TOPIC 3: ENVIRONMENTAL RIGHTS

Introduction:
• Environmental rights have become one of the means of
fundamentally enhancing the promotion of environmental
protection and sustainable development.
• Where there are rights on one hand there are duties or
obligations on the other.
• Environmental rights are either procedural or substantive
in nature.
• Procedural rights include: right of access to information;
public participation; and access to justice. *How about the
right to protest?
 Introduction cont’d
• Substantive environmental rights are mainly in the form of
constitutional environmental provisions which provide for
the duty to protect the environment.
• substantive rights include: the right to life; right to a clean
and healthy environment; the right to property; and the
right to privacy.
• Environmental rights therefore have a vertical application
(i.e. operate between government bodies and private legal
persons) and horizontal application (i.e. one citizen can
invoke them against another legal or natural person).
• Environmental rights are perceived as Anthropocentric or
Biocentric, i.e. Biocentric or anthropocentric approach.
 3.1. Introduction cont’d
• Thus there is no doubt that substantive environmental
rights are developed and furthered by environmental
procedural rights.
• The environment which includes the trees, soil, lakes and
forests cannot physically enforce their substantive rights
and as a result it’s only humans that can enforce these
rights in the form of procedural rights on behalf of the
environment.
• See the 1948 UDHR; 1966 ICCPR; 1966 ICESCR; 1972
Stockholm Declaration; 1982 World Charter for Nature;
1992 Rio Declaration; Aarhus Convention; and Agenda 21.
 Substantive environmental rights
3.2. The Right to Life
• The right to life is closely linked to the enforcement of
environmental rights for the preservation of the present
and future generations.
• In Uganda the 1995 Constitution guarantees the right to
life under Article 22(1) by stating that - ‘No person shall be
deprived of life intentionally except in execution of a
sentence passed in a fair trial by a court of competent
jurisdiction in respect of a criminal offence under the laws
of Uganda and the conviction and sentence have been
confirmed by the highest appellate court’.
 Right to Life cont’d
• The Constitution under Article 22(2) further provides that: ‘No
person has the right to terminate the life of an unborn child
except as may be authorized by law’.
• In the case of British American Tobacco (BAT) Ltd v The
Environmental Action Network (TEAN), Civil Application No.
27/2003 (High Court of Uganda); an attempt was made to
establish a link between environmental quality and the right to
life.
• The court was further asked to determine whether Article 22(1)
of the Constitution which prohibits ‘intentional’ taking of life, can
be interpreted to apply to an alleged failure of a manufacturer
of cigarettes to warn consumers or potential consumers of
possible health risks associated with the use of the product.
 3.3. The Right to a Clean and Healthy Environment
• The right to a healthy environment “would recognize the vital
character of the environment as a basic condition of life,
indispensable to the promotion of human dignity and welfare,
and to the fulfillment of other rights.”
• The right to a clean and healthy environment involves many
things including: clean water, air and soil that are free from
toxins, wastes or hazards that threaten human health.
• The Constitution of the Republic of Uganda under Article 39
expressly provides for the right to a clean and healthy
environment by stating that; Every Ugandan has a Right to a
Clean and Healthy Environment. Section 3 of the National
Environment Act provides for the right to a decent
environment.
 Clean and healthy environment cont’d
• It should be noted that the concept of human health moves
beyond ‘merely absence of disease or infirmity’ and
encompasses ‘a state of complete physical, mental and
social well-being’.
• In the case of Advocates Coalition for Development and
Environment (ACODE) v Attorney General & NEMA,
Misc. Cause No. 0100 of 2004 (High Court of Uganda)
where the applicants challenged the change of land use of
the Butamira Forest Reserve on grounds that such change
of use violated the right to a clean and healthy
environment.
• The judge stated that the right to a clean and healthy
environment entitles Ugandans to a right to an
environment adequate for their health and well-being.
 Clean and healthy environment cont’d
• In Uganda Electricity Transmission Company (UETCL) V
De Samaline Incorporation Ltd, Misc. Cause No. 181 of 2004
(High Court of Uganda), the applicants sought a declaration
that the discharge of unpleasant noxious and chocking dust
from the respondent’s premises constituted a violation of the
applicant’s employees’ right to a clean and healthy
environment provided for under Article 39 of the Constitution.
Misc. Cause No. 181 of 2004 (High Court of Uganda).
• Article 245 of the Constitution by stating that Parliament
shall by law, provide for measures intended to: to protect
and preserve the environment from abuse, pollution and
degradation; to manage the environment for sustainable
development; and to promote environmental awareness.
 Clean and healthy environment cont’d
• In Uganda Electricity Transmission Company (UETCL) V De
Samaline Incorporation Ltd, Misc. Cause No. 181 of 2004 (High
Court of Uganda), the applicants sought a declaration that the
discharge of unpleasant noxious and chocking dust from the
respondent’s premises constituted a violation of the applicant’s
employees’ right to a clean and healthy environment provided for
under Article 39 of the Constitution. The judge expanded the
definition of the right to a clean and healthy environment as follows:
“I must begin by stating that the right to a clean and healthy
environment must not only be regarded as a purely medical matter.
It should be regarded as a holistic social-cultural phenomenon
because it is concerned with physical and mental well-being of
human beings… a clean and healthy environment is measured in
both ethical and medical context. It is about linkages in human well-
being. These may include social injustice, poverty, diminishing self-
esteem, and poor access to health services. The right to a clean and
healthy environment is not restricted to a clinical model”.
 Clean and healthy environment cont’d
• In the case of Social Economic Rights Action Centre
(SERAC) and The Centre for Economic and Social Rights
v Nigeria, Case No. ACHPR/COMM/A044/1 (Afr. Comm’n
Hum. & People’s Rts. May 27, 2002), acting on a petition filled
by two non-governmental organisations on behalf of the
people of Ogoniland in Nigeria, the African Commission on
Human and People’s Rights found the Nigerian government
liable for the violation of the right to health and clean
environment because of pollution of the soil, water, and air
which harmed the health Ogoni people. This violation of the
right to healthy and clean environment stemmed from the
actions taken by or involving the Nigerian National Petroleum
Company (NNPC) in a consortium with Shell Petroleum
Development Corporation (SPDC).
 3.4. The Right to Privacy
• The right to privacy is critical in the conservation of the
environment and the realization of the right to a clean and
healthy environment.
• This right is essential in the peaceful and quite enjoyment of
personal property which includes the environment and its
surroundings.
• The Constitution provides for the right to privacy of persons,
home and other property under Article 27(1)(a)&(b) which
states that: ‘No person shall be subjected to- unlawful search
of the person, home or other property of that person; or
unlawful entry by others of the premises of that person.
• Article 27(2): ‘No person shall be subjected to interference
with the privacy of that persons’ home, correspondence,
communication or other property’.
 Right to privacy cont’d
• Environmental degradation and pollution is directly and
closely linked to the infringement of the right to privacy
and peaceful and quite enjoyment of personal property.
• A degraded environment may not enable one to enjoy
their property due to acts such as negligence and
nuisance. Furthermore, pollution is at times carried out by
those that unlawfully enter the property of others e.g.
trespassers.
• Recent decisions of the courts overtly balance the
competing interests of the individual and the community
with considerable deference to the state’s decisions.
 Right to privacy cont’d
• In Arrondelle v United Kingdom, Application 7889/77, 19 D.
& R. 186 (1980) and 26 D. & R. 5 (1982), the applicant
complained of noise from Gatwick Airport and a nearby
motorway. The application was declared admissible and
eventually settled with the payment of 7500 pounds.
• See Lopez-Ostra v Spain, 1994.
• See Maria Guerra v Italy, 1998.
 3.5. The Right to Property
• Environmental degradation may lead to waste of property and
also interfere with the right to enjoyment of property.
• What one does with his property should not negatively impact on
the property of others.
• In Uganda, Article 26(1) of the Constitution provides for
protection from deprivation of property by stating that ‘every
person has a right to own property either individually or in
association with others’.
• The Constitution (Article 26(2)) provides that ‘no person shall be
compulsorily deprived of property or any interest in or right over
property of any description except where the following conditions
are satisfied: (a) the taking of possession or acquisition is
necessary for public use or in the interest of defence, public
safety, public order, public morality or public health.
 Right to property cont’d
• Under Article 26(2) the compulsory taking of possession or
acquisition of property is under the law which makes
provision for prompt payment of fair and adequate
compensation, prior to the taking of possession or
acquisition of the property; and a right of access to a court
of law by any person who has an interest or right over the
property.
 Environmental Procedural Rights
3.6. The right to access to Information
• Protection of the environment and the enforcement of
environmental rights is only enabled where the public has the
access to the necessary environmental information.
• The constitution of the Republic of Uganda similarly provides
for access to information under Article 41 which provides that:
“(1) Every citizen has the right of access to information in the
possession of the state or any other organ of the state except
where the release of the information is likely to prejudice the
security or sovereignty of the state or interfere with the right to
privacy of any other person. (2) Parliament shall make laws
prescribing the classes of information referred to in clause (1) of
this Article and the procedure for obtaining that information.
 Access to Information cont’d
• Uganda enacted the National Environment Act 2019
(Sections 146-149) and the Access to information Act, Act
No. 6 of 2005.
• In the case of Van Huyssteen v Minister of Environmental
Affairs and Tourism, 1996(1) SA 283 (C) 300B-F, the court
held that a person is entitled to information held by the
state where it is ‘reasonably’ required for the protection
under those circumstances should be tested in terms of
the general limitation clause in the bill of rights.
• in the case of Green Watch (U) Limited v The Attorney
General and Another, the court ruled that the PPA was
public document and thereby ordered for its release.
 Access to Information cont’d
• In another case of Paul K. Ssemwogerere and Zachary
Olum v Attorney General, Constitution Appeal No. 1 of
2000, the Supreme Court reversed the decision of the
Court of Appeal that had denied the appellants’ access to
the Hansard of Parliament for use as evidence in the
courts of law. In this case Kanyeihamba JSC, specifically
stated that in his opinion, there was no constitutional or
legal grounds that prevented the release and use of the
Hansard or stop members of Parliament from giving
evidence in courts of law. This was because the release of
the Hansard did not fall within the exceptions to release of
information as per Article 41(1) of the constitution.
• The right of access to information is not absolute, see
sections 27,28,29 & 32 of the AIA.
 Access to Information cont’d
• In the case of Charles Mwanguhya Mpagi and Izama
Angelo v the Attorney General, Miscellaneous Cause
No.751 of 2009. the applicants were denied access to
copies of Production-Sharing agreements (PSAs) the
government of Uganda concluded with various multi-
national companies to explore the country’s oil resources.
The Solicitor General, acting on behalf of the Attorney
General, refused to disclose the PSAs citing a
confidentiality clause therein requiring third-party consent
of the prospecting companies. The applicants then sought
an order setting aside the Solicitor General’s decision and
to declare that the public interest in disclosure outweighed
harm to third parties.
 Access to Information cont’d
• The Court held that, applicants had not illustrated that
public benefit in the disclosure of the details of the PPAs
outweighed the harm that such disclosure would entail in
view of the confidentiality clauses. The Court also held
that, the applicants' claims to the effect that the citizens of
Uganda had the right to take part in government decision-
making insufficient to prove the public interest. The Court
found that the applicants had not stated how this
information would bring the government to be more
transparent, accountable and efficient in the management
of the oil resources. The Court noted that not all
government business is supposed to be in the public
domain, as the keeping of certain documents secret is
necessary for the proper functioning of public service
 3.7. Right to Public Participation in decision-making
• Environmental democracy is achieved best if the public is
able to participate in the process of making laws and policies
that are relevant for the protection of the environment.
• Some fundamental rights may be worthless when not
guaranteeing a means of formal participation by right-holders
in their implementation.
• The Constitution of the Republic of Uganda provides for the
right to public participation in decision making. This is under
Part II (i) of the National Objectives and Directive Principle of
State Policy which states that: “The state shall be based on
democratic principles which empower and encourage the
active participation of all citizens at all levels of their own
governance.”
 Public participation cont’d
• Part X of the National Objectives and Directive Principle of
State Policy which states that: “The State shall take all
necessary steps to involve the people in the formulation and
implementation of development plans and programmes that
affect them.
• The public may participate in decision-making, plans,
policies, legislation, programmes, issuing of permits/
concessions/ authorisations, and environmental impact
assessments (EIAs).
• The CSOs and NGOs have an important role to play.
• There should be a clear distinction between notification and
consultation/ participation.
• Views of the public should be incorporated in the final
decision.
 Public participation cont’d
• In the case of Doctors for Life International v Speaker of the
National Assembly and Others, 2006 (12) BCLR1399 (CC), the
Constitutional Court considered the issue of public participation in
the broader democratic governance context. The Constitutional
Court stated that: “The participation by the public on a continuous
basis provides vitality to the functioning of representative
democracy. It encourages citizens of the country to be actively
involved in public affairs, identify themselves with the institutions of
government and become familiar with the laws as they are made. It
enhances the civic dignity of those who participate by enabling their
voices to be heard and taken account of. It promotes a spirit of
democratic and pluralistic accommodation calculated to produce
laws that are likely to be widely accepted and effective in practice. It
strengthens the legitimacy of legislation in the eyes of the people.
Finally, because of its open and public character it acts as a
counterweight to secret lobbying and influence peddling.
Participatory democracy is of special importance to those who are
relatively disempowered in a country like ours where great
disparities of wealth and influence exist.”
 Public participation cont’d
• In the case of National Association of Professional Environmentalists
(NAPE) v AES Nile Power, High Court Misc. Cause No. 268 of 1999, the
applicants sought a temporary injunction to stop the respondent from
concluding a power purchase agreement with the Government of Uganda
until the “National Environment Management Authority (NEMA)” had
approved an Environmental Impact Assessment (EIA) on the project. The
applicants further sought a declaration that such approval of the EIA was
a legal pre-requisite and that endorsement of the project by Parliament
without NEMA approval of the EIA was a contravention of section 20 of
the National Environment Act (NEA), and thus was illegal, null and void
and of no effect. The applicants further contended that the NEA EIA
requirement was a protective measure which the public who were
concerned with the project would invoke as part and parcel of public
protection of the environment and accessing the Constitutional guarantee
of the right to a clean and healthy environment. In its holding, although the
Court did not grant the injunction sought by the applicants, the Court
declared an approval of the EIA by NEMA a requirement under section 20
of the NEA. As a result of the above case, NEMA set the EIA process in
motion by advertising the impact assessment study, seeking written
comments, and inviting presentations from the public.
 3.8. Right to Access to Justice
• Access to justice is a tool for the citizens to enforce
environmental rights in the courts of law and tribunals.
• This includes the power of courts to review government’s
actions and omissions and the right to appeal against
decisions made by the same.
• In Uganda the constitution provides for the right to access to
justice under Article 50 by providing that any person who
claims that his/her fundamental human right or freedom has
been infringed or threatened is entitled to apply to a
competent court for redress, including compensation.
 Access to Justice cont’d
• Under section 4(3), the National Environment Management
Authority (NEMA) shall in its own name, be capable of suing
and being sued and doing and suffering all acts and things as
bodies corporate may lawfully do or suffer. Under Section 4 of
the National Environment Act, any person can apply to court
for the enforcement of the rights of nature. See sections 145-
146 of the National Environment Act 2019.
• Article 50 (2) of the constitution provides that “any person or
organization may bring an action against the violation of
another persons or group’s human rights”.
• Article 137 (2) of the constitution allows any person who alleges a
violation of the constitution to have taken place to petition the
constitutional court for redress. Such violation may stem from an act
or omission of a person/ organization or from an Act of Parliament
being inconsistent with the Constitution.
 Access to Justice cont’d
• Thus, Article 50(2) and 137(2) of the constitution give legal
standing to any person to seek legal redress before a court
of law. This is without having to prove a special interest or
being directly affected by the action they are complaining
of.
• Prior to enactment of the 1995 constitution, legal standing
was restricted to those that were directly affected or those
that had a special interest. See the South African case of
Verstappen v Port Edward Town Board (Case No. 4645 of
1993) ; and the Ugandan case of James Rwanyarare &
Others v Attorney General.
 Access to Justice cont’d
• Articles 50(2) and 137(2) of the constitution introduced the
notion of Public Interest Litigation (PIL).
• PIL is whereby any person or organization may bring an
action against the violation of another person’s or group’s
human rights.
• Public interest litigation is a critical tool in the struggle to
protect the rights of the indigent, vulnerable or
disadvantaged members of society who are neither aware
of their rights nor have the ability to enforce them.
• It is important to note that action under Article 50(2) is
instituted in the High Court and action under 137(2) is
instituted in the Constitutional Court.
 Access to Justice cont’d
• NGOs have an important role to play in PIL.
• In the case of The Environmental Action Network Ltd v
Attorney General and NEMA, Misc. Application No. 39 of
2001 (High Court of Uganda), the court held that an
organization could bring public interest action on behalf of
groups or individual members of the public although the
applying organization had no direct or individual interest in
the infringing acts it seeks to have addressed.
• Costs/ security for costs still a hindrance to PIL, see the
Tanzanian case of Mtikila Christopher v the Attorney General,
Civil Suit No. 5 of 1993, the High Court justified the use of
public interest litigation on grounds that the vast majority of
Tanzanians were extremely poor and could not afford to
engage lawyers even f they were aware that their rights have
been infringed. See also Greenwatch v Golf Course
Holdings.