLIANCE NOTICES:

Via Section 135, an Environmental Inspector may issue an

Environmental Improvement Notice to person who activity is
causing or is likely to cause pollution contrary to the Act, or is
deleterious to human health, or the environment.

The National Environmental Management Authority, or an

authorised officer, may issue an environmental compliance notice
which may culminate into an Environmental Compliance
Agreement, to require any person to comply with the Act, or
Regulations made thereunder.

ENVIRONMENTAL MONITORING:

Via Section 122, the lead agency in concert with the National
Environmental Management Authority may continuously measure,
evaluate, and track:

➢ Any environmental phenomena against a baseline, or

available environmental information, with a view of

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assessing any possible environmental changes, and their

actual, or potential impacts, be it short-term, or long-term.
➢ The operation of a project using defined parameters and
measurable indicators to determine the projects short-term
and long-term effects on human health, and the
environment.
➢ Compliance with environmental laws, environmental
standards and conditions in permits, licenses, and other
approvals.

Via Section 122 (2), a developer ought to monitor the project and
any environmental phenomena of the project so to:

➢ Assess and mitigate its possible impacts on human health

and/or the environment.
➢ Ensure conformity with environmental laws, environmental
standards and conditions in permits, licenses, and other
approvals.
➢ Ensure effectiveness of mitigation measures.
➢ Ensure delivery of conservation outcomes required to achieve
either a no net loss, or a net gain, when a biological diversity,
or other offset, or compensation mechanism has been
implemented to address residual impact.

Via Section 122 (3), where an environmental management and

monitoring plan is required as part of an environmental and social
impact assessment, the developer or operator shall monitor the
project against the measurable actions and targets of the
environmental management and monitoring plan.

Upon detecting non-compliance by the developer with the

requirements enshrined within the section, the National
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Environmental Management Authority shall notify the developer in

writing, requiring them to cause the project to comply with the
requirements of the National Environment Act [2019].

A developer ought to maintain proper records of the monitoring

undertaken which ought to be produced upon request by the
National Environmental Management Authority, or the lead
agency.

The National Environmental Management Authority, or a lead

agency, may require the developer to submit monitoring reports
via a form prescribed in the Act.

ENVIRONMENTAL JUDICIAL REMEDIES:

1. Prerogative Orders.

Via Section 36 of the Judicature Act, these can be granted

regarding judicial orders and decisions made by authorities which
contradict the laws, and principles of environmental protection.

i. Certiorari

Issued to quash the decision(s) of a body contrary to

environmental protection. In Antonio Oposa Versus. Factoran G. R.
Number 101083 (224 S. C. R. A. 792) the appellant sought an order of
certiorari, enjoining the Philippine Supreme Court to set aside the
dismissal of the lower court, on the ground that the lower court
gravely abused their discretion in dismissing the petition.

ii. Prohibition

Issued to prohibit a certain action which threatens the health of

the environment from taking place.
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iii. Mandamus

Issued to order a public body to act in the right way toward

environmental protection.

2. Injunctive Orders.

These are issued by court to prevent, restrain, and/or put an end

to an operation which harms the environment from taking place.
An example of this is reflected in the decision of the International
Joint Commission Arbitral Tribunal via the Arbitration of Trail
Smelter (United States of America Versus. Canada), which granted
the United States of America an injunctive order against Canada,
who were causing transboundary pollution, as the fumes from the
smelter travelled downwind from Canada into the United States of
America.

3. Criminal Sanctions.

Section 2 of the Penal Code Act (1950) defines an offence as an act,

attempt, or omission, punishable by law, and various provisions of
environmental laws contain clauses for the punishment of
offences under those Acts and/or Regulations.

For example, the National Environment (Access to Genetic

Resources and Benefit Sharing) Regulations [2005] accord, via
Regulation 17, that the use of genetic resources is restricted to
that in the materials transfer agreement, and the documented
consent of a competent authority is required before an applicant
may transfer any genetic resources to a third – party. Where such
consent is not obtained, the materials transfer agreement is
determined for breach, and an offence is committed. Via

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Regulation 26 (1), Regulation 17 (2) is violated where there is the

transfer of genetic resources to a third-party without the
documented consent of the competent authority, and such is
punishable, on conviction, to a fine between 180,000/= and
18,000,000/= and/or imprisonment of up to 18 months.

4. Restoration Orders.

Section 134 (1) of the National Environment Act [2019] empowers

court to issue restoration orders as a judicial remedy, upon any
application against a person who has caused, is causing, or is
likely to cause pollution. In India Council for Enviro – Legal Action
Versus. Union of India, court was petitioned to issue an order
prohibiting pollution caused by several industrial plants, and, thus,
obliged.

5. Human Rights Enforcement.

Case in point is Godfrey Amooti Nyakaana Versus. National

Environmental Management Authority and Others, where the
appellant, albeit unsuccessfully, sought out court to challenging
the actions of the first respondent, via Article 137 (3) of the
Constitution and Rule 3 of the Court of Appeal Rules, arguing their
actions founded upon Sections 67, 68, and 70 of the National
Environment Act [1995] were contrary to various Human Rights
Instruments and Conventions harmonised in the Constitution via
Articles 20 and 45. Courts, herein, are mandated to enforce
environmental human rights via Article 50 (1) of the Constitution,
which affords any person the right to seek redress from any
competent court, in case a fundamental right, or freedom of theirs
is violated. More so, via Article 137 (1), one may petition on
grounds that an act, or omission, was executed contrary to the
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Constitution. In Mehta Versus. Union of India 1987 SCR (1) 819, gas
spilled from the plant of Shriram Foods and Fertilizer Industries,
causing injury to several people. The victims of the gas leak were
heard and successfully sought damages through Public Interest
Litigation. The Supreme Court, in this case, consistently
emphasised that the right to clean air and water formed part of
the Indian Constitution’s Right to Life via Article 21.

ENVIRONMENTAL STANDARDS:

The National Environmental Action Plan for Uganda [1995]

recognised the need to establish environmental standards, thus, it
recommended the establishment of committees to develop
standards in consultation with the lead agencies in every aspect of
environmental management to:

➢ Train and equip corresponding monitoring units in line

agencies.
➢ Review legislation to establish standards where they are
missing.
➢ Develop capacity and coordinate mechanisms for the
establishment and enforcement of environmental standards.
➢ Prepare and adopt criteria and procedures for the
measurement of standards, in consultation with lead
agencies.

Standards for the Control of Noxious Smells:

Via Section 104 of the National Environment Act [2019], the

National Environmental Management Authority, in consultation
with the relevant lead agency, shall work to establish:

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➢ Procedures for the measurement and determination of

obnoxious smells.
➢ Minimum standards for the control of pollution of the
environment by smell.
➢ Guidelines for measures leading to the abatement of
obnoxious smells, whether from human activities, or from
naturally occurring phenomena.

Air Quality Standards:

Via Section 103 of the National Environment Act [2019], the

National Environmental Management Authority, in consultation
with the relevant lead agencies, shall:

➢ Establish the criteria and procedure for the measurement of

air quality.
➢ Prescribe ambient air quality standards, and other air
quality standards.
➢ Prescribe emission standards for various sources.
➢ Establish criteria and issue guidelines for air pollution
control for mobile, stationary, and other sources.

The National Environmental Management Authority is mandated

to take measures to control air pollution, in concert with the
relevant lead agency, by:

➢ Requiring the redesign of existing industrial plants, and/or

the induction of new and appropriate technology.
➢ Requiring the reduction, or elimination, of the existing
sources of air pollution.
➢ Making guidelines to minimise the emission of greenhouse
gases.

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Standards for Effluent Discharge:

Section 105 accords that the National Environmental Management

Authority, in consultation with the relevant agency, may:

➢ Establish standards for effluent discharge.

➢ Prescribe measures for the treatment of any effluent
before its discharge into the environment.
➢ Require that an operator or developer undertake such
works as it considers necessary for the treatment of
effluent before its discharge.

Standards for the Control of Effects of Vibration and Pollution Caused

by Noise:

Via Section 106, the National Environmental Management

Authority, in consultation with the relevant lead agency, in
mandated to:

➢ Establish the criteria and procedure for the measurement

of the effects of noise pollution and vibration.
➢ Prescribe minimum standards for noise and vibration.
➢ Issue guidelines for the abatement of unreasonable noise
and vibration from any source.
➢ Measure the levels of noise emanating from all sources,
details of which measurements shall be given to the
occupier or owner of the premises from which the
measurement was taken for their actions.

Via Section 106 (2), the National Environmental Management

Authority, in consultation with the relevant lead agency, is
mandated to:

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➢ Establish the criteria and procedure for the measurement

of subsonic vibrations.
➢ Prescribe standards for the emission of subsonic vibrations
likely to have a significant environmental impact.
➢ Issue guidelines for the minimisation of subsonic
vibrations likely to have a significant environmental
impact from existing and future sources.

Via Section 106 (3), the National Environmental Management

Authority may, on request grant a temporary permit of a
maximum of 3 months, allowing emissions of noise in excess of
established standards for such activities as fireworks, demolitions,
firing ranges, and specific heavy industry, on such terms and
conditions as the National Environmental Management Authority
may determine. Where this exemption is granted, any person
exposed to excessive levels of noise shall be adequately protected
according to the guidelines issued by the National Environmental
Management Authority.

Soil Quality Standards:

Via Section 107, the National Environmental Management

Authority, in consultation with the relevant lead agency, is
mandated to:

➢ Establish the criteria and procedure for the measurement

and determination of soil quality, including soil analysis, and
sampling methods.
➢ Prescribe minimum standards for the management of the
quality of the soil.

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The National Environmental Management Authority, in concert the

relevant lead agency, may issue guidelines and prescribe measures
for:

➢ Clean – up and restoration of contaminated soil.

➢ The prohibition of practices that degrade soil.
➢ Practices that will conserve soil.
➢ The optimum utilisation of any soil.
➢ The identification of various soils.
➢ The disposal of any substance in the soil.

Standards for Minimisation of Radiation:

Via Section 108, the National Environmental Management

Authority, in consultation with the relevant lead agency, may
ensure the establishment of:

➢ Criteria and Procedures for the measurement of lionising

and other radiation.
➢ Standards for the minimisation of lionising and other
radiations in the environment.

The relevant lead agency may issue guidelines and measures for:

➢ Safe practices to protect persons involved in activities

prone to radiation exposure.
➢ Inspection of premises, areas, vehicles, and vessels
contaminated by radiation.
➢ Monitoring radiation.
➢ The control of the effects of the radiation.
➢ Minimum protective measures to be taken against
radiation.

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Other Standards and Procedures:

Via Section 109, the National Environmental Management

Authority may establish standards for other matters and activities
that may be detrimental to human health and/or the environment,
in consultation with the relevant lead agency.

The National Environmental Management Authority may establish

such criteria and procedures as it may consider necessary for the
determination of the standards established, in consultation with
the relevant lead agency.

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2023/05/16th

Meaning of Public Interest Litigation:

Public interest litigation refers to legal actions brought to protect

or to enforce rights that are enjoyed by the members of the public
or large parts of it.

Such legal actions may be filed by any public-spirited individual or

group of individuals or by a civil society organization, on behalf of
persons or group of persons whose rights have been violated. It is
not essential that the person filing such a suit should have an
interest in the subject matter of the suit.

In Antonia Oposa Versus. Factoran G. R. Number 101083 (224 S. C. R.

A. 792) the Supreme Court of the Philippines recognised the
doctrine of intergenerational responsibility on the environment in
the Philippine legal system, serving as a contributor to the
development of international environmental law.
In 1987, the Philippines drafted a new Constitution amidst growing
concern around the preservation of the natural environment and
resources in the Philippines. Via Article II Section 16, the State was
mandated to protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
1987 June 10th, Executive Order 192 was executed establishing the
Department of Environment and Natural Resources via the Aquimi
Administration. About that time, Antonio Oposa formed the Philippine
Ecological Network, and in 1990 March, sued the Secretary to the
Department of Environment and Natural Resources, Fulgencio. S.
Factoran Junior, on behalf of several minor petitioners including Oposa’s
relatives and children. The petitioner argued the defendant Secretary had
granted timber licence agreements to various corporations, thus, the

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logging of an aggregate area of 3,890,000 hectares for commercial

interests. The petitioners argued that the actions of the defendant
Secretary compromised their own generation, as well as generations yet
unborn, thus, misappropriating the very natural property resource he
held in trust for the benefit of the plaintiff minors, and succeeding
generations. According to the petitioner, the petitions’ objective was to
"prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated haemorrhage of the country's
vital life support systems and continued rape of Mother Earth". The
defendant successfully argued that the issue was political, not
justifiable, thus, the plaintiff had no locus – standi. On appeal to the
Supreme Court the plaintiffs filed an action for certiorari, enjoining the
Supreme Court to rescind and set aside the dismissal on ground that the
lower court gravely abuse their discretion in dismissing the action. The
petition was successful. The Supreme Court, via Justice Hilario Davide
Junior, held that every generation has a mandate to preserve the rhythm
and harmony for the full enjoyment of a balanced and healthful ecology,
onto the next generation(s). Court, thus, recognised the Constitutional
right to a balanced and healthful ecology, via Sections 15 – 16 of Article
II of the 1987 Constitution as self – executory, and judicially enforceable
in the favour of the petitioner.

Importance of Public Interest Litigation for Environment Protection:

Although the Public Interest Litigation concept is not specifically
covered by any statutes or regulations, it might be seen as an
innovation due to judicial activism. Such litigation works to
broaden the scope for the public to exercise their constitutional,
and statutory rights.

Previously, there was no stipulation for a person other than the

influenced party to prefer a suit to the courts, as the courts only

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acknowledge the violation and the re-establishment of rights of

the infected party and did not take consideration of anonymous
people who were affected by environmental pollution into
reflection. Through Public Interest Litigation, a person or society,
not infected by environmental pollution may bring a suit against
the same.

Justice is better served because of the judiciary’s significant

contribution to the development of the litigation’s scope. Thus,
Public Interest Litigation is mainly used for the benefit of the poor,
and marginalised members of society. It is most effective when
used in conjunction with other tools for empowerment and
capacity building, such as legal literacy and legal clinics, research,
advocacy campaigns, registration of groups as legal entities, and
social and grassroots movements to leverage legal rights.

Legal Basis for Public Interest Litigation:

The Constitution, 1995 establishes avenues for accessing justice in
courts of law in cases where one’s rights are violated.

➢ Article 50 (1) specifically stipulates that any person who claims

that a fundamental or other right guaranteed under the
Constitution has been infringed or threatened, is entitled to
apply to a competent Court for redress. This provision is
applicable where an individual person has suffered infringement
to their right.

➢ Article 50 (2) provides a basis for PIL by providing that: "Any

person or organization may bring an action against the
violation of another person's or group's human rights.

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➢ Article 137(3) of the Constitution, which allows any person who

alleges a violation of a constitutional provision to petition to
the Constitutional Court

Via the National Environment Act [2019]:

➢ Section 3 of the National Environment Act 2019 provides that

every person in Uganda has a right to a clean and healthy
environment in accordance with the Constitution and the
principles of sustainable development.

➢ Section 3(3) provides that a person may, where their rights are
threatened because of an act or omission by any person which
has or is likely to cause harm to human health or the
environment or in enforcement, may file a civil suit against the
person whose act or omission has or is likely to cause harm to
human health or the environment.

➢ Section 3(4) provides that the person who files a civil suit does
not need prove that the act or omission of another person has
caused or is likely to cause personal harm or injury.

Other Legal Regimes:

➢ Section 26 The National Climate Change Act, 2021 provides
that a person may apply to the High Court for relief against the
Government, an individual or a private entity whose action or
omission threatens or is likely to threaten efforts towards
adaptation to or mitigation of climate change.

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➢ Section 5 of the Forestry and Tree Planting Act provides that

the Government or a local government shall hold in trust for the
people and protect forest reserves for ecological, forestry and
tourism purposes for the common good of the citizens of Uganda.
In furtherance of the trust obligations and in furtherance of the
right to a clean and healthy environment, any person or
responsible body may bring an action against a person whose
actions or omissions have had or are likely to have a significant
impact on a forest, or for the protection of a forest.

Constraints On Public Interest Litigation in Uganda

Time Limitations
Rule 4(3) of the Constitutional Court Rules requires that a petition
be filed within 30 days of breach of Constitution provisions. This
may pose difficulties in environmental Public Interest Litigation
since it may place restrictions on the time available tom aggrieved
persons to seek judicial relief.

Effect of the Civil Procedure Act on Public Interest Litigation

Section 7 of the Civil Procedure Act provides for the res judicata
doctrine. This doctrine entails that once a matter is heard and
determined by a competent Court, it cannot be retried.
Explanatory note number 6 under this section provides that: where
a person litigates bona fide in respect of a public or of a private
right claimed in common for themselves and others, all persons
interested in such a right shall for the purpose of this Section be
deemed to claim under the person so litigating.

Constitutional Limitations

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Environmental rights, like all other rights in the Constitution, are

subject to the general limitation clause in terms of article 43 of
the Constitution. This article provides that in the enjoyment of
the rights under the Constitution, no person shall prejudice the
rights of another, affect national security, or harm public interest.
The implication is that, if for instance a forest reserve is cleared to
do away with rebels, a public interest group cannot file an
application because the environmental right and the duty of the
government to protect resources has been superseded by national
security expressly provided under article 43.

Reliance on Technicalities and Limited Judicial Activism

The judiciary has not yet fully appreciated modern trends of
environment law issues. Most public interest cases are therefore
dismissed due to procedural technicalities.

This is illustrated in, the case of Grace Byabazaire Versus. Mukwano

Industries Limited [2002] 2 EA 353, where the sued the defendant
for releasing toxic and poisonous gasses into the atmosphere,
which was negatively affecting the community, and in doing so,
the defendant company took no care to cleanse the gasses they
emitted, thus, the defendants were effectively tortfeasors of the
negligent tort of public nuisance. Court however, held that the
plaintiff had no locus – standi and dismissed the suit, as he sued
via Section 4 (3) of the National Environment Management
Authority Act, because only the National Environmental
Management Authority could sue via the National Environment
Management Authority Act via Section 4 (2) and via Section 17 a
Local Environment Committee appointed by a Local Government

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System on advice of the District Environmental Committee. Thus,

the suit was dismissed.

Courts have also been reluctant in granting substantive remedies

in Public Interest Litigation and have in some instances gone to
the extent of denying the orders prayed for, and only stopped short
of declaring that the applicant has a right to sue.

Delays
Applications in the enforcement of human rights under article 50
of the Constitution are instituted in the High Court. The High
Court, however, has unlimited jurisdiction, and is, thus, always
flooded with cases which cause severe time delays. This delay in
delivery of justice renders the realization of environmental rights
through Public Interest Litigation slow and less effective.

High Costs of Litigation

Litigation can be extremely expensive. Most of the public interest
litigants lack financial resources to afford appropriate legal
representation.

Ignorance and Poverty

There is limited awareness of environmental rights and duties,
especially so far as the usual victims of environmental violations
are concerned. This is especially prevalent in rural communities in
Uganda; thus, it is unfounded for law to expect such a person to
pursue a remedy via public interest litigation for the violation of
the rights of which that person has no knowledge of.

Lack of Interest in Litigation

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Uganda does not have a litigious society, more so, the general
trend seems to suggest a disinterest in litigation, including Public
Interest Litigation.

 Public Interest Litigation is not limited to groups like Greenwatch,

National Association of Professional Environmentalists, Advocates
Coalition for Development and Environment.

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