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

2.0 Introduction ...................................................................................................................... 12

2. I State of Wetlands ............................................................................................................. 12

2.2.0 Impmtance of Wetlands ................................................................................................ 13

2.2. I Wildlife habitat .............................................................................................................. 14

2.2.2 Water purification ......................................................................................................... 14

2.2.3 Erosion Control ............................................................................................................. 15

2.2.4 Water Conservation/Hydrology .................................................................................... 15

2.2.5 Other importance's of wetlands/Economic socio importance ....................................... 16

2.3 Reasons for Reduced Coverage of Wetlands From I902 ................................................. 16

2.3.I Drainage ofwetlands: .................................................................................................... 16

2.3.2 Introduction of New crops ............................................................................................. 17

2.3.3 Pollution ........................................................................................................................ 17

2.3 .4 Over harvesting ............................................................................................................. 17

2.3 .5 Reclamation for Industrial Developments ..................................................................... 18

2.3.6 Human settlement in swampy areas .............................................................................. 18

2.4.0 Management ofWetlands .............................................................................................. 18

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

3.0 Introduction ...................................................................................................................... 26

3 .I International Law on Wetlands ........................................................................................ 2 6

3 .1.1 The United Nations ....................................................................................................... 2 7

3 .1.2 United Nations Environmental Programme .................................................................. 29

3 .1.3 African Union On Wetlands .......................................................................................... 30

3 .2. 0 The Ramsar Convention ................................................................................................ 3 2

3.2.1 The Stockholm Convention on Persistent Organic Pollutants ...................................... 34

3.2. The East African Protocol on Environment and Natural Resource Management. .......... 35

3.2.3 African Convention on the Conservation of Nature and Natural Resources ................. 36

3 .2.4 Vienna convention on the protection of the ozone layer 1985 ...................................... 36

3.2.5 Convention on biological diversity of 1992 .................................................................. 37

CHAPTER FOUR ....................................................................................................... 38

NATIONAL LAWS AND PRINCIPLES .............................................................................. 38

4.1. 0 Introduction ................................................................................................................... 38

4.1.1 The 1995 Constitution of the Republic ofUganda ........................................................ 38

4 .1.2 The land act cap 227 ...................................................................................................... 3 9

4.1.3 The National Environment Act 2019 Cap 153 .............................................................. 41

4.1.4 The Water Act Cap 152 .................................................................................................. 43

4.1.4 Fishing Act cap 197 ....................................................................................................... 44

4.1.5 The Local Government Act cap 243 ............................................................................. 45

4.1.6 The National Environment (wetlands, river banks and lake shore management) 2003 46

4.2.0 Common Law Principles in Protection Of Wetlands .................................................... 47

4 .2.1 The law of torts ............................................................................................................. 4 7

4.2.2 Nuisance ........................................................................................................................ 48

4.2.3Trespass .......................................................................................................................... 49

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

4.5.1 Environmental Impact Assessment (EIA) ................................................................ 57

4.5.2 Environmental audit. ................................................................................................... 57

4.5.3 Environmental Monitoring ......................................................................................... 58

4.5.4 Environmental Restoration Orders ............................................................................ 58

CHAPTER FIVE .................................... ~ ................................................................... 60

COCNCLUSIONS AND RECOMMENDATIONS .............................................................. 60

5.1.0 Conclusions ................................................................................................................... 60

5.2.0 Recommendations ......................................................................................................... 61

References .............................................................................................................................. 63

ix

CHAPTER ONE

GENERAL INTRODUCTION

1.0 Introduction

Uganda is a land locked country located in East Africa; it is boarded by Kenya in the

east, South Sudan in the north, Tanzania and Rwanda in the south and DRC in the west.

The country has a variety of physiographic features comprising of beautiful landscapes,

water resources, wetlands, forests, grass lands and rich biodiversity'.

The soils are fair to stimulate productivity and favorable climate helps communities to

depend on rain fed agriculture, mean temperatures show great variation depending on

evaluation and landscape, rainfall and temperatures in Uganda range from 4-32°C

respectively2

The definition of what constitutes a wetland can be found in various laws, articles and

policies. It has also been defined by many scholars. But however a wetland has been

defined to mean an area permanently or seasonally flooded by water where plants and

animals have become adopted and these include swamps, dambos, and riverbanks,

areas of marsh, peat lands, mountain bogs, and vegetation areas of impeded drainage or

blackish salt3

Uganda's wetlands are wide spread and complex in the south and west of the country,

they form an extensive low gradient drainage system in step V -shaped valley bottoms

with a permanent wetland core and relatively nanow seasonal wetland edges. In the

north, they mainly consist of broad flooded plains, in the east they exist a network of

small vegetated valley bottoms in a slightly an adulating landscape 4 .

With an estimated coverage of 15%, water resources cover an area of 36,280km2 of the

241,500km2 total area of the country, but wetlands coverage by 2014 had about 11% of

land area covered which has been declining slowly from 15% of 1994.

1 National State of Environmental Report 2004 2 Ibid I 3 The National Environmental Regulations No.3/2000 4 The Wetland Sector Strategic Plan

1

Uganda's landscape wetland ecosystem constitnte an important natural resource which

are both from ecological, social and economic point of view which resources have been

traditionally been utilized by the people as a source of materials for construction, crafts,

hunting, and fishing areas, grazing areas, good soils for cultivation and a s a source for

domestic water5.

1.1 Historical Background

The historical background of wetlands management in Uganda can be categorized

under five phases namely pre-colonial colonial Amini's regime and present

Before the colonial period land ownership was governed by customs of a patiicular

tribes in regions where there were centralized organizations such as Buganda and other

monarchs, land was owned communally and on clan basis or tribal ownership for those

regions that did not possess centralized political organizations for example the

K.aramojongs

It should be noted that wetlands were among those resources shared by communities for

collection of water, building materials like clay, papyrus which was used for

construction, making fishing baskets, and also communal agriculture was carried out

for example rice cultivation in Teso region. Upon evolution of the Buganda Agreement

two new concepts in land division was introduced which interalia included the crown

land which covered waste and un occupied land, but this was introduced in regions

which were centralized which were comprised of kingdoms and chiefdoms, the Toro

Agreement was also signed plus the Ankcile in 1901 and Bunyoro agreement in 1933,

the most agreed upon feature of the Agreements is that wetlands were described as a

waste and uncultivated land and were thus labeled as crown land. 6

After independence in 1962, crown land was changed to public land, however all other

features regarding wetlands and waste land remained intact because laws of the crown

did not speculate the partition of wetlands by that time

5 State of Wetlands Report 2011 on World Wetland Day 6 Guide on the Principles of Environmental Law in Uganda

2

During Amini's regime, there were reforms of the land tenure system intended from the

colonial period as a result all land in Uganda was declared public since there was no

control of natural resources. Amini changed the tenure because he had greater hopes of

change Uganda into a socialistic country from capitalism where by all sources of

production are controlled by the government. In this error only decrees were used to

safe guard the environment and its beauty, this is because he abrogated the 1967

constitution and replaced it with decrees hence he was the law and the law was him.

When the NRM Government came into power in 1986, it inherited a chaotic situation in

the social, economic, political as well as in environmental spheres including wetlands.

However with months after taking power, the government took decisive means to halt

the destruction of wetlands which was an increasing character. In October 1986

government issued administrative guidelines to cmiail the devastation of wetlands

resources in pa1iicular a ban on large scale schemes was imposed until such time that a

more elaborate scientifically proven and socially harmonious policy was put in place.

Among the purpose of the scheme was to provide the basis for environmentally sound

management and rationale utilization of the wetland resources. In 1987 the ministry of

environmental protection was established as the main coordinating body for all

developmental activities with a bearing on environmental management. One of its

functions was to ensure multi-disciplinaJ.·y and inter-sectoral planning for economic and

development and wetland degradation was identified as one of the key national

environmental issues. 7

1.2 Statement of the Problem

I spite of the existence of laws, both national and international, frames and policies

governing wetlands that have been put in place since the colonial error prior to the

enactment of the 1995 Constitution, there has been little done in trying to implement

them and curb the wide spread encroachment and draining away of wetlands. This is

because our law regarding environment is seen as a copy of the colonial masters and of

traditional customary norms and the international laws, this can be pointed out in the

1995 Constitution under the National Directive principle XXVII (iv) which provides

7 Ibid 5

3

that the state, including local governments shall create and develop parks, reserves and

recreation areas and ensure the conservation of resources, and to promote the rational

use of natural resources so as to safeguard and protect biodiversity of Uganda, as the

parliament of Uganda is conferred with the mandate to make laws under Art 245 which

shall protect and preserve the environment from abuse, pollution and degradation and to

promote environmental awareness on mainly wetlands as the research will strive to

show it out.

There has been wetlands in Nalcawa Division, however they are being degraded and the

activities that have drastically affected the wetlands generally is; the high population

growth rate which has demanded land for settlement, hence constructing in wetlands,

draining away of wetlands for agriculture more so aquatic food crops like rice, yams,

vegetable growing and many more. The many industries in Nakawa which have

boomed to the maximum discharge wastes in swamps and Kinawataka has been among

the swamps which have the repercussions of industrial activities.

1.3 Purpose/ Objective of Study

To examine the effectiveness of international conventions and national laws and their

relationship on how they have addressed the issue of wetlands in Uganda.

1.3.1 Specific Objectives of Study

a) To examine the state of wetlands in Uganda.

b) To examine the role of international law and policy on protection of wetlands in

Uganda.

c) To examine the role played by national environmental laws and tools on

sustainable protection of wetlands in Uganda.

d) To examine the role played by environmental bodies and authorities m

managing the environment.

1.4 Scope of the Study.

The study was carried out in Kampala District, Nakawa Division, Kireka town using a

case study of Kinawataka wetland putting much emphasis on the circumstances which

4

have led to swamp degradation practices in Kinawataka and the policy innovations

designed to protect other wetlands in Uganda which include both international and

national innovations for example conventions and treaties

The study was conducted using a descriptive and exploratory study, both primary and

secondary data were used in the study where by relevant sources were used to generate

information that supported the secondary data from books and in this case NEMA and

its officials have been interviewed.

Despite Uganda's beauty comprising of wetlands which have got a wide range of

purposes, they are faced with problems which greatly tlu·eaten their existence. Thus the

study is pinned towards analyzing the effectiveness of laws in curbing problems

associated with welfare management in Uganda, and briefly tackles the role played by

policy instmments in addressing the problems with emphasis being on implementation

of the said structures. With emphasis on Kiwanataka wetland located in Kireka in

Nakawa Division Kampala District. Hence the study has analyzed environmental laws

in Uganda and the role the play on wetlands preservation both domestically and

internationally.

1.5 Significance of the Study.

I) The study could assist Ugandan legislators (parliament)to address the lacuna

existing within the law and formulate those which will curb the problem.

2) The study will assist the encroacher to know about the great significance of

encroaching on wetlands; sensitize them on how important wetlands are.

3) The study will not only point out the domestic aspect of laws governing

wetlands but policies too ranging from international to domestic policies.

5

1.6 Methodology

The researcher has used methods and means which suit the collection of data on the

study topic which include:

This was sourced by doctrinal legal research reviewing existing documented resources

such as journals, News Papers, environmental reports, presentations, magazines and

online publications.

This included detailed review of already existing relevant documents in the

aforementioned libraries and offices on the research topics. The tool was selected

because it gave historical and accurate data full of practical and documented evidence

which will be used for future reference

1. 7 Literature Review

The main purpose of this research is to address the significance on the laws in tackling

issues association with wetlands management.

Many researchers and environmental reports have provided information on wetlands.

My area of research will observe and analyze the law, its deficiency and inability to

address that looming crisis on wetlands that are being settled on and hence violating

their use on natural resource. The research based on the constitution of 1995 which led

to birth of various laws and policies to curb the wetland encroachment and protect and

protect the ecological system. Such laws include Land Act, National Environmental

Act, Water Regulations No.33/98 and National Environmental, the UNEP, the state on

Environment Report of2014.

A1iicle 398has protected the environment though its provision of a right to a clean

environment which provides that every Ugandan has a right to a clean environment.

This has made the courts apply this Article most especially in work places, in cases of

water drainage for example sand mining in swamps and others. But observing the case

8 The constitution of the Republic of Uganda

6

of Juan Antonio Oposa Vs Fulnesia9, It was observed by the Supreme Court that such

basic rights need not even be written under the constitution for they are assumed to

exist from the inception of human kind if they are explicitly mentioned in the

constitution10• This means that life and environment are in separation. Principles of

National and Directives of state policy XIII-XXVII shall be reviewed which stimulate

the procedures and rules on how to safe guard the environment for example Principle

XXVII under the Rule 27 obliges the state to promote sustainable development and also

enjoins government to create good water systems. 11

A Report of Wetlands Status of Mpigi District 1996 which was published in 2002

which among other proposed topic in the rep01i was the enactment of by-laws which

are in conformity with the 1995 Constitution and the NEMA Act and that the District

Authorities should ensure that details of environmental impact assessment are carried

out before developmental activities are anticipated in any wetland. This report

stimulated the state to protect wetlands because an impact assessment team was put in

place to calculate the dangers of such economic activity in such wetlands. It's upon this

that NEMA in Masaka district put an injunction of rice cultivation in the swamps. 12

The National Environment Act shall be reviewed to the degree required for this

research as its bi1ih was due to the enactment of the 1995 constitution which is to

preserve and protect the environment. For example in light of the constitutional right

under Ali 39 a right to a clean environment NEMA can enforce such a right where

there is impurification of the environment which makes it hazardous for human life.

In light to that under Section 67 of the NEA which provides for environmental

restoration orders it provides that the authority may issue to any person in respect of

any mater relating to the mgt of the environment and natural resources. The NEMA as a

principally coordinating, monitoring and supervision body which cause implementation

through the environment local unit and the districts. In the event of conflict the

coordinator and the implementer, institutional paralysis arises with the resultant effect

9 Supreme Court of India 10 Ibid 8 "The 1995 Consti!ution of the Republic of Uganda 12 PAGE 91

7

ofinfectiveness implementation of the environmental laws. It's therefore important for

the implementer and the coordinator to appreciate each other for better results of

environmental law enforcement. She also pointed out that government should balance

between environmental protections or management and industrialization.

Dianah Shelton & Alexander Kiss 13 which provides for the species which are the

protection of habitats and ecosystems is necessary complement to the protection of

species, wetlands and particularly important, they play a vital role in the water cycle,

helping to refill water tables and maintain water quality, they are highly productive

ecosystems inhabited by large numbers of plant and animal species. Many marine

species depend on coastal wetlands for their reproduction, growth or nutrition during

part or all their life cycle. During recent decades state sanctioned or even mandated

drainage operations as well as drought and land fill have considerably reduced the

extent of global wetlands. 14

Guide to the Practice of Environmental Law in Uganda 15, looked at the constitution

being the supreme law in Uganda which provides for environmental protections and

conservation. It provides in the national objectives and directive principle of state

policy that the state shall 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.

Emmanuel Kasimbazi led consultation in the review process, raised among

other16topics and discussed during the workshop inter alia the need to defined wise use

of wetlands, a call for better support towards policy implementation, the gap between

science, policy and practice, sustainable and equitable water resources, socio-economic

and impacts of environmental degradation alignment with development priorities.

Restoration of drained wetlands, community participation, alternative livelihoods and

capacity building for the implementing agencies. Participants argued that the

government agencies collaborate and work together with in wetlands conservation to

13 Judicial Hand Book On Environmental Law 14 Page 191 15 Kenneth Kakuru 2009 16 The Uganda Wetlands Policy Review 02/06/2018

8

minimize conflicting interest, replication of roles and enhance coordination and proper

facilitation of activities during implementation.

The Mangrove and Coastal Wetlands Protections Draft Policy and Regulation 1997.

this stated that one of the objectives set out of the general aim of sustainable use of

south Americas wetlands was to bring to and end all activities that cause damage to the

wetlands. OBITER stated that the underlying cause of wetland destruction is the

install able of both the Rich and the Poor to deriving livelihood from the swamps due to

the high population growth of 35% and also pressure from industrial construction.

According to him political interference in the allocation of wetlands to people for

settlement, industrialization and crop cultivation through patronage and as political

reward is a high challenge. He stated that this deters enforcement mechanism in place.

This was observed in the 2011 presidential campaigns where H.E President Yoweri

Kaguta Museveni on his rally in Kabaale, he ordered the farmers to continue cultivating

Irish potatoes in the swamps. 17

The biological diversity of wetlands in the continent is unevenly distributed, with some

habitats being characterized by a richer range of species than others. In particular,

wetlands in areas of high rainfall and warm climates, such as the Congo Basin, display

richer species diversity than those of drier regions north and south of the !5°N to 20°S

zone. Of course, the importance of any given wetland from a biodiversity perspective is

assessed not only by the overall richness in number of species present, but on the

uniqueness of the area in terms of the number of localized species, particularly the

endemic species. In this regard, most African wetlands display both characteristics,

richness in number of species and endemism. There are, for example, over 2,000 known

species of indigenous freshwater fishes in Africa. The Zaire River Basin, probably the

most diverse area in Africa for its fishes, has over 700 identified species of which 560

are endemic to the basin. There are at least 18 families of endemic freshwater fish fauna

many of which are found in the great lakes of east and central Africa18.

17 Daily Monitor 23'' April2011 18 An overview of African wetland By Tom Kabii, Technical Officer for Africa, Ramsar Bureau, Switzerland

9

The state of the world's wetlands involves a myriad of aspects of quantity and quality.

This Briefing Note highlights key outcomes from recent reports published on selected

aspects of wetland status and trends. It includes assessments on global trends, such as

the Global Biodiversity Outlook 4 (GBO -4) and regional trends, as well as assessments

of trends in Ramsar Sites. These studies have found that the continuing losses and

degradation of wetlands have resulted in diminished ecosystem services, despite the

importance of wetlands and the initiatives agreed through the Convention. This

Briefing Note concludes with a short discussion of ongoing initiatives for wetland data

collection and assessment. While information gaps remain and while each of the studies

discussed contains caveats on their methodologies, the trend is unmistakable wetlands

continue to be lost and degraded. 19

1.8 Arrangement of Chapters

Chapter one

This chapter introduces the topic and gives a historical background of wetlands, lays

out the problem that research is meant to cover, objectives of the study, and also

portrays out specific of the study, scope of the study, significance of the study, the

methodology the researcher reduced upon throughout the research process. The

literature view which contains all the materials reviewed throughout the research

process.

Chapter Two

Chapter two shall contain the rate of wetlands, types of wetlands in Uganda pointing

out the different importance of wetland which are both ecological and economical.

problems facing the wetlands. Ownership of wetlands in Uganda and the policies that

have been set up to protect and curb the problems which are facing the wetlands in

Uganda.

19State of the World's Wetlands and their Services to People A compilation of recent analyses

.10

Chapter Three

Chapter three introduce international law in Uganda, showing various international

conventions pointing out their relevance iri the protection of wetlands.

Chapter Four

Chapter four introduces national law of Uganda showing the relationship between

international law and their significance in curbing the problem of wetland degradation

in Uganda.

Chapter Five

Chapter five portrays out the solution recommendations pointed out in the protection of

wetlands in Uganda.

11

CHAPTER TWO

STATE OF WETLANDS IN UGANDA

2.0 Introduction

This chapter is concerned with the nature of Uganda's wetlands, Rationale of wetlands,

ownership of wetlands, problems affecting Uganda's wetlands and the policies of such

signified importance to breaking down the problems.

2.1 State of Wetlands

Uganda's wetlands range from those fringing the equatorial lakes at an altitude of 1134

km above sea level to thrice in the Afro mountain regions of Mt. Elgon and the

Rwenzori range which may be found as high as at 4000m above sea level. This large

wetland resource is explained by a climate of high rainfall and the general topography

of the country. The wetlands are spread out of the country20

In 1964, the total area of wetlands was estimated at 32000 km2 but by 1999. It had

decreased to 30,000km2as about 13% of the total area of Uganda, preliminary date from

National Biomass study unit of the National Forestry Authority (NFA) 2008 suggest

that Uganda's wetlands cover, as estimated in 2005 has now been reduced to 26,308

km2 as II% of total land area. The key underlying causes of this decline is the

insatiable desire for the population both the rich and the poor to derive livelihoods from

the wetlands such as reclamation for agriculture (Rice in Eastern Uganda for example

the Doho Rice Scheme) and vegetables in South Western (Kakumiro Swamp) and other

lads and commercial purposes (Central Region), over harvesting of water for domestic

and commercial use and others which shall be discussed among the problems21

Lake Victoria and Kyoga are among the most critical ecosystems in Uganda. The

wetland catchment areas around Lake Victoria alone has shrunk by more than half of its

size in 20 years from 7167.6Km2 in 1994 to 3,310Km2 in 2008. The wetland catchment

20 National state of environment report 2004 21 Ibid 22

12

of Lake Kyoga has also reduced in size from 15,008.3ICm2 I 1994 to 11,028.5Km2 in

2008.

The global partnership in East Africa states that losses approximately 15% of its Gross

Domestic Pdt (GDP) due to destruction of its natural resources such as wetlands.

Wetlands destruction alone costs Uganda nearly Shillings 2 billions annually and

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

"https://news.un.org/en/news/topic/climate-change "https://en.wikipedia.org/wiki/United Nations Environment Programme

29

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

107 Section 4(1)(c) 108 Section 22 109 Section 31 110 Section 1

44

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"

64