A tag team of LawAfricas Charles Kanjama & Maina Waweru, invite us to take a brief look at three new decisions of the High Court of Uganda relating to Section 39 of the Constitution of Uganda and the enforcement of the right to a clean and healthy environment.
In 1995, Uganda enacted a new constitution with novel provisions not found in the rest of East Africa. One of these pioneering provisions is Article 39 of the Constitution, which declares that every person has a right to a clean and healthy environment, as a fundamental human right and freedom (Kenyans and the Constitution of Kenya Review Commission should perhaps take note). This right is further buttressed by the National Environment Statute of 1995 which puts forth a mechanism for establishing and implementing environmental standards.
One would therefore have expected a plaintiff residing in Kibuli Hill in the vicinity of a factory that was allegedly producing obnoxious gases to have a cause of action and a means for redress. This was the case in Byabazaire v Mukwano Industries (full text available to subscribers to LawAfrica Law Reports ). The plaintiff stated that the suit was brought under section 4 of the National Environment Statute 1995 . Unexpectedly however, the court, despite finding that the National Environment Statute gave every Ugandan the right to a clean and healthy environment, dismissed the suit on the ground that no cause of action could be established. In a somewhat surprising decision, the court stated that the National Environment Management Authority (NEMA) had to establish air quality standards before the totality of the right to a healthy environment could be gauged. The Statute was shorn of its potency when it was further held that only NEMA is vested with the duty and power to sue for violations under the Statute. For further commentary on this decision see "Ugandans have no right to clean air" by Mr.Phillip Karugaba, Advocate.
While individual enforcement of the right to a healthy environment was receiving a dampening blow, in The Environmental Action Network Ltd (TEAN) v The A.G., TEAN was swinging into action in an attempt to criminalize a more ubiquitous form of air pollution: public smoking. The applicant was seeking to have public smoking declared a violation of the rights of non-smoking members of the public to a clean and healthy environment and to life. In addition, TEAN was seeking a declaration that smoking in public constitutes a criminal offence and should thus be prosecuted by the A.G.
In view of developing scenario, BAT (Uganda) sought to be enjoined as an interested party in the above case by bringing a suit entitled British American Tobacco (Uganda) Ltd v The Environment Action Network Ltd. Principal Judge Ntabgoba dismissed the application after tackling substantive matters that were the subject of the former suit. He held that the court lacks power to create a criminal offence therefore rendering BATs interest in the case moot. He also observed that a declaration against unregulated public smoking would not materially affect BATs interests.
One month later in TEAN v The A.G., the A.Gs various preliminary objections to the main suit were dismissed. By giving a courageous and liberal interpretation to the Constitution, this decision seems to have not only potentially opened wide the floodgates for public-interest litigation in Uganda but to have also have torn out the gate posts and cast them asunder. In recognising the applicants locus standi, the Court held that the interest of public rights and freedoms transcends technicalities, especially as to the rules of procedure.
The mixed signals from these cases seem to have left jurists baffled about the commitment of the Ugandan courts to the protection of the environment. On the one hand, Article 39 of the Constitution, if shorn of its teeth, could remain a futile provision bound within the realm of academic theory, on the other a brave and well reasoned decision seems to have given life to the same provision. It thus remains to be seen whether the right to a clean and healthy environment will crystallise into substantive privileges that can be claimed by all Ugandans and enforced by the judicial organs. In this regard the progress of TEAN vs The AG is one to watch.
Available to LLR Subscribers
Byabazaire -vs- Mukwano Industries  LLR 1 (HCU)
The Environmental Action Network Ltd -vs- The AG  LLR 2 (HCU)
British American Tobacco (Uganda) Ltd -vs- The Environmental Action Network Ltd  LLR 3 (HCU)
Others Available freely on LawAfrica.com
"Ugandans Have No Right to Clean Air" by Phillip Karugaba, Advocate, LLB (Makerere), LLM (Cantab) Published on www.lawafrica.com/specials/clean_air.htm
The Constitution of the Republic of Uganda (1995) Published on www.lawafrica.com/ugconstitution
LawAfrica thanks Mr. Phillip Karugaba, Advocate for pointing out the value in the three decisions cited above and for his article Ugandans Have No Right To Clean Air. LawAfrica is working hard to rationalise the Laws of East Africa. In this regard, should you come across important decisions that you want to share with the legal fraternity, kindly email us :- firstname.lastname@example.org