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environment | 01 Sep 2020
BY Phillip Karugaba
ENSight

environment


The protection of wetlands in Uganda: too little too late

During the 2019 Wetlands Day Celebrations, President Museveni, in a speech delivered by the Prime Minister, cautioned Ugandans against degrading wetlands and forests and called for protection of the environment to avoid the effects of climate change, saying, “We need to secure boundaries of our wetlands and also strictly gazette and protect those that provide critical functions that avert climate change impacts. We need to explore setting up environment courts that effectively deal with impunity, and at the same time establish a separate law for wetlands”.

He also emphasised the need to restore wetlands and associated catchments that have been degraded as well as ensure that due diligence is done before issuing user permits, adding that periodic audits should be done to monitor compliance to the conditions set.

However, during the 2020 Tarehe Sita celebrations, the President stated that many wetlands have factories on them that cannot be removed, but the establishment of new ones will not be allowed.

It is enough to make your head spin. Uganda once had political will to protect the environment and did so with firm resolve. It is hard to understand what happened to bring us to this low point. The stark inability to confront impunity in the degradation of the wetlands, unprincipled compromises and calls for more laws and more institutions to fight the vice.

Crisis in the wetlands

Lake Victoria recently rose to the highest levels since 1964, leaving many beaches, places of entertainment, homes, land and fishing villages submerged. The discharge of water from Nalubaale Dam to the River Nile has more than doubled to 2,400 cubic metres per second, a sight some Ugandans last saw more than three decades ago. The increased discharge caused similar problems down the River Nile, submerging riverside developments including tourism facilities in national parks. The water is reclaiming its territory some have whispered in superstition. The gods must be angry.

Massive degradation of wetland areas by unfettered development of factories, resorts and homes is cited among the reasons for the rising lake levels and has rekindled the debate on the protection of wetlands. Now perhaps the force of the lapping tide will lend impetus to this necessary fight.

The Uganda Vision 2040, a strategy to foster the development Uganda outlines the efforts necessary to restore ecosystems such as wetlands through the implementation of catchment-based systems, gazetting of vital wetlands for increased protection and monitoring and inspecting restored ecosystems.

The legal framework

The Constitution obligates government to hold in trust for the people and to protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens. This is called the public trust doctrine.

The public trust doctrine is echoed in the Land Act (Cap. 227) that mandates the government to hold in trust for the people and protect wetlands for the common good of the citizens of Uganda. The Land Act prohibits the government from leasing or alienating wetlands.

The National Environment Act 2019 (“NEA”) defines wetlands as “areas permanently or seasonally flooded by water where plants and animals have become adapted and gazetted as such”. NEA repealed the National Environment Act (Cap. 153) and modified the definition of a wetland by adding the requirement that a wetland, apart from having aquatic characteristics, needs to be gazetted.

However, it is inconceivable that the government can possibly trace, map and gazette every piece of land in the country with aquatic characteristics and gazette it. It is claimed that the government has so far demarcated the boundaries of 1 728.5kms of wetlands as at February 2020. It is not clear if this has been followed by gazetting.

Also, how is the dynamic nature of wetlands to be tackled? Some are seasonal, others are permanent. They may expand during heavy rains or shrink with the dry season. This seasonality of wetlands is recognised in the statutory definition.

Rather than strengthen wetland protection, this gazetting requirement weakens it. The Auditor General’s 2018 report raised the issue of the Wetlands Management Department’s delay in gazetting wetlands making it difficult to identify wetland boundaries leading to continuous encroachment.

The National Environment (Wetlands, Riverbanks and Lakeshores Management) Regulations (S.I 153-5) regulate the management of the wetlands. According to these regulations, a minister may declare a wetland as fully protected, partially protected or subject to conservation by the local community. For those that are partially protected, regulated activities may be carried out provided the person obtains a wetland resource use permit. A developer desiring to carry out a project that may have a significant impact on a wetland, riverbank or lakeshore shall be required to carry out an environmental impact assessment.

Vanquished wetlands and cancellation of titles

In 2014, the National Environment Management Authority (“NEMA”) made a proposal to cabinet to declare some wetlands vanquished. According to NEMA, vanquished wetlands are those that have completely lost their ecological function and it would not be economically viable to reinstate them. Presently, the Attorney General is to undertake further consultation on the proposal to declare as vanquished wetland portions on public land that had been reclaimed and converted to economic activities for public good to facilitate appropriate decision making by cabinet. The proposals are based on guiding principles that if a wetland is to be declared vanquished, it should provide essential goods and services for public good such as waterworks, ports, roads, electricity power lines, among others. It should be subjected to offset mechanisms to compensate for any adverse impacts that cannot be avoided, minimised or restored. This would be through positive management interventions such as restoration of degraded habitats, arrested degradation or averted risk, protection of areas with imminent or projected loss of biodiversity or monetary compensatory equivalent.   

Cabinet also directed the Ministry of Lands to cancel titles issued in wetlands on public land acquired unlawfully after 1995.  About 298 titles have since been cancelled. In line with the Second National Development Plan, the Ministry of Water and Environment has restored 10,263.6 hectares. To achieve a 9.57% national wetland coverage within the next five years, the ministry plans to restore a further 105,800 hectares if adequate funding is available.

Environmental restoration orders

Under NEA, NEMA has power to issue an environmental restoration order, requiring any person who has harmed the environment to take action to restore it. Such an order may contain a prohibition to any person whose activities cause or are likely to cause pollution or which are detrimental to human health or the environment.

The most significant use of these powers was in the case of Godfrey Nyakaana v NEMA. A developer had built his house after obtaining all usual planning approvals. However an inspection by NEMA revealed that the house was within a wetland. NEMA issued a restoration order requiring the developer to demolish the house within 21 days. The developer failed to comply and the house was demolished. The developer petitioned the Constitutional Court alleging that the powers of NEMA were unconstitutional. The petition was dismissed. On appeal to the Supreme Court Katureebe CJ stated that although the developer had a right in the property, the State had a constitutional duty to protect the environment and consider the public interest to ensure that the developer’s rights would not prejudice the rights of others. Therefore, NEMA was rightfully performing its constitutional mandate to protect the environment.

It is both tragic and ironic given this early victory in the highest court, that we are today facing such massive degradation and so little enforcement. How did we as a country sink so low the Supreme Court’s exaltation of the public trust doctrine in Nyakana position to vanquishment a total yield to illegal encroachment and reward of offenders?

There is now nature’s impetus to reverse the environmental degradation in the country. We have seen the dangers of it, we can see the cost of it. Let’s ride it.

 

Phillip Karugaba

Head of ENSafrica Advocates | Uganda

pkarugaba@ENSafrica.com

+256 772 785 332