Name: Nakibinge Nathan

Reg. no: 18/U/13787/EVE

Student number: 1800713787

Course: Environmental Law

TO: THE DIRECTORATE OF LEGAL AFFAIRS AT UETCL

FROM: THE ENVIRONMENTAL LAW CLASS AT THE SCHOOL OF LAW AT

MAKERERE UNIVERSITY

DATE: 10TH NOVEMBER, 2021

RE: KEY ENVIRONMENTAL AND LEGAL ISSUES REGARDING THE LAYING OF

POWER TRANSMISSION LINE FOR THE KARUMA HYDRO-POWER STATION
PROJECT THROUGH HOIMA, MBARARA, AND NTUNGAMO, EXITING UGANDA
AROUND MIRAMA HILL BORDER CROSSING

BACKGROUND:

The cables will pass at least 10 meters above a highly populated neighborhood on the outskirts of
Hoima town (6000 people) and via a primary school of about 650 pupils, cutting through the
middle of Lake Mburo National Park, approximately 6 meters from threatened Tilapia fish-rich
breeding ground in the Lake Mburo wetland, with its marsh, declared to be of international
importance in accordance with relevant international conventions. The impact of this on young
tilapia remains inconclusive and the Uganda Wildlife Authority is opposed to UETCL having the
high voltage cables pass through the national park, a habitat to a number of threatened wildlife
species per the Red Book of The International Union for the Conservation of Nature.

Key environmental issues:

Assessment of environmental and social impact risks associated with the project.

Resource efficiency and pollution which may have adverse ecological and social impacts.

Biodiversity conservation and management of living resources.

Stakeholder engagement and information disclosure to facilitate project sustainability,

acceptance and successful project design and implementation.

Applicable international environmental law principles to consider:

Sustainable development: The World Commission on Environment and Development defined

this as “development that meets the needs of the present without compromising the ability of
future generations to meet their own needs.”1 It encompassed inter alia the technological and
social limitations on the ability of the environment to meet present and future needs, accordingly
UETCL must recognize that environmental protection constitutes an integral part of the
development processes from which it cannot be isolated.2 In Godfrey Nyakaana v NEMA and
others Katureebe CJ affirmed that “…our own Constitution in objective no. XXVII (supra) the
State is obligated to promote sustainable development and public awareness of the need to
manage land, air and water resources in a balanced and sustainable manner for the present and
future generations.”3 To hold that the respondent had a constitutional mandate to demolish the
appellant’s house built in a wetland of national importance.

UETCL therefore must be mindful to conduct the project in an environmentally sound fashion to
prevent any irreversible degradation to the lake and any ecological forests through deforestation.

The precautionary Principle: Where there is no firm scientific evidence on the measures to be
taken in a development activity that may have an environmental effect, the principle advocates
protective anticipatory action. Hence, in order to protect the environment, from the threat of
serious or irreversible damage, lack of full scientific certainty should not be used as a reason to
postpone cost effective measures to prevent environmental degradation.4 Similarly in Godfrey
Nyakaana, the Supreme Court affirmed this besides that “the environmental measures by the
state government or statutory authority must anticipate, prevent and attack cause of
environmental degradation.”5 Thus UETCL must endeavor to prevent any adverse effects of
high voltage cables on young tilapia even where they are inconclusive. Also by diverting the
transmission lines from ecologically sensitive national park.

Polluter pays principle: Simply, this approach effectually holds a developer liable for costs of
rectifying any damage they have done to the environment and the costs for rehabilitating the
sufferers therefrom, thus the costs incurred by public authorities to prevent potential or actual
pollution should be borne by the person responsible.6 In Nyakaana, it was affirmed that the

1
Report of The World Commission on Environment and Development: Our common future
https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf p. 41 (accessed
November 7, 2021)
2
United Nations, Rio Declaration on Environment and Development, 1992. Principle 4
3
Godfrey Amooti Nyakana v NEMA and others, [2015] UGSC 14 p 49
4
Rio Declaration op. cit., Principle 15
5
Godfrey Amooti Nyakana v NEMA and others (n 3) p. 50
6
Rio Declaration op. cit., principle 16
polluter principle meant that, “absolute liability for harm to the environment extends not only to
compensate the victims of pollution but also the cost of restoring the environmental
degradation… and as such the Polluter is liable to pay the cost to the individual sufferers as well
as the cost of reversing the damaged ecology.”

UETCL must endeavor to minimize any pollution at the designated sites through releasing
human and manmade waste into the water sources or ecological parks. Fumes and noise should
be minimized so as not to disrupt wildlife habitats making them ecologically unsuitable.

Intergenerational equity: This focuses on future generations as beneficiaries of environmental

protection taking into consideration impacts of current activities on future generations to avoid
irreversible degradation, thus the right to development must be fulfilled so as to equitably meet
developmental and environmental needs of future generations.7 Intergenerational equity is also
central to the attainment of sustainable development as resources must be used sparingly if they
are exhaustible or must be replenished if possible.
The Preamble of the 1995 Constitution of Uganda holds that Intergenerational equity requires
that the present generations exploit or use natural resources in a way that will enable the future
generations to use the same resources.
In the Minors Opossa Case8 that, the petitioners filed a class suit, for others of their generation
and for the succeeding generations. The court stated inter alia that every generation had a
responsibility to the next to preserve that rhythm and harmony necessary for the full enjoyment
of a balanced and healthful ecology.
UETCL should ensure efficient productivity through optimum use of resources such as water
resources, mindful excavations to limit damage to the land, timber, etc.
Access to information and public participation: this comprises three pillars to wit, access to
information, public participation and access to justice in environmental decision making. Hence,
at the national level, each individual is entitled to appropriate access to information concerning
the environment held by public authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate in decision-making processes

7
Ibid principle 3
8
33 ILM 173 (1994)
as well as effective access to judicial and administrative proceedings, including redress and
remedy to be facilitated by the state.9
In Van Huysteen and Others V Minister of Environmental Affairs and Tourism and Others,10 the
respondents proposed the construction of a steel mill on a portion of farm land at Saldania, near
the West Coast National Park and the Langebaan Lagoon, protected by the Ramsar Convention
on Wetlands of International Importance. The applicants sought a temporary injunction and an
order that the respondent had to make available copies of all documents relevant to the proposed
mill and appoint a board of investigation to evaluate the environmental effects.
The court held that the applicants, under S. 23 of the Constitution were entitled to require
documents sought for the purpose of protecting their rights to the trust property which was
potentially threatened by the proposed mill. An injunction was accordingly granted.
Accordingly, UETCL should avail any information to project affected persons informing them of
any likely environmental and social impacts of establishing the transmission lines and the effects
on their livelihood as the case may be and facilitate correspondent engagements with the locals
to ensure project acceptability and sustainable implementation through EIA processes.
International treaties, national legislations and relevant judicial decisions applicable to the
issues.
Environmental and social risk assessment; The Rio Declaration, 1992 under principle 17
mandates states to undertake an environment impact assessment for proposed activities that are
likely to have a significant adverse impact on the environment and are subject to a decision of a
competent national authority. This is in line with section 5(i) and (j) of the National Environment
Act (NEA) 2019 the latter envisages application of mitigation measures in the environmental and
social impact assessments to minimize impacts, achieve restoration targets and for residual
impacts, deliver biodiversity offsets etc.
Schedule 5 of the Act stipulates exploration and power generation, transmission and distribution
infrastructure projects shall require prior Environmental impact assessment.
Section 33 of the electricity act requires submission of an environment and social impact
assessment to the Electricity Regulatory Authority in applying for a license to establish power
infrastructure.

9
Rio declaration op. cit., principle 10
10
1996 (1) SA 283 C
In NAPE v AES Nile Power the applicants sought an injunction estopping the conclusion of
power purchase agreements without approval of the EIA by NEMA. Okumu J held that the
Environmental Impact Assessment was a study required to be conducted as the guiding
environmental regulation model for implementation of certain projects such as electrical
infrastructure and these had to be approved before commencement of works.
Resource efficiency and pollution prevention. As mentioned earlier principle 4 of the Rio
declaration considers environmental protection as an integral part to development and for
sustainable development resources must be utilized mindful of future generations. The principle
is also adopted in directive XXVII of the constitution. And was affirmed in Nyakaana;s case.
Principle 15 of the Rio declaration also obligates a polluter to pay the cost of any degradation
done on the environment and harm done the victims thereof. This was also affirmed in
Nyakaana’s case above. Section 80 of the NEA also holds a polluter strictly liable for damage
done to the environment and any health hazards to the community arising therefrom.
Moreover article 39 of the 1995 Constitution guarantees people’s rights to a clean and healthy
environment.
Article 237(b) in turn, provides that the government or Local Government as determined by
Parliament by law shall hold in trust for the people and protect natural lakes, rivers, wetlands,
forests, game and forest reserves, National Parks and any land to be reserved for ecological and
to touristic purposes for the common good of all citizens. This right carries with it the duty of the
citizen to protect the environment.
Biodiversity conservation and management of living natural resources: The RAMSAR
convention, 1971 mandates contracting parties such as Uganda to promote the conservation of
the wetlands included in the list, and as far as possible the wise use of wetlands in their territory.
(Article 3(1)). In this case lake Mburo and its marsh land are declared wetlands of international
importance. It also requires developers to timely. inform the state if the ecological character of
any wetland in its territory and included in the list (or wetlands of international importance) has
changed, is changing or is likely to change as the result of technological developments, pollution
or other human interference. (Article 3(2))
Article 1 stipulates that marine waters are those whose depth does not exceed 6 meters at low
tide such as the breeding ground for tilapia at Lake Mburo from which UETCL may need to
divert its transmission cables.
Section 54 of the NEA guarantees the management of wetlands for the common good of the
people. For this reason in Godfrey Nyakaana, NEMA was entitled to demolish a house built in a
wetland of national importance to the country.
The National environment (wetlands, river banks and lakeshores management)
Regulations, 2000 provide principles for sustainable use and conservation of wetlands,
riverbanks and lakeshores. EIA is mandatory for all major activities on riverbanks and
lakeshores, measures should be put in place for protection of riverbanks and lakeshores such as
prevention of soil erosion, siltation and water pollution.
These regulations are relevant considering that some portions of the line propose to cross
marshes of Lake Mburo.
The Convention on Biological Diversity. Requires state parties to introduce procedures that
require impact assessments of proposed projects likely to have significant adverse impacts on
biodiversity (Article 14 (1) (a)).
Parties are required to introduce appropriate arrangements to ensure that the environmental
consequences of programmes and policies likely to have significant adverse impacts on
biodiversity are duly taken into account (Article 14 (1) (b)). The lines propose to pass through a
national park with a number of threatened species therefore on authority of this treaty measures
could be taken to divert to a less ecologically sensitive area.
Section 114(2) (c) of the NEA requires an EIA to be carried out where the activity is likely to
affect critical habitats, species of concern such as the threatened tilapia and the animals in Lake
Mburo National Park.
The relevant public sector agencies and their statutory mandates:
National Environmental Management Authority (NEMA); The National Environmental Act
provides for establishment of NEMA as the principal agency responsible for coordination,
monitoring and supervision of environmental conservation activities under sections 8 and 9.
It mandates lead agencies to report and account for the execution of their mandate in relation to
environmental management as prescribed in this Act or any other applicable law.
It also issues environmental compliance certificates. Regulates, monitors and coordinates private
sector, intergovernmental organizations, non-governmental organizations, cultural institutions,
indigenous people and local communities and religious institutions on issues relating to the
environment. It issues permits and licenses in accordance with the Act and any other applicable
law and it also undertakes and coordinates environmental monitoring, inspections and
compliance audits.
Ministry of Energy and Mineral Development; The Ministry is responsible for the energy
sector, dealing specifically with policy formulation, policy implementation and monitoring.
Through various agencies and departments, it has the overall responsibility for the energy sector,
dealing specifically with policy formulation, policy implementation, and licensing, monitoring
and regulatory control. Uganda Electricity Transmission Company limited (UETCL) provides
technical advice related to powerline construction.
Uganda Electricity Transmission Company Limited (UETCL); The Public Company
operates under policy guidance of the Ministry of Energy and Mineral Development. UETCL’s
mission is to dispatch, transmit quality and reliable bulk power in a viable and efficient manner;
be an efficient and commercially focused single buyer actor and; mitigate emergency power
situations in Uganda. The mandate of UETCL is to develop and implement national strategies as
the appointed “Single Buyer Actor” in the power market. It is the mandate of UETCL to transmit
power to and from different substations in the national grid and in this regard, UETCL will
evacuate power from Karuma Hydro Power Station through the proposed transmission line
Electricity Regulatory Authority; The Electricity Act, 1999 provides for the establishment of
the Electricity Regulatory Authority (ERA) whose functions include: issuing licenses for the
generation, transmission, distribution or sale of electricity; controlling activities in the electricity
sector. Section 30 of the Electricity Act requires that before a license is issued, the developer
shall provide NEMA the description of the impact of the project on electricity supply, socio-
economics, cultural heritage, the environment, natural resources and wildlife.
The Uganda Wild Life Authority; ensures sustainable management of wildlife conservations
centers. It is relevant body because the high voltage cables propose to pass through Lake Mburo
National park therefore the developer needs to engage them to ensure that the lines do not
endanger the threatened species such as birds and climbing mammals. Through this the authority
may suggest an alternative route in or beyond the park. In this section 6(e) of the Uganda wildlife
Act mandates the authority to develop, implement and monitor collaborative arrangements for
management of wildlife.