NAME: NYINOMUNTU ANNET

REG.NO: 2019-B411-12400

YR/SEM: 3RD /2ND

COUURSE UNIT: ENVIRONMENTAL LAW

LECTURER: MR. BAKULUMPANGI KEVIN

QUESTIONS
1. Critically analyse the case of DMW (U) Ltd Vs Attorney General and National
Environment Authority (NEMA) HCCS No 24 of 2019and-
a) Discuss the underlying principles of environmental law and the tools of enforcing
environmental law discussed therein.
b) Given your understanding of the principles of environmental law and tools of
enforcing the same, discuss how the decision in the above case could have been
approached.
2. Examine the following multilateral environment agreements (international law
instruments) and provide the subject (theme), the applicability and how they have been
adopted/domesticated in Uganda’s legal and regulatory framework.
a) The Minamata convention on Mercury, 2013
b) The Rio declaration on Environment and Development (1992)
c) Bamako convention on the Ban of the Import into Africa and the control of
Transboundary Movement and Management of Hazardous wastes within Africa
(1991)
d) Montreal protocol on substances that Deplete the ozone layer (1990) as amended
e) Paris agreement (2915)
f) Ramsar convention on wetlands of international importance (1998)
g) Aarhus convention (1998)
h) Nagoya protocol on access to genetic resources and the fair and equitable sharing
of benefits arising from their utilization (2010)
 N0.1 PART A
With reference to Environmental law in Uganda, it’s important to consider the principles that
govern the law of the environment and tools therein Uganda and they are discussed below as
well as in the DMW case.
According to black’s law dictionary, environmental law is the field of law dealing with the
maintenance and protection of environment including prevention measures such as the
requirements of environmental impact statement as well as measure to assign the liability and
cleanup for the incident that harm the environment.1
Precautionary Principle, which originated from several legal scholars and publicists. The
preoccupation of these writers has been to explore the meaning of the principle and try to define
limits within which it can be applied. In the preamble of the Montreal Protocol and the question
would be on the foundations of common law evidential principles especially when the matter has
to do with ecological stewardship and sustainability, none of the available precedents are clearly
instructive on such pertinent issues as burden of proof, the scope of liability or even the nature
and scope of evidence that has to be adduced when one lies on the principle as a basis for
litigation2.
Public Trust Doctrine, one of the oldest but constantly evolving doctrines relating to the
ownership and use of essential natural resources. The essence of the above doctrine is the legal
right of the public to use certain land and water. In Uganda, the above doctrine has been
enshrined in the 1995 Constitution specifically in its objectives and directive principles of state
Policy as follows: "The state shall protect important natural resources, including land, water,
wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda". The doctrine is also
restated in Article 237 (2)(b) of the Constitution. The above provisions were operationalized by
Section 44 of the Land Act in the following sections. Section 44 Control of Environmentally
Sensitive areas (1) The Government or a local government shall hold in trust for the people and
protect lakes, rivers, ground water, natural ponds, natural streams, wetlands, forest reserves,
national parks and any other land reserved for ecological and tourist purposes for the common
good of all citizens.
The proportionality principle which imposes that such law must not be more than is reasonably
necessary to achieve the legitimate object. This is what is also known as the principle of
proportionality if the law does not meet these requirements such law is not saved by Article
30(2) of the constitution is null and void3
Principle of Common but Differentiated Responsibilities, the principle of common but
differentiated responsibility has developed from the application of equity in general international
1
8th edition page 575, Garnar, Bryan A
2
Montreal Protocol on Substances that Deplete the Ozone Layer, September 16, 1987. See also vol.26,
International Legal Materials at page 1541
3
The Constitution of the Republic of Uganda 1995 as amended
law for the special needs of developing countries which must be taken into account in the
development, application and interpretation of rules of environmental law. In my view pressures
of societies place on the global environment and of the technologies and financial resources they
command.” under Article 3(1) of 1992 Climate Change Convention, which provides that the
“parties should act to protect the climate system on the basis of equity and in accordance with
their common but differentiated responsibilities and respective capabilities.
Principle of Sustainable Development. This dictates that whatever man and woman do on this
planet should not put the life of future generation into jeopardy. The protection of the
environment has been perceived as being paramount importance to the future of humankind.
Under the Objective 27 of the National objectives and directives of State policy in the preamble
to the Constitution of Uganda. It provides for utilization of the natural resource to be managed in
a sustainable manner, and to meet the demands of current generation and the future generation.

N0.1 PART B.
Brief Facts.
NEMA issued the plaintiff with a wetland resource use Permit No. NEMA/KB/LS/WT/411 for
sand mining in Kalungu District, which was to run for a period of three years. On 06/04/2016,
the NEMA issued the plaintiff with yet two other wetland resource use vide Permit No.
NEMA/KB/LS/WT/459, both for sand mining and fish farming, the plaintiff contracted M/s.
Victoria Construction Company Ltd, to build access roads to the project sites from the Kampala
– Masaka highway, the Parliament in 2016 issued directives banning sand mining especially in
the Lwera region. The plaintiff’s evidence is that the said Committee did not carry out proper
investigations, or at all, into the activities of the plaintiff and hence made wrong
recommendations to halt the plaintiff’s permits. Ultimately, the plaintiff once issued with permits
had a legitimate expectation to earn from the sand mines and its license was halted unlawfully
and without any justification before the expiry of the respective terms of the permits. This
without doubt occasioned financial loss of business expectation, which is a legitimate
expectation by the plaintiff. And the judge dismissed the case with orders of compensation for
loss of business or earnings, special damages, general damages, interests and costs of the suit.
With critical and prudent analysis of the decision of the learned judge .in my view there are
distant and core concerns that arose to aid the court to reaching its judgement in favor of the
Plaintiff. With bases of the case, it was quoted that: 1st defendant nevertheless denied that
Parliament ever issued any directives banning sand mining in wetlands and that as such, the
plaintiff is not entitled to the remedies sought. Note that Section 6 of the Penal Code Act of
Uganda4 says clearly that “ignorance of the law does not afford any excuse for an act or omission

4
Cap 120
which would otherwise constitute an offence unless knowledge of the law by the offender is
expressly declared to be an element of the offence.” This means that ignorance is no defence.
With reference to the case of Leatch Vs National Parks and Wildlife Service and Shoalhaven
City Council Land and Environment Court of New South Wales 5Australia, the Council granted
itself a development consent for the construction of a link road within an area under the
Council’s jurisdiction. The road construction project would include a bridge over Bomaderry
creek. In 1993, the Council applied to the Director General of the National Parks and Wildlife
Services for a license to take or kill endangered fauna within the creek. The license application
was supported by Fauna Impact Statement pursuant to Section 92 A of the National Parks and
Wildlife Act. An objection was raised against the grant of the license on the basis that the Fauna
Impact Statement was invalid or legally inadequate as failing to comply with Section 92 D of the
same Act. It was submitted that there had been a failure to include “to the fullest extent
reasonably practicable” a description of the fauna affected by the actions and the habitat of the
fauna. The objection made very express references to the precautionary principle with regard that
the plaintiff constructed access roads towards the land before the suit surfaced its loopholes into
his legality.
Since the law provides for the Public Trust Doctrine in this case ,the learned judge examined the
doctrine as restated in Article 237 (2)(b) of the Constitution which states: "The Government or a
local" Government as determined by parliament by law, shall hold in trust for the people and
protect, natural lakes, rivers, wetlands, forest reserves, game reserves, National parks, and any
land to be reserved for ecological and tourist purposes for the common good of all citizens: The
above provisions were operationalized by Section 44 of the Land Act in the following terms:
Section 44 Control of Environmentally Sensitive areas (1) The Government or a 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 tourist purposes for the common good of all citizens this includes the
plaintiff DMW (U) Ltd since I may quote: 2nd defendant conducted a further inspection and
made a report to that effect. At page 8 thereof, it was noted as follows A closer look at
defendant’s Exhibit “M” - a letter/notice dated 16/11/2016, invariably shows that there are
words scribed in ink, at the top right hand, stating as follows; “DMW is not mining sand. Site
was inspected and it was not operational. The initial Inspection has misled…” thus , the judge
considered the principle of sustainable Development” as a balancing concept between ecology
and development has been accepted as part of the efforts to protect the environment should be
applauded by everybody because Article 245 of the constitution of the Republic of Uganda
which I set down hereunder enjoins Parliament to take measures for protection and preservation
of the environment which this application seeks to do in so doing he responded 6 to the
application of common law and equity in natural resource management is of essence in attaining

5
(1993) 86 LGERA 270
6
In Green Watch v AG & NEMA (Miscellaneous Cause 140 of 2002) [2012] UGHC 205 (05 October 2012)
sustainable development. Common law and the principle of equity have several norms that have
been constantly applied in the protection of environment.
Furthermore, in Hajj Kaala Ibrahim vs. Attorney General and Commissioner General of URA
7
the principle of legitimate expectation, was elucidated upon at page 9 thereof, and court held in
part as follows; Legitimate expectations may include expectations which go beyond legal rights,
provided that they have some reasonable basis. “Ultimately, the plaintiff once issued with
permits had a legitimate expectation to earn from the sand mines and its license was halted
unlawfully and without any justification before the expiry of the respective terms of the permits.
This without doubt occasioned financial loss of business expectation, which is a legitimate
expectation by the plaintiff. Under Section 61(1) and (3) of the Contracts Act8entitles a party
who suffers breach to receive compensation for the breach thus, the judge dissed the case with
cost to the plaintiff as per Erukana Kuwe vs. Isaac Patrick Matovu & Another9. In both cases, the
courts held to the effect that damages are direct probable consequences of the act or omission
complained of. Further, that the consequences could be in loss of property, physical
inconveniences, mental distress, pain and suffering of the plaintiff DMW (U) Ltd.
Environmental impact Assessment (EIA) is an important tool to assess the positive (beneficial)
and negative (adverse) impacts of the sand mining. Since EIA involves the public participation in
deciding whether or not a project is desirable, the investor may know before hand, the public
perception, which when positive is a good indicator for gainful investment. Environment
(Protection) Act, 1986, has considered the above principles. In VELLORE CITIZEN’S
WELFARE FORUM –Vs- UNION OF INDIA & OTHERS10 the court considered these
principles at length. This was a case involving the pollution that was being caused by the
discharge of untreated effluent by tannery industries in the state of Tami/Nadu. The Court
considered the concept of sustainable development both in municipal as well as international
context. It should be recalled 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.”
The debate on the proper meaning and application of the precautionary principle, however,
continues unabated. The above and several other court decisions suggest that the courts could
employ and uphold the Public Trust Doctrine to mitigate administrative abuses in natural
resources management. Indeed, according to Prof. Sax, the court in Illinois Central “articulated a
principle that has become the central substantive thought in public interest litigation. When a
state holds a resource which is available for the free use of the general public, a court will look
with considerable skepticism upon any government conduct which is calculated either to relocate

7
HCMC No. 23 of 2017
8
Cap 2010.
9
H.C.C.S No. 177 Of 2003
10
(1996) 5 Supreme Court cases, 647,
that resource to more restricted uses or to subject public uses to the self –interest of private
parties11
In a nutshell, as the learned judge came to this judgement, a typical understanding of the
intentions of the principles of environment law as inserted into the tools that relate a collective
association in examining the response of the law to facts and its crystallization of true justice to
all citizens of Uganda.

N0.2
With reference to Article 123 (2) Parliament shall make laws to govern ratification of treaties,
conventions agreement or other arrangements committing Uganda.
A. The Minamata Convention on Mercury, 2013.It requires Parties to address mercury
throughout its life cycle through to end-of-life aspects including waste, contaminated sites and
long-term storage. This includes its production, its intentional use in products and processes and
its unintentional release from industrial activity.
According to Article 1 the Minamata Convention aims to protect human health and the
environment from anthropogenic emissions and releases of mercury and mercury compounds.
Uganda assented to the Minamata Convention and it is under obligation to implement all the
activities and actions set forth by the Convention. However, to meet her obligations, it is
essential that the country has; Inventory of mercury sources, adequate policy, regulatory and
institutional frameworks and capacities to guide the implementation process through National
Environment Management Authority. Further incorporated into Section 109 of the Mining Act
2003 states on Environmental protection standards. There shall be included in every exploration
licence or mining lease granted under this Act a condition that the holder of such licence or lease
takes all necessary steps to ensure the prevention and minimization of pollution of the
environment in accordance with the standards and guidelines prescribed under the National
Environment Statute 1995
B. The Rio declaration on Environment and Development (1992). It has importance of
pursuing precautionary approaches to the management of the environment has been emphasized
by principle 15 of the Rio Declaration. It provides: "In order to protect the environment, the
precautionary approach shall be widely applied by states to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific. Certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation. “Within
national jurisdictions, this principle may be active in planning for environment management at

11
Hospital Products Ltd. V United States Surgical Corp. 91984, 55 A.L.R.417[per Dawson J. at
pp.488]
the local, regional and national levels. At the lower levels, planning helps take into account, the
particulars of locality and local circumstance. At national level, the larger picture is taken into
account. Planning involves periodic exercises, which enable revision to take into account lessons
learned, and concretize the gains realized.
Under Article 39 of the Constitution of the Republic of Uganda 12gives a right to a clean and
healthy environment. The said Constitution puts the Government under an obligation to protect
the environment ·from abuse and degradation, to conserve the environment and to restore the
environment where it has been polluted or degraded. Article 245 of the said Constitution enjoins
the Government to make laws that will ensure that the environment is protected. Uganda in
general have adopted most of this principle of Rio declaration and implemented them for
example there are various policies that have been passed like national environment (wetland,
river bank, lake shores) regulation, national forest and tree planting Act 2003, national
environment (waste management) regulation etc.
C. Bamako Convention on the Ban of the Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within Africa (1991).
The overall goal of the Basel Convention is to protect human health and the environment against
adverse effects from the generation, transboundary movements and management of hazardous
wastes and other wastes. In Uganda, we adopted it into The National Environment (Waste
Management) Regulations. Regulation 26 (1) on Management Disposal of domestic and
municipal waste. States that A person who generates domestic waste or municipal waste may,
without a licence issued under these Regulations, dispose of non-hazardous waste in an
environmentally sound manner in accordance with these Regulations, and ordinances and by-
laws made by a relevant local government also illustrated in GreenWatch v AG & NEMA 13on
disposal of plastics.
D. Montreal Protocol on Substances that Deplete the Ozone Layer (1990) as amended. The
preamble to the Montreal Protocol, for example, the principle was expressed in terms of “taking
precautionary measure. “By Montreal Protocol on Substances that Deplete the Ozone Layer,
September 16, 1987. Seen in volume 26, International Legal Materials at page 1541. The
protocol states that: “Parties to this Protocol determined to protect the ozone layer by taking
precautionary measures to control equitably total global emissions of substances that deplete it,
with the ultimate objective of their elimination on the basis of developments in scientific
knowledge, taking into account technical and economic considerations"
The National Environmental Management Authority Act, Section 38 a person can be granted a
license. The committee shall not issue a pollution license unless it is satisfied that the licensee is
capable of compensating the victim of the pollution and of cleansing the environment. In Uganda
the National Environment (Management of Ozone Depleting Substance and Products)

12
1995
13
(Miscellaneous Cause 140 of 2002
Regulation 34 provide for the use of controlled substances as set out in the schedule that affects
the Ozone layer
E. Paris Agreement (2015). It builds on voluntary contributions in regard to emission
reductions, specifically addresses climate change adaptation and enhances reporting obligations.
In its article 2, it specifies the mitigation objective of the Convention and goes beyond that in
regard to adaptation and financial flows. The Climate Change Act governs Uganda's national
response to climate change. One of the stated purposes of the Act is to give effect to the UN
Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement and
Section 4 gives these agreements the force of law in Uganda. National Climate Change Act as in
Mbabazi and Others v. The Attorney General and National Environmental Management
Authority: 2012.
F. Ramsar Convention on wetlands of International Importance (1971)
It provides the framework for national action and international cooperation for the conservation
and wise use of wetlands and their resources. Considering the ecological functions of wetlands,
the Ramsar Convention aims to stem their progressive encroachment and loss both now and, in
the future, the Convention’s mission is “the conservation and wise use of all wetlands through
local and national actions and international cooperation, as a contribution towards achieving
sustainable development throughout the world”.
In Uganda, According to the National Environment Act ,Section 2 provides for the principle of
environmental management in this it set out that to ensure fundamental right to environment
adequate for the health and wellbeing of people and also encourage the participation of people in
the development of the policies, plans, and the process for the management of the
environment .Similarly, under Article 245 of the Constitution provides that Parliament has
made the law whose purpose is to protect and preserve the environment. That law is the National
Environment Act. That law is the instrument that the State has to use to protect the environment
from abuse, pollution and degradation. A person cannot degrade a wetland and cause pollution to
other citizens simply because he owns the land. This would defeat the whole purpose of the
Constitution which requires that citizens may own land, but not cause pollution or degradation of
the environment which may affect other people and the country as a whole.
G. Aarhus Convention (1998)
It was created to empower the role of citizens and civil society organizations in environmental
matters and is founded on the principles of participative democracy.
Under Article 39 0f the 1995 constitution provides that every Ugandan has a right to a clean and
healthy environment. Also, under Section 4(2) in the National Environment Act States that a
person has a right to bring an action before a competent court for any infringement of rights of
nature under this Act. It was expressed in Uganda Network on Toxic Free Malaria Control Ltd V
Attorney General on issues of spraying of Dichlorodiphenyltrichloroethane (DDT) as a method
of malaria control in Uganda.

H. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization (2010)
It focuses on providing procedures for access to genetic resources and the fair and equitable
sharing of benefits, the Nagoya Protocol was adopted in 2010 as the second protocol under
Article 19 of the Convention on Biological Diversity. According to Article 1 of the Nagoya
Protocol, the objective is the fair and equitable sharing of the benefits arising from the utilization
of genetic resources. This includes appropriate access to genetic resources, appropriate transfer
of relevant technologies and appropriate funding
In Uganda, an inter-generational Equity requires that the present generations exploit or use
natural resources in a way that will enable the next /future generations to use the same resources
as in preamble to the Constitution of Uganda (1995). In Attorney General versus Dr. James
Rwanyarare & 9 others. No provision again is made in the law to enforce the above. The rules of
locus standi are seen to be too limiting at present to allow it. The people as individuals, families,
communities or as ethnic groups remain with no option but to scramble and exploit as much as
they can now and keep the rest for their own future generations. This is a complete reversal of
the above stated principles which the Constitution sets out to promote. Examples of these
conflicts are draining of wetlands.