Advocates Coalition for Development and Environment (ACODE) v. Attorney General
Uganda
Ugandan Court Upholds Community Protest Against Butamira Forest Lease to Kakira Sugar Works, Recognizes Conservation Efforts
photo by James Akena | Reuters
Casebook Info
In 1939, the Ugandan government leased the Butamira Forest Reserve to Kakira Sugar Works for firewood production. Despite their initial denial to convert the land into a plantation, Kakira reapplied in 1997 and obtained permission without completing an Environmental Impact Assessment. This action sparked protests from the local community who depended on the forest for resources and water. To oppose the plantation, community members formed a pressure group. Subsequently, community members and the Advocates Coalition for Development and Environment (Plaintiffs) sued the Attorney General for the government’s failure to manage the environment. The Court ruled in favor of the Plaintiffs, acknowledging their dedicated efforts to preserve natural resources. However, restoration orders were not issued as they may only be issued against the party directly responsible for the environmental damage.
Year Filed
N/A
Year of Most Recent Ruling
2005
Year of Final Ruling
2005
Jurisdiction
Uganda
Court Name
High Court of Uganda at Kampala
Plaintiff(s)
Advocates Coalition for Development and Environment (ACODE)
The Butamira Forest Reserve in Uganda was established in 1929. Ten years later, the forest was leased to a company, Kakira Sugar Works, to produce firewood. Seeking to convert the land into a plantation, Kakira initially faced rejection. However, in 1997, they reapplied and were granted permission by the Forestry Department without conducting an Environmental Impact Assessment (EIA). This move was met with opposition from the local community, heavily reliant on the reserve for forest resources and water.
The community, in collaboration with the non-governmental organization ACODE, took legal action against the Attorney General (AG) and the National Environmental Management Authority (NEMA). As PLaintiffs, they alleged the AG violated Article 39 of the Ugandan Constitution by allowing the permit to be granted, and NEMA violated the National Environmental Act (NEA), which established the right to a healthy environment (R2HE) and the procedures to ensure that right. Included among these procedures are EIAs.
The Plaintiffs contended that denial of their application would lead to the Reserve being transformed, causing irreparable damage and them losing their R2HE. Hence, they sought the cancellation of the permit, recognition of their infringed rights, and directives for the Defendants to restore the environment and ensure continual protection of the Forest Reserve’s ecological integrity.
The Court sided with the Plaintiffs, citing procedural and substantive failures. The government did not complete the mandatory EIA. Turning the reserve into a plantation without adequate consultation with locals was deemed improper. Furthermore, the state’s actions were found to breach the R2HE, which necessitates environmental conservation for both current and future generations. While granting most of the relief sought by the Plaintiffs, the Court refrained from mandating restoration, a measure relevant solely to the company accountable for the environmental harm.
The Public Trust Doctrine
According to domestic and international and domestic law, the government is obligated to protect the environment for present and future generations as it holds common resources “in trust”.
Brother Keeper
How the Court described the protections afforded by Article 50 of the Constitution, which allows unharmed plaintiffs to bring cases on behalf of another when their human rights are violated.
Prior Consultation and Informed Consent
After finding that R2HE encompasses cultural, political, social, and physical rights, the Court ruled that the local population must receive prior consultation before their R2HE is infringed upon.
Plaintiff Strategies & Court Good Practices
Using an established domestic body of law
The Plaintiffs contended that their standing to initiate legal action stemmed from constitutional law, while domestic environmental legislation created NEMA’s statutory obligations. While the Plaintiffs were largely not members of the community directly affected, they brought the action under Article 50 of the Constitution. This provision allows parties to advocate for the rights of others, even when they do not personally experience the harm. It grants them authority to speak for those who, due to “ignorance, poverty or apathy” cannot assert their rights. The Court, referencing prior environmental cases, noted similar efforts to act on behalf of affected parties. Applauding the Ugandan Constitution for its adaptable standing mechanism, the Court praised its role in ensuring broader access to legal protection and remedies.
Utilizing a variety of legal arguments
The Defendants faced allegations of violating the National Environmental Act (NEA) and the Public Trust Doctrine. The NEA violation analysis entailed examining NEMA’s prescribed responsibilities detailed in the Act. The Public Trust Doctrine allegation later involved scrutinizing the government’s duties based on legal principles derived from the Ugandan Constitution and international law. Subsequently, the Court found the Defendants culpable on both counts, concluding that they had neglected their obligations outlined in the NEA and the Public Trust Doctrine’s principles.
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
The Plaintiffs filed suit against the first Defendant, the AG, in his representative capacity of the state under Government Proceedings Act. Their claim revolved around the government’s alleged violation of the Public Trust Doctrine, a legal principle entrenched in both domestic and international law. The Constitution, through its National Objectives and Directive Principles of State and Policy, mandates that the state “shall hold in trust for the people” and “shall protect” the environment for the collective welfare. Furthermore, the Plaintiffs referenced international agreements such as the Rio Declaration and Convention on Biological Diversity, which emphasize intergenerational equity and the principles of public trust, to which Uganda is a signatory.
The Court primarily delved into domestic law, highlighting instances where the doctrine was incorporated into other environmental acts. Clearly articulated in the language of the Constitution and statutes, it was evident that the Reserve was land held in trust by the government for the people of Uganda. Consequently, the government lacked the authority to lease or sell the land. It had breached its duty.
In assessing the NEA, the focus shifted to whether NEMA fulfilled its obligations outlined in the statute. These encompassed various responsibilities, such as ensuring awareness among Ugandans about their R2HE, fostering extensive participation in environmental management, equitably utilizing natural resources for present and future generations, completing the necessary EIAs, and preserving cultural heritage and natural resources, among others. NEMA not only failed to conduct the EIA but also allowed deforestation that could compromise the R2HE of present and future local populations. The Court agreed that the statute mandated taking precautionary measures, including conducting EIAs or assessments for any project with a significant environmental impact. The Public Trust Doctrine, tied to the broader obligations of the government regarding entrusted resources, compelled NEMA to act transparently, accountably, and with good governance. Neglecting to consult local communities or conduct an EIA was deemed a dereliction of duty, particularly considering that R2HE encompassed various facets of well-being, spanning physical, intellectual, moral, cultural, political, and social dimensions.
Take Aways
Across international agreements and multiple states’ domestic law, governments bear the responsibility of safeguarding shared resources for the public’s benefit. This case serves as a testament to how these responsibilities are entrenched in fundamental legal principles and doctrines, often codified as guiding tenets that governments must adhere to while fulfilling their legal obligations. The Constitution, NEA, and various domestic laws tasked Uganda with maintaining natural resources and the environment as part of R2HE. Consequently, the Plaintiffs effectively argued and established that the state, and NEMA, failed in its duty to protect R2HE, a responsibility bestowed upon them as custodians.
Terms
Element
Healthy Biodiversity and Ecosystems
R2HE includes healthy biodiversity and ecosystems among its substantive elements. This internationally recognized right encompasses the entitlement of individuals and communities to live in a balanced environment that supports diverse and thriving ecosystems. It necessitates safeguarding and preserving ecological diversity, ensuring the resilience and well-being of ecosystems and promoting the sustainability of natural habitats for present and future generations. Additionally, this right entails the protection of various species, habitats and ecological processes essential to the maintenance of a healthy and functional environment.
Element
Pollution
R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element
Procedural Elements / Components
R2HE encompasses and guarantees a range of core procedural rights. Corresponding obligations include the duty to: (i) ensure access to environmental information, (ii) enable public participation in environmental decision-making, (iii) guarantee access to justice and effective remedies, and (iv) mandate the execution of Environmental Impact Assessments prior to the commencement of potentially impactful operations or activities.
Element
Safe and Sufficient Water
R2HE includes access to safe and sufficient water among its substantive elements. This internationally recognized right provides that every person must have affordable access to a supply of safe water in quantities adequate for essential personal and domestic uses, including drinking, sanitation, washing of clothes, food preparation and personal and household hygiene. When water is polluted, contaminated or overexploited, the right to adequate quantities of safe water is jeopardized.
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Focusing on youth
Emphasizing the disproportionate and inequitable vulnerability of young people, children and/or future generations to climate change, biodiversity loss and environmental degradation. This emphasis is often articulated through the principles of Intergenerational Equity and Sustainable Development, which generally provide that governments and other entities must ensure the basic needs and rights of future generations when making decisions that bear on the environment. Additionally, the principles suggest that all individuals have a responsibility to care for future generations by limiting environmental degradation and consumption in the present.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Strategy
Utilizing a variety of legal arguments
Asserting numerous and diverse legal claims arising out of different bodies of law to increase the likelihood that at least one of the plaintiff’s arguments will succeed before the court. This could take the form, for instance, of a plaintiff bringing both an administrative challenge and a challenge based on the violation of their fundamental rights.
Good Practices
Flexible standing requirement
Standing refers to the capacity of a given party to have their claims heard in court. Imposing a flexible standing requirement can make it easier for an individual to bring a lawsuit by relaxing the criteria determining who has the legal right to sue. In many jurisdictions, standing – which often requires a showing of remediable and “individualized harm” linked to defendants’ actions – has posed a barrier to the adjudication of R2HE and environmental damage claims. This difficulty can be attributed in part to the complex and diffuse nature of many environmental phenomena, which makes establishing individualized injury and a causal link difficult.
Some international and regional treaties incorporating R2HE emphasize that courts should adopt accommodating standing requirements in environmental defense cases. Many courts across the world have done just that, promoting access to justice by applying flexible standing requirements where parties seek to defend R2HE or environment.
Good Practices
Providing remedies
Provision of remedies is the process by which courts, after finding that a legal right has been violated or harmed, offer or provide a resolution or solution to address the harm or injustice suffered by the aggrieved party. Appropriate and effective judicial remedies play a key role in ensuring that R2HE materially protects individuals and all aspects of the environment. Remedies can vary widely in number, specificity, urgency and stringency, and those variations bear closely on whether a given remedy adequately redresses the original harm. Frequent remedies include protection and restoration measures, compensation and the creation of compliance or implementation mechanisms.
Environmental Impact Assessment
A process used in environmental management and sustainable development to evaluate the potential environmental consequences or impacts of proposed projects, policies, plans, or developments before they are carried out. The primary goal of an EIA is to identify, predict, and mitigate any adverse effects that these activities might have on the environment. It often involves modeling potential harms and exploring alternatives, if any, to avoid them.
Intergenerational Equity
This international and environmental law principle provides that States and other entities must regard the impact of their public policies on the environment on present and future generations equally. In other words, actions that allow present generations to meet their needs and wants but sacrifice the ability of future generations to meet their basic needs and live lives of dignity contravene Intergenerational Equity.
Precautionary Principle
This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.
Procedural Violation
A breach or infringement of the established procedures, processes, or methods outlined by law, rules, regulations, or agreements rather than a direct breach of substantive rights or obligations.
Public Trust Doctrine
A legal principle that asserts certain natural resources – such as navigable waters, shorelines and other select resources of ecological and cultural importance – are held in trust by the government for the benefit of the public. This means that such resources are considered so crucial for society, that governmental institutions should provide them special protections, for the benefit of the public.
Substantive Violation
A breach or infringement of the substantive aspects or core elements of a law, regulation, contract, or legal principle rather than a procedural error or technicality. In essence, it involves a breach of the essential or substantial aspects of a rule, law, or right.
