GOVERNANCE OF WETLANDS IN UGANDA BETWEEN INTERNATIONAL AND NATIONAL INSTRUMENTS By OKASIO CONSTANT 1153-01024-01258 A RESEARCH REPORT SUBMITTED TO THE FACULTY OF LAW IN PARTIAL FULFILLMENT FOR THE A WARD OF BACHELOR OF LAWS OF KAMPALA INTERNATIONAL UNIVERSITY JUNE2019
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GOVERNANCE OF WETLANDS IN UGANDA BETWEEN INTERNATIONAL
AND NATIONAL INSTRUMENTS
By
OKASIO CONSTANT
1153-01024-01258
A RESEARCH REPORT SUBMITTED TO THE FACULTY OF LAW IN
PARTIAL FULFILLMENT FOR THE A WARD OF BACHELOR OF LAWS OF
KAMPALA INTERNATIONAL UNIVERSITY
JUNE2019
DECLARATION
I OKASIO CONSTANT declare that this ~issertation is my own work and that it has
never been presented for a degree or any award to any university.
Signed ... .. . ~.... . .. Date ...... D.:-I~ .. ~ .. ~ . ~9. 1~] ....... .
APPROVAL
This is to certify that this dissertation has been submitted for examination with approval
as a University supervisor.
Signed ... . .. ~····· DR. TAJUDEEN SANNI
Supervisor
ii
DEDICATION
This dissertation is dedicated to my parents NABEET A SAMSON and NABEET A
CISSY who have managed to pay for my fees throughout the journey of my education
career (2001-2019). It is also dedicated to all children and the youth who have tried to
accept the sunounding circumstances and got to classes for studies and lastly to my
supervisor who has been in position to guide me in conducting this research
iii
ACKNOWLEDGEMNT
I thank the almight God for granting me wisdom, knowledge and the courage to
accomplish this research
I extend my sincere appreciation to my supervisor Dr. Tajudeen Sanni for his valuable
time and guidance throughout the preparation of this dissertation. I am very grateful to
him for all the support and consideration he has given me.
I also extend my sincere appreciation to my parents Nabeeta Samson and Nabeeta Cissy
who have managed to provide finances in the due course of this study.
iv
LIST OF STATUTES
Constitution of the Republic ofUganda 1995
Fishing Act Cap 197
Land Act Cap 227
Local Government Act Cap 243
National Environment (wetlands, riverbanks and lake shore management)
Regulations 2003
National Environment Act Cap 153 2019
Water Act Cap 152
LIST OF TREATIES AND CONVENTIONS
Afi·ican Convention on the Conservation of Natural Resources
Convention Biological Diversity of 1992
East Afi·ican Protocol on Environment and Natural Resource Management
Kyoto Protocol To United Nations Framework Convention On Climatic Change
The Ramsar Convention
The Stockholm Convention On Persistent Organic Pollutants
Vienna Convention On The Protection Of The Ozone Layer 1985
LIST OF CASES
A.G VS PYA Quarries ltd (1994)1 ALLER 91
Greenwatch And Advocates Coalition For The Development And Environment
Vs Golfcourse LTD CP. NO.l4 OF 2014
Rapier Vs London Trainways (1895)2 CH 588
Richard Kanyerezi VS The Management Committee OfRubaga Girls School
Civil Appeal NO. 37 OF 1996
v
LIST OF ABBREV ATIONS
ART ARTICLE
AU AFRICAN UNION
DRC DEMOCRACTIC REPUBLIC OF CONGO
GBO GLOBAL BIODIVERSITY OUTLOOK
GDP GROSS DOMESTIC PRODUCT
KCCA KAMPALA CITY COUNCIL AUTHORITY
NEA NATIONAL ENVIRONMENT ACT 2019
NEMA NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
NFA NATIONAL FORESTRY AUTHORITY
NRM NATIONAAL RESISTENCE MOVEMENT
UN UNITED NATIONS
UNEP UNITED NATIONS ENVIRONMENT PROGRAME
UNFCC UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATIC
CHANGE
W.S WETLAND SYSTEM
vi
TABLE OF CONTENTS
DECLARATION ....................................................................................................................... i
APPROVAL. ............................................................................................................................. ii
DEDICATION ......................................................................................................................... iii
ACKNOWLEDGEMNT .......................................................................................................... iv
LIST OF STATUTES ............................................................................................................... v
LIST OF TREATIES AND CONVENTIONS ......................................................................... v
LIST OF CASES ....................................................................................................................... v
LIST OF ABBREV A TIONS ................................................................................................... vi
CHAPTER ONE ..................................... , ..................................................................... 1
GENERAL INTRODUCTION ................................................................................................ 1
I .0 Introduction ........................................................................................................................ 1
I. I Historical Background ........................................................................................................ 2
I .2 Statement of the Problem ................................................................................................... 3
I.3 Purpose/ Objective of Study ............................................................................................... 4
I .3. I Specific Objectives of Study ........................................................................................... 4
I .4 Scope of the Study ............................................................................................................. 4
I .5 Significance of the Study ................................................................................................... 5
I .6 Methodology ...................................................................................................................... 6
I .7 Literature Review ............................................................................................................... 6
I .8 An·angement of Chapters ................................................................................................. 10
CHAPTER TWO ........................................................................................................ 12
STATE OF WETLANDS IN UGANDA ............................................................................... 12
2.4.I Pre National Resistance Movement, Before I986 ......................................................... 18
vii
2.4.2 Imported British Law .................................................................................................... 19
2.4.3 Wetlands As Res Nullius (No Body's Thing) ............................................................... 19
2.4.4 Post National Resistance Movement.. ........................................................................... 20
2. 6.1 Policy on drainage activities ......................................................................................... 22
2. 6.2 Policy on tenure and use ................................................................................................ 23
2.6.3 Policy on water supply and effluent treatment.. ............................................................ 23
2.6.4 Recovery of previously drained wetlands ..................................................................... 24
2.6.5 Environmental Impact Assessment (ESA) and monitoring ........................................... 24
CHAPTER THREE .................................................................................................... 26
3. INTERNATIONAL ENVIRONMENTAL LAWS, AND INSTRUMENTS, GUARDING WETLANDS .......................................................................................................................... 26
4.2.4 Riparian Rights .............................................................................................................. 49
4.3.0 The Role of the Law in Conserving ofWetlands .......................................................... 50
4.3.1 Effectiveness of the Law On Conservation Of Wetlands .............................................. 51
4.3.2.0 The Role Of The Bodies Created To Conserve Wetlands .......................................... 52
viii
4.3.2.1 National Environment and Management Authority ................................................... 52
4.3.2.2Wetlands management division of ministry of water and environment ...................... 53
4.3 .2.3 Courts of judicature .................................................................................................... 54
4.3.2.4 The National Wetlands Inventory .............................................................................. 55
4.3.2.5 The media ................................................................................................................... 56
4.4.0 Obstacles For The Effective Implementation Of The Laws For The Implementation Of The Laws ................................................................................................................................ 56
4.5.0 Tools Of Enforcement Of Environmental Law On Wetlands Management .......... 57
contamination of water resources which is partly caused by reduced buffering capacity
of open water costs Uganda nearly 38 billion annually.
2.2.0 Importance of Wetlands
Wetlands are very productive areas that perform essential ecological functions.
Wetlands benefits include providing wildlife habitat, controlling erosion and
conserving and purifying waters. For many years people regarded wetlands as useless
lands with no little conserved and protected as more and more people realize how
important wetlands really are.22
Wetlands come in many different shaped and sizes common wetlands on the Lake
Victoria basin include ponds, marshes, bogs and swamps. It should however be noted
that different types of wetlands do not perform the same ecological functions to the
same extent. All wetlands are unique and everyone is valuable regardless of how small.
Wetlands are areas of marsh, pen, peat land or water whether natural or artificial,
permanent or temporary with water that is static or flowing, fresh, brackish or salt,
including areas of marine water the depth at low tide does not exceed six metres. But
national law under the interpretation clause of the NEA wetlands are defined to mean
areas pe1manently or seasonally flooded by water where plants and animals have
become adopted.23
As earlier on noted, Uganda is covered with beauty in that it's covered with physical
features and the weather. This is among the reasons Uganda was named the 'Pearl of
Africa'. But among the humble features is the swamps and pet lands. Uganda has got
22 North American Waterfowl management plan 1986 23 Ramsar Convention
13
II sites which are covered up wetlands and these include Lake Bisina, wetland sys,
Lake George, Lake Mburo, Nakivale wetland sys, Lake Nabugabo wetland sys, Lake
Nakuwa W.S, Lake Opeta W.S, Lutembe bay W.S, Mabamba Bay wetland sys,
Murchison Falls Albert delta W.S, Nabajuzzi W.S an dSango Bay Kagera Wetland
Sys.24
2.2.1 Wildlife habitat
Wetlands provide habitat for adverse assortment of wildlife species. These include
birds, mammals, amphibians, fish, invertebrates and plants. Healthy wetlands are
essential to the survival of many of these species, some of the common wetland
wildlife includes ducks, geese, frogs, red winged black birds, muskrats and trout25
Many people are surprised to learn that wetlands are also used by small mammals
like mice and voler, bats, birds of prey like the northern harrier and others.
Uganda is among the blessed countries with such bird watching and crocodiles in
Nabajjuzi wetland in Masaka which is a habitat for a thousand of wild ducks, eagles
and animals most especially crocodiles.
Wetlands are areas where land and water meet and this translates into rich habitat
with an abundance of food and protective cover. The wetland edge or reparian zone
is a transition zone between wetland and upland. Healthy reparian are diverse
habitats that attract non aquatic wildlife including many species of songbirds and
mammals like the Red Fox.26
2.2.2 Water pul"ification
Wetlands are Nature's water purifiers, wetland vegetation helps maintain water
quality by breaking down and assimilating contaminants carried by surface run off
including bacteria pesticides and nutrients. Wetlands purify water through a number
of biological chemical and physical processes. Dense growths of aquatic vegetation
24 Wetland management plan 2014 by Kale Apac Okole page 16 25 Ibid 24 26 www.Nature.Ug.org Report by Achilles Byarugaba
14
trap bacteria which eventually die. Excessive inputs of nutrients like Nitrogen and
phosphorous are taken up and stored in wetland plants. Microorganisms that live on
vegetation areas in the soil transform Nitrogen and phosphorous into nutrients that
support the wetland ecosystem. 27
From my own observation on this ecological importance, among the largest swamps
in Uganda is River Katonga swamp which pours its water in the Lake Victoria, its
water is ever clean with no substance which contains dirt.
2.2.3 Erosion Control
Wetlands slow and stabilize lavey surface run-off. This reduces erosion of stream
banks and flood plain areas and allows a portion of the sediments carried by run-off
to settle. Areas downstream benefit from a reduced rate of sediment position. But it
should not be forgotten that where erosion is, there is floods so wetlands curb floods
first and the outcome is controlling erosion. Take an observation on Bwaise Town
located in the North East of Kampala City where the main swamp has been
reclaimed due to economic pressure. Floods have covered the whole town though
the government is finding ways to provide alternatives. 28
2.2.4 Water Conservation/Hydrology
Wetlands slow surface water. This fact may seem obvious but the benefits are often
over looked. Wetlands function like sponges by soaking up excess water during
spring free shits. This reduces the impact of the flooding on upland areas. The water
container during periods of flooding is gradually released during periods of drought.
In this way, wetlands help to evenly distribute the water that is available. A portion
of the wetland water also seeps into the ground and can help to maintain the water
table. This is o common with seasoned swamps which tend to store water during the
27 Environmental Report by NEMA On World Wetlands Day 2014 28 Ibid 27
15
rainy season and during the Dry season, they tend to flow such water so that the
swamp hole waits for another rainy season?9
2.2.5 Other importance's of wetlands/Economic socio importance
Source of fish
Wetlands support agricultural activity and crops that are sustaining a large
population in the basin, such crops include rice, yams, sugar cane, beans and
others
Wetlands are traditional grazing areas
Crafts production particularly using threads and other wetland reeds.
Source of traditional medicinal herbs
Wetlands are also a source of water for domestic use especially for communities
not adequately supplied with piped water.
2.3 Reasons for Reduced Coverage of Wetlands From 1902
2.3.1 Drainage of wetlands:
This was the result of population pressure and the resulting tendency of people to move
to what is perceived as free land. This has mostly affected wetlands in South Western
Uganda where rich farmers acquired leases for terms up to 99 years on these lands to
carry out dairy farming. The result has been not only the degradation of the former
wetland areas but the denial as well of local populations of no benefits from those
wetlands. This due by that time because wetlands were regarded as waste lands which
had no owner so everyone had rights of exclusive ownership to them without any Jaw
regarding regulating such ownership ofwetlands.30
29 Individualization of common wetlands in Uganda and the role of changing economic oppm1unities by
KizitoM.K 30 Environmental data and statistics in Uganda page 7
16
2.3.2 Introduction of New crops
On the coming of the colonialists in Uganda, they had to establish their ideas, which
among were food crops which they could also eat. So among the crops were rice in
1960s and on a large scale as a wetland based crop. Beginning from the Kibimba
liTigation Scheme in Eastem Uganda, rice has now spread as major crop in that region
to cover a number of wetlands. The Clearing of wetlands for rice has resulted in the loss
of biodiversity and a number of wetland functions. 31
2.3.3 Pollution
Pollution especially from copper mining activities has especially affected wetlands in
the western region of Uganda including Lakes George and Edward and their associated
swaps. The principal source of pollution has been a heap of wastes from the Kilembe
mines from which water laden with high concentrations of copper has drained into the
drainage system and onwards into the lakes.32
2.3.4 Over harvesting
Some of the wetlands have faced the problem of over exploitation of some of the plants
and animals fonnd in them. The most affected pmis of wetlands are the seasonal
wetlands which fi·inge the wetlands and form an interface between the land and the
wetland proper. The forests which characterize these areas have been depleted and so
have the animal species. Other resources which m·e threatened include papyrus which is
being over harvested in certain wetlands near the major towns, the principal problem
regarding to wetlands has been the extensive exploitation of clay for brick making. This
has not only meant the exposure of these areas to flooding and erosion but also the
creation of huge and deep holes that port end danger to man, livestock and wildlife. 33
31 An overview on the state of wetlands 20 II 32 Ibid 31 33 Ibid 31
17
2.3.5 Reclamation for Industrial Developments
In the Kampala City, wetlands have often been regarded as the land must be easily
available for the development of land estates. This is because of the uncertain character
of the ownership of such areas-hanging half way between estate owned by government
and terra nullius as the development is beginning to come to function.
Bad fruits such as flooding due to impeded drainage are beginning to manifest in the
Nakivubo and Ntinda Swampy areas.34
2.3.6 Human settlement in swampy areas
The unclear regime of tenure in the wetlands has also attracted the emergence of
unplanned settlements especially in Kampala where the Kampala development plan
requires that wetlands be left as green areas, ineffective law enforcement has led to the
growth of slum settlements in the wetlands especially in the areas of Bwaise, Kalerwe
and Nateete. These settlements have become a home of environmental diseases such as
cholera, dysentery and typhoid. This ugly development has been mainly because of
impeded drainage of these areas and the resulting flooding. 35
2.4.0 Management of Wetlands
2.4.1 Pre National Resistance Movement, Before 1986
The National Resistance came into force in 1986 after a successful coup against the
harsh and dictatorial government of Iddi Amin Dada. Before the National Resistance
period, wetlands were not regarded as important resources. In the Buganda Agreement
of 1900 by which Britain acquired no status of protecting power over the kingdom of
Buganda, wetlands were referred to as wetlands and were vested in the crown. A
similar treatment was provided for the other two agreements concluded with Tooro in
1900 and Ankole in 1901. The rest of Uganda was declared crown land. As such
34 Ibid 31 35 Ibid 31
18
wetlands were governed directly by British law in the whole of Uganda in the colonial
period.36
This was followed by 1902 order in council under the order incouncil statutes the
crown, the common law and principles of equity were to be no legal regime governing
the lives of African custommy law so long as it was not repugnant to morality and
natural justice.
2.4.2 Imported British Law
The law which was imported into Uganda in 1902 emphasized individual tenure and
ownership as its key feature. The right to the exclusive enjoyment of something based
on rightful title. It may be absolute or restricted corporeal or incorporeal, legal or
equitable vested or contingent in essence. It is based on a relationship.
To support individual tenure, the system of land tenure which was introduced
emphasized the granting of estates akin and those obtaining in England freeholds lease
hold and Mailo tenures were established by both the agreements with the native
kingdoms and by statutes such as the crown land ordinance since wetlands had already
been alienated to the crown under the Buganda Agreement 1900, Individual estates
were not granted on turn as a matter of policy, where such grants were made the
essence of ownership entitled the grantee almost unfetteredrights of use and abuse
limited only by the eminent domain of the crown and its successor. The government of
Uganda did not give a lot of priority to management of wetland resources. Their basic
concern was with the control of water resources. It was for this reason that all rights to
the water of any spring river, stream water course, pond or lake on or under public land
whether alienated or not shall be reserved to the govemment.37
2.4.3 Wetlands As Res Nullius (No Body's Thing)
Wetlands as a natural resource is not to be owned by any person because it a natural creature of the almighty. But when the British came into Uganda they were made the owners of the wetlands by virtue of the Buganda Agreement of 1900. Upon attainment of independence of independence in 1962, the power of ownership was vested in the
36 An overview on the state of wetlands 2011 on the 2"' Feb World Wetlands Day 37 Ibid 36
19
Government who shall hold in trust of all wetlands for the good of its peop!e38. Thus
wetlands in Uganda are not determined as no body's thing because ownership is vested in the government.
2.4.4 Post National Resistance Movement
On 261h Jan 1986, the NRM, a guerilla force led by H.E President Yoweri Museveni
captured power in Kampala by force of arms. They promised fundamental change.
They immediately embarked on a process of restructuring the entire state structure and
reforming existing laws. This was intended to create a base for modernizing the
country.
One of the basic concerns of the new government was to promote the rational
exploitation of natural resources while at the same time conserving the environment.
The government established a ministry for environmental protection.
With regard to wetlands, the government imposed a ban on large scale drainage in
1986. It intended to ave1i the negative consequences of such drainage which had
already been observed in South Western Uganda. This was a stop gag measure intended
to last until a proper policy was put into place. This was followed in 1989 by the
establishment of the National wetlands conservation programme which was changed
with no formulation of a National Wetlands policy of 1995.39
2.5.0 Ownership of Wetlands
Ownership of and right to use or have access to wetlands are two quite distinct issues,
lack of ownership does not mean lack of access as right to harvest wetland resources or
use wetlands for approved income-generating activities nor does ownership mean that
the owner can do anything that he/she wants to with the wetlands.
But in actual sense, wetlands are not owned by any person or individual and no one in
Uganda can claim to ownership of any wetland or part of a wetland. If that claim was
made after the coming into force of the constitution Cap 227 people who own such
38 Regulation 3(1-3) of the National environment( wetland, riverbanks, and lakeshore) Regulation 2003 39 Ibid 36
20
wetlands before the coming of the constitution have a right to observe S. 44 of the Land
Act40 which mandates the government as local government shall hold in trust for the
people and protect natural lakes, rivers, ground water, natural ponds, natural streams,
wetlands, forest reserves, national parks and any other land reserved for ecological and
touristic purposes for the common god of the citizens of Uganda.
If any land owners or others offer to sell or lease wetlands to any person, such person
though with a good title must be warned about ownership, because they may own the
right to access and use of the wetland but they cannot sell you the wetland. A legitimate
lease hold in a wetland can sell you the lease buy you will be bound by the current
legislation with respect to ownership. According to S. 50, wetlands are held in trust by
the govemment and local governments for the good of all citizens of Uganda in
accordance with the constitution.
As in "Mailo", lands in the wetland is not included in the ownership and remains as
land held in trust by the government for the citizens of Uganda.
Landowners with titled dry land adjacent to a wetland are wrong to think that they can
extend their boundaries into the wetland and lay claim to it and assume ownership of
that area of wetland, they do not own or have any special rights over that section of
wetland, but if such dry land owner converts a wetland to a dry land, such conversion
shall be subject to an environmental audit in accordance with S. 25 ofNEMA cap 153.
2.6.0 Policies to Guard Wetlands
A policy is a general principle by which a government is guided in its management of
public affairs41• A policy is a deliberate system of principle to guide decisions and
achieve rational outcomes; or a statement of intent and is implemented as a procedure
or protocol. Policies can assist in both subjective and objective decision making.
Policies to assist in subjective decision making usually assist senior management with
decisions that must be based on the relative merits of a number of factors, and as a
4° Cap 227 41 Black's law Dictionary page 1196 S'" ED
21
result are often hard to test objectively for example a drainage on a wetland. In contrast
policies to assist in objective decision making are usually operational in nature and can
be objectively test for example to which extent the drainage has taken place.42
Although wetlands conservation and management is a shared responsibility for all
Ugandans, government has a leading role to play. The various functions and related
problems of wetlands enumerated above all are critical for their sustainable use and the
general socio-economic development of the nation. It is also an international
responsibility of government to conserve wetlands and sustainability utilize them under
the Ramsar Convention on wetlands of international importance especially as water
fowl habitat of which Uganda is a signatory and contracting party. 43
Since the I" meeting of the conference of the contracting patiies, the patiies have
recognized that National Wetland policies are a key feature in the implementation of
the wise use concept. To assist them in developing their policies, the conference of
parties has adopted guidelines for developing and implementation. National wetland
policies which outline a broad based multi sectoral consultative process of policy
development to resolve conflicting interests and to help build ownership in the National
wetland policy amongst all stakeholders.44·
2.6.1 Policy on drainage activities
Drainage is the Natural or Artificial removal of a surface's water and subsurface
water from an area with excess of water. 45
Uganda has experienced massive drainage of wetlands for human development
activities which are visible in many parts of the country, for example agriculture,
human settlement, trade and business etc. Adequate drainage for urban areas is
necessary to preserve and promote the general health, welfare and economic
wellbeing of the region 46. Drainage is a regional phenomenon that affects all
42 https://en.m.wikipedia.org 43 National Wetland policy 1995 44 Hand Book on the convention ofRamsar page 58 45 https://en.m.wikipedia!Drainage.org 46 National Wetland policy 1995
22
governmental jurisdictions and all parcels of property. This characteristic makes it
necessary to formulate a programme that balances both public and private
involvement. Overall the governmental entities most directly involved must provide
coordination and master planning but drainage planning must also be integrated on
a regional level and the manner in which proposed drainage systems fit into existing
regional systems must be quantified and discussed in the master plan. 47
2.6.2 Policy on tenure and use
Wetlands have in many instances been refened to as wastelands in order to elevate
wetlands from this status and to recognize them as a useful recourse. There is need
for the government to continue having control over their management, until such a
time that developers have understood the role and importance of wastelands in the
environment. Thus all wetlands are a public resource to be controlled by the
government on behalf of the public. There shall be no leasing of any wetland to any
person or organization in Uganda at any given moment and for whatever reason.48
2.6.3 Policy on water supply and effluent treatment
Rapid population growth and the increasing rate of development regime sufficient
and steady amount of water supply and discharge of effluent at an affordable cost.
Most urban settlements including Kampala City are dependent on wetlands for
water supply, treatment and discharge of effluent.49
Wetlands can preserve the purity of water by their filtration capacity. One of the
most important reasons for this policy arises from the extensive draining of
wetlands for horticulture where those areas also serve as water purification centres.
Such drainage has led to a dangerous situation where farmers and members of the
community may come into bodily contact with raw sewerage during farming and
domestic activities. Hence any person, industries who discharge any effluent to the
47 Urban Drainage and flood control District 2016 p. 38 48 Ibid 46 49 Ibid 48
23
wetlands is required to carry out efficient treatment of such waste before it's
discharged. 50
2.6.4 Recovery of previously drained wetlands
Historically, Ugandan wetlands have been regarded as wastelands which have been
turned into areas of settlement hence its reclamation. Many wetlands have been drained
or modified especially in South West and Eastern Uganda. This has led to the loss of
many would be valuable resources before a full assessment has been carried.
Government may require that some wetlands which have already been drained for
human activities be allowed to generate, for this purpose, government aims at restoring
the soil hydration so as to re-establish the wetlands' vegetation as far as is ecologically
possible. Such an operation may range from rehabilitation of wetlands a long distance
channels in the case of lease holder to full rehabilitation after the lease has been
cancelled or eviction in case of users with no leases. 51
2.6.5 Environmental Impact Assessment (ESA) and monitoring
A framework for environmental legislation should be conceived with certain
parameters, these parameters should guide the policy maker and stakeholders in policy
development. They should be based both on the concrete analysis of each particular
country's history and the comparative experiences of other countries. But EIA is a
study conducted to determine the possible negative and positive impacts a project might
have on the environment. It is a study conducted before the commencement of the
actual project. It is possible to avoid the adverse impacts by either redesigning the
project or by taking other mitigation measures.
Development activities in general tend to impact upon natural resources and the
environment in various ways. Assessment and evaluation of such impacts helps to
minimize the economic and social costs of preventing damage before occurrence as
compared to restoring a degraded wetland.
50 National state of environmental Report 2004 51 National Wetland Policy Page 17
24
There will be a requirement that all proposed modifications and restorations on
wetlands be subject to an EIA. The result of which will determine whether such
restoration or modification should proceed and if so, to what extent?52
52 National Wetland policy 1995 page 18
25
CHAPTER THREE
3. INTERNATIONAL ENVIRONMENTAL LAWS, AND INSTRUMENTS,
GUARDING WETLANDS.
3.0 Introduction
The chapter extracts the pre-existing environmental legal frame work on wetlands; it
provides an overview of the international environmental instruments that have
provisions on protection and implications on global wetlands. The chapter shall also
give respect to the African regional instmments and this shall be in form of conventions
and treaties and how they have addressed the issue of wetlands for the Lake Victoria
convention which interalia prohibits fish poisoning around Lake Victoria waters. The
chapter is also deemed to evaluate the significance of such instruments on the
protection of wetlands.
3.1 International Law on Wetlands.
International environmental law is concerned with the attempt to control pollution and
the depletion of natural resources with a framework of sustainable development. Thus it
is a branch of public international law (a body created by states to govern problems that
arise between them). Customary law and general principles relating to the environment
such as the precautionary principle and sustainable development are evolving but it is
arguable whether any have yet become n01mative rules 53. The speed with which
awareness of global environmental problems has reached the international political
agenda has meant that customary law has. tended to take second place to treaty law in
the evolution legal norms ad treaties have been the main method by which the
international community has responded to the need to regulate activities which threaten
the environment54
A treaty is an agreement under international law entered into by actors in international
law namely sovereign states and international organizations. It may also be known as
an (international) agreement, protocol, covenant, convention, pact or exchange of
53 International Environmental Law by Lakshnman D Guruswamy 2017 54 Environmental Law in China by ZHU LU page 10
26
letters among others. Regardless of terminologies all of these forms of agreements are
under international law, equally considered treaties and the rules are the same.
Most of these instruments in one way or the other have implications on wetlands
though in the beginning the question of wetlands was not addressed but the instruments
which are developing today are becoming more concerned about wetlands and the
environment at large. But it should be analyzed that international doesn't force its self
in Uganda's national legal system BUT it follows its birth from ART 123 55 which
provides that a person appointed as the minister by the president may make treaties
conventions or other agreements between Uganda and any other country or with
international organization. Under S.l0656 provides that where Uganda is a party to any
convention or treaty concerning the environment after it has been ratified the minister
approves and it's applied into the national system.
3.1.1 The United Nations.
The UN is an intergovernmental organization tasked with maintaining international
peace and developing friendly relations among nations, achieving international co
operation and being a Centre for harmonizing the actions of nations. It was established
after World War II in 1945 with the aim of preventing future wars and succeeded the
ineffective League of Nations. Its objectives include maintaining international peace
and security, protecting human rights, delivering humanitarian aid, promoting
sustainable development and upholding internationallaw57. The UN is working to solve
global environmental problems, as an international f01um for building consensus and
negotiating agreements, the UN is tackling global problems such as Ozone layer
depletion, toxic wastes, loss of forests and species and air and water pollution. Unless
these problems are addressed markets and economies will not be sustainable in the long
term as environmental losses are depleting the natural capital on which growth and
human survival are based58. Thus the 293 members Uganda inclusive must abide by the
55 Constitution OfThe Republic Of Uganda 1995 56 National Environmental Act CAP 153 57 Hpts:f/en.m.wikipedia.org 58 UN Report at 701
h anniversary by Ban Ki-Moon
27
policies which are set up by the body to protect the environment which among others
include wetlands.
Govermnents must recognize the vital economic and environmental role that wetlands
play in supporting human life and biodiversity which also stresses that their protection
is essential for countries to transition into resource efficient and sustainable economies.
Among the economic importance that UN pointed out is the great significance in the
production of humidity that helps in rain fmmation which shall not turn the world at
large into desertification hence enabling economic agriculture and breaking food
shmiage thus supporting human life59. It went further to give an example of the sub
Saharan countries with limited wetlands the problems with which they are facing in the
provision of food to their natives and its people. Thus it requested its members to
massively sensitize its people on the importance of wetlands which shall live to support
the economic development of their govermnents, hence Uganda has set up the ministry
of water and environment which of the importance is to protect wetlands, recover
already destroyed wetlands and carrying out various public lectures on wetlands.
At a global level, the UN says there is a need to ensure that the role and value of water
and wetlands are integrated into implementation of the Strategic Plan for Biodiversity,
Framework Convention on Climate Change (UNFCCC) and the set of anti-povetiy
targets known as the Millennium Development Goals (MDGs), among other
intemational agreements. Hence at the UN summit on environment and climatic
changes it urged its member states to put into consideration wetlands when enacting
policies on the environment or else have private policies set only for wetlands and
nothing else 60
Half of the world's wetlands were lost during the twentieth century - due mainly to
factors such as intensive agricultural production, unsustainable water extraction for
domestic and industrial use, urbanization, infrastructure development and pollution,
according to UNEP. The continuing degradation of wetlands is resulting in significant
economic burdens on communities, countries and businesses. Hence any member
59 UN- BACKED REPORT, Policies to protect wetlands necessary for sustainable economies 60 Ibid 59
28
country must carry out economic development with tempering with the wetlands but
wetlands should only be made a booster of the development but not the main factor for
the development61.
3.1.2 United Nations Environmental Programme.
The United Nations Environment Program (UNEP), a programme of the United
Nations, coordinates the organization's environmental activities and assists developing
countries in implementing environmentally sound policies and practices. It was founded
by Maurice Strong, its first director, as a result of the United Nations Conference on the
Human Environment (Stockholm Conference) in June 1972 and has overall
responsibility for environmental problems among United Nations agencies; however,
international talks on specialized issues, such as addressing climate change or
combating desertification, are overseen by other UN organizations, like the Bonn-based
Secretariat of the United Nations Framework Convention on Climate Change and the
United Nations Convention to Combat Desertification. UNEP's activities cover a wide
range of issues regarding the atmosphere, marine and tenestrial ecosystems,
environmental governance and green economy. It has played a significant role in
developing international environmental conventions, promoting environmental science
and infmmation and illustrating the way those can be implemented in conjunction with
policy, working on the development and implementation of policy with national
governments, regional institutions m conjunction with environmental non
govemmental organizations (NGOs). UNEP has also been active in funding and
implementing environment related development62
Wetlands, or water-related ecosystems, such as aquifers, lakes, rivers, peat lands and
swamps, and along the coasts, mangroves, sea grass meadows, and coral reefs, provide
us with services and solutions that are critical to achieve sustainable consumption and
production. I would like to start by highlighting one: water. We depend of wetlands for
the water we use for consumption, energy and agriculture, with agriculture using 70%
of the existing freshwater. Wetlands are also a source of food and sustain our
livelihoods. Therefore, we need to urgently step up the protection, sustainable use and
restoration of wetlands as an essential element in policies and actions to respond to
various environmental challenges and create the future we want63
Wetlands serve as valuable natural infrastructure for agriculture, providing reliable
water and fertile soils, but they are at risk from agriculture's growing demands for land
and water. Today, roughly 2.5 billion rural people depend directly on agriculture on
wetlands. The functions and economic values of wetlands must be considered in
planning for the production of food and other agricultural products in order to respond
to the growing food demand.
With the fast growth of our global population especially in cities, wetlands take on even
greater significance. When preserved and sustainably used, wetlands function as filters,
absorbing pesticides and chemicals and removing harmful waste from water and thus
contribute to improving water quality. During storms, wetlands absorb excess rainfall,
which reduces flooding and prevents disasters and their subsequent costs, on this
suggestion by the secretary of the Ramsar convention Uganda has adopted a more
significant plan of recovering already destroyed wetlands for example Kinawataka
swamp which is being drained away for human settlement and industrialization.
3.1.3 African Union On Wetlands
The African Union (AU) is a continental union consisting of 55 member states located
on the continent of Africa, with exception of various territories of European possessions
located in Africa. The AU was announced in the Sirte Declaration in Silte, Libya on 9
September 1999, calling for the establishment of the African Union. The bloc was
founded on 26 May 2001 in Addis Ababa, Ethiopia and launched on 9 July 2002 in
South Africa. The intention of the AU is to replace the Organization of African Unity
(OAU), established on 25 May 1963 in Addis Ababa by 32 signatory governments. The
most important decisions of the AU are made by the Assembly of the African Union, a
63 UNEP 2017 Report on the status of wetlands in Kenya
30
semi-annual meeting of the heads of state and government of its member states. The
AU's secretariat, the African Union Commission, is based in Addis AbabaM
The historical foundations of the African Union originated in the First Congress of
Independence Afi"ican States, held in Accra, Ghana, from 15 to 22 April 1958. The
conference aimed at forming the Africa Day, to mark the liberation movement each
year concerning the willingness of the African people to free themselves from foreign
dictatorship, as well as subsequent attempts to unite Africa, including the Organization
of Afi·ican Unity (OAU), which was established on 25 May 1963, and the African
Economic Community in 1981. [10] Critics argued that the OAU in particular did little
to protect the rights and libe1iies of African citizens from their own political leaders,
often dubbing it the "Dictators' Club"65
The idea of creating the AU was revived in the mid-1990s under the leadership of
Libyan head of state Muammar al-Gaddafi: the heads of state and government of the
OAU issued the Sirte Declaration (named after Sirte, in Libya) on 9 September 1999,
calling for the establishment of an African Union. The Declaration was followed by
summits at Lome in 2000, when the Constitutive Act of the African Union was
adopted, and at Lusaka in 2001, when the plan for the implementation of the African
Union was adopted. During the same period, the initiative for the establishment of the
New Partnership for Africa's Development (NEP AD) was also established66
Africa still has a significant number of pristine wetlands when compared to Europe or
parts of Nmih America. However, some wetland areas are experiencing immense
pressure from human activities, the most impmiant being drainage for agriculture and
settlement, excessive exploitation by local communities and improperly planned
development activities. In spite of the noted importance of wetlands to local
64 Environment and Decision making in Africa 2006-2008
"https://en. wikipedia.org/wiki/ Afi·ican Union 66 1bid https://en.wikipedia.org/wiki/African Union
31
communities, the human pressure on wetlands is expected to increase as populations
grow, unless strategic actions are put in place for the conservation ofwetlands67.
Like any other organization the African Union also aims safeguarding its resources by
enacting policies which combat destruction of economic resources that boost in
sustainable development. This has been through signing treaties with international
organizations like the UNEP among others, it has also made agreements for the
maintenance of it natural resources through regional agreements with its members,
signing conventions, protocols and others because the threat to African wetlands has
global effects on the world's biodiversity. The future of African wetlands lies m a
stronger political will to protect them, based on sound wetland policies and
encouragement for community participation in their management. Although the goal for
protected wetlands should continue to be conservation of endangered and fragile sites,
greater efforts should be focused on wetlands outside protected areas, and new
management strategies formulated which incorporate the stakeholders. The
Government of Uganda has recently launched such a policy for the conservation of its
wetland resources. This is the first of its kind in Africa to have been formulated in
accordance with the recommendation from the Ramsar Convention
3.2.0 The Ramsar Convention
The Convention on Wetlands (Ramsar, Iran, 1971) is an intergovernmental treaty
whose mission is "the conservation and wise use of all wetlands through local, regional
and national actions and intemational cooperation, as a contribution towards achieving
sustainable development throughout the world". As of January 2016, !69 nations have
joined the Convention as Contracting Parties, and more than 2,220 wetlands around the
world, covering over 214 million hectares, have been designated for inclusion in the
Rarnsar List of Wetlands of Intemational Importance 68.
67 An overview of African Wetlands by Tom Kabii, Technical Officer for Africa, Ramsar Bureau, Switzerland 68 Ramsar Hand Book 5th ED
32
According to Article 9.2 69 Any member of the United Nations or of one of the
Specialized Agencies or of the International Atomic Energy Agency or Party to the
Statute of the International Court of Justice may become a Party to this Convention".
Unfortunately, supranational bodies, such as the European Union, are thus not eligible
to join the Convention, but may nevertheless develop bilateral working agreements
with the Convention Secretariae0
This is an international treaty for the conservation and sustainable use of wetlands. It is
also known as the Convention on Wetlands. It is named after the city of Ramsar in Iran,
where the Convention was signed in 197l.Every three years, representatives of the
Contracting Parties meet as the Conference of the Contracting Parties (COP), the
policy-making organ of the Convention which adopts decisions (Resolutions and
Recommendations) to administer the work of the Convention and improve the way in
which the Parties are able to implement its· objectives71.
The Ramsar Convention, the world's oldest environmental convention signed in I 971
in Ramsar, Iran, brings together 168 countries with a shared mission to ensure the wise
use of wetlands, and has a proven track record in working with individual countries,
private sector companies and non-governmental organizations to protect and restore
wetlands for global water security.
The most dominant reason as to why the Ramsar Convention on Wetlands was
developed as a means to call international attention to the rate at which wetland habitats
were disappearing, in part due to a lack of understanding of their important functions,
values, goods and services. Governments that join the Convention are expressing their
willingness to make a commitment to reversing that history of wetland loss and
degradation. In addition, many wetlands are international systems lying across the
boundaries of two or more States, or are part of river basins that include more than one
State. The health of these and other wetlands is dependent upon the quality and quantity
of the trans boundary water supply from rivers, streams, lakes, or underground aquifers.
" Ramsar Convention 1971 70 Ramsar Hand Book s'h ED Page 13 71https:// en. wiki pedia.org/wiki/Ra msa r Convention
33
The best intentions of countries on either side of those frontiers can be frustrated
without a framework for international discussion and cooperation toward mutual
benefits.
Many of the wetland fauna, for example some fish species, many water birds, insects
such as butterflies and dragonflies, and mammals such as otters, are migratory species
whose conservation and management also require international cooperation. In sum,
wetlands constitute a resource of great economic, cultural, scientific and recreational
value to human life. Wetlands and people are ultimately interdependent. As such, the
progressive encroachment on and loss of wetlands needs to be stopped and measures
must be taken to conserve and make wise use of wetland resources. To achieve this at a
global level requires cooperative, intergovernmental action. The Ramsar Convention on
Wetlands provides the framework for such international, as well as for national and
local, action72•
Under ART 3.1 there is a general obligation for the Contracting Parties to include
wetland conservation considerations in their national land-use planning. They have
committed themselves to formulate and implement this planning so as to promote, as
far as possible, "the wise use of wetlands in their territory" so as to protect all the
wetlands in their governments, it's upon this obligation that Uganda formulated the
wetland policy of 1995 to regulate ownership and regulated use of wetlands 73
3.2.1 The Stockholm Convention on Persistent Organic Pollutants.
In 1995, the Governing Council of the United Nations Environment Programme
(UNEP) called for global action to be taken on persistent organic pollutants (POPs),
which it defined as "chemical substances that persist in the environment, bio
accumulate through the food web, and pose a risk of causing adverse effects to human
health and the environment". Following this, the Intergovernmental Forum on
72 The Ramsar Convention Manual 6'h ED Page 8 73 The Ramsar Convention 1971
34
Chemical Safety (IFCS) and the International Programme on Chemical Safety (IPCS)
prepared an assessment of the 12 worst offenders, known as the dirty dozen 74.
Upon ratification of the Convention Uganda signed the convention on 20'" July 2004 it
adopted its objectives to protect human health Jiom various dangerous wasted
chemicals, emitting of chemical gasses into the atmosphere, dumping of wastes into
both the general public and water sources, however it should be recorded that Uganda
as a developing country has no proper methods of treating wastes before being dumped
by most industries therefore it adopted the convention in order to compel industry
owners to follow precautions in treating the wastes before they are dumped into the
water for example industrial wastes and sewerage are being dumped in Nakivubo and
Kinawataka swamp but this reducing since the ratification of the convention because
treatment of such wastes are reducing75
Angela Curtean Banaduc 76 said that POPS for example DDT when spread on the
papyrus around swamps to combat malaria spread, it enters the water source directly by
spills of residual or waste waters fi·om industries, animal waste, indirectly by estivation
of adjacent lands by rains and water falls. Thus every state must that ensure that stock
piles are managed in a managed manner protective of human health and the
environment and it's the mandate of every party
3.2. The East African Protocol on Environment and Natural Resource
Management.
The East African pariner states recognize that a clean and healthy environment is a prerequisite for sustainable development and development activities in various
productive and social sectors may pose negative impacts leading to the degradation of the environment.
Among the objectives of this protocol is to promote conservation of the environment
and sustainable exploitation of natural resources in the community, who have agreed to take measures to foster co-operation in the joint and efficient management and sustainable utilization of natural resources.
74https:(/en.wikipedia.org/wiki/Stockholm Convention on Persistent Organic Pollutants
75 Guide on the Principles of Environmental law in Uganda page 30 76 Editor of the IMPACT OF PERSISTENT ORGANIC POLLUTANTS ON FRESH WATER ECOSYSTEM
35
The pminer states shall develop, hmmonize and adopt common policies, laws and strategies for sustainable management and wise use of wetland resources who shall develop and adopt any common guidelines and criteria for the declaration of any wetland other than a RAMSAR SITE as a protected wetland, promote the conservation and wise use of wetland resources in their territories77
.
Drainage and degradation of coastal wetlands emit significant aJnounts of carbon dioxide directly to the atmosphere and lead to decreased carbon sequestration. Hence international union for conservation of nature (IUNC) called for wetlands to be protected and incentives for improving their restoration to be included into carbon emission reduction strategies and climate negotiations 78
3.2.3 African Convention on the Conservation of Nature and Natural Resout·ces
This is a continent-wide agreement signed in 1968 in Algiers. It supersedes the
Convention Relative to the Preservation of Fauna and Flora in their Natural State of
1933 and has been superseded by the African Convention on Conservation of Nature
and Natural Resources. The parties shall manage their own water resources so as to
maintain them at the highest possible quantitative and qualitative levels. They shall to
that effect take measures and implement them for the planning conservation
management; utilization and development use of underground water as well as
hm-vesting, use of rain water and shall endeavor to guarantee for their populations a
sufficient and continuous supply of suitable water79
Where surface or underground ground water resources are related ecosystem, including
wetland. The pmiies shall set up interstate commissions for their rational management
and equitable utilization and to resolve disputes arising from the use of these resources
and for co-operate development management and conservation thereof!0
3.2.4 Vienna convention on the protection of the ozone layer 1985
Ozone layer is the atmospheric layer that covers the atmosphere. Uganda acceded to it
on 241h -06-1998 whose objective is to protect human health and the environment
77 Article 14(1) of the EAST AFRICAN PROTOCOL ON ENVIRONMENT AND NATURAL RESOURCE MANAGEMENT 78 Report of IUNC 2011 on Wetlands by MAREA HAT210LOS 79 Article 7(2) African Convention on the Conservation of Nature and Natural Resources 80 Article 7(3) African Convention on the Conservation of Nature and Natural Resources
36
against activities which modifY or likely to modifY the ozone layer, adoption of agreed
measures control human activities found to have adverse effects on the ozone layer, to
co-operate in systematic observations and to exchange information in legal scientific
records.
PaJ.iies shall take appropriate measures in accordance with the provisions of this
convention and the protocol in force to which they are pariy to, protect human health
and environment against adverse effects resulting or likely to result from human
activities which modifY or a1·e likely to modifY the ozone Iayer81. Each party shall adopt
appropriate legislative or administrative measures and co-operate in hannonizing
appropriate policies to control, limit reduce or prevent human activitis under their
jurisdiction or control should it be found that these activities nclude reclamation o
wetlands for industrialization82.
3.2.5 Convention on biological diversity of 1992
Uganda ratified to this convention on S'h-sept-1993 whose objectives are to conserve
and protect biological species in the environment. Thus any state that aims at utilizing
its resources must do so while putting into consideration other living species for
exaJ.Tiple birds, animals which a1·e tenestrial and aquatic, neither hazardous nor
domestic, insects. Thus before any person thinks of degrading away swamps must take
into consideration the living species that depend on such swamp recognizing the
sovereign rights of states over their natural resources, the authority to determine access
to such resources rests with the national government and is subject national legislation.
Hence each party shall endeavor to create conditions to facilitate access to natural
resources for environmentally sound uses by its people83•
81 Article 2(1) 4 Vienna convention on the protection of the ozone layer 1985 82 Article 2(2)(b) 4 Vienna convention on the protection of the ozone layer 1985 83 Article 15(1) Convention on biological diversity of 1992
37
CHAPTER FOUR
NATIONAL LAWS AND PRINCIPLES
4.1.0 Introduction
This chapter discloses national principles upon which environment more so wetlands
are protected regarding all the laws concerning land and wetland use. National laws are
defined to mean public laws which regulate the relationship between government and
its citizens. Conservation of wetlands and which body is more implicated with such
authority to conserve the wetlands and its duties
4.1.1 The 1995 Constitution of the Republic of Uganda
A constitution is a set of rules expressing the needs and aspirations of the people, it is a
legal and normative framework that regulates and governs a country 84 . It often
addresses several aspects including the relationship between the people and their
structures of government and the relationship between various organs of government. It
is often considered the supreme law of the land such that any other law or custom
which is inconsistent with the law or norm is to the extent of its inconsistency be
treated as null and void and the supreme law shall prevail85. In the legal history the
constitution has been described as the grand norm that all other laws derive their
validity from the supreme norm
The 1995 constitution of the republic of Uganda creates a right to a clean and health
environment86. By creating this right, the constitution further provides for enforcement
of such rights by the people by way of litigation mandates parliament to make laws for
enforcement of such rights 87 and the parliament shall by law provide for measures
intended to protect and preserve the environment fi·om abuse, pollution and degradation
awareness88.
84 Uganda Christian University Constitutional Notes by Brian Kalenge 85 Art 2 ofthe Constitution of the Republic of Uganda 86 Art 39 of the Constitution of the Republic of Uganda 87 Art 50 of the Constitution of the Republic of Uganda 88 Art 245 of the Constitution of the Republic of Uganda
38
The constitution too provides that the government or local government as determined
by the parliament by law shall hold in trust for the people and protect natural resources
like lakes, rivers, wetlands, forest reserves, game reserve, national parks any land to be
reserved for ecological and touristic purposes for the common good of its people
The National Objectives and Directive principles of state policy provides that the state
shall protect important natural resources including water, wetlands, minerals, oil, fauna,
and flora on behalf of the people of Uganda. The state is also required to take all
reasonable and practicable measures to promote a good water management system at all
levels
4.1.2 The land act cap 227
The land laws were passed on 22"d-07-l998 due to increased chaos on land acquisition
between the gove1nment and the people. It Is meant to protect all the natural resources
and to give government powers to re-enter all destructed areas which were destroyed
during Amini's error and all other Governments before YK Museveni took over power
in 1986. Taking a legal opinion on its preamble it provides that an act to provide for the
tenme, ownership and management of land, to amend and consolidate the law relating
to tenure, ownership and management of land and to provide for other related or
incidental matters.
A person who owns or occupies land shall manage and utilize the land in accordance
with the forests act, the mining act, national environment act, the water act, Uganda
wildlife act and many other laws 89. Hence any person who intends to occupy the
wetlands must take note or observe any other laws and principles in place which
regulate occupancy and use of wetlands. In the predominant saga of pr. Kakande who
cultivated rice in the Mubende swamps was called upon by the lad inquiry committee
lead by Justice Catherine Bamugemereire to defend himself on which laws granted him . . h 90 perm1ss10n to use t e swamps .
89 Section 43 of the Land Act 90 Daily Monitor 18'"/0CT/2017
39
It further provides for public ttust doctrine91 by saying that the government or local
government shall hold in trust for the people and protect natural lakes, rivers, ground
water natural pounds, natural streams, wetlands, forest reserves, national parks and any
other land reserved for ecological and touristic purpose for the common good of a
citizen of U ganda92. But the local government is allowed to hold in trust such resources
through a request made to the central government
The land Act has addressed93 the issue of such resources which are not identified under
S.44(1) after coming into force of the Constitution in that when such resources are
identified but not included under such resources, the government may upon request and
approval by the parliament be held in trust for the people and for the common good of
the citizens of Uganda by local govemment94, and the government is not mandated at
any point to lease out or otherwise alienate any natural resources referred to this section
as per Section 44(4) of the Land Act.
Subject to S.44 all rights in the water Act of any natural spring, river, stream, water
course, pound and others whether alienated or un alienated shall be reserved to the
government and no such water shall be obstructed, dammed, diverted, polluted or
otherwise interfered with directly or indirectly, except in pursuance of permission in
writing granted by the minister responsible for natural resources in accordance with the
water Act95• Any person who in regard to this section wants to use the wetlands must
put into consideration that he must not pollute, divert, such swamps, thus according to
TOM Kabii96 said that Africa's wetlands are polluted not because of lack of laws but
lack of respect to such laws which are in place.
91 Section 44(1) of the Land Act "section 44(2) of the Land Act 93 Cap 227 "section 44(3) of the Land Act 95 Section 70 "Technical Officer for Africa, Ramsar Bureau, Switzerland
40
4.1.3 The National Environment Act 2019 Cap 153
Wetland means areas permanently or seasonally flooded by water where plants and
animals have become adopted. Hence the Act provides for sustainable management of
the environment to establish an authority as a coordinating, monitoring and supervisory
body for that purpose and for other matters incidental to or connected with the
foregoing97•
The authority shall be the principal agency m Uganda for regulating, monitoring,
supervising and coordinating all activities relating to the environment whose functions
is to advise on the formulation and implementation of environmental and climatic
change policies, plans and programmes, to advise the minister on the harmonization of
policies of Government with respect to the environment and natural resources and also
to review and make decisions on environmental and social impact assessments,
environmental audits and other studies or repOiis submitted in accordance with the Act
or any other applicable law98.
But S.2699 provides that subject to the Act and any other applicable law, urban and
district councils shall be responsible for the management of the enviromnent and
natural resources under their jurisdiction. Urban and district councils may in
consultation with the authority make ordinances and by-laws to regulate various aspects
of the environment and natural resources within their jurisdiction
The authority shall in collaboration with the relevant lead agency protect riverbanks
and lakeshores from human activities likely to adversely affect the rivers, lakes and the
living organisms therein, protect naturally occutTing islands existing in rivers or lakes
from human activities likely to affect the rivers or lakes and protect natural beaches of
rivers and lakes and ensure their conservation for the benefit of the people of
Uganda100.
97 Section 2 of the NEA 98 Section 9 The National Environment Act 2019 Cap 153 99 Ibid National Environment Act 2019 100 Section 53 The National Environment Act 2019 Cap 153
41
The relevant lead agency shall in collaboration with the authority ensure that wetlands
are conserved for the common good of the people of Uganda, which shall not lease out
or otherwise alienate any wetland. The Act has further provided such principles which
shall not be followed when managing the wetlands for example wetland resources shall
be utilized in sustainable manner compatible with the continued presence of wetlands
and their hydrological functions and s<;rvices, an environment and social impact
assessment shall be can·ied out for all activities that are likely to have an adverse impact
on wetlands, wise use of wetlands shall be applied in National and local approaches to
the management of wetland resources through awareness campaigns , dissemination of
inf01mation and environmentalliteracy101.
A person shall not without the written approval of the relevant lead agency given in
consultation with the authority reclaim or drain any wetland, erect, construct, place,
alter, extend, remove, or demolish any structure that is fixed in, on, under or over any
wetland by drilling or tunneling in a manner that has or likely to have an adverse effect
on the wetland. Hence any person who wishes to carry out an activity specified in
subsection (I) shall apply to the lead agency in writing which shall carry out an
investigation to determine the effect of the proposed activity on the wetland and the
environment in general and require the developments to take an environment and social
impact assessment102.
The authority shall in consultation with the lead agency establish guidelines for the
identification and sustainable management of all wetlands in Uganda. Lead agency
means any ministry, department, parastatal agency, local government systems or public
officers in which or in whom any Jaw vests functions of control or management of any
segment of the environment103
The authority shall with the assistance of the local environment committees' direct
environment committees and the lead agency identifY wetlands of local, national, and
international importance as ecosystems and habitats of species of fauna and flora and
101 Section 54 of the National Environmental Act 2019 102 Section 55 of the National Environmental Act 2019 103 Section 2 of the National Environmental Act 2019
42
compile a national register of wetlands104. The authority may also in consultation with
the lead agency and the direct environment committee declare any wetland to be
protect, there by excluding or limiting human activities. The authority means the
national enviromnent authority established under 8.4 which provides that there is shall
be an established body called the NEMA which shall be the principle agency in Uganda
for the management of the enviromnent and shall coordinate, monitor and supervise al
activities in the field of the enviromnent.
Subject to the provisions of the Act, the authority may issue to any person in respect of
any matter relating to the management of the enviromnent and natural resources an
order in this part referred to as an enviromnental restoration order, which imputes the
person to restore the enviromnent as near as it may be to the state in which it was
before the taking of action which is the subject matter of the order. An environmental
restoration order may contain such terms and conditions and impose such obligations
on the persons on whom it's served as will, in the opinion of the authority enable the
order to achieve all or any of the purposes. The section addresses issues of already
destroyed wetlands, it's to the purpose that the authority under s.68 shall serve a
restoration order to a person whose activities have degraded wetlands informing him to
vacate and put back the wetland as he found it or nearly to that point he found.
4.1.4The Water Act Cap 152
Water include water flowing or situated upon the surface of any land which includes
any river, stream, water course or other natural course whether lake, pan, river, swamp
whether not it has been altered or artificially improved105. Among the objectives106 of
the act is to promote the rational management and use of the water of Uganda through
the progressive introduction and application of appropriate standards and techniques for
the investigation, use, control, protection, management, and administration of water
resources, to allow for orderly development and use of water resources for purposes
other than domestic use, such, as the watering of stock, irrigation and agriculture,
commercial use like industrialization and for mmmg uses, the generation of
104 Section 37(2) of the National Environmental Act 2019 105 Section 2 106
Section 4 43
hydroelectricity, navigation, preservation of flora and fauna and recreation in ways
which minimize hmmful effect to the environment. But the most important objective is
related to wetlands is the control of pollution and promote the safe storage, treatment,
discharge and disposal of waste which may pollute water or otherwise harm the
environment and health107•
The Act eliminates a person without a permit to construct or operate any works unless
such pe1mission to do so is granted by the director of water. Hence the permitted person
must take precautions that any water is not polluted and to prevent damage to the
source from which water is taken to which water is discharged after use 108
The act also important by implicating various offences on a person who degrades or
damages a water source fi·om which economic development depends on, agriculture,
human consumption. So it prohibits pollution by providing that a person commits 109 an
offence who cause or allows waste to come into contact with any water, waste to be
discharged directly or indirectly into water, water to be polluted person wishing to
discharge assets may apply to the director for a waste discharge permit in the prescribed
manner under s.29(1)
4.1.4 Fishing Act cap 197
This Act make provision for the control of fishing, on conservation of fish, the
purchase, sale, marketing and processing of fish and matters connected there with. The
minister may in his or her decision exempt any person or persons from all or any of the
provisions of this Act either generally or in respect of any particular area ofwater110
This Act is taken to be a protective instrument of wetlands because among the
importance of wetlands are homes for aquatic life which includes fish, thus the act
restricts various methods of fishing hence protecting swamps. Any person who without
a valid license issued for the purpose engages in the processing of fish or any fish
product in any prescribed place or area or engages in the processing of fish or any
product in any prescribed place or area, in the marketing, purchase or sale of fish
commits an offence111. No person who is not a citizen of Uganda shall fish in any
waters of Uganda for the purposes of obtaining fish for sale unless he/she holds a valid
specific license issued for that purpose112. Further it provides that any person without
the written permission of the chief fisheries officer uses or possesses for the purposes of
using any poison, noxious substance, explosive lamp, light flare, torch or electrical
device for the capturing, killing or injury of any fish or for rendering any fish more
easily captured commits an offence. This keeps the swamps, pounds of any kind
gazzetted as fish poisoning is one of the factors that has led to swamp pollution hence
degrading them
4.1.5 The Local Government Act cap 243
Under principle ii of the national policy for the conservation and management of
wetlands 1995, it's noted that wetland conservation can only be achieved through
coordinate and cooperative approach involving all concerned people and organization
in the country including local connnunities and worthy to note the local council are
provided for under 8.3(2)-(5) 113 where under the interpretation section 1(5) a lower
local government includes a municipality and these LCS are the ones that form a lower
local government and important to note the LCS have a provision for a member of
executives who is directly in charge of environment where by the local government act
further provides for planning under s.36!14 which empowers the local government to
originate plans for the good of the people to the extent that the district planning
committee shall coordinate and interrogate all the sectoral plans of the central
government for presentation as per s.36(2). Putting into consideration s.3 7 provides that
planning should be according to the established guidelines of the national planning
authority where comprehensive plans are prepared integrating plans from lower LG and
it should be noted that the environment and especially wetlands provided under the
constitutional national objectives and guidelines formulate a basis for planning and
suffice to note that these local councils are too close to the people hence grassroots
111 Section 6 112
Section 11 113
Local Government Act Cap 227 114 1bid Local Government Act Cap 227
45
support whose plan on wetlands creates a very good impact both on awareness and the
attitude towards wetlands planning and budgetary line for the activity that creates a
good linkage fi·om the grassroots to th.e national plans and hence environmental
activities increasing awareness on the values of wetlands in our country.
4.1.6 The National Environment (wetlands, river banks and lake shore
management) 2003
s.3 (1-3) which provide that the government or local government shall hold in trust for
the people and protect wetlands for the common good of the citizens of Uganda, and it
shall not lease out or otherwise alienate any wetland. Among the objectives as set out in
s.4 of the act is to ensure water catchment conservation and flood control, ensure the
sustainable use of wetlands for ecological and tourist purpose for the common good of
all citizens, ensure that wetlands are protected as habitats for species of fauna and flora,
provide for the regulated public use of and enjoyment of wetlands.
S.5 (a) provides that wetland resources shall be utilized in a sustainable manner
compatible with the continued presence of wetlands and their hydrological functions
and services. Environmental impact assessment as required under the statute is
mandatory for all activities in wetlands likely to have an adverse impact on the
wetlands.
Special measures are essential for the protection of wetlands of international, national
and local importance or ecological systems and habitat for fauna and flora species and
for cultural and aesthetic purposes as well as for their hydrological function. S.8
provides that the minister may by statutory instrument and after consultation with the
lead agency and with the policy committee on environment declare a wetland which is
a subject to the process provided for under the regulation to be a specifically protected
wetland of national or international importance. A declaration made under sub
regulation (I) shall state whether a wetland is a fully protected wetland, partially
protected wetland or its subject to conservation by the local community, peace each of
such wetland is subject to different importance.
46
4.2.0 Common Law Principles in Protection Of Wetlands
Common law is that pmi of law of England formulated, developed and administered by
the common law courts based originally on the common customs of the country and un
written. Common law becaJne applicable in Uganda by the 1889, 1902 and 1920 orders
in council and was retained by the 1967 judicature act, the High comi subject to the
constitution has unlimited original jurisdiction in all matters 115 exercised in conformity
with the written law but where the written law doesn't extend or apply it will adopt its
own procedure which may adopt common law principles 116
A number of common law principles have played a vital role in environmental law and
as regards to wetlands and these include
4.2.1 The law of torts.
The law of totis has a close connection with the environmental concerns. The conduct
of a person that interferes with the sanctity of another's right to private pro petty is
referred to as a tort. A tort is crooked conduct117. The law of toti is mainly concerned
with providing compensation for personal injury and property damage caused by
negligence. It must usually be shown that the wrong was done intentionally or
negligently although there are some tmis of strict liability. Most torts are actionable
only if they have caused damage but torts whose main function is to protect rights
rather than to compensate for daJnage are actionable without proof daJnage
The person principally liable Is the one who committed the tort but under the rules of
vicarious liability, one may be liable for a tort committed by another person. The main
remedy for a tort is an action for damages but in some cases an injunction can be
obtained to prevent repetition of the injury. Thus an injunction can be granted as a
remedy to protect wetlands sine it restrains such person who is over harvesting the
wetlands to stop until the status quo of the pa!iies is dissolved. Other remedies are self-
115 Article 139 of the 1995 Constitution 116 Section 14 of the judicature Act Cap 13 117 Oxford law Dictionary 61
h ED page 537
47
help and orders for specific restitution of property118• There are many common law
causes of action that can be useful to prevent or obtain remedies for environmental
wrongs most especially upon swamps. These swamps can be regarded as environmental
torts119.
4.2.2 Nuisance
A nuisance is the most useful common law t01i in environmental cases on wetlands
because it provides a remedy for water pollution, contamination, flooding and many
other intrusions upon peaceful use of swamps. A nuisance is an unlawful interference
with the persons use or enjoyment ofland120. A nuisance can either be public or private
or both.
Private nuisance is where it exclusively affects a private person and not a sizeable
number of the community where it occurs while public nuisance is that which is
widespread in its range and so indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings on his own responsibility to put a
stop to it, but that it should be taken on the responsibility of the community at lm·ge 121.
Nuisance is that branch of the law of torts most closely connected with the protection of
the environment and its surroundings122. Nuisance has thus been used as a yardstick for
setting environmental standards since it's concerned with pollution by oil, noxious
fumes and dumping of wastes into waters.
The remedies awarded by courts to a successful claimant not only to protect the
plaintiffs' interests but also the environment for example in the case of DR. Bwogi
Richard Kanyerezi Vs The Management Committee of Rubaga Girls School 123• The
plaintiff complained of a pit latrine constmcted near his premises which was emitting a
bad smell when court ordered relocation of the same and providing proper ventilation,
118 Guide on the practice of environmental law in Uganda Hand book 2003 page 7-19
119 Ibid Guide on the practice of environmental law in Uganda Hand book 2003 page 7-19
120 Law ofTort by John Cooke 9'h ED page 328
121 Lord Denning in A.G VS PYA QUARRIES L TO (1994)1 ALLER 910 122 RAPIER VS LONDON TRAINWAYS (1895)2 CH 588 113
Civil appeal No. 37 of 1996 48
the plaintiff's interest was protected and the environment from being polluted by the
foul smell.
4.2.3Trespass
Trespass occurs where a person directly enters upon and others 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 including even if no tangible
. bl d . d 124 or ascertama e amage IS one .
Trespass can be the subject of an environmental claim where the pollutants have come
into direct contact with the plaintiff land. Some of the available remedies are an
injunction or forcible ejectment ordered by court to stop the trespass also stops
pollution however it should be noted that like nuisance the tmderlying principle of
trespass is the protection of private property with protection of the environment 125•
4.2.4 Riparian Rights
These are rights to use of water in the steam, river, or lake that stem from a person's
property interest in or possession of the land bordering on the water. An interest in the
land gives the person a right to continued flow of the water in its natural quantity and
quality, undiminished and unpolluted. A person with these rights is called riparian
owner and the rights are called riparian rights. Riparian rights include such things as the
right to access for swimming, boating and fishing, the right to use water for domestic
purposes, the right to view and protection. Riparian rights also depend upon reasonable
use or related to other riparian owners to ensure that the rights of the adjacent riparian
owner are not tempered with126.
The principle of riparian rights is incorporated in s.7 of the water act cap !52 which
provides that subject to s.8 a person may while be temporary at any place or being
occupier of or a resident on any land, where there is a natural source of water, use that
water for domestic use, fighting fire or irrigating a subsistence garden. However, there
"'Oxford law Dictionary G'h ED page 546 125Guide on the practice of environmental law in Uganda Hand book 2003 page 8-10 125 Principles of Land Law in Uganda by David Bakibinga page 78
49
are no riparian rights for undiminished ground water fowl since ground water saturates
the soil and does not flow in visible, defined channel like surface water. Therefore, a
person who pumps water there by drying up neighbors well cannot be sued in riparian
rights. Nevertheless, there is no some protection for the ground quality. Any pollution
of ground water is nuisance.
4.3.0 The Role of the Law in Conserving of Wetlands
Conserving of wetlands basically refers to the selection, mapping out of an area as a
wetland to be protected and included into the inventory report as wetland and such
obligation is the mandate of the government who devolved the role to NEMA who is
principally a coordinating, supervisory and monitoring body that should always consult
other bodies and affiliate bodies. Regulation 9127 provides for the procedure for the
declaration of a specially protected area where regulation 9(1) 128 provides that the
declaration of a protected wetland may be initiated by the district council on the
recommendation of the district who under regulation 9(2) 129 shall inform the executive
director in writing of its intentions and they shall cause an environment impact
assessment to be canied out in accordance with the National Environment Act 2019
section 9, 20, and 21 while ensuring that the views of the people staying within the
wetland are taken into account thus implementing the public participation principle
since the involvement of the public creates awareness and also collective responsibility
in the conservation and protection of such wetland and it also becomes easy for the
public to appreciate the roles played by wetlands.
Upon the declaration of area as a protected area, its then prudent upon the lead agency
in consultation with the executive director to make an inventory of all the wetlands as
provided under section 10 showing out the location of the wetland type of flora and
fauna found, soil and hydrological characteristics, discharge and composition of water,
the volume, flow and quality of water where possible, the existing uses, the density of
the population in the wetland catchment drawing attention especially to those most
127 The National Environment (wetlands, river banks and lake shore management) Regulations 2003 128 Ibid 129 ibid
so
dependent on the wetland, conservation status, the area of the wetland any other factor
to the wetland.
4.3.1 Effectiveness of the Law On Conservation Of Wetlands
Effectiveness130 basically refers to the production of a result that is wanted or intended.
The intention of the law is to regulate activities on wetlands with a view of preserving
them for the benefit of the present and future generation. However the national
environment regulation provides for conservation131 that brings in improvement and use
of natural resources in a way that ensures the highest social as well as economic
benefits which addresses the operational relationships between numerous wastes
brought by each and every kind of present day strategy of economic prosperity and the
concern for future availability of such resources whereby the notion of development is
associated with growth and enhancement of peoples access to goods, services and
values that provide what is seen as a better life and worthy to note is that sustainable
development implies that development is ecologically viable since it's a process of
change in which the exploitation of resources, direction of investments, orientation of
technological development and institutional change are all to be in harmony enhancing
both current and future potential to meet human needs and aspiration which needs and
aspirations ought to confirm to the lead down legislation.
As provided earlier, a legal framework was put in place to regulate man's activities
towards attainment of sustainable development however, it is interesting to note that for
every law to be effective it must provide for sanctions and enforcement otherwise the
common saying that work without play makes tom a dull boy comes into effect and my
analysis in this respect is that having laws however good they may be, without a good
penal sanctions, mal(eS the law itself dull.
Thus there is no doubt that Uganda has comprehensive legal and policy framework for
the protection and preservation of wetlands 132, the wording in the constitution and the
130 Oxford Law Dictionary 8th ED page 385 131 Regulation 2(1) of The National Environment (wetlands, river banks and lake shore management) Regulations 2003 132 Article 245 of the 1995 Constitution of Uganda
51
choice of the words protection and preservation seem to g1ve emphasis that these
wetlands should be left intact (original) or in good condition and therefore making it
very string and therefore making it effective in protecting wetlands however the
wording managing the environment for sustainable development seems to give a
blanket cover that has a very wide discretion and has created loopholes that are
basically used by developers to reclaim the wetlands in the guise of sustainable
development which has led to reclamation or draining of wetlands and erection,
construction and alteration of these wetlands and this viewed as geared towards
economic growth is seen as primary agenda and though section 38 provides for a
penalty on conviction to imprisonment of not less than three months or to a fine not
exceeding three million shillings or both, the provision of not less than three months
may give longer custodial sentence however the issue of harsh sentence may crop in
especially in a situation where a person has been given what may be seen as deterrent
custodial sentence.
However S.36(1) of the National Environmental Act 2019 provides that no person shall
reclaim or drain any wetland, construct while S.34 of the NEA aims at allowing a
developer to conduct a project which may have a significant impact on the wetland,
riverbank or lakeshore provided that such developer canies out an environmental
impact assessment and shall carry out annual audits and monitoring while reporting the
activities to the director, therefore negates protection and preservation intention of
parliament under the constitution and the NEMA, otherwise the Regulations 200 is
putting emphasis on environmental impact assessment compliance, levies a fine to
carry out EIA to a tune of one hundred eighty thousand shillings up to eighteen million
or a sentence of eighteen months.
4.3.2.0 The Role Of The Bodies Created To Conserve Wetlands
4.3.2.1 National Environment and Management Authority
Parliament is by law mandated to make laws for the good governance of the nation 133.
And it has ably made laws on wetlands conservation and its worthy nothing that
133 1bid Article 79 of the 1995 Constitution of Uganda
52
parliament makes also laws through statutory instruments or delegated legislation and
reference can be made to the list statutes. The national environment act under S.8
establishes the national envirornnent and management authority as the principal agency
in Uganda for the management of the envirornnent who should coordinate, and
supervise all activities in the field of envi.rornnent. It's also expected among others to
play the roles of ensuring the integration of envirornnental concerns in overall National
planning through coordination with the relevant ministries, departments and agencies of
government, liaise with the private sector, intergovernmental agencies both national
and international on issues relating to envirornnent, propose environmental policies and
strategies to the policy committee, initiate legislative proposals, standards and
guidelines on the assessments and envirornnental impact statements submitted in
accordance with the Act or any other laws unde1taken.
NEMA has a very wide jurisdiction over envirornnent m which wetlands belong,
undertaking studies and submitting reports and recommendations with respect to the
environment as the government or policy committee implies that NEMA gets to the
field armed with its inventory on wetlands, carries out studies on the status of these
wetlands, submit repmts and recommendations with respect to the environment which
repmts constitute a bench mark for the planners in the overall national planning and
they are also mandated to prepare and disseminate state of the environment once in
every two years though the period seems to be long in view of mans' activities on
envirornnent especially wetlands degradation they are further, mandated to monitor,
mobilize and expedite matters related to resources for environment management
including monitoring implementation of environmental standards in all sectors which
includes wetlands and supervise implementation of environmental regulations in all
sectors and where it has taken conflicting decisions, the result is ineffective
implementation laws and policies
4.3.2.2Wetlands management division of ministry of water and environment
The wetlands inspection division established in 1989 under the National Wetlands
Conservation and Management program came in the wake of slowly emerging
realization in goverrnnent circles and civil society that wetlands are extremely
53
important ecosystems that contribute considerably to the national economy and rural
livelihoods. The wetlands inspection Division134 is under the mi8nistry of water, lands
and environment whose tasks among others include;
Making inventory on all wetlands showing the type of fauna and flora found in it, the
density of the population in the wetland catchment drawing attention especially on
those whose activities are most dependent on the wetland.
They are also required to periodically inspect the wetlands to determine the necessity of
revision or correction of the inventory on the wetlands and when they inspect these
wetlands 135 periodically it becomes easy to quickly or expeditiously mitigate any
activities that may be seen as likely to impact heavily on the wetlands and incase of
change of boundaries due to sustainable development, they are therefore required to
register such change in the boundaries of wetlands on maps in the inventory and also
cause meetings of the local environment committees within the vicinity of the wetland
prior to making of any decision affecting the wetland whereby they are to publish in
every five years the cun-ent state of wetlands included in the inventory
They also grant temporary permits or the use of wetlands in consultation with the
executive director of NEMA 136 where there is urgent need to use water pending
availability of alternative sources, where there is need to in-igate area pending
construction, the wetland is needed for construction of a road, special research project
requiring the use of wetlands for certain period of time while also bearing the
responsibility of monitoring, supervision, technical suppoti and mobilization.
4.3.2.3 Courts of judicature
The courts play a vital role in arbitrating between parties in any disagreement where
Article 126(2)(e)137 imposes courts to do justice to all in-espective of their social or
economic status without delay and to award adequate compensation to victims of any
134 Wetland Sector Strategic Plan 2001-2010 135 Environmental Law and Policy by Emmanuel Kasimbazi at page 153 136 Section 15 of the National Environment (wetlands, river banks and lake shore management) Regulations 2003 137 1bid The 199S Constitution of Uganda
54
wrongs so committed and that justice should be administered substantively without
undue regard to technicalities, thus Art 50 of the 1995 Constitution provides that any
person who claims that a fundamental right of freedom guaranteed under the
constitution has been infringed or threatened is entitled to apply to a court of
competent jurisdiction or redress hence provides a pivotal role to any person or
organization who claims that a right of another person or groups human right has been
violated to bring an action against the infringer. This therefore brings it out clearly that
for any action to be properly heard and concluded in court, there must be a clear right
violated and the proper procedure should also be followed. Thus court is an effective
institution in protection and preserving wetlands within the existing legal and policy
fi·amework.
4.3.2.4 The National Wetlands Inventory
This is meant to contain all the Uganda wetlands, surveyed, described, quantified and
mapped for easy planning and the body responsible has been the national wetlands
programme that has been undertaking this noble duty since 1993. With the aim of
building up wetland expertise and capacity in the districts and stimulate the
development of wetland action plans at district level. The national wetlands inventory
bases on wetland related thematic maps stored in a computer based geographical
system and a database of site specific information about wetlands and all the necessary
information is stored in the national wetlands information systems incorporating in any
updates made therein to enable analysis and manipulation of stored data to produce
relevant reports on wetlands as systems. The inventory therefore plays a vital role of
alerting the district technical planning committee about the location and need to project
and conserve wetlands there by denying any proposed developments within such areas.
It should be noted that to monitor loss or gain and work within the framework of the
national environment statue, active participation of these bodies is required for example
active inventory updates forwarded to wetlands inspection division. This is therefore
geared towards strengthening effectiveness of the law in protecting and conserving
wetlands.
55
4.3.2.5 The media
This body has played a big informative role within the public; however the media is
supposed to create awareness on wetlands related matters while mobilizing support for
wetlands management and effectively reporting on benefits of conserving wetlands and
on the other hand also rep01i threats to wetlands especially on matters of degradation,
reclamation and any other related matters affecting wetlands.
4.4.0 Obstacles For The Effective Implementation Of The Laws For The
Implementation Of The Laws
Uganda's wetlands face many pressures from citizens who have hopes to convert them
for agricultmal production, these pressures vary by region and location for example
wetlands in mban areas are converted into human settlement and industrialization while
those in rural areas are turned into land for agriculture.
The speed at which Uganda is developing its infrastructures has led to the failure of
implementation of the laws that conserve the wetlands. This because many wetlands
have been drained away in need to create way easements like roads, railway, schools,
dams, hospitals, and others. This can be observed from the newly constructed road
which runs from Hoima via fort portal to Kagadi District. This factor has also emerged
into fail me of such laws because most of the infrastructures constructed in wetlands are
for the famous political figmes who think they are above the law.
The increased growth of the population has affected the implementation of the laws in a
negative way. It should be noted that Uganda's population is now about 34 million
people and yet the land is limited since not everyone in Uganda own land, hence this
has left an option for them to run into the wetlands since these swamps have no owner.
Such population has a high demand for food of which it cannot afford to buy since it's
on record that 90% of the people spend about one dollar a day. Thus wetlands are the
only option since they bring good yields which can sustain them.
56
4.5.0 Tools Of Enforcement Of Environmental Law On Wetlands
Management
4.5.1 Environmental Impact Assessment (EIA)
This is a study conducted to determine the possible negative and positive impacts
a project have on the environment 138 • It is a study conducted before the
commencement of the actual project. By studying the possible impacts, it is
possible to avoid the adverse impacts by either redesigning the project or taking
other mitigation measures. It also identifies the positive impacts on the
environment and the likely socio-economic benefits. For example the
government is calling upon the general public to give their observations on the
king fisher oil project where oil pipe line is to be set up from the oil refinery to
Kikube for processing in Hoima District. Section II 0(1 139) provides that the
purpose of environmental and social assessments undertaken under this Act and
regulations is to evaluate environmental impact, risks or other concerns of a
given project or activity, taking into account the environmental principles, thus
any developer shall ensure that a person carrying out an environmental and
social assessment for him or her either personally or by employees, contractors
or sub-contractors, complies with the Act and regulations made under therein,
and any other applicable law. 140
4.5.2 Environmental audit
NEA 141 defines environmental audit to mean the systematic, documented,
periodic and objective evaluation of how well enviromnental organization,
management and equipment are performing in conserving the environment and
its resources. It is a tool for ensuring that the project continues to perform in
accordance with the set standards. Originally the environmental audit was a
company tool used by each company to evaluate its own performance. 142
138 Guide on the Principles of Environmental Law in Uganda Page 32 139 Ibid National Environmental Act 2019 140 Ibid 141 Section 2 142 Hand Book on the Guide on principles of Environmental Law in Uganda page 32
57
The authority may where there is public interest or cause to believe that a project
may have adverse impacts on human health or the environment instruct the
developer of such project to carry out an environmental compliance audit, within
a specified period determined by the authority 143•
4.5.3 Environmental Monitoring
Environmental monitoring looks towards the whole system or project as it looks
at wider aspects of the effect of systems on the entire ecosystem, which have to
be studied in order to safeguard the environment against damage. In this regard,
both public organizations and industry must co-operate to ensure successful
monitoring. 144
Environmental monitoring is defined under Section 2 of the NEA 2019 to mean
the continuous determination of actual· and potential effects of any activity or
phenomenon on the environment whether short or long term. And the basic
objective of monitoring is to establish the status of environment in general and
natural resources in particular.
The lead agency may, in collaboration with the authority continuously measure,
evaluate and tract any environmental phenomena against a baseline or available
environmental information with a view to making an assessment of any
possible 145 Changes in the environment and their actual or potential impacts,
whether short term or long term.
4.5.4 Environmental Restoration Orders
Apmi fi·om the issuance of permissions and statutory prohibitions, the NEA
authorizes an environmental inspector or court to issue an improvement or
restoration order to an owner or operator of a facility directing him to adopt
specific measures in order to abate the environmental degrading activities 146 It is
143 Ibid Section 126 144 Ibid page 36 145 Section 122 of the NEA 146 Hand book on environmental law in Uganda PAGE 102
58
upon this provision that the public interest has emerged as it authorizes any
person to apply for restoration orders if such acts of the developer are to result
into injurious acts on human health and the environment itself, as the NEA 2019
UNDER Section 130 (1) provides that the authority may issue an environmental
restoration order to any person whose activities cause or are likely to cause
pollution contrary to the Act which are deleterious to human health or
environment.
59
CHAPTER FIVE
COCNCLUSIONS AND RECOMMENDATIONS
5.1.0 Conclusions
Courts of law have gone a long way in ensuring that such obstacles like locus standi are
eliminated in deciding wetland cases and issues and matters by introduction of public
interest principle by which a wide range of people /organization can proceed against
such person who is misusing the wetlands. This principle has given every person a right
to bring a cause of action against any degrader of the wetlands though he/she is not the
one who has suffered damages or injury.
This research has also enabled me to find out that the government has in most cases
been on the defending side implying that it has not itself come up to show its interest
and commitment to secure such laws which conserve wetlands. For example, in 201 I
presidential campaigns, president Museveni told the people of Kabaale district to
reclaim wetlands so as to have enough land for Irish potatoes cultivation, hence this has
left the govemment bodies mandated to protect the wetlands to have no say.
Although the common law principles can be applied in the enforcement thus protection
of the wetlands, in Uganda these have not been relied upon by courts in enforcing
wetland protective laws in swamp reclamation matters, for example restoration orders,
courts have not carried out their discretionary powers to order for restoration of
reclaimed wetlands.
Financial constraints and lack of information conceming the significance of wetlands
and the reason for the protection of wetlands among the masses has hindered them from
taking up environmental issues before courts of law or the concerned bodies like
NEMA. In other words, lack of finances also bar bringing of wetland issues into court
because court proceeding need finances to run them. Hence this has left all cases of
wetland reclamation unto the minds of and hemis of the public but not in the courts.
The high rate of corruption has also supported the increased swalllp reclamation. This is
because the government officials have gone ahead to receive money in order to leave
60
the culprits to continue occupying the swamps and setting up industries, homes in the
swamps. In this case it's only the poor who cannot afford to give such side payment
that are subjected to the fines and punishment and yet sometimes they may not be the
major polluters of wetlands.
The environmental protective police unit which is set up by the ministry of environment
and water has failed to caiTy out speedy investigations on swamp reclamation which
has also delayed courts in passing of their judgments because they cannot pass a decree
or judgment on mere assumptions and presumptions
5.2.0 Recommendations
In many countries there has been a change from the command theory of criminal law as
a tool of enforcing environmental laws to the use of economic incentives in the form of
taxes and charges for behavior deleterious. Instead of imprisonment court orders
payment of huge sums of money as a fine by the culprit in order to put such person in
position to not be able to do such injurious acts on the wetlands. Recently the land
inquiry commission led by Justice Catherine Bamugemereire ordered for the
cancellation of Pr. Kakande's land titles which he had acquired illegally from Mityana
District land that authorized him to carry out rice cultivation in the swamps.
Enforcement of environmental laws and regulations which are of great importance in
wetland conservation must be accompanied by public sensitization and awareness. This
is because wetlands reclamation is a trend which people should be sensitized about. The
government should do this through public lectures on the dangers of reclaiming
wetlands just because a single act on wetlands brings other uncalled for problems like
flooding because wetlands are good in controlling flood because they hold excessive
rainwater, drought and others.
The government bodies like NEMA mandated to protect and conserve wetlands must
not focus on punishment and compensation but I subject them to resort to management
and protection of the environment since it is expensive to cure the damage caused on
the wetlands through compensation or imprisonment.
61
The government should address the non- enforceability causes other than enacting
many legislations and carrying out many amendments on already existing laws. This
can be done through increasing of funds to the concerned institutions, thereby
facilitating training of personnel, meeting of miscellaneous reclamations and
degradations, educate the general public and also putting such body in position to avail
working materials and tools like vehicles.
The government should also create good relations with the religious leaders who shall
preach environmental gospel to the congregation, concerning the importance and
dangers of destroying of the wetlands as that wetland are God given entity which
deserves protection for the earth to continue surviving.
The parliament must also use its powers conferred to it under Art 79 to amend Art
28(3) (e) which provides for free legal services for capital offences and those carrying
out a sentence of life imprisonment, they should make it the same also in environmental
matters where the litigants crumot afford legal representation
Judges should use their discretionary powers conferred onto them by the constitution of
the republic of Uganda in giving independent decisions in wetland cases. In
Greenwatch And Advocates Coalition For Development And Environment Vs Go([
Course Holdings Ltd 147 the applicants were seeking an interlocutory injunction to
restrain the respondents from constructing a hotel in a wetland. The judge declined to
issue such injunction as sought by the plaintiffs on grounds considered to be
unreasonable, that an injunction cannot be issued against a land owner hold a certificate
of title, otherwise this would amount to violating of the provisions of the Registration
Of Titles Act relating to indefeasibility of title. It is submitted that in this case the
discretion was exercised injudiciously because in view of section 44 of the LAND
ACT, utilization of land must be in conformity with the various laws like the NEA
whose provisions supersede that of the LAND ACT in case of conflict of the two.
147 Constitutional Petition No. 14 of 2011 62
References
Emmanuel Kasimbazi. The environment as a human right, published by SIDA's
Regional Conservation Unit 1993
David J. Bakibinga. Principles of Land Law in Uganda 2002
Guide to the Practice of Environmental Law in Uganda 2003 2nd Edition
Professor John Cooke on the Law of Torts 9th Edition
EHU LU environmental Law in China
Hand Book on The Convection ofRamsar
63
Appendix
The researcher had to observe the following
The impact of enviromnental Laws in Conservation of wetlands
The tools for the re-enforcement of Enviromnental Laws
The main activities that have led to the reclamation of wetlands
The" main reasons for the failure of Law in place to protect and conserve the Wetlands"