The courts and the constitutional right to a clean and healthy environment in Uganda

• Author: Caiphas Brewsters Soyapi
• DOI: http://doi.org/10.1111/reel.12283
• Date: 01 July 2019
• Published date: 01 July 2019

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  RECIEL. 2019;28:152–161.

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1 | INTRODUCTION

In a continent like Afr ica, where deve lopment is being p ursued for

the purposes of e conomic growt h, the right to a clea n and healthy

environment cou ld be the legal yardstick a gainst which project s and

development schemes are measured. The extent to which the right

could be effec tive, however, is dependent on variable s such as the

nature of the right it self within a countr y's constitutio n or the effect-

iveness of environmental agencies and the courts. Important envir-

onmental juri sprudence comi ng from Africa is li mited, however,

owing to a number of re asons – not least that case law repo rting is

not uniform and th at judgments ar e often short a nd rarely go into

explanator y territory or s econdary tex ts. Most African law repor ts

are thus notorio usly short. T his notwiths tanding, the re are some

cases coming out of African countries which indicate significant de-

velopments in , for example: the areas of locus standi; public inte rest

litigation; environmental impact assessments (EIAs); the precaution-

ary princip le; legal costs and r emedies, so far as all t hese relate to the

right to a clean and h ealthy environment.1 While some of these de-

velopments mi ght appear to be set tled in other ju risdictions , they

represent mon umental advances in the Afri can space in the efforts

to pursue sust ainability and environ mental protection.

With this in mind , this article seeks to e xpose how Uganda, as one of

the few African c ountries that has cod ified the right to a cle an and healthy

environment in it s constitution , has fared when it come s to the protection

of the right. The a rticle is stru ctured as follow s. First, with a v iew to setting

the constitut ional context within which the r ight to a clean and healthy

environment is sit uated, Section 2 exp lores the constitut ional and frame-

work environme ntal law provisions dealing with t he right to a clean and

healthy environment. There has been a substantive analysis of these

issues already,2 and this article d oes no more than l ay the groundwork

through which t he right to a clean and hea lthy environment fun ctions and

is to be understo od for the purposes of the discu ssion. Section 3 evalu-

ates the jurispr udence on the right to a clea n and healthy environment i n

Uganda in an eff ort to ascert ain how the judicia ry has interpr eted and

given content to this r ight. Needless to say, there are a num ber of cases

dealing with env ironmental protec tion in Uganda. For this re ason, the se-

lection of the c ases discussed here i s based on the extent to w hich, either

1See general ly CB Soyapi, ‘The Role of t he Courts in Advanc ing the Right to a Healthy

Environmen t: Eastern an d Southern A frican Pers pectives’ (u npublishe d LLD Thesis,

North- West University 2018) .

2For more on this , see BK Twinomugisha , ‘Some Reflec tions on Judicial P rotection of the

Right to a Clean a nd Healthy Environment i n Uganda’ (2007) 3 Law, Enviro nment and

Developme nt Journal 244; a nd E Kasimbaz i, ‘Legal Fram ework for Deve loping and

Balancing of I nterests in Uganda’ in M Faur e and W du Plessis (e ds), The Balancing of

Interests in E nvironmental L aw in Africa (Pretoria University Press 2011) 519.

DOI: 10 .1111/reel .12283

ORIGINAL ARTICLE

The courts and the constitutional right to a clean and healthy

environment in Uganda

Caiphas Brewsters Soyapi

© 2019 John Wiley & Son s Ltd, 9600 Garsing ton Road, Oxford OX4 2D Q, UK and 350 Main Stre et, Malden, MA 02148, U SA.

Correspondence

Email: brews.soyapi@nwu.ac.za Uganda is one of the few count ries in Africa that has explicitly con stitutionalized the

right to a clean and healt hy environment. The e xtent to which the right co uld be ef-

fective, however, is dependen t on contextual variab les, which include t he nature of

the right itself wi thin a country's constitut ion or the accessibility and ef fectiveness of

judicial forums. Th e present articl e explores how the Ugan dan courts have inter-

preted and developed t he right to a healthy environment as an avenue to ensur e en-

vironmental prote ction and to facilitate sust ainability. The case law discussed revea ls

notable developments, which include: a rise in public interest environmental litiga-

tion through civil so ciety; the liber al interpretation of locus standi provisions; a n o-

ticeable tilt in favour of env ironmental protec tion and human healt h as against

economic interest s; and a noticeable move towar ds courts tak ing a precautionar y

approach in decidin g cases.