ENVIRONMENTAL IMPACT ASSESSMENT AND THE LAW
140
ENVIRONMENTAL IMPACT ASSESSMENT AND THE LAW IN UGANDA: THE EXPERIENCE SINCE 1995 BY KIGULA MAHIRI MUHAMOOD 210-053012-02752 A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF LAWS OF ISLAMIC UNIVERSITY IN UGANDA
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Transcript of ENVIRONMENTAL IMPACT ASSESSMENT AND THE LAW
ENVIRONMENTAL IMPACT ASSESSMENT AND THE LAW
IN UGANDA: THE EXPERIENCE SINCE 1995
BY
KIGULA MAHIRI MUHAMOOD210-053012-02752
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE AWARD OF THEDEGREE OF LAWS OF
ISLAMIC UNIVERSITY IN UGANDA
JUNE 2014
1
TABLE OF CONTENTSDECLARATION..........................................................3ABSTRACT.............................................................4ACKNOWLEDGEMENT......................................................6
LIST OF ACRONYMS......................................................7LIST OF STATUTES AND STATUTORY INSTRUMENTS............................9LIST OF CASES........................................................10CHAPTER ONE..........................................................111.1 Introduction..................................................111.2 Statement of the Problem.....................................121.3 Hypothesis...................................................121.4 Methodology................................................121.5 Scope.........................................................121.6 Literature Review.............................................12
CHAPTER TWO..........................................................15DEVELOPMENT OF (EIA) AS A TOOL FOR ENVIRONMENTAL MANAGEMENT..........152.1 INTRODUCTION....................................................152.1 THE OF DEVELOPMENT AND THE ENVIRONMENT..........................162.3 THE CONCEPT OF SUSTAINABLE DEVELOPMENT AND THE EIA..............192.4 THE INITIAL PHASE OF DEVELOPMENT................................202.5. EIA LEGISLATION IN UGANDA......................................242.6 ROLE PLAYED BY EIA.............................................25
CHAPTER THREE........................................................28EIA PROCEDURES AND PRACTICE IN UGANDA................................283.1 INTRODUCTION....................................................283.2 THE LEGAL FRAMEWORK OF THE EIA PROCESS IN UGANDA................293.3 THE PROCESS OF EIA..............................................333.4 PROJECT BRIEF...................................................343.5 ENVIRONMENTAL IMPACT STUDY......................................353.5.1 Scoping.....................................................363.5.2 Impact Evaluation........................................373.5.3 Mitigation Measures....................................38
i
3.5.4 Assessment Of Alternatives..............................383.5.5 Environmental Impact Statement (EIS)......................39
3.6 PUBLIC INVOLVEMENT IN THE EIA PROCESS..........................393.7 DECISION– MAKING.............................................403.8 ENVIRONMENTAL MONITORING AND AUDITING.......................423.9 ENFORCEMENT OF EIA LEGISLATION..............................44
CHAPTER FOUR.........................................................46IMPLIMENTATION OF EIA LAW IN UGANDA..................................464.1.0. INTRODUCTION.................................................464.2 BUJAGALI HYDROELECTRIC POWER PROJECT.........................464.2.1. The Project..................................................464.2.1. Positive Environmental Impacts.............................47
4.2.3 Negative Environmental Impacts...............................48a. During construction.........................................48b. During Operation............................................49c. Impacts on the Socio–Economic Environment...................50
4.2.4. Comparison of Alternatives...................................524.2.5..........................................Mitigation Measures
54a. Access to water resources..................................54d. Ecology........................................................56e. Landscape and site reinstatement...............................56f. Fisheries......................................................58g. Tourism........................................................58h. Tropical Diseases and Public Health............................59i. Cultural and Historical Sites..................................59j. Air quality....................................................604.2.6 Environmental Monitoring Plan...............................614.2.7 Conclusion....................................................62
CHAPTER FIVE.........................................................63LEGAL CHALLENGES TO THE EIA PROCESS..................................635.1 INTRODUCTION....................................................635.2 BACKGROUND...................................................635.3 THE LOCUS STANDI IMPEDIMENT..................................645.4 LITIGATION ON EIA.............................................73
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5.5 ATTORNEYS FEES..................................................78CONCLUSION...........................................................78CHAPTER SIX.........................................................79CONCLUSION AND RECOMMENDATIONS.......................................796.2 DEVELOPERS ATTITUDE ON EIA......................................806. 3 ENVIRONMENTAL AUDITS...........................................816.4 OTHER CHALLENGES..............................................816.5 EIA ON POLICIES AND PROGRAMMES................................826.6. TOWN AND COUNTRY PLANNING.....................................836.7. AWARENESS AND SENSITISATION...................................856.8. CONCLUSION....................................................86
BIBLIOGRAPHY.........................................................87Texts...............................................................87
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DECLARATION.
I, kigula mahiri muhamood do hereby declare that this work
is original save where other materials and texts have been
used, but even then due acknowledgement has been given. It
has never been presented anywhere for the award of a degree.
Signed: --------------------------------
Date: -------------------------------
Submitted with my consent:
Supervisor:
1. Mrs sauda
iv
Signature: ----------------------
Date:
-----------------------
ABSTRACT
The fundamental thesis of this study is to assess the
efficiency of the EIA laws and procedures in Uganda and
determine whether the implementation of EIA laws has
achieved its objective of promoting sustainable development.
The study reviews the EIA process as laid down by the
guidelines and determines their adequacy. A review of some
of the EIAs carried out on some projects since 1995 is done.
It is in 1995 that EA was made a legal requirement in Uganda
by the National Environment Statute, 1995. A thorough study
is done on whether the EIAs conducted so far have complied
with the legal procedures. Where the EIA process has not
v
adequately complied with the necessary standards the study
investigates the cause of the problem and recommends the
solution.
The study further examines the conduct and the technical
capacity of EIA practitioners and makes some recommendations
on how to improve their capacity to conduct adequate
assessments.
The study will be found useful to practioners in the field
of the environment most especially those who make decisions
and policies that have a direct impact on environment. The
study is also useful to academicians, lawyers and judges in
as far as appreciation of environmental issues that are
likely to form judicial disputes are concerned.
DEDICATION.To my father SHEIKH HABIBU KIGULA MUHAMOOD and mother HAJAT SARAH KIGULA
NABUKEERA.
vi
vii
ACKNOWLEDGEMENT
This work has been made possible by the assistance and
management of many people. Although it is not possible to
mention all of them here by name, I would like particularly
to thank the following:
viii
LIST OF ACRONYMS
ADB : African Development Bank
AESNP : AES Nile Power
APC : Agricultural Policy Committee
BELA : Bangladesh Environmental Lawyers Association.
CBA : Cost benefiting Analysis.
EAP : Environmental Action PlanEIA : Environmental Impact Assessment
EIA : Environment Impact assessment
EMP : Environmental Monitoring Plan
ENEP : United Nations Environmental Programme
FHWA : Federal High Way AdministrationFIRI : Fisheries Research Institute
FSL : Full Supply Level
GC : Governing Council
GDP : Gross Domestic Product
GEF : Global Environment Fund
GoU : Government of Uganda
Ha : Hectare
IFC : International Finance Cooperation.
ix
IRN : International River Network
KM : Kilometre
KV : Kilo Volts
LCS : Local Councils
MAAIF : Ministry of Agriculture, Animal Industry and FisheriesMNR : Ministry of Natural Resources
MW : Mega Watts
NAPE : National Association of Professional Environmentalist
NEAP : National Environmental Action Plan
NEMA : National Environmental Management AuthorityNEPA : National Environmental Policy Act.
NGOs : Non-Governmental Organisations
NTCWH : National Technical and management of Water Hyacinth
OECD : Organization for Economic Cooperation and DevelopmentPAP : Project Affected Population.
RCP : Resettlement and Compensation Plan
S.I.A : Social Impact Assessment
Spp : Species
SEDD : Summary of Economic Due Diligence.
STDs : Sexually Transmitted Diseases.
Sq. : Square
UEB : Uganda Electricity Board.
UNCED : United Nations Conference on Environment and Development
x
US : United States
WB : World Bank
WBG : World Bank Group
WCED : World conference on environment and Development
WHO : World Heath organization
LIST OF STATUTES AND STATUTORY INSTRUMENTS1. National Environment Act, (Cap 153) Laws of Uganda, 2000 Revision.
2. The Constitution, 1995 (UGANDA)
3. Water Act (Cap 152) Laws of Uganda, 2000 Revision.
4. Uganda Wildlife Act (Cap 200) Laws of Uganda, 2000 Revision.
5. National Environment Policy Act (USA)
6. Environmental Protection Law, 1989 (CHINA)
7. Environmental Protection Law, 1991 (MAURITIUS)
8. Environmental Quality Act 1974 (MALAYSIA)
9. Environmental Impact Assessment Regulations, 1998 (UGANDA)
10. Environmental Impact Assessment 1994 (NIGERIA)
11. Environmental Impact Assessment Order, 1987 (MALAYSIA)
12. The National Environment (Designation of Environmental
Inspectors) Notice, 2002 (UGANDA)
13. The Land Act (Cap 227) Laws of Uganda 2000 Revision.
14. Forests Act (Cap 146) Laws of Uganda 2000 Revision.
15. Town and Country Planning Act (Cap 246) Laws of Uganda, 2000
Revision.
16. The Investment Code Act (Cap 92) Laws of Uganda, 2000
Revision.
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17. National Environmental (Wetland, River Banks and Lake
Shores) Regulations, 2000. (UGANDA)
18. National Environment (Waste Management) Regulations, 1999.
(UGANDA)
19. Fundamental Rights and Freedoms (Enforcement Procedure)
Rules S.I No. 26 of 1992. (UGANDA)
20. Civil Procedure Act (Cap.71) Laws of Uganda, 2000 Revision.
21. Government Procedures Act (Cap.77) Laws of Uganda, 2000
Revision .
22. Civil Procedure Rules S.I 65-3. (UGANDA.)
LIST OF CASES1. Wangari Maathai Vs. Kenya Times Media Trust, Nairobi High Court
Civil case No. 5403 of 1989 (Unreported)
2. Kamanda Vs. Nairobi City Council , Nairobi High Court Civil Case
No. 6153 of 1992 (Unreported).
3. Oposa Vs. Factoram, GR No. 1082 of 1993 (Philippines).
4. Sierra Club Vs. Coleman XV/6 ILM 1425 (USA).
xii
5. Regina Vs. I.R.C Exparte Federation of Self Employed [1982] A.C.
643.
6. Rev. Christopher Mtikill Vs. Te Attorney general, Tanzania High
Court Civil Suit No. 5 of 1993 (unreported).
7. Byabazaire Vs. Mukwano Industries High Court Suit No. 466 of 2000.
8. Siraji waiswa Vs. Kakira Sugar Works Ltd., High Court Misc.
Application No. 23 of 201.
9. RAYABAI Vs. State, Air [1973] BOM 61.
10. Sierra club Vs. United States Army Corps of Engineers, 701
F. 2d 1011 (2cir) 1983).
11. Greenwatch & Another Vs. Golf Course Holdings Ltd, High
Court Civil Suit No. 834 of 2000.
12. National Association of Professional Environmentalist (NAPE)
Vs. AES Nile Power Ltd, High Court Misc. Cause No. 268 of 1999.
13. Public Citizen Vs. Office of the USTR 970 F. 2d 916 (D.C
Cir. 1992)
xiii
CHAPTER ONE
1.1 Introduction.
Over 90% of Uganda’s population depends directly on natural
resources for its livelihood1. Despite the country’s high
natural resource potential, factors such as population
growth, economic reforms, the desire for a steady increase
in per capita income, and other pressures of the development
process are putting severe strain on the environment and
natural resource base background
1.2 Statement of the Problem
Since the introduction of EIA(first introduce it in full) as
a legal requirement for implementation of development
projects, plans and policies, in Uganda, many EIAs have been
conducted.so wht is the problem here u r addressing
1.3 Hypothesis
EIA, since its introduction in Uganda as a legal
requirement, has not been able to adequately achieve its
objects and goals of promoting sustainable development.
1.4 Methodology
In handling this work reliance has mainly been on Library
research.
1.5 Scope.
In general, the study seeks to evaluate the performance of
EIA since its introduction as legal requirement in Uganda.
1 GoU: The National Environment Management Policy for Uganda, Kampala, MNR, 1994.
xiv
1.6 Literature Review
Our Common Future2 This report enunciated the concept of
sustainable development and gave it an operational content
as an approach that will permit continuing improvements in
the present quality of life and will lower the intensity of
resource use thereby leaving behind for future generations
an undiminished or even enhanced stock of natural resources
and other assets. The Report identifies EIA as an essential
tool for promoting sustainable development by integrating
environmental concerns with socio-economic development
initiatives.
Clem Tisdell,3 in his book, attempts to define the concept
of development from an economic point of view. Economics is
viewed as the relationship between the social administration
and management of resources and scarcity. Economics
therefore is viewed as the management of resources to reduce
scarcity. In this book neoclassical economists who contend
that scarcity can be reduced by promoting economic growths
are critiqued. Instead, the author argues, economic growths
may add to the problem of scarcity because it may not be
sustainable. It is further argued that while economic
growth may reduce scarcity in the short or medium term, it
could result in greater scarcity in the long-term due to
depletion of non-renewable resources and to irreversible
2 Our Common Future, op. cit.3 Clem Tisdell, Environmental Economics, Brisbane, Jacaranda Press, 1993.
xv
environmental deterioration caused by it. Thus the book
puts to question economic growths, which has been seen by
many as the surest way to economic salvation for mankind
because of its unsustainability. The book then recommends
integration of environmental concerns with socio-economic
development planning.
J.R. Kamugisha,4 This paper makes a review of legislation on
the protection of the environmental and natural resources
management from the pre-colonial days up to the time of the
reforms in the 1990s. The author notes that the then
existing laws on natural resources management lacked
provisions aimed at conserving the natural resource base.
That the driving force behind those laws was the enhancement
of exploitation of resources. These laws were grounded on
the philosophy of the times, which posited nature as an
enemy of man, which had to be conquered for development to
occur. The author is in favour of the view that advances
the complimentarity of man and nature and not their mutual
exclusiveness.
John Ntambirweki 5 in his article reviews all the Ugandan
laws on the conservation of the environment. The role played
by customary laws and practices in environmental
conservation is emphasised. It is also noted that
4 J.R Kamugisha, Management of Natural Resources and Environment in Uganda. Policy andLegislation Land Marks, 1980 – 1990 Kampala, Danida, 1993.5 John Ntambirweki; “Environmental Legislation in Uganda: Review of existing legislation and formulation of an appropriate legal framework for present and future environmental Management”, IUCN/NEAP, Kampala, 1992.
xvi
environmental conservation can best be taken care of through
community participation and awareness and there is no better
vehicle for the integration of awareness into communities
except through accepted beliefs and practices-custom. The
paper identifies one major problem with legislation and that
is, being sector specific. The author emphasizes that
sectoral legislation does not make adequate provision for
environmental management especially for those environmental
concerns that are cross sectoral and inter-sectoral in
nature.
J.B Ojwang and Calestous Juma6 in their article, are of the
view that, even though people must have recourse in order to
enhance the economic development, if the demographic
condition or the tempo of economic activity outstrips these
resources, the people will undermine their very existence.
It is also observed here that the traditional practices and
systems of dispute settlement better catered for environment
concerns in as far as they emphasized common property
resources. Land for example belonged to all people and the
family’s right was only a right of access. On the other
hand the received law which for centuries evolved in the
Western World, and whose tradition evolved on the foundation
of property rights thereby acquiring standards and
measurements that compromised it to the restitutive goals of
ownership of property, is quite inadequate for managing
6J.B Ojwang with Calestous Juma: (Eds) “Towards Ecological Jurisprudence”: In Land We Trust, Nairobi, Initiative Publishers, 1996.
xvii
environmental resources. This is mainly because the
environment is a common property. It can adequately be
managed as a common resource..
L. Graham Smith7 discusses the role of institutional
arrangements in implementing environmental and resource
management policies. He says that legal provision for
environmental protection, planning and regulation establish
the context of impact assessment. That, these provisions
vary from country to country and are a product of each
nations distinct political culture. That as much as the law
may be viewed as an instigator of reform, it is itself
shaped by new political perspectives. And that is why it’s
not surprising to find Western nations have evolved systems
of law that favour use over preservation private property
rights, and the generation of wealth and productivity over
amenity.
CHAPTER TWO
DEVELOPMENT OF (EIA) AS A TOOL FOR ENVIRONMENTAL MANAGEMENT.2.1 INTRODUCTION.
This chapter makes out a justification for EIA as a tool for
promoting sustainable development. It gives the background
information on EIA and how the concept evolved from other
resource evaluation procedures adopted in the United States
in the 1950s. It shows how the inefficiency of rudimentary
evaluation procedures and the need for a form of social7 L. Graham Smith, Impact Assessment and Sustainable Resource Management, LongmanScientific and Technical, New York,1933.
xviii
accounting in resources, decisions led to the advent of cost-
benefit analysis. It is noted that cost-benefit analysis
also suffered limitations especially on its failure to assess
alternatives, hence the emergency of EIA.
The chapter looks at the first legislation in the US, the
National Environment Policy Act (NEPA), to require EIA and
how it influenced decisions of states at major international
conferences on environment leading to the adoption of EIA as
major tool for promoting sustainable development.
The concept of sustainable development is discussed at length
and recommended as the way of harmonising the country’s
economic development goals with the use and management of its
natural resources. The chapter discusses the complimentrity
of development and the environment and makes a strong
emphasis on the role played by EIA in intergrating
environmental decision-making process in order to achieve
sustainability. Finally EIA legislation is discussed.
xix
2.1 THE OF DEVELOPMENT AND THE ENVIRONMENT
Environmental degradation is going on at a high rate in
developing countries and particularly in Uganda. Environmental
degradation encompasses the twin threat of pollution and
natural resource depletion. The natural environment creates
the very basis of social and economic development and
specifies the limits of the resources available for such
development. That pre-supposes that environment and social
economic development are not mutually exclusive.
The traditional methods and tools of environmental protection
and resource management used by decision makers have always
tended to separate environmental concerns from socio-economic
planning, policy and management issues. That approach has
presented the two concepts, that is, development and
environmental protection, as two antagonistic and mutually
exclusive concepts. The concept of development can be looked
at from an economics point of view. Economics studies the
relationship between the social administration and management
of resources and scarcity8. Scarcity arises because available
resources are insufficient to satisfy human wants.
Consequently one of the main contributions of economics is to
suggest institutional and other changes9 to improve the
management of resources in order to reduce scarcity.
Economists3 have claimed that there are four main ways to
8 Clem Tisdell, Environmental Economics, London, Edward Elgar, 1993, p.189
9 Such as variations in market or political mechanisms or in some cases the introduction or withdrawal of social mechanisms.
33 see H Kohler, Scarcity and freedom An Introduction to Economics: An Introduction to Economic Health ,Lexington, Mass,1977
xx
reduce economic scarcity. These are, by improving the
allocation of resources between alternative uses, by ensuring
full employment of all persons, by promoting economic growth
and by improving the distribution of income. These were the
views of neo classical economists.
Now, however, it is realised that at least one of the
suggested means for reducing scarcity may add to the problem.
Economic growth may add to the problem of scarcity because it
may not be sustainable. While economic growth may reduce
scarcity in the short or medium term, it could result in much
greater economic scarcity in the long term due to depletion of
non-renewable resources and to irreversible environmental
deterioration caused by it. Thus economic growth, which has
been seen by many as the surest way to economic salvation for
mankind, is being questioned because of its un sustainability.
Most ecological economists believe that dominant existing
paradigms with their roots in neoclassical, Keynesian or
Marxian economics are inadequate in dealing with environmental
and economic development problems facing the world today.4
Keynesian economists did not raise environmental issues. These
issues did not feature in Marxian economics even though Marx
himself did point to the human trauma that can arise if
industrialisation and urbanisation alienate man from nature.
But in practice Marx and his followers such as Engels were ant
44 F.Engels (1959)" Outlines of a Critique of Political Economy" In K.Marx, Economic and Philosophical Manuscripts of 1844,
Moscow ,Foreign Language Publishing House, 1959.
xxi
Malthusian and pro economic growth. They rejected the views of
Thomas Robert Malthus10 that human population is liable to
outstrip the means of subsistence. They argued that while the
level of human population may increase in geometrical
progression, as suggested by Malthus, scientific knowledge
increases in faster geometric progression and nothing is
impossible to science11. In their view, scientific advance and
capital accumulation can be relied on to overcome any resource
constraints that might be encountered as human populations
increase. They were technological optimists.
Unlike in most developed countries, this line of argument is
still being supported by developing countries, not because
they are uninterested in environmental conservation but
because of the historical, political, social and economic
reasons discussed below. And it is because of these reasons
that the apparent conflict between environment and development
is exacerbated. Industrial development has however been
regarded as the only panacea for the acute poverty suffered by
African states. Developing countries have opted for
development and rejected any measures that may impede its
path. This is because development represents the only means
to satisfy the basic needs of the people such as food, shelter
and a decent living. On the other hand the developed
countries have stressed the need to preserve the environment
10 Thomas R.Malthus, An Essay on the Principle of Population as it affects the future improvement of Mankind, London J.Johnson, 1978.
11 F..Engels , Opcit.
xxii
as a safeguard against the negative effects of the development
process.
This debate about environment management on the one hand and
development on the other, started long ago and it is still
going on. However, the dilemma facing the developing countries
is that poverty and need are the greatest polluters. While
people in the developing countries would not wish to
impoverish the environment any further they cannot forget the
grim in which their people live. One cannot tell the people
who live in villages and slums to keep the oceans, the rivers
and the air clean when their own lives are contaminated at the
source. The environment cannot be improved in conditions of
poverty, nor can poverty be eradicated without the use of
science and technology. This was the point greatly emphasised
by African countries at the Stockholm Conference in 197212.
This reluctance of the developing countries to put
environmental concerns ahead of development needs could be
explained by the imbalance in development between North and
South. This imbalance is explained on the basis of past
exploitation of the South by the North through colonialism and
imperialism where there was massive exploitation of natural
resources to develop the north and thereby putting the south
at an economic disadvantage. The concern of the developed
countries for the conservation of the environment is therefore
12 Mr. Tolba (Ed) Evolving Environmental Perceptions: From Stockholm to Nairobi, London, Butterworths 1989. quoted in Natambirweki
John: Law and Sustainable Industrial Development,1997.
xxiii
treated with suspicion by the developing countries. The
developing countries suspect the developed countries to be
using the concept of environmental conservation as a measure
to discourage industrial development and to encourage the
exploitation of natural resources in the developing world.
Consequently, it is argued, the developed world would be able
to sustain their already developed industries by using the
abundant market that exists in the developing world for their
manufactured goods.
2.3 THE CONCEPT OF SUSTAINABLE DEVELOPMENT AND THE EIA
Sustainable Development is an approach that will permit
continuing improvements in the present quality of life and
will lower the intensity of resource use thereby leaving
behind for future generations an undiminished or even
enhanced stock of natural resources and other assets13. In
other words, the challenges that face the countries must not
only focus on raising living standards of the people but must
also provide resources for those of the future.
One of the basic premises for sustainable development is the
recognition that environment and development are not exclusive
of one another but are complimentary and interdependent
and, in the long run, mutually reinforcing. It is necessary
to view environmental problems as a system. A coherent set of
13 This broad definition is based on "Our common future" (Report of theWorld Commission on Environment and Development, 1987) London , OxfordUniversity Press, 1987.
xxiv
solutions is required which will ensure that each step taken,
whether in planning or implementation, to address them fits
in perfectly with others envisaged. It is not possible to
compartmentalise environmental concerns or deal with them in
sectors. The difficulties are compounded by the fact that we
are dealing with a set of mobile and highly dynamic
components which make it necessary to devise long-term and
flexible responses.
It is not surprising, therefore, that while we all speak of
sustainable development and agree on its importance and
immediacy, it has been found extremely difficult to give an
operational content to the concept or to identify practical
policy guidelines for its realisation. Yet there is increasing
and stark evidence that in different regions of the world,
notably in Africa, excessive demands are being made on limited
resources and the carrying capacity of fragile ecosystems. The
unsustainable use, abuse and misuse of the very environmental
systems upon which life depends is showing up in soil erosion,
lack of water, and in its deteriorating quality,
deforestation, desertification and other adverse natural
phenomena to the growing dismay of all of us. This is not to
say that we should put a stop to development or to the use of
nature to meet our basic needs, but that we must do this
within acceptable bounds that do not disturb the environmental
cycles of life. In so far as renewable resources are
concerned, it means reliance on nature's "income" and not on
xxv
the depletion of its "Capital."14 The central idea is that
development can occur only if and when there is recognition of
the need to sustain and expand the environmental resource
base. The associated corollary is that “economic” growth, in
and of itself is insufficient for the purposes of development.15
Sustainability rests on the tenet that technology and social
organisation can be both managed and improved to make way for
a new era of economic growth.16 The key is in how to manage
technology social organisation in resource development to
provide for decision making that will foster sustainability.
Prevailing systems for decision-making in many countries tend
to separate socio-economic, and environmental factors at the
policy, planning and management levels. This influences the
actions of all groups in society including governments,
industry and individuals and has important implications for
the efficiency and sustainability, of development.
For that matter it is necessary to search for analytical tools
and methodologies, which will enable us to achieve an
accommodation of the social and environmental consequences in
economic decision-making.
14 Y.J. Ahmad and G.K. Sammy: Guidelines to Environmental Impact Assessment inDeveloping Countries; UNEP Regional Seas Reports and Studies No. 85. Nairobi,UNEP, 1987.15 Shearman, R (1990). “The Meaning and Ethics of Sustainability” Environmental management 14(1), 1-16 WCED,Our Common Future, Opcit. p. 8.
xxvi
2.4 THE INITIAL PHASE OF DEVELOPMENT
Until the 1950s, resource management decision making mostly
addressed the following questions: Is it technically feasible?
Is it financially viable? Is it legally permissible? Not
surprisingly, this rudimentary form of evaluation often
resulted in engineering - based answers to resource management
problems, the `technical fix' usually involving some form of
structural solutions chosen from a narrow range of pre-
determined options. Provided the scale of development was
limited, the problem well defined and adequate information
available, this system of resource decision-making functioned
quite well. However, the increasing complexity, scale and
implications of resource development projects through the
1950s revealed the weaknesses of this traditional approach.
Often there was more reliance upon (hidden) political agendas
and ulterior motives than any sound technical scrutiny of
projects. Many projects resulted in major environmental
degradation. Moreover, the wider social costs of such
developments as dam construction and flood control schemes
were shown to be largely unaccounted for despite their
significance.17 The desire for a broader form of social
accounting within resource decisions led to the advent of
cost-benefit analysis.
17 Wote GF (1945) The Human Adjustment to floods. Department of GeographyResearch Paper No. 29, University of Chicago: Quoted in L. Graham Smith:"Impact Assessment and Sustainable Resource Management," New York, LongmanTechnical and Scientific, 1933.
xxvii
Cost-benefit analysis emerged initially in the evaluation of
water resource developments in the United States as a means of
broadening the approach to evaluation in resource management
decision-making.18 Through the 1960s, cost-benefit analysis
became the predominant technique for evaluation in resource
decision making, its popularity a function the simplicity with
which its objectives could be understood and the apparent ease
with which it could be applied to a wide range of situation.
Cost-benefit analysis was attractive to engineers and
decision-makers because it could produce a tangible measure of
social `utility' generating quantitative indices relating to
fiscal benefits and costs, with emphasis on the criterion of
economic efficiency. However, the technique also suffered from
a surfeit of misapplication in practice, including, a failure
to consider alternatives; a focus on easily measured,
quantifiable benefits and costs; a failure to adhere to key
premises, leading to inflated benefit measures and manipulated
accounting and an inability to account' accurately for, and
incorporate, such temporal changes as variations in interest
rates and price levels. In addition cost-benefit analysis was
criticised for its conceptual inability to account for the
distribution aspects of costs and benefits and the problems of
aggregation19.18 Sewell, W.R.D (1973) "Broadening the approach to evaluation inresource management decision making," Journal of Environmental Management I. 33-60.
19 Larley M.J and Bustelo ES , Social Impact Assessment and Monitoring,West View: Boulder Co, 1984.
xxviii
These deficiencies prompted the development of alternative
means for the economic appraisal of projects, such as the
`goals achievement matrix' of Hill or the `planning balance
sheet' developed by Lichfield20. Simple cost-benefit analysis
was replaced by more sophisticated variants, using multiple
objectives and discount rates, proxy pricing mechanisms and
various means of planning programme budgeting and cost-
effectiveness analysis. However this increasing sophistication
could not avoid criticisms that centred on the
inappropriateness of such accounting procedures for the
evaluation of complex environmental interrelationships and the
broader social issues of resource allocation.21
Thus, while cost-benefit analysis remained the pre-eminent
technique for resource decision-making, the need for
alternatives became apparent. The desire for an alternative
form of social accounting was further reinforced by two
interrelated factors, that is, the increasing scale of
complexity and uncertainty associated with resource
development proposals and the growth of public opposition to
the approval of those projects. The era of mega-projects had
arrived, but it was accompanied by the rebirth of public
activism, particularly in the case of environmental quality
and the desire for equity in the processes of governance. The20 McAllister DM, Evaluation in Environmental Planning, London, MIT Press:,
1980.
21 O'Riodan T. and WRD Sewell: Project Appraisal and Policy Review, Quoted inGraham smith, Impact and Sustainable Resource Management, New York LongmanScientific and Technical, 1933
xxix
outcome of these assorted pressures was the appearance of
environmental impact assessment (EIA).
The formal process known today as EIA resulted from the
raising of environmental awareness during the 1950s and 1960s.
During those two decades it became increasingly evident that
many industrial and other projects were producing undesirable
environmental consequences. In response to these problems
several governments realised the need for a mechanism ensuring
that the environmental consequences of all major projects and
plans were examined before their execution was formally
authorised. The US congress was among the first to enact in
1969, a comprehensive legislation, the National environment
Policy Act (NEPA) using the concept of EIA and requiring a
systematic interdisciplinary evaluation of the potential
environmental effects of all major federally funded projects.
Under NEPA, agencies of the USA government must prepare
detailed statements on the environmental impact of "proposals
for legislation and other major federal actions significantly
affecting the quality of the human environment"22.
Later on in 1972, during the Stockholm Conference it was
contended by the participating nations, that long term and
sustainable development could only be achieved through sound
environmental management. That EIA is one of the tools to
ensure sound environmental management. In 1986 EIA was
identified as an essential tool for promoting sustainable
22 42 US Code, S. 4332 (1970): 40 Code of Federal Regulations Part 1500(1978, amended in 1986).
xxx
development by the WCED23. In 1992, UNCED24 held in Rio de
Janeiro made specific requests asking UNEP to undertake
further development and promotion of the widest possible use
of EIA including activities carried out under the auspices of
United Nations specialised agencies. Further, in 1987 at the
14th Session of the UNEP Governing Council25, the UNEP was asked
to promote widespread use of EIA procedures by governments and
where appropriate international organisations as an essential
element in development planning and for assessing the effects
of potentially harmful activities on the environment.
EIA had been adopted in many countries with different degrees
of enthusiasm where it has evolved to varying levels of
sophistication. Even in centrally planned economies of Eastern
Europe26 it was increasingly being realised that EIA would be
an integral component of state planning, although Marxist
theory places another perspective on the interrelationships
between development and the environment.
Bilateral and multi-lateral agencies have also become
interested in the potential of EIA. The organisation for
Economic Co-operation and Development (OECD) adopted
recommendations concerning EIA within its constituent states
in 1974 and 1979 and for development projects in 1985. The
23 Our Common Future' Op cit.
24 UNCED, `Agenda 21'
25 UNEP/GC. 14/26 Annex I
26 Before the collapse of Soviet Union.
xxxi
UNEP has provided guidance on the assessment of development
proposals,27 and supported research on EIA in developing
countries.28 The World Health Organisation (WHO) has become
concerned with the need to assess not only the opportunities
to improve quality of life presented by development but also
consequent adverse effects upon human health mediated through
environmental change.
In recent years, the breadth of EIA has expanded perhaps more
rapidly that its rate of its geographical spread. Thus, it now
comprises a number of discrete specialisms and has spawned
related disciplines concerned with other effects of
development, particularly social impact assessment (S.I.A),
environmental health impact assessments and so on.
Since the adoption of NEPA, national legislation requiring
EIAs has increased world-wide and today, even countries
without such legislation produce EIAs selectively. This
legislation generally has taken three forms: EIA provisions
incorporated within a framework environmental law,29 separate
EIA laws, decrees, rules or regulations,30 or both.31 Uganda
27 UNEP 1980, Opcit
28 Ahmed and Sammy 1985, opcit
29 For example, China: Environmental Protection Law (1989); Mauritius:Environment protection Act (1991 amended in 1993)
30 For example, Nigeria: Environmental Impact Assessment, 1994.
31 For example, Malaysia, Environmental Quality Act S. 34A 1974 and Environmental Impact Assessment order, 1987.
xxxii
has taken the trend of adopting both the statute and the
regulations.
2.5. EIA LEGISLATION IN UGANDA
Before 1995 the Government of Uganda did not require
environmental impact assessment for development activities.
However the only E.I.As, which were prepared for development
activities in Uganda, were in response to the requirements of
donors. These assessments were prepared to donor
specifications. The lack of EIA as a legal requirement was
identified by the National Environmental Action Plan, NEAP,
and the task force on environmental policy, legislation and
institutional arrangements, as a critical environmental
problem. To respond to this problem the National Environment
Management Policy Framework for Uganda, 1994, prepared by
NEAP, calls for EIA of all development activities.
In 1995 the National Environment Act32 was enacted as the basic
legislation on environment. It came with, inter alia, a
provision33 to the effect that environmental impact assessment
be conducted for proposed activities that are likely to have
significant impacts on the environment. Further, the Act
provides34 for the establishment of National Environment
Management Authority, NEMA, and one of its functions, among
others, is to prepare and adopt guidelines for Environmental
Impact Assessment on proposed projects, which may affect the
32 Cap. 153 Laws of Uganda,2000 Revision.33 S. 1934 S. 4
xxxiii
country's natural and social environment. In addition, the
Act35 empowers the Minister to make Regulations, to give full
effect to the provisions of the statute. It is on that basis
that NEMA prepared The Environmental Impact Assessment
Regulations, 1998, which set out a comprehensive procedure for
conducting an EIA.
Also sectoral legislation such as the Wildlife Act36 and the
Water Act37 contain a requirement of EIA. Making EIA a
requirement in each of these Statutes was intended to make it
specific and appropriate to each sector of natural resource
management due to the particularity of each of these sectors.
It was also intended to avoid the possibility of adopting all-
inclusive general guidelines, which would obscure such
particularities.38 With these legislative reforms in the field
of the environment and natural resource management an
integrated, cross-sectoral and comprehensive approach to
guiding the design and implementation of development is
expected.
2.6 ROLE PLAYED BY EIA
One of major premises of the concept of sustainable
development is the integration of environmental concerns with
social economic planning. To effectively integrate environment
and development in the policies and practices of a country, it
35 S. 1936 Cap.200, Laws of Uganda,2000 Revision.37 Cap.152,Laws of Uganda,2000revision.38 John Ntambirweki: A Consultancy Report on Environmental Legislation in Uganda,NEAP, 1992.
xxxiv
is essential to develop and implement integrated, enforceable
and effective laws and regulations that are based upon sound
social, ecological, economic and scientific principles. It is
equally critical to develop workable programmes to review and
enforce compliance with the laws, regulations and standards
that are adopted. The enactment of such laws and regulations
are also essential for the implementation of most
international agreements in the field of the environment as
illustrated by the treaty obligation to report on legislative
measures39
And one of such laws that would be effective in integrating
development and environment concerns is environmental impact
assessment legislation. In Uganda, like in most of the world,
conservation and environmental law has been reactive, it has
responded to situations
already at crisis stage. And as the saying goes, it is more
expensive to repair than to prevent.
Hence a need for environmental laws that is pro-active. One
example of laws that are pro-active is the law on
Environmental impact assessment, because it can predict
adverse environmental consequences of an activity, plan or
policy and then, either provide for mitigation measures to
such consequences or provide for alternative modes of
implementation that are environmentally friendlier. It has
also the capacity to incorporate other economic tools like
39 UNCED, 1992, Agenda 21,Opcit.
xxxv
cost-benefit analysis and it is one of the ways of
implementing the "Polluter pays" principle. In economic
planning, the environment has always been neglected. It has
not always been taken into account. Decision-makers regard
components of the natural environment as free goods that
should not be paid for. This cannot be true because economics
is concerned with allocation of scarce resources. Since
environment has the capacity to assimilate residues without
affecting its quality it should be regarded as a scarce
resource and therefore subject to allocation like any other
economic good.
It is necessary to examine a number of problem areas if
environmental concerns are to be effectively integrated in the
development process. The developing countries find these
problems complex and sometimes obscure. The problems tend to
be interrelated and of a longer term nature. They require a
multi-disciplinary approach. The scope and nature of
environmental impact and consequences, especially in the long
term, are speculative.
Developing countries are deterred by the intellectual
complexity (due to multi-disciplinary and adaptive nature) and
financial requirements (mounting consultancy fees) involved.
Even
when the consequences have been identified, it is not always
possible to make a quantitative (monetary) assessment.
Furthermore in Uganda and most other developing countries, the
xxxvi
techniques of integrated physical, socio-economic and
environmental planning are not known or practised. Such
techniques need to be simplified and made more practical to
replace largely sectoral planning. Nor is attention paid to a
system of supplementary or satellited accounts that will
assign values (if not market, then shadow) to environmental
goods and services, such as fresh air, clean water, tree
cover, soils, genetic resources and the like, so that
efficiency in the allocation of scarce resources is improved.
Although it is commonly recognised that environmental impact
assessment is a basic tool for undertaking anticipatory
environmental policies and that it has become increasingly
urgent to incorporate environmental assessment into the
planning and the decision-making process from an early stage
of the development cycle, developing countries have been
reluctant to use the framework of EIA statements
systematically. For example in some
Countries40 where legislative requirements for EIA exist, it
has not been systematically used. This has been due to a
number of reasons; environmental impact assessments have
proved to be too long, too time consuming in preparation, too
expensive (especially when prepared by consulting
organisations), sometimes too poorly written and often not as
useful to decision makers as they should be.
40 Australia, Japan, Republic of Korea, the Philippines, and Thailand.
xxxvii
xxxviii
CHAPTER THREE
EIA PROCEDURES AND PRACTICE IN UGANDA3.1 INTRODUCTION.
The National Environment Action Plan (NEAP), the task force
on the environmental policy, legislation and institutional
arrangements, prepared the National Environment Management
Policy Framework for Uganda in 1994, which called for EIA for
all development activities. In its efforts to set up
procedures and guidelines for EIA for Uganda, NEAP considered
the guidelines and procedures on EIA already adopted for
other developing countries with similar economic political,
social and ecological circumstances with Uganda. NEAP also
harmonized these with the World Bank Operational Guidelines
to come up with the national EIA process. There are,
therefore, no significant differences between the World Bank
Guidelines on EIA and the National EIA guidelines contained
in the national legislation.
3.2 THE LEGAL FRAMEWORK OF THE EIA PROCESS IN UGANDA.
The Law, in Uganda, recognizes Environmental Impact
Assessment as a major tool for environmental management and
sustainable natural resource use. This is manifested in the
way the Constitution and various pieces of legislation set
forth broad principles and goals for the nation’s
environmental policy aimed at promoting sustainable
development.
xxxix
The Constitution of the Republic of Uganda of 1995, provides
among its national objectives41, that utilization of natural
resources shall be managed in such a way as to meet the
development and environmental needs of the present and future
generations of Uganda, particularly taking all measures to
prevent or minimize damage and destruction to land, air,
water resources resulting from pollution or any other kind of
natural resource degradation. According to the Constitution
every Ugandan has a right to a clean and healthy
environment42. It is further provided that the government or
local government as determined by parliament by law shall
hold in trust for the people and protect natural lakes,
rivers, wetlands, forests, game and forest reserves, national
parks and any land to be reserved for ecological and
touristic purposes for the common good of all citizens43. This
right carries with it the duty of the citizen to protect the
environment. The Constitution goes ahead and provides that
parliament shall, by law, provide for the measures intended
to protect and preserve the environment from abuse, pollution
and degradation and to promote management of the environment
for sustainable development44.
In response to the above Constitutional mandate, Parliament
in 1995 enacted the National Environment Act45 as the basic
41 Objective No.2742 Constitution of Uganda 1995, Article 39.43 Article 237(b)44 Ibid45 Cap.153,Opcit
xl
legislation on environment with a provision, among others,
that requires developer of a project that is likely to have
significant impacts on the environment to carry our an
Environmental Impact Assessment46. The Mandate of carrying out
an EIA is derived from this Statute. It is important to note
from the onset that the EIA requirement in Uganda under the
National Environment Statute is limited to projects only as
opposed to some foreign legislation such as the United States
National Environment Policy Act (NEPA)47 where the mandate to
carry out an EIA is quite broad. NEPA requires that all
federal agencies include, in every recommendation or report
on proposals for legislation and other major federal actions
significantly affecting the quality of the human environment,
a detailed statement by the responsible official on the
environmental impact of the proposed action and any adverse
environmental effects which cannot be avoided should the
proposal be implemented48.
In the United States the mandate to carry out EIA goes beyond
development projects, to policies and even proposals for
legislation. In Uganda, EIA is more often associated with
development projects rather than policies. There is a great
need for EIA for major development policies related to
sectors such as tourism development, water resource
development, urbanization, agriculture forestry and
46 Ibid,S. 1947 542 U.S.C. 4321 – 4370 a.48 S. 102 of NEPA.
xli
industrial development to mention but a few. Policy EIAs
present an opportunity to examine the environmental
implications of national and regional development policies
and proposals before decisions are made to implement specific
projects conceived under the broad policies. EIAs conducted
on policies contribute significantly to harmoniseation of
different sectoral policies and remove unwanted policy
aspects.
The Wildlife Act49 requires every developer desiring to
undertake a project, which may have a significant effect on
any wildlife species or community to carry out an EIA in
accordance with the National Environment Act50. The Act also
obliges the Uganda Wildlife Authority (UWA) in consultation
with NEMA to carry out audits and monitor such projects that
may have an impact on wildlife.51
The Land Act52 does not expressly deal with EIA but has some
provisions that embrace it. It does however, regulate the
ownership of land and controls land use. It obliges any
person who owns or occupies land to manage and utilize it in
accordance with the Water Act, the National Environment Act,
the Forest Act and any other law.53 The Act also requires
that any use of land should conform to the Town and Country
Planning Act and other laws54. An EIA is therefore, a useful49 Cap. 200, Opcit.50 S. 1651 S.1752 Cap. 227,Laws of Uganda 2000 Revision.53 S. 4454 S. 46
xlii
tool to guarantee that the proposed land use does not
contravene any law.
The Investment Code55 though enacted before the National
Environment Statute, has got some important provisions, which
embrace the spirit of EIA. The Code empowers the Uganda
Investment Authority to among other things, attract and
coordinate all local and foreign investments in the country
to enhance economic development. The Code requires every
investment licensee to take necessary steps to ensure that
the operation of its business enterprise does not cause any
injury to the ecology or the environment56. In fact it should
be the policy of the Uganda Investment Authority (UIA) to
require EIA as a pre-condition for granting an investment
licence. It is even more convenient and important than EIA
forms part of the feasibility study of the project that is
submitted to UIA so that environmental costs are known from
the onset of the project to enable the project developer
weigh these environmental costs together with other economic
costs in order to know the net worth of the whole project.
The National Environmental (Wetlands, River Banks and Lake
shores Management) Regulations57 require a developer deserving
to put up a project which may have a significant impact on a
wetland, river bank or Lake shores, to carry out an EIA.58 It
is further required that the developer carries out annual55 Cap.92 Laws of Uganda 2000.56 S. 1957 Regulation No. 3 of 2000.58 Regulation 34 (1)
xliii
audits and monitoring of such activities that may impact on
the environment and submit reports to the Executive Director
and the Lead Agency in accordance with Sections 23 and 24 of
the National Environment Statute.59 These regulations
followed the Wetland policy of 1995, which provides that all
proposed modifications and restoration on wetlands be
subjected to EIA and that damaged wetlands be rehabilitated
in accordance with the findings of the EIA. The policy also
requires that all planned new wetland developments be
subjected to EIA to determine the environmental Controls.
According to the policy, those, which have been subjected to
EIA, will continually be monitored to asses their impact on
the environment and where the impact is detrimental,
Government will require that such a development be halted.
In response to these regulations and policy, NEMA has halted
the development of a number of projects. For example, the
development of a shell petrol station at Ntinda where a swamp
was being filled with soil was stopped. A fish factory that
had erected a high wall on a lakeshore at Bukakata in Masaka
without doing an EIA was stopped by NEMA. NEMA also closed an
abattoir, which had been developed in a wetland at Kajansi.
The National Environment (Waste Management) Regulations60
require that a waste treatment plant or disposal site carry
out an EIA in accordance with these regulations before a
59 Regulation 34(2)60 Regulations No. 52 of 1999.
xliv
licence is issued61. It is further required that an operator
of a waste treatment plant or disposal site carry out an
annual audit of the environmental performance of the
site/plant and submit a report to NEMA.62 It is also a
mandatory requirement for every person who operates a waste
treatment plant/disposal site to take all necessary steps to
prevent pollution from the site or plant, which include among
others, instituting mitigation measures.
The environment Impact Assessment Regulations63 apply to all
projects included in the third schedule to the National
Environment Statute, 1995 and to any major repairs,
extensions or routine maintenance of any existing project
that is included in the third schedule to the Statute64. The
Regulation make it a mandatory requirement for any developer
of a project for which EIA is required under the Statute to
carry out an EIA in accordance with these regulations.65
3.3 THE PROCESS OF EIA.
According to the National Environment Act66 every developer is
required to carry out an EIA if the project falls in the
categories specified in the third schedule to the statute. In
the third schedule an EIA will be required in the following
circumstances. First, in cases of an activity that is out of
character with its surroundings. An example would be61 Regulation 15.62 Regulation 15 (2).63 Regulations No. 13 of 199864 Regulation No. 3 (1)65 Regulation 3 (2).66 S. 19
xlv
constructing a chemical-manufacturing factory in a
residential area; second, any structure of a scale not in
keeping with its surroundings. Third, an activity involving
major changes in Land use.
The Act67 provides for three different levels of assessment
depending on the nature of anticipated impact. These levels
are:
Where a project may have an impact on the environment, then
an environmental impact review may be conducted.
Where a project is likely to have a significant impact on the
environment then impact evaluation may be conducted.
Where a project will have a significant impact then an
Environment Impact study will be conducted.
In the process of operationalising the EIA process it was
found to be too complicated to determine before hand, which
level the project falls. As a result of this realisation the
EIA Regulations, 1998 only provided for a 2-step (level)
process. Therefore, all projects falling within the Schedule68would be required to submit a project brief,69 but for the
time being the two other steps, that is, evaluation and
review could be ignored. If the project brief is not
approved then an Environmental Impact Study will be
recommended.
67 Cap.153, S.20(3)68 Third Schedule to Cap.153 Opcit.69 Regulations 5-9 of EIA Regulations 1998
xlvi
3.4 PROJECT BRIEF.
The Regulations provide that the Authority (NEMA) may approve
the project brief if it is comprehensive enough or if the
project is minor, not likely to lead to significant impacts.
If the Authority finds that the project will have significant
impacts on the environment and that the project brief
discloses no sufficient mitigation measures to cope with the
anticipated impacts, it shall require that the developer
undertakes an environmental impact study.70
The project brief shall contain the following:
the nature of the project in accordance with the categories
identified in the Third Schedule
the projected area of land, air and water that may be
affected the activities that shall be undertaken during and
after the development of the project.the design of the
project.
the materials that the project shall use, including both
construction materials and inputs the possible products and
by-products, including waste generation of the project
the number of people that the project will employ and the
economic and socio benefits to the local community and the
nation in general.the environmental effects of the materials,
methods, products and by-products of the project, and how
70 Regulation 9.
xlvii
they will be eliminated or mitigated any other matter which
may be required by the Authority.
The developer will submit ten copies of the project brief to
the Executive Director of NEMA, who shall transmit a copy of
the project brief to the lead agency for comments within
seven working days of receiving the project brief.71 Lead
agency means any Ministry, department, parastatal agency,
Local Government System or Public Officer in which or whom
any law vests functions of control or management of any
segment of the environment.72
In determining the significance of environmental impacts at
this stage the Authority should use sample-screening
criteria, which include: -
Risk to human health; Significant adverse effects on
quality/quantity of natural resources;
Resettlement or significant alteration of life style/customs
Proximity to towns or resources or protected areas;
Environmental value of the area in which the project occurs’
Significant alteration of the scenic or tourist value of a
zone; Alteration of important cultural sites;
Harm to flora and fauna; Damage to material assets; and
Disturbance of ecological balance
Effects might be direct, indirect, cumulative, short-term or
long-term in nature. The significance of an effect can be
gauged by its extent, duration, intensity and
71 Regulations 6.72 S.1,Cap.153, Opcit.
xlviii
irreversibility. Consideration must also be given to
existing environmental quality standards. In this way it is
hoped that many of the smaller and medium sized projects will
be approved at the project brief level provided that the
brief is exhaustive and indicative of the anticipated
impacts. If the decision at this screening stage is to
reject the project it shall then require a detailed
environmental impact study.
3.5 ENVIRONMENTAL IMPACT STUDY.
Once the Authority recommends a study them the developer in
consultation with the Authority and lead agency put up terms
of reference.73 The terms of reference shall include all
matters required to be included in the environmental impact
statement provided for in regulation 14 and such other
matters as the Executive Director may in writing provide.
The environmental impact study is to be conducted in
accordance with the guidelines adopted by the authority in
consultation with the lead agency.74 The developer is required
to submit the names and qualifications of persons who shall
participate in the study.75 The Executive Director may
approve or reject the name of any person submitted and
require that another name be submitted within a specified
period.76
73 Regulation 1074 See S. 19 (8) of Cap.153 Opcit.75 Regulation 11 (1)76 Regulation 11 (2)
xlix
The persons undertaking the study are required to conduct
themselves in accordance with the guidelines, an established
code of practice or the written directions issued by the
Executive Director.77
This phase of Environmental Impact study comprises of the
steps of impact identification through scoping, impact
evaluation (quantification), provision for mitigation
measures, assessment of alternatives and finally
environmental impact statement.
3.5.1 ScopingThe term scoping is used to indicate a crucial early step in
the EIA process. This involves a coarse analysis of the
possible impacts of an action with a view to identifying
those impacts that are worthy of a detailed study. It is a
new development in the EIA, and is based on the recognition
that the impacts of an action are of varying importance. The
idea is first to develop a simple list of all consequences of
the proposed action. No attempt is made at this stage to
quantify. When the list has been completed, it is carefully
examined to identify the important impacts. Naturally this
is region or country specific.
One region or country may consider watershed management very
important, but soil erosion unimportant. In another the
reverse order may hold. The point is to control cost and
optimise cost-effectiveness by concentrating on the most
important impacts.77 Regulation 11 (3)
l
The scoping exercise should to the extent possible, involve
representatives of potentially affected communities, relevant
government agencies, representatives of other interested
parties including NGOs, the private sector, independent
experts and all other stakeholders including the general
public. Usually this will include meetings to obtain their
comments on what should be included in the study and what
alternatives should be considered in order that an adequate
environmental impact study shall be conducted. This public
participation is well catered for under the EIA Regulations,
1998.78
The responsibility for scoping should be that of the
developer, but the lead agency and other interested parties
shall be involved. The developer shall undertake to prepare
a scoping report which summarises the results of scoping and
which shall also constitute part of the terms of reference
for the study. The scoping report shall be approved by the
responsible lead agency in consultation with the Authority
before a detailed environmental study is conducted.
3.5.2 Impact Evaluation.
This step involves the quantification of impacts. The
quantification of impacts is the most difficult technical
aspect of an EIA. It is also the most controversial.
Perhaps it would be appropriate to deal with controversy
first, and the technical aspect later.
78 Regulation 12
li
It is generally agreed that the quantitative change due
to an impact should be computed wherever feasible. It
should also be noted that present technology does not
permit quantification of all impacts. The thorny
question, therefore, is how to treat those changes that
cannot be quantified. One approach would be to ignore
them altogether, since they represent a considerable
level of uncertainty. The other approach would be to
include them in a qualitative form.
The best approach however, is that if an impact has been
identified as important during the scoping step, then it
should not be ignored simply because its magnitude cannot
be quantified. There are several methods, which permit
the qualitative assessment of an impact based on expert
opinions leading to a prediction of its magnitude. Such
methods range from simple round-table discussions to the
structured Delphi technique.79 The details of such
techniques are outside the scope of this work.
The problems of quantification are compounded when cost
is included in the question. The cost of quantification
appears to rise geometrically with the degree of accuracy
required. The solution could then be linked up with the
scoping exercise. By looking at the impacts, which were
ignored, it is, possible to get a feel for the
‘coarseness’ of the EIA. One could then set the degree
79 YJ Ahmed and GK Sammy,Guidelines to Environmental Impact Assessment in Developing Countries, London, Hodder and Stronghton, 1985. P.22.
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of accuracy for quantification accordingly. To cite an
example: the pollution in an estuary can be estimated by
simple formulas, or by complex computerised models. The
latter generate far more exact predictions. But if it
has been decided to ignore several small, non-point
pollution sources, then the degree of accuracy is
automatically reduced. In such circumstances the cost of
a computerised model can hardly be justified.
The point to be made here is that judicious scoping
should limit both the number of impacts that are studied
and the depth to which selected impacts are studied. As
previously stated the qualified impacts are predictions,
not facts. Therefore, there is a degree of uncertainty
to acceptable levels, not to try to eliminate it
altogether. The scoping exercise can and should address
the degree of accuracy, which represents an acceptable
level of uncertainty in light of budgetary constraints.
3.5.3 Mitigation Measures
Although it is seldom possible to eliminate an adverse
impact altogether, it is often feasible to reduce its
intensity. This reduction is referred to as a
mitigation measure. Such measures may be engineering
works (such as dust collectors, sludge points, noise
mufflers etc) or management practices (such as crop
liii
rotation, phased plant shutdowns etc). All mitigation
measures have associated costs.
In some respects mitigation planning is part of impact
evaluation. Once applicable measures have been
identified, it is necessary to compute their cost and to
requantify the level of impact, acknowledging the
beneficial effect of the mitigation measure. Depending
on circumstance mitigation might give rise to two
project alternatives where only one existed before.
3.5.4 Assessment Of Alternatives
The “Assessment” step has often been labelled
‘Comparison of Alternatives’. It is at this point that
the technical information gained in previous steps will
be pulled together. It is at this point too, that the
environmental losses and gains will be combined with
economic costs and benefits to produce a full picture of
each project alternative. The intended output is a
series of recommendations from which the decision-maker
will choose a course of action.
In order to proceed to compare alternatives, two pieces
of information on each project alternative are required.
The first is a summary of positive and negative
environmental impacts. The second is a summary of
economic costs and benefits. The former will have been
generated as part of the preceding steps in the EIA.
liv
The latter may be developed as part of the EIA, or may
come from a parallel economic analysis like CBA.
The “No Project” alternative
The simplest approach to comparing alternatives across
both the economic and the environmental fronts is cost-
benefit analysis (CBA). To do this, the environmental
impacts must be converted into economic equivalents, and
listed as costs and benefits. A cost – benefit analysis
is then done for each alternative and the
recommendations are made on that basis.
3.5.5 Environmental Impact Statement (EIS)
“At the conclusion of the environment impact study an
EIS should be made by the developer. This EIS is
intended to be comprehensive for two reasons. First to
enable the Authority appreciate the choice of
development alternatives made by the developer and to
enable it make a decision whether to approve the project
or not. Secondly the authority may use the statement as
the basis for its post-assessment environmental audit”.80
In making the EIS the developer shall pay attention to
issues such as ecological considerations, social
considerations, landscape and land use.
80 John Ntambirweki, A Consultancy Report on The Framework for EIA in Zambia, Nairobi, ELI/PAN, UNEP, Dec, 1993.
lv
3.6 PUBLIC INVOLVEMENT IN THE EIA PROCESS
Public participation plays a pivotal role in the EIA
process. The public here refers to the beneficiaries of
the project, the communities affected, government and
other private or public sector interests groups. Public
involvement happens typically during the scoping and
reviewing phases of EIA process.
The legal basis of the public participation in the EIA
process is the National Environment Act81 which provides
for participation the public in environmental issues.
The Act82 also provides for consultation as part of the
approval process of the EIS. Public participation in
the EIA process is specifically provided for by the
Environmental Impact Assessment Regulations 199883 where
it is provided that the developers shall take all
measures necessary to seek the views of the people in
the communities which may be affected by the project
during the process of conducting the study.
This should be done by publicising the intended project,
its anticipated effects and benefits through the mass
media in a language understood by the affected
communities for a period of not less than fourteen
days84. After the expiration of the period of fourteen,
the developer is supposed to hold meetings with the81 (Cap 153) S. 6 (1) g and (j)82 Ibid S. 21(1)83 Regulation 1284 Regulation 12 (2) (a)
lvi
affected communities to explain the project and its
effects85.
3.7 DECISION– MAKING.
Decision – making is regarded the final phase in EIA,
though there are other post assessment processes of
monitoring and auditing. Some scholars86 have decided to
regard the developer as one of the decision-makers.
They have considered decision – making at two levels,
that is, that of the developer and the government
agency. With due respect, this is a wrong assumption.
A decision – maker should be that person or body of
persons who has not been involved in the aspects of the
study. In any event decision-making becomes a separate
event from the study process, and should be treated as
such.
Within the context of EIA, the decision-making starts
when the working document reaches the decision-maker.
This document may be either, the project brief or the
EIS, depending on what level the decision is required.
In the EIS will be found a list of project alternatives
with comments on the environmental and economic impacts
of each. There will also be recommendations as to one or
several preferred courses of action.
85 Regulation 12(2) (b)86 For example, John Ntambirweki, The Framework for Environmental Impact Institutions Programme Activity Centre (ELI/PAC) Nairobi,United Nations Environment Programme (UNEP), Dec, 1993, p. 12.
lvii
It is unlikely that a decision maker would reject the
technologists’ recommendations to the extent of
selecting an alternative, which is clearly labelled
‘unacceptable’ and it is among these that the decision
maker must consider political realities along with
economic and environmental information. Consider the
case of a proposed industry, which will discharge a
certain volume of liquid waste. One alternative design
will result in a level of discharge that is considered
acceptable.
A second, more expensive design will yield even less
pollution. The CBA has put both alternatives on par, so
the second has been recommended on environmental
grounds. A decision maker may feel justified in
rejecting that recommendation, since he knows that the
first less costly alternative is far more likely to be
built. The point here is that the choice was not
between ‘bad’ and ‘good’, but rather between ‘good’ and
‘better’. And good was chosen because it was more
likely to be realised.
One vital necessity in the decision making step of EIA
is time. A developer needs to have a decision made in a
reasonable time, so that he can know how to proceed. In
general the decision-maker can do one of three things’
accept one of the decision alternatives; request further
study; or reject the proposed action altogether.
lviii
If the decision-maker were to accept one of the project
alternatives, then the next step would be to complete
the engineering designs and proceed with the action. In
such a favourable situation, delays are quite
unnecessary.
If further study is requested, the decision-maker should
be quite specific as to what information is being
requested. Non-specific requests for further study can
be construed as simply stalling action, and will reduce
the credibility of the EIA procedure. On the other
hand, a specific request can usually be easily complied
with thus minimising delays.
Finally an outright rejection leaves the project
proponent with the choice of filing an appeal in the
High Court87 or abandoning the proposed action. In order
to assist him in deciding on his response, the rejection
notice should clearly indicate the grounds for the
decision to reject the proposed action. Extreme delays
in the decision-making process will only antagonise
developers and lends credibility to the claim that EIA
is anti-development. To avoid this, decision-makers
must make every effort to tender their verdict in a
timely manner.
87 See Regulation 38
lix
3.8 ENVIRONMENTAL MONITORING AND AUDITING
At the decision making phase, when choice is made, it is
assumed that the project or programme will proceed. This
is not the end of EIA. One further step remains to be
completed. This step is the monitoring and auditing one.
As noted earlier on, E.I.A.s are based on predictions.
Monitoring and auditing are used to see what actually
occurs and to ensure that the anticipated impacts are
maintained within the levels predicted. Unanticipated
impacts are managed or mitigated before they become a
problem and the benefits expected from the EIA are
achieved as the project proceeds. They can be used to
provide information for periodic review and alteration
of impact management plans, optimizing environmental
protection through good practice at all stages of the
project.
Monitoring and auditing are two different terms where
the latter is more of an implementation process of the
former. Monitoring refers to the systematic collection
of environmental data through a series of repetitive
measurements to meet specific objectives and
environmental needs.88 Monitoring can be used to ensure
that the benefits anticipated as a result of the EIA
reactively achieved as the project proceeds.89
88 ECE, Post Project analysis in EIA, New York, United Nations,1990.
lx
This systematic EIA follow-up process is necessary
because of a number of reasons. First, often relatively
little attention is paid to actual effects arising from
project construction and operation. Secondly, without
systematic follow-up to decision making, EIA may become
a proforma process, a paper chase to secure a
development permit, rather than a meaningful exercise in
environmental management to bring about real
environmental benefits and achieve environmental
sustainability. Thirdly, increasing numbers of people,
funds and time are being devoted to EIA and there is a
need to safeguard the returns in terms of environmental
benefits and the quality of decision making.
Until recently EIA legislation in most countries had
been weak in providing for the follow-up to an EIA
study.90 To improve the situation there is need for the
incorporation of environmental management plans (to
eliminate or reduce negative impacts of activity) and
environmental monitoring plans (to monitor compliance
with EIA conditions) into the EIA documentation. These
may involve regular record keeping as well as self-
monitoring by a proponent/developer91. Implementation of89 EPA, Best Practice in Environmental Management in Mining. Environmental
monitoring and Performance, Canberra ,quoted in THE EIA Resource Manual:Preliminary version, June 1996.
90 Lal Kurukulasuriya and Marceil Yeater, Op cit P. 266.
91 One example of legislation containing such a provision is the India'sEnvironmental Impact Assessment Notification, Section IV (1994).
lxi
such plans can be supervised by government inspectors to
ensure compliance with and evaluation of the EIA process
and results. The monitoring process also can be linked
to provisions for the regular environmental auditing of
existing facilities.92 To help ensure compliance with
mitigation and other measures, proponents could be
required to enter into a binding agreement based on
procedures and recommendations in the EIA report93 and
/or employ penal provisions to secure compliance in this
respect.
In Uganda the National Environment Statute, 1995
provides for both monitoring94 and auditing.95 According
to the statute, the NEMA, in consultation with a lead
agency, is supposed to monitor all environmental
phenomena with a view to making an assessment of any
possible changes in the environment and their possible
impacts. It is also supposed to monitor the operation of
any industry, project or activity with a view to
determining its immediate and long-term effects on the
environment. Powers to enter upon any land or premises
for the purposes of monitoring the effects upon the
92 As is the case in Nepal's National EIA guidelines chapter xii(1994).
93 Namibia, National Environment Assessment policy, paragraph 5(1994).
94 S. 23 Cap.153 Opcit
95 S. 22, Ibid
lxii
environment of any activities carried on that land or
premises are vested in the environmental inspector
appointed under S. 79 of the Act96.
On environmental auditing the Act97 gives that
responsibility to the Authority and the developer. The
environmental inspector is supposed to determine how far
the activities conform to the statements made in the
EIS. The developer is supposed to keep records and make
annual reports to the Authority describing how far the
project conforms in operation with the statements in the
EIS.98 The developer is also required to take all
reasonable measures to mitigate any undesirable effects
not contemplated in the EIS and shall report on those
measures to the Authority from time to time as the
Authority may require.99
3.9 ENFORCEMENT OF EIA LEGISLATION
The Act100 and the Regulations101 create offences in
respect environmental Impact Assessment. Where a
developer fails to submit a project brief or, fails to
prepare an environmental impact assessment or,
fraudulently makes a false statement in an environmental96 S.22 (2) Cap.153, Opcit
97 S. 22
98 S. 23 (3)
99 S. 22 (4)
100 Cap.153,Opcit.101 EIA Regulations 1998
lxiii
impact statement, commits an offence and is liable on
conviction, to imprisonment for a term not exceeding
eighteen months or to a fine of not less than one
hundred and eighty thousand shillings and not more than
eighteen million shillings or both.102 The court may
further order that any licence, permit or other
authorisation given for purposes of implementing the
project or policy, be cancelled103. The court may also
issue an environmental restoration order against the
accused.104
Finally, the law does not prevent the bringing of any
civil action or a criminal prosecution under any
enactment concerning the project or the manner it is
operated or managed, notwithstanding that an approval
was made in respect of an environmental impact
assessment.105
102 S.96 of Cap.153 Opcit.103 S.105 (3) ibid.104 S.105(5) ibid, See also part IX of the Act.105 Regulation 35(2)
lxiv
CHAPTER FOUR
IMPLIMENTATION OF EIA LAW IN UGANDA
lxv
4.1.0. INTRODUCTION
As earlier noted106 EIA was not a legal requirement in
Uganda prior to 1995 when it became a legislative
requirement107.
4.2 BUJAGALI HYDROELECTRIC POWER PROJECT
A number of recent studies on the power sector in Uganda
have pointed to the Uganda Electricity transmission
Board’s (UETB) operational difficulties and severe
constraints such as the corporation's inability to
provide reliable and quality customer services, power
losses of some 20% and reduced earnings.108
Economic growth in many sectors of the economy has been
constrained by inadequate and unreliable supply of
power. Business lose about 89 working days on average
each year due to power cuts, load shedding and
suppressed demand. This translates into a suppression of
economic growth of about 2% per annum.109 A very small
percentage of the rural areas is connected to
electricity. Rural electrification therefore, is an
increasingly important issue.
106 Chapter 1 Page 2107 National Environment Act (Cap. 153) Laws of Uganda, 2000108 Bujagali Hydroelectric Power Project Environmental Impact StatementFinal Report, WS Atkins International Ltd, March 1999.109 Ibid.
lxvi
4.2.1. The Project
AES Nile Power (AESNP), a joint venture between AES
Electric Ltd. a UK wholly owned subsidiary of the AES
Corporation, a US Company and Madhvani International of
Uganda, submitted a formal proposal to the Government of
Uganda and the U.E.B to develop a 250 MW hydroelectric
power plant on the river Nile at Bujagali.
The project site is located at Dumbbell Island, near the
source of the Victoria Nile in Uganda and about 2.5 Km
downstream from Bujagali Falls. The project comprises a
250 MW Power station housing 5x50 MW Kaplan turbine
generation units with associated 30m high embarkment and
spill way work. Construction is in two phases.
4.2.1. Positive Environmental Impacts
The project was found to have potential positive socio-
economic impacts in terms of the provision of employment
opportunities, opportunities for increased trade,
development of the local economy and a potential
improvement in local services in the area. From a
public health view point, the submergence of the
whitewater rapids sections of the river by the reservoir
will eradicate the breeding grounds for the blackfly
simulium damnosum, thus reducing the on chocerciasis hazard in
the local area. At the same time, however, the reservoir
will increase the habitat for the snail and mosquito
lxvii
vectors of bilharzia and malaria although anticipated
flactuations in water levels will not favour
colonization by the disease vectors.
In the context of the normal environment the scheme can
be expected to have a beneficial effect on fisheries.
Lake Victoria and the Victoria Nile contain many of the
same fish species, and the creation of the impoundment
will result in a change in the relative abundance of
these species to produce fish fauna more characteristics
of a lake than a river. For example, Barbus ssp. would
become less abundant whilst Talapia ssp. And other cichlits
would increase in abundance. In view of its proximity
to Lake Victoria it is unlikely that the reservoir would
be developed as a commercial fishery. However, the size
of the impoundment would be sufficient to support a very
significant subsistence fishery, providing an important
source of protein for the riparian communities.\
The new lake may be expected to attract increased
numbers of certain water birds, although the flooding of
many of the islands in the river would destroy important
breeding habitats which are currently less susceptible
to human interference. The diurnal variation in
operating water levels may also expose areas of muddy
shoreline.
lxviii
4.2.3 Negative Environmental Impacts
This section considers impacts on the natural
environment during construction and reservoir filling,
during operation and also the impacts of the scheme on
the socio-economic environment.
a. During construction
The area of land, which will be inundated by the
Kalagala reservoir at a full supply level of 1088m ASL,
excluding the river surface area, is estimated to be
about 1,400 ha. The main reasons of inundation will be
the lower lying land on both sides of the river,
extending from the dam site upstream for 9km to about
1km South of Busowoko Falls. The remaining 6km of
flooded river to the toe of Dumbbell Island will largely
be confined within the gorge. In addition, the 1997
master plan estimates that some 30ha of land would be
required for the permanent structures and temporary
construction support facilities, principally on the east
bank, and some 15ha for 11km of access roads.
On the basis of GIS land use mapping it is estimated
that the land area taken by the reservoir will comprise
975 ha of agricultural land, 85ha of natural vegetation,
defined as woodland, bushland, grassland and wetlands,
and 330ha of forest. It may reasonably be assumed that
lxix
the additional 45ha for the scheme components would fall
within agricultural land category.
The destruction and inundation of the gazetted forest is
important in an area where few remnants of the natural
vegetation cover remain elsewhere, the loss of
agricultural and ‘natural’ secondary vegetation in this
area will have little impact on the natural environment,
since these vegetation types have no ecological
significance. On the part of air quality it was found
that since there are no major urban areas or industry
around the project area, the ambient air population
levels are very low. During construction however, there
will be deterioration in local air quality due to the
generation of suspended particulate from the
construction of project roads, blasting and excavation,
vehicle movement and batch plant operations. These
operations will take place in locations close to settled
rural areas. The adoption of good site practice will be
essential to minimise dust production and vehicle
emissions.
High noise levels and vibration will arise from blasting
concrete batching, aggregates production and the general
operation of construction equipment and vehicles.
Ambient noise levels in the area have not been measured,
but undoubtedly well below exist international standards
for low-density residential areas. Guideline levels vary
lxx
between different countries, but a reasonable standard
for daytime maximum levels would be around 55 c/BA6.
The existing vegetation cover plays an important role in
reducing soil erosion within the site area, although in
many places the steep riverbanks have been cultivated
down to the edge of the river.
b. During Operation
Major storage schemes for hydropower generation have a
marked impact on the downstream river, since the
regulation effectively replaces the natural seasonal
variations in flow. In the Victoria Nile, however, the
Owen Falls Dam has regulated the flow since the mid
1950’s, although the power generation operation produces
short-term diurnal variations. Whilst the scheme
involves an impoundment extending some 8 km upstream of
Dumbell Island, the purpose of the dam is solely to
regulate the headwater
Level for power generation. The regulation would be
primarily on a 24-hour cycle, with limited variation on
a daily or weekly basis. Flactuation in downstream river
levels and flows arising from the operation will
therefore be very small, of the same order as those
currently obtained below Owen falls. The principal
impacts of the scheme on water quality and acquatic
ecology will arise from the creation of the reservoir.
66 Word Bank Environmental Guidelines, 1998.
lxxi
In particular the anticipated changes relate to the
nutrient status of the stored water and its effect on
trophic levels within the lake.
Over the long term the stored waters at Bujagali may be
expected to have a virtually identical chemical
composition to that of lake Victoria, which is
characterised by low concentrations of dissolved ions
and neutral pH. However, nutrient availability in the
reservoir may be expected to increase during and after
the first filling, due to the release of nutrients from
the submerged agricultural soils and vegetation, and the
high oxygen
demand of the soil organic matter and biomass. It is
expected that equilibrium conditions with the inflow
waters should be restored within a few months after the
initial filling.
A further fact militating against nutrient accumulation
and weed growth in the reservoir is the relatively rapid
rate of turnover of the water. The retention time of the
impoundment is likely to exceed a few hours under normal
flow conditions, and there will therefore be little
opportunity for nutrients to be retained within the
storage. Moreover, the reservoir will not flood any
significant amount of land beyond the main channel,
where turnover times would be reduced, which will again
lxxii
decrease the risk of both nutrient accumulation and
stratification.
It may therefore be concluded that the Bujagali
reservoir is unlikely to experience problems arising
from the growth of excessive quantities of waterweeds.
Nevertheless despite its low nutrient status the
presence of water hyacinth is an increasing problem in
the coastal areas of Lake Victoria, and in particular in
the headwater pond above Owen Falls, where regular weed
clearance is carried out.
c. Impacts on the Socio–Economic Environment
The reservoir will inundate the Bujagali Falls, other
falls in the vicinity of Dumbell Island, Dumbell Island
itself and a significant number of Islands upstream to
Owen Falls. The area of inundation varies in width a
long the banks of the river from approximately 200
metres in the north on the east bank to some few metres
in the south. The average depth of the land to be
inundated is approximately 75 metres. The majority of
this is
intensively used for cultivation. The total area of land
to be acquired is estimated to be 270 hectares, but this
excludes land for borrow pits and the tip site. The main
borrow pit and tip site would be located on the east and
west banks near Dumbell island and the major works site
would be on the west bank in the same area. These areas
lxxiii
are intensively cultivated but not densely settled. Much
of the land would only be required for the duration of
the construction period only, and could then be returned
to productive use and/or resettled. From house counts
on the 1:7,500 aerial photography, it is estimated that
some 95 to 100 dwellings would be directly affected by
the construction of the works and the land inundated by
the development, and that most of the dwellings affected
would be concentrated around the dam and power house
site. This is equivalent to around 475 to 500 persons,
which is considerably fewer than the estimated number of
1100 to 1600 persons previously estimated in the
environmental scoping.110
Disturbance will be experienced during the construction
period to communities who remain in the area. It is
understood that construction of the dam and associated
works will
take place from both banks and there will inevitably be
increased traffic, much of it heavy
vehicles causing noise, dust and air pollution. This
will affect a significant number of people along the
roads from Jinja on both banks, particularly in the
Malindi and Namizi areas. The development of the
construction will require portable water supplies,
proper sanitation and a refuse disposal system. The
110 AES/NP, 1997 Opcit
lxxiv
demand for water supplies and firewood, which are
limited in the area, could compete directly with the
demand for these resources by local people. The
landscape in the Dumbell Island area will be affected by
the construction of the dam, power station and
associated works. Within the Bujagali Falls area, the
landscape character will change due to their inundation.
Part of the picnic site where the built facilities are
located will be lost, with implications for local
recreation and income for Jinja District. The white
water refitting activities that take place from this
site will no longer be possible, which has significant
implications for the development of the tourism industry
in the wider area. However consideration could be given
to the development of other recreation activities, such
as boating and sport fishing on the newly created water
area.
Concerning the impact on cultural heritage, the site of
Bujagali shrines would be inundated. Whilst any
potential loss of a cultural site constitutes an adverse
impact, the local people in the area do not attach great
importance on these shrines.
On the side of public health, Bujagali site is
sufficiently close to Owen falls to be at high risk from
Schistoma Cercariae released from the Lake Victoria focus of
infection. Health statistics show that schistosomiasis is
lxxv
prevalent throughout the area, and the river is used at
various points by the riparian population for drinking
water suppliers, bathing and
washing clothes. The new reservoir will have a total
area of about 4.3 km2 at maximum supply level, but the
impounded area will be almost entirely confined within
the river gorge. Therefore the new impoundment will not
result in any significant increase in the available area
of public access of water. The impoundment may provide a
small additional habitat for the mosquito vectors of
malaria, but the effect would be insignificant in an
area where all the population are currently at very high
risk.
4.2.4. Comparison of Alternatives
During the carrying out of an Environmental Impact
Assessment of the proposed Bujagali Hydropower Project
on the River Nile a comparative assessment of the
alternatives had to be conducted. This was in response
to the requirement in both NEMA and IFC guidelines for
the consideration of alternatives to major projects. In
addition, during meetings with the IFC and World Bank in
Washington in March 1998, IFC requested a comparative
assessment of the alternatives in order to assist them
in producing an unranked short list of potential energy
projects in Uganda, which they could consider for
possible future funding. The strategic options
lxxvi
considered were the sites of Karuma Falls, Kalagala and
Bujagali.
The major objective of the comparative study was to
provide a basic strategic comparative assessment of the
proposals for the three sites on the River Nile, to
determine whether the Bujagali project falls within the
threshold of acceptability with respect to its
environmental consequences.
Consequently the study came up with the following
findings. Karuma is a runoff river scheme, whilst
Bujagali and Kalagala involve impoundment to maintain
the generating head. In terms of positive economic
impacts, Kalagala clearly has the greatest installed
capacity, twice that of Bujagali and five times that of
Karuma. A 500MW scheme represents a very substantial
step increase in the installed capacity, by a factor of
almost
three, and it must remain questionable as to whether the
UEB system could cope with this increase without
significant alternation.
The land take and overall area of direct impact is
greatest at Kalagala, and the potential number of
oustees much higher. When these impacts are related to
power generation capacity, the ration of the power
lxxvii
output to the area inundated and the number of oustees7
is lowest at Kalagala.
The nature of the effects on the natural environment is
similar at both Kalagala and Bujagali, but the scale of
impact will be higher at Kalagala. In particular the
larger impoundment behind the Kalagala dam will result
in the loss of a significant area of gazetted forest.
The ecological impacts of the schemes will be least at
Karuma. The impact on the landscape and potential
tourism value is also likely to be highest and most
widespread at Kalagala, although Karuma Falls will be
dramatically affected by the Karuma scheme. The impact
on the landscape at Bujagali will be less severe, and
the Kalagala reservoir will drown out a greater length
of the reach of the Nile currently used for white water
rafting activities.
In terms of socio – economic effects the potential for
stimulating development is possibly greatest at Karuma,
due to the cover overall level of economic activity and
the poorer standards of living in the surrounding area.
The extent of social disruption and disturbance,
especially during construction, is however likely to be
greatest for the Kalagala scheme and lowest at Bujagali.
In summary, the Kalagala scheme will provide a very
large increase in power but will have the greatest
77 GOODLAND R 1996, The environmental sustainability challenge for the hydro industry, Hydro – Power and Dams, Issue 1, 1996.
lxxviii
overall environmental and socio – economic impacts.
Karuma is likely to have the least overall environmental
impact, but generates the lowest amount of power, whilst
Bujagali will have relatively low environmental impact
whilst generating substantial amounts of power.
Therefore, Bujagali was the most desired alternative.
4.2.5. Mitigation Measures
In the previous sections, potential environmental
impacts of the scheme were identified. This section
investigates options for mitigating or eliminating these
impacts, either by changes to the scheme design or by
controls on working practices during the construction
and operation phases.
a. Access to water resources
In areas where residents are isolated from their main
water source (the River Nile) due to land acquisition,
two options for mitigation are provision of access
pathways through or around the site, and provision of
pumped water to villages higher on the riverbank.
Provision access pathways through or near the
construction site will create a risk of pedestrain
injury by construction traffic, which will be heightered
by the fact that it is mainly children who carry water
from the river to the households. For this reason it
would be preferable for manually or mechanically pumped
water to be supplied to affected villages or groups.
lxxix
As an additional measure to offset the inconvenience to
residents caused by the construction program, and to
comply with the World Bank’s requirement that the PAP
(Project Affected Population) should be at least as well
– off after the project, would be for the developer to
provide improved sanitation facilities to residents, in
conjunction with providing alternative water supplies.
Once the power station becomes operational, there will
be a diurnal fluctuation in water level. This will
result in the alternate inundation and exposure of the
periphery of the shoreline. Consequently, conditions in
this section are likely to become muddy so that points
of access for the collection of water are likely to
become unusable on a regular basis. Suspended solids
could easily be disturbed and the quality of collected
water adversely affected. Provision of a limited number
of secure access points clarge stones,
causeways, concrete bars or wooden jelties would prove
beneficial, and might also serve other purposes like
fishing or boat launching. A structure, which minimised
the degree of contact with water, would be preferable,
thereby limiting the possibility of decease vector
contact.
b. Hydrology
In order to prevent impacts on ecology and water
resources downstream, the regime of water releases from
lxxx
the Bujagali impoundment during the filling, flow rates
downstream of the embarkment be maintained above a
minimum of 300m/s, which is approximately one third of
the long term Q50 flow for the upper reaches of the
Victoria Nile. This figure has been reached after
discussion with both the engineers and fresh water
ecologists. The reservoir filling process will take
place slowly so that engineers can make structural
checks, therefore this regime should not impact the
filling programme.
During periods when there is no turbined flow, due to
outages and emergency closures of the plant, minimum
downstream flows should correspond to 95% of the
contemporaneous flow downstream of Owen Falls, i.e. only
5% of the dircharge from Owen Falls will be retained in
Bujagali impoundment. Maintenance of this flow regime
will require close co-ordination with the operation of
the Owen Falls Dam. When the outflow from the Owen Falls
Dam is low due to lower power generation requirements, a
smaller proportion of the flow will be able to be
retained in the Bujagali impoundment compared with that
which is spilled.
c. Water quality
lxxxi
Foul water produced by workers on site (especially during
construction) should be treated and disposed of in an
appropriate manner. Given the rapid dilution, which will be
achieved if effluent is discharged into the Nile, a high
level of treatment would seem unnecessary, and treatment
could justifiably be limited to removal of solids. However,
if
the effluent quality standards which NEMA has recently
proposed are implemented,
effluent will be required to be subject to a much higher
degree of treatment.
Runoff of particulates into the river should be avoided,
from the perspectives of maintaining water quality and
preventing soil erosion. Clearing of vegetated slopes should
be minimised as far as practicable to reduce erosion. Site
drainage systems should include sediment traps or settlement
ponds. Where a large amount of excavation or blasting will
take place below or near the water line measures such as
sheet piling should be used to contain suspended matter.
Potential pollutants such as fuel and oil should be stored
in a safe and secure manner such that the risk of pollution
of the river in the event of a spill is minimised. Measures
such as bunding of storage areas should be considered.
Contingency plans should be devised, and staff appropriately
trained in order to deal with any pollutant spills.
lxxxii
Consideration should be given to clearance of vegetation
from the impoundment before filling. This will reduce the
possibility of deoxygenating of the impoundment, and the
attendant risk to aquatic life, and will also remove the
risk of fouling boats and fishing equipment. The issue of
the backwater, which will be created downstream of the
eastern side of the embarkment, needs to be addressed.
Options include filling with rock or earth or providing a
compensation flow to flush out organic matter and aquatic
plants which can provide habitat for disease vectors. In
view of the anticipated shortage of fill material, it
appears that the latter option will be more feasible.
d. Ecology
Submergence of islands is inevitable but the loss of natural
vegetation can be compensated by preventing people from
cultivating the remaining submerged parts of the islands.
Either natural regeneration or planned planting of suitable
tree species should take place, preferably the latter. The
new trees will somewhat compensate for the lost roosting
sites for birds and bats. This development will also create
an attractive area, close to the Bujagali developments on
the mainland, as described in the tourism section below.
A framework for successful management of this mitigation
measure would be provided by gazetting the islands as
central or District Forest Reserve, whereby the Forest
Department would assume responsibility for their management.
lxxxiii
e. Landscape and site reinstatement
The loss of some 8 km of river landscape including rapids,
islands and some valley slopes cannot be mitigated. However,
the loss can be partly compensated by enhancing the
landscape and the use of the future lake as far as possible,
and by ensuring appropriate restoration and use of the areas
disturbed through construction activities around the
embankment.
The islands, which remain in the impoundment after filling,
should be allowed to regenerate or be replanted as native
forest, which will replace some of the habitat, lost during
clearance of the impoundment and by speculators immediately
prior to the commencement of the project. Access to these
islands should be restricted to prevent disturbance of these
habitants.
Potential disturbance of nearby residents by stray light
from the site during the construction phase should be
mitigated against by careful siting and screening of
lighting towers. For reinstatement of Borrow Areas required
for the project three options have been identified;
(a) Restoration of agriculture
(b) Provision of social facilities such as schools,
parks, sports or
tourism facilities
lxxxiv
(c) Re – afforestation
During the consultation process, which has been carried out
during the EIA, a number of local and national stakeholders
have expressed preferences for each of the options. The
final decision as to which option or combination of options
is implemented will require consensus from all affected
parties, and is seen it as the responsibility of the
developer to obtain this consensus.
The first two options appear to be preferred by local
residents. Restoration to agriculture has been suggested by
a number of residents who would be interested in returning
to the restored borrow areas and utilising these for
agriculture. The EPC contract requires replacement of 600mm
of subsoil and 200mm of top soil (800mm in total), which
will
permit any type of land use to be employed post – project.
If areas are restored to
agriculture the terracing of land to permit surface
irrigation would receive enthusiastic
support from the local Department of Agriculture.
The advantage of land restoration to agriculture is that it
would partially relieve land pressure problems and permit
oustees to resettle on or near their existing holdings.
There is the possibility of improving land quality by
restoring land to gentle slopes that will be more easily
lxxxv
framed and have a reduced risk of soil erosion. The issue of
the legal status of this land, and which residents take
possession of the reinstated land, will be complex
and it is assumed that previous occupants of affected areas
would have first priority, and that other displaced people
will have second priority.
f. Fisheries
As previously suggested, consideration should be given to
clearing the impoundment of vegetation before filling, to
avoid the adverse water quality effects associated with
rotting vegetation, and also to prevent fouling of fishing
equipment.
Fishermen who lose access to the river from their own plots
should be provided with alternative, preferably improved
access. This could be in the from of new jetties located on
either side of the impoundment, which would provide superior
facilities for landing, as well as a focal point for sale of
fish. Such proposals could be integrated with those for
water collection points.
After the physio – chemical characteristics of the new
impoundment have stabilised, stocking with commercially
exploitable species may need to be considered. Such species
include tilapiines (especially Oreochromis niloticus), Barbus ssp.
and cichlids. Nile perch (lates niloticus) are likely to be present
in the impoundment from the time of filling, and are
unlikely to need restocking. Consultation with FIRI staff
lxxxvi
will be needed in order to determine which species will be
introduced, as research has shown that some of these species
cannot co-exist. For example Nile perch is a predatory
species and its domination of the species structure in Lakes
Victoria and Kyoga has resulted in the near elimination of
smaller species.
g. Tourism
It is likely that the proposed mitigation measures for
tourism could result in a net increase in retained tourism
earnings/revenue for Uganda. It is probable that the current
estimated level of economic leakage would be significantly
reduced under the mitigation proposals. The following
proposed range of mitigation measurers could be considered
individually as “stand – alone” measures, or combined to
form an integrated zonal approach to development of tourism
opportunities.
These are Bujagali Community Recreating Area with an
estimated initial cost of US$ 50,000, Bujagali Lake
Enhancement Program with an estimated initial cost of US$
200,000, Bujagali Hydropower Visitor Centre with an
estimated initial cost of US$ 350,000 and the Uganda River
Nile Tourism Strategy with an estimated cost of US$ 200,000.
h. Tropical Diseases and Public Health
Local health services may need to be strengthened,
particularly if there is a significant influx of workers
from outside the immediate area of the project. It is
lxxxvii
recommended that any strengthening be based upon improving
the quality and quantity of services supplied by existing
health care facilities in the project area, rather than by
developing new facilities.
A general program of primary health care in the area that
includes health education and improvements in water supplies
and sanitation, such as that which is currently being
considered by AESNP, will contribute significantly to a
reduction in the prevalence of tropical diseases as well as
STDs. This will require additional health workers to be
provided to local health centres.
Regardless of whether these programs go ahead, there are
certain minimum measures it is recommended are implemented
to address specific health problems which have been
identified in the area, and which it is possible may be
exacerbated by the project. These measures are in respect to
diseases such as schistosomiasis, Malaria, onchocerciasis and other
communicable diseases.
i. Cultural and Historical Sites
The Bujagali shrines will require relocation. During the
relocation, ceremonies are involved and extensive
consultation will need to be undertaken by the Bujagali
Namamba before the ceremonies can be performed. The
relocation involves costs. The Ministry of culture has
suggested that they handle compensation on behalf of the
developer and that together appropriate costs are
lxxxviii
negotiated. The same principles apply to the relocation of
the spirits from Dumbell Island. Shrines could possibly be
relocated to the land to the north of the dam which is only
required temporarily. Proximity to water and public access
need to be assured and AESNP should be able to guarantee
permanent access to relocated shrines thus providing an
improvement on the existing limited access situation.
Although the project area contains no sites, which have been
recorded by the Department of Antiquities as being of
historic or archaeological importance, if any
archaeological, remains are unearthed during excavation;
these should be reported to the Antiquities Department, who
will advise on any conservation necessary.
j. Air quality
Soil stripping operations only be carried out when the soil
is relatively dry, thus limiting the potential dust
suppression control measures may therefore involve
suspending operations when wind speeds are high or when
there is a potential for dust to be carried to sensitive
locations. Long-term storage mounds such as those for
topsoil and subsoil can be seeded to prevent windblown
emissions. When storage mounds are removed, working the
downwind side first reduces the potential for dust
emissions.
As aggregate crushing has the potential to produce large
amounts of dust, it is recommended that aggregate crushing
lxxxix
and grading plant be suitably enclosed in order to reduce
these emissions. Other measures to reduce dust emissions
include reducing drop heights and minimising handling of
materials.
k. Resettlement and compensation plan (RCP)
The main socio-economic impact of the project will be the
need to relocate approximately 44 houses holds to new areas
and the need to provide alternative agricultural lands for
some 712 affected plot holders. Compensation measures have
been developed which include establishment of escrow
accounts for payments for land lost and for the purchase of
new land. Cash compensation will be paid for the property to
be replaced, crops lost, and for the relocation of shrines
and graves.
Compensation measures are also proposed to mitigate for loss
of income from fishing particularly during construction.
These include compensation for loss of the fishpond in
Namizi and the provision of new fish landing sites in the
project area.
Consideration is also given to the provision of facilities
within the project area to benefit the wider community.
These include the development of health, education and
recreation facilities on borrow pits reinstated after the
completion of construction.
Access to the river for sources of water will be affected
particularly during the construction period and measures
xc
will be taken to provide alternative supplies to affected
communities. Finally priority will be given, wherever
possible, to local communities in the recruitment of
unskilled and semi-skilled workers during the construction
of the power project.
l. Environmental Action Plan (EAP)
The positive and negative impacts of the proposed scheme
were identified and assessed in relation to their magnitude,
and potential mitigation measurers were examined as seen
above. This Environmental Action Plan (EAP) recommends
mitigation measures that should be implemented in order to
eliminate or reduce significant adverse environment or socio
– economic impacts to acceptable levels. These are
summarised in the table below together with their
implementation cost estimates.
SOURCE: BUJAGALI HYDROELECTRIC POWER PROJECT,
ENVIRONMENTAL IMPACT STATEMENT, FINAL REPORT VOLUME I, WS
Atkins International Ltd., 1999.
4.2.6 Environmental Monitoring Plan
A number of mitigation measures were recommended in the EAP,
which when implemented will eliminate or reduce to
acceptable levels the negative environmental impacts of the
project. In order to assess the effectiveness of these
measures or to identify further corrective action and to
xci
detect any impacts that may not have been identified during
the EIA process, it was considered essential that an
Environmental Monitoring Plan (EMP) for the project be
implemented. This is an IFC requirement.
This EMP defines the scope and schedule for monitoring,
assigns responsibilities for each of the monitoring
activities and provides costs estimates so that the plan
will receive funding along with the other investment
components. It also highlights any technical skill shortages
that require filling and institutional strengthening which
will be required for successful implementation. Finally it
provides a framework for reporting and review, in order that
stakeholders are kept appraised of the actual impacts of the
project, and modifications can be made to the EAP as
necessary.
4.2.7 Conclusion
The EIA for Bujagali Hydropower Project was adequately
carried out. The process complied with all the legal
requirements as set out in the Act, Regulations and
Guidelines. It was a challenging exercise, which was
completed to the rigorous international standards set by the
World Bank Group. There was sufficient collection and
updating of field data, followed by additional data and
xcii
analysis and extensive reviewing. As has been remarked by
World Bank, revised EIA meeting World Bank Group (WBG)
guidelines was prepared under a tight timeline111. The
Bujagali project was approved by World Bank on December
18,2001 and by the African Development Bank on December
16,2001
111 World Bank Technical Report on EIA for Bujagali Hydropower Project, 2001
xciii
CHAPTER FIVE
LEGAL CHALLENGES TO THE EIA PROCESS5.1 INTRODUCTION
Private citizens and environmental public interest
organizations perform an important public role in
effectuating the goals of national environmental laws.
Parties acting in a private capacity in environmental
litigation not only supplement government enforcement
efforts but also serve as a watchdog on compliance by
government agencies with statutory duties.
Despite the valuable public benefits, which may accrue from
such efforts, there are a number of constraints inherent in
the litigation process, which checks the zeal of
environmental activists. One of such constraints is the
doctrine of “standing” which shall be discussed below.
Secondly, since public interest advocates (attorneys) lack
the investigative and financial resources of industry and
government it is also critical that the national
environmental legislation provides for awards of advocates
fees to prevailing parties. This is particularly necessary
in environmental litigation because typically the party
challenging the unlawful conduct principally seeks
injunctive relief other than damages.
xciv
5.2 BACKGROUND
The promotion of sustainable development through legal means
at national levels has led to recognition of judicial
efforts to develop and consolidate environmental law.112
Judicial intervention is necessary for the development of
environmental law particularly in implementation and
enforcement of laws and regulatory provisions dealing with
environmental conservation and management such as the EIA
Laws and regulations.
In order to harmonise, develop and consolidate environmental
law and its enforcement, it is essential to understand the
development of jurisprudence as an element of the
development of laws and regulations at national and
international levels. When this fails the victims of
environmental torts turn to the judicially for redress.
However, today’s environmental problems are challenging to
legislators and judges alike because of their novelty,
Urgency and dispersed effect. Over the last decades many
countries have witnessed a dramatic increase in the volume
of judicial decisions on environmental issues as a result of
global and local awareness of the link between damage to
human health and the ecosystem and a whole range of human
activities. In many countries, the judicially has responded
to this trend by re-fashioning legal, sometimes age old,
112 UNEP, A compendium of judicial decisions in matters Related to Environment, National Decision, December 1998.
xcv
tools to meet the demands of the times, with varying decrees
of success though.
But such practices have hardly taken root in Africa and
Uganda in particular, where not so much judicial
intervention has been evidenced. This is mainly because the
jurisprudence built around the terms and requirements of
civil litigation cannot provide an ideal framework for
environmental norms in a country like Uganda on account,
especially of the fact that litigation here lacks the
spontaneity and frequency it has in the west. The
prevailing state of poverty and lack of awareness makes it
difficult for the general public to use civil litigation as
a device of environmental protection.
5.3 THE LOCUS STANDI IMPEDIMENT
The rigours of civil litigation are also associated with the
problem of Locus Standi. Not anybody in the affected area,
for example, can bring an action against a polluter. It
must
be that one whose rights have been directly infringed. The
courts of East Africa, in the very limited number of cases
coming before them, are strictly guided by property rights.
In the main environmental case to have been decided by the
Kenya Courts, Wangiri Maathai Vs. Kenya Times Media Trust.113
a public spirited individual attempted to stop, what she
saw as a blatant violation of the public interest in the113 Nairobi High Court Civil Case No. 5403 of 1989 (unreported).
xcvi
integrity and esthetics of an urban recreation park. The
defendant had set about constructing a proposed 60-storey
building in Uhuru Park. At common Law, this kind of civil
action is pursued by showing some irreparable damage or harm
which is likely to arise to the plaintiff’s detriment.
Maathai’s case failed on the test of Locus Standi. It was
held that for an individual to bring a suit on the proposed
construction he or she had to establish an injury to him,
over and above the injury that would be occasioned to the
general public; and consequently the only person with the
competence to institute such proceedings is the Attorney
General.
Although the decision was not explicit on the question of
whether a private citizen, though having no special interest
in a matter of public interest, can institute proceedings on
an environmental question, one may doubt, in the light of
recent judicial approaches,114 whether a plaintiff can easily
get over the Locus Standi impediment.
However, recent jurisprudence has tended to make a departure
from the traditional doctrine of Locus Standi to enable any
person to sustain an environmental action in the courts of
law, though such a person may not have suffered personal
injury over and above the injury to be suffered by the
general public. The first example was the case of Oposa Vs.
114 For example Kamanda Vs. Nairobi City Council, Nairobi High Court civil case No. 6153 of 1992 (unreported).
xcvii
Factoran115, that raised the issue whether the petitioner
minors had a cause of action to prevent a misappropriation
or impairment of Philippine rainforests. The complaint was
instituted as a taxpayers class suit. It alleged that the
plaintiffs, all citizens of the Republic of Philippines and
tax payers, were entitled to full benefits, use and
enjoyment of the natural resource treasure, that is, the
countries tropical rainforests. The suit was said to be
filed by the petitioners and others equally concerned but so
numerous that it was impracticable to bring them all before
the court. The minors asserted that they represented their
generation as well as generations yet unborn. They sought
orders to cancel all existing timber license agreements.
The defendant sought a dismissal of the suit on the grounds
first that there was no cause of action as the petitioners
had not alleged a specific legal right violated by the
respondent, and secondly that the issue raised was a
political question which properly pertained to the
legislature and judicial branches of government. But the
petitioners asserted that granting timber license
agreements to cover more areas for logging than what was
available was a judicial question of discretion.
The court held that the case was a class suit as the subject
of the complaint was of common and general interest not just
to several but to all citizens of the Philippines.
115 GR No. 101082, July 30 1993 (Philippines)
xcviii
Consequently, since the parties were so numerous, it was
impracticable, if not impossible to bring all of them before
court. That the plaintiffs were numerous and representative
enough to ensure the full protection of all concerned
interests. The court held further that the petitioners
could for themselves, for others of their generations and
for succeeding generations file a class suit. Their
personality to sue on behalf of succeeding generations could
only be based on the concept of intergenerational
responsibility so far as the right to a balanced and
healthful ecology was concerned. The court held also, that
the complaint focused on one specific fundamental legal
right, the right to a balanced and healthful ecology, which
was incorporated in the Philippines constitution.
In the Bangladesh case of Dr. Moliuddin Faroque Vs.
Bangladesh116 the appellant was the secretary General of the
Bangladesh Environmental Lawyers Association (BELA), an
organisation working in the field of environment and
ecology. The court held that it was an aggrieved person
because the cause it espoused, both in respect of
fundamental rights and Constitutional remedies, was a cause
of an indeterminate number of people in respect of a subject
matter of public concern. Further, the organisation was
acting bonifide and did not seek to serve an oblique purpose.
However, the court rejected the submission that the
116 Civil Appeal No. 24 of 1995, 17 BLD (AD) 1997, Vol. XVII, Pg 1 to 33.
xcix
Association represented not only the present generation but
also the generation yet unborn. It stated that his finding
in the Oposa case117 had been based on Constitutional
provisions in the Philippines, which did not exist in the
Bangladesh constitution.
In the European case of Regina Vs. I.R.C Exparte. Federation
of Self-Employed,118 Lord Diplock said,
“It would, in my view, be a grave lacuna
in our system of public law if a
pressure group, like the federation or
even a single public spirited tax payer,
were prevented by out-dated technical
rules of Locus Standi from bringing the
matter to the attention of the court to
vindicate the rule of law and get the
unlawful conduct stopped.”
In Tanzania, in his rather politico-judicial reasoning to
support public interest litigation on behalf of the poor,
indigent and unprivileged members of the Tanzanian Society
by Public spirited organizations, Rukangira J. of the High
Court of Tanzania (as he then
was) had this to say in the case of Rev. Christopher Mtikill
Vs. The Attorney General,119
117 Oposa Vs Vactoram (Supra)118 [1982] A.C 643119 Tanzania High Court Civil Suit No. 5 of 1993 (unreported)
c
“The relevance of public litigation in Tanzania cannot be
over-emphasised having regard to our social-economic
conditions, these developments promise more hopes to
our people than other strategy currently in place. First of
all, illiteracy is still rampant. We were recently told that
Tanzania is second in Africa in wiping out illiteracy but
that is a statistical juggling, which is not reflected on the
ground. If we were that literate it would have been
unnecessary for Hanang District Council to pass by-laws
for compulsory adult education which were recently
published as Government Notice No. 191 of 1994. By
reason of this illiteracy a greater part of the population is
unaware of their rights, let alone how the same can be
realized. Secondly Tanzanians are massively poor. Our
ranking in the world on the basis of per capita income has
persistently been the source of embarrassment. Public
interest litigation is a sophiscated mechanism, which
requires professional handling. By reason of the limited
resources, vast majority of our people cannot afford to
engage lawyers even where they are aware of the
infringement of their rights and the perversion of the
constitution. Given all these and other circumstances, if
there should spring up a public spirited individual and
seek the courts intervention against legislation or actions
that pervert the Constitution, the court, as guardian and
trustee of the Constitution and what it stands for, is under
an obligation to rise-up to the occasion and grant him
standing.”
ci
My understanding of Rukangira J.’s lengthy statement is that
the interest of public rights and freedoms transcend
technicalities, especially as to the rules of procedure
leading to the protection of such rights and freedoms.
The emerging jurisprudence that tends to abandon the archaic
principle of Locus Standi is being facilitated by modern
concepts or norms of customary international law such as
“Common Heritage of Mankind,” “Intergenerational equity” and
the “Public Trust Doctrine.” The more recently treaty
generated custom of the “Common Heritage of
Mankind” Stipulates:“The purpose of human Society must be realised and protected with the
welfare of the well-being of every generation. This requires sustaining
the life support system of the planet, the ecological process and the
environmental conditions necessary for healthy conditions necessary for
healthy and decent human environment.120 “
There is a theory that the future generation cannot be
indifferent about whether it is they or other persons who
will enjoy the fruits of the earth. That if we feel we owe
an obligation to them, we too cannot be indifferent about
the question. We cannot discharge our obligations to them
if in the process of doing so we deprive them of life.121
120 Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11 EcologyLD (1984) 495.121 Agora : What obligations does our generation owe to the next? An approach to GlobalEnvironment Responsibility, 1990 Pg. 2.
cii
The other concept is the “Public Trust Doctrine” which
primarily rests on the principles that resources like air,
sea, water have such importance to the people as a whole
that it would be wholly unjustified to make them a subject
of private ownership and must be protected among other ways
of seeking permanent injunctions in law suits.122
In Uganda, the Constitution123 has made tremendous efforts in
relation to enforcement of environmental rights by doing
away with the traditional concept of Locus Standi. It
provides124 for a right of every Ugandan to live in a clean
and healthy environment as a
human right. This right is enforceable under Article 50 of
the Constitution, which provides; “Any person who claims that a fundamental or other right or
freedom guaranteed under this Constitution has been infringed or
threatened, is entitled to apply to a Competent Court for redress
which may include compensation”
It is further provided that any person or organisation may
bring an action against the violation of another person or
group’s human rights125
This article126, therefore, apart from providing for the
enforcement of the Bill of rights through the Courts,
confers, in Uganda for the first time, Locus Standi to third
122 Joseph L. Sax “Public Trust Doctrine in Natural resources Law. Effective Judicial Intervention” Michigan Law Review Vol. 68 part 1 Pg. 47.123 Uganda Constitution 1995.124 Ibid Art. 39125Ibid, Article 50 (2)126 Ibid,Article 50
ciii
parties to seek reinforcement of the right. At least three
very important concepts seem to arise out of this
Constitutional development. Firstly, the Constitution
elevates matters relating to the environment to human
fundamental rights, which are also justifiable as such.
Secondly it does away with the traditional concept, in
common law jurisdictions, of Locus Standi. Thirdly it
introduces the concept of class suits already discussed
above.127
Despite these enabling and revolutionary provisions the high
court in Uganda has gone a head to make blunders thereby
stifling the development of jurisprudence in the field of
environmental rights. In the case of Byabazaire vs. Mukwano
Industries128 the plaintiff sued the defendant on account of
the escape of obnoxious, poisonous, repelling smoke that was
escaping from the defendant’s factory and into the
neighbouring areas including Kibuli Hill where the plaintiff
resided. The plaintiff brought his action under S. 4(2) of
the National Environment Statute129. An application was
filed by the Defendant to have the plaint struck out on the
grounds, inter alia, that the plaintiff had no locus standi.
The learned judge upheld the objection and ruled that
although the National Environment Statute 1995 gave every
127 See Oposa Vs. Factoram, opcit Note 4128 H.C.C.S NO. 466 of 2000.129 National Environment Act (Cap.153) Laws of Uganda, 2000..
civ
Ugandan a right to clean and healthy environment, it was
only the National Environmental Management Authority (NEMA)
that was vested with the power and duty to sue for the
violations committed under the statute. It was further
ruled, that in the absence of any standards on air quality
set by NEMA, it was not possible to determine that the
plaintiff’s right to clean air was infringed. The action
was accordingly dismissed with costs.
On many counts, this is an unfortunate decision. The right
to a clean and healthy environment is enshrined in the
Constitution and in the National Environment Statute.
According to the decision, that right is only actionable by
NEMA and the Local Environment Committee, and the offended
party can only inform those said authorities. This
reasoning runs against the basic tenets of law; there is no
right without a remedy. If an individual is given a right
by law, he must have the means to enforce that right. Not
only does NEMA lack the necessary resources to file the
requisite actions countrywide, but also the local
environment committees had never been set up 6 years after
the statute was passed. Further, NEMA has discretion under
S. 4(2) of the Statute and cannot be compelled to do so by
any suffering Ugandan.
With the above enabling provisions of the law what remains
is to sensitize the Ugandan Law practitioners to prepare
them to respond appropriately the growing of environmental
cv
challenges. The judicially should respond to this trend by
re-fashioning legal, sometimes age-old, tools to meet the
demands of the times.
Uganda Courts have, to some extent, responded positively to
this trend and have properly dealt with old technical rules
such as the one of Locus Standi. For example in the recent
case of Siraji Waiswa Vs. Kakira Sugar Works Ltd.130 where
the plaintiff/applicant, on his behalf and on behalf of
other peasant farmers of Butamira Forest Reserve, filed a
suit against the defendant/respondent who on diverse dates
entered the disputed forest reserve and uprooted the forest
to establish a sugar cane plantation.
Before the suit was heard, the applicant/plaintiff filed an
application seeking a temporary injunction against the
respondent to restrain its servants or agents from evicting,
intimidating, threatening or in any way interrupting or
destroying the plaintiff’s and other resident’s use and
occupation of Butamira Forest Reserve until the disposal of
the main suit or until further orders of the court. It was
further contended on behalf of the plaintiff that the
destruction of the suit property would render the suit
nugatory and result in irreparable damage to the
environment.
Court held that this was a matter to do with the alleged
destruction of the environment. As far as the individual
130 High Court Miscellaneous Application No. 23 of 2001, arising from Civil Suit No. 69/2001.
cvi
interest is concerned, damages would be appropriate.
However,
Court went on to say, a matter to do with the destruction of
the environment would affect not only parties to this suit
but also the current generation and generations to come.
That damages to the applicant alone would not remedy the
injury to mankind as a whole. Court therefore; found that
the damage complained of was of a material nature, which
would not adequately be compensated by an award of damages
alone.
Court went ahead to grant the remedy sought and order the
restraint on the part of the defendant from uprooting the
forest to establish a sugar cane plantation during the
pendency of the main suit. The defendant was also
restrained from evicting, intimidating, threatening or in
any way interrupting the status quo during the pendency of the
main suit or until a lasting solution shall be provided by
Government, whichever comes first.
Another case in which Court has been vigilant is the case of
The Environment Action Network Ltd Vs. the Attorney General
& NEMA,131 where the applicant, a public interest litigation
group, brought the application bonafide in its own behalf
and on behalf of the non-smoking members of the public under
Article 50 (2) of the Constitution to protect their rights
to a clean and healthy environment, their right to life and
131 High Court Miscellaneous cause No. 39 of 2001.
cvii
for the general good of the public health in Uganda. The
applicant sought a declaration first, that smoking in public
place constitutes a violatation of the rights of non-smoking
members of the public to a clean and healthy environment as
prescribed under the Constitution of the Republic of
Uganda132 and the National Environment Statute, 1995.133
Secondly, that smoking in a
public place constitutes a violation of the rights of non-
smoking members of the public to the right to life as
prescribed by the Constitution of Uganda.134 The applicant
further sought an order that the second respondent takes the
necessary steps to ensure the enjoyment by the Ugandan
public of their right to a clean and healthy environment.
At the hearing of the suit the Attorney General raised
preliminary objections among which was the objection that
the suit did not comply with the Government Proceedings
Act135 which requires the Attorney General and scheduled
corporations, including NEMA to be given a notice of
intention to sue of 45 days before a suit is filed against
them. Court overruled this objection and held that
applications brought under Article 50 of the Constitution
are governed by the Fundamental Rights and Freedoms
(Enforcement Procedure) Rules.136 That although Rule 4137
132 The Constitution, Opcit, Article 39133 Section 4134 Article 22135 Cap.77 Laws of Uganda, 2000, S.1136 S. 1 No. 26 of 1992137 Ibid
cviii
provides that no motion (under Rule 3) shall be made without
notice to the Attorney General and any other party affected
by the application, Rule 7138 clearly stipulates that
“Subject to the provisions of these Rules, the Civil
Procedure Act and the Rules made thereunder shall apply in
relation to application”.
Applying the so called “golden rule” of the Statutory
interpretation, the judge went ahead to say, we would be
wrong if we assumed that besides Rule 7139 Parliament meant
that any other rule of procedure should be applied. That it
is for this reason that applications
pursuant to Article 50 of the Constitution must be strictly
restricted to the Civil Procedure Act140 and the rules
thereunder and not under S.1 of the Government Proceedings
Act.141 That the Attorney General and NEMA in this
application therefore, got the notice they are supposed to
get.
Citing a decision to in Indian case,142 the learned judge
said that the rationale of the notice to be given to the
State is that the Government needs sufficient period of time
to investigate a case intended to be brought against it so
as to be able to avoid unnecessary expensive protracted
litigation. That this rationale cannot apply to a matter
138 Ibid139 S.1 No. 26of /92140 (Cap. 71) Laws of Uganda, 2000 Revision.141 (Cap 77) Opcit142 RAYABAI VS. STATE, AIR [1973] BOM. 61
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where the rights and freedoms of the people are being or are
about to be infringed. The people cannot afford to wait for
45 days before pre-emptive action is applied by court. They
would need immediate and urgent redress. They need a short
period which is the one provided under the ordinary rules of
procedure provided by the Civil Procedure Act and its
Rules143. That to demand from the aggrieved party a 45 days
notice is to condemn them to infringement of their rights
and freedoms for that period which this court would not be
prepared to do. That any alleged infringement must be
investigated expeditiously before damage is done.
Another preliminary objection raised by the learned State
Attorney on behalf of the Attorney General and NEMA is that
the applicant cannot claim to represent the Ugandan Public
(non-smoking Public), and that they should have made an
application under 0.1 rule 8 of the Civil Procedure Rules
for permission to file a representative suit.
Court held that the state Attorney failed to distinguish
between actions brought in a representative capacity
pursuant to Order 1 Rule 8 of the Civil Procedure Rules and
what are called Public interest litigations, which are the
concern of Article 50 of the Constitution and S.1 No. 26 of
1992. That the two actions are distinguishable by the
wording of the enactments or instruments to which they are
instituted. The judge concluded, citing the case of Regina
143 Civil Procedure Rules S.I – 65-3.
cx
Vs. I.R.C Exp. Federation of self-Employed144, that an
organisation can bring a public interest action on behalf of
groups of individual members of the public even though the
applying organisation has no dire individual interest in the
infringing acts it seeks to have redressed. The preliminary
objections of the respondent were over ruled.
These decisions are a clear indication that there is a
positive step in the direction of a revolutionary judicial
system and justiceability of environmental rights.
5.4 LITIGATION ON EIA
As earlier on pointed out145, in Uganda it is still difficult
for the general public to use civil litigation as a device
of environmental management. It is high time the Ugandan
public got sensitised to civil litigation and most
especially judicial review as a remedy of correcting
environmental wrongs and particularly wrongs committed in
EIA process. Judicial review is a remedy under both statute
and the common law. It may be awarded where a public body
has acted beyond its legal powers, where it has acted
contrary to the principles of natural justice or where it
has acted in error of law.
The National Environmental Statute146 provides for appeals
against decisions made by the Authority but the appeal has
to be made within the structure of the Authority in
144 [19982] AC 643145 Page ----- (ante)146 ( Cap. 153) Opcit
cxi
accordance with administrative procedures to be
established147. Such decisions shall not be called into
question by any court but the High Court’s Supervisory
jurisdiction is maintained148. This means that any decision
made by NEMA may be subjected to judicial review not
withstanding that it had been a subject of an appeal within
NEMA’s administrative structures
In other jurisdictions there have been vigorous litigation
against decision-making bodies in respect of Environment
impact Assessment. Courts in those jurisdictions have
dealt with questions to do with the role of the respective
agencies in evaluating the EIA report and the quality of the
EIA reports.
The first judicial decision to deal with the quality of an
EIA report was in the USA in the case of Sierra Club Vs.
Coleman.149 The case arose as a result of the plan by the
Department of transport and the Federal High way
Administration to construct the “Darien Gap Highway” through
Panama and Colombia to link the Pan American Highway System
of South America with the Inter-American Highway. In April
1974, well after the project was underway and well after the
selection of the precise route of the Highway had been made,
the Federal Highway Administration (FHWA) prepared and
circulated to certain parties a draft Environmental Impact147 Ibid S. 105148 Ibid S. 105 (b).149 XV/6 ILM 1425 (USA)
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Assessment. In December 1974 it issued a final assessment.
The Sierra Club and three other environmental organizations
sought to enjoin any further action on the project, claiming
that the preparation and issuance of the assessment
satisfied neither the procedural nor the substantive
requirements of NEPA.
The court found that there were three deficiencies in FHWA’s
compliance with NEPA requirements. First, FHWA failed to
circulate either its draft or final assessment to the
Environmental Protection Agency for its comments. Second,
the assessment failed to discuss the problems of the
transmission of aftosa, or foot and mouth disease, the risk
of which was recognized if a stringent control programme was
not in place. Thirdly, the assessment failed adequately to
discuss possible alternatives to the route that had been
chosen.
The section on the alternative routes was developed to an
analysis of why the shorter route was preferable to the
longer route from the point of view of engineering and
costs. It had no discussion of environmental impact of
possible alternatives to the route was actually selected.
The court found that the assessment was not an adequate
environmental impact statement. Indeed, the court observed
that the decision to build the highway on the chosen route
had been made well before the statement was begun. The
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court enjoined further work on the project until such a time
as compliance with NEPA had been effected.
In Sierra Club V. United States Army Corps of Engineers150
plaintiffs challenging plans to construct the Westway, a
super highway that would run along the Westside of
Manhattan, argued that the final EIS was deficient because
it characterized an area of the Hudson River that the
project would fill as a “biological wasteland,” despite data
indicating the presence of a juvenile striped bass
population there. Environmental Protection Agency, the
National Marine Fisheries Service and the Fish and Wildlife
Service all had objected to the EIS and the Corps’ decision
to issue a permit to fill the area. Despite a new study
finding that fish populations were much richer that
previously thought, no supplemental EIS was prepared. After
holding a trial that heard extensive testimony concerning
how the EIS was prepared, the federal district court
enjoined the project pending preparation of a supplemental
EIS, a decision which was upheld on appeal by the second
circuit.
In Uganda, few Court cases have come up to challenge certain
decisions in the EIA process. In the year 2000 two
environmental activist non-Governmental Organisations, that
is, Green Watch and Advocates Coalition for Development and
150 701 F. 2d 1011 (2Cir. 1983) Cited in, Percival: Environmental Regulation, Law, Science and Policy, 3rd Edition, ASPEN LAW & BUSINESS, NEW YORK, 2000.
cxiv
Environment (ACODE) filed a suit in the High Court against
Golf Course Holdings Ltd, a Company that set out to
construct a Hotel complex at the Golf Course on Kitante Road
in Kampala151. The plaint alleged that the defendant carried
out an Environment Impact Study outside the law and as such
no Environment Impact Study was legally conducted. It was
further alleged that NEMA purported to approve an EIA
without following the law and that it was specifically in
contradiction of S. 37 of the Statute152 and Regulation 19 of
the Regulations153. That the purported Environment Impact
Study did not address the issue of wetland and NEMA
therefore, failed its statutory duty when it gave the
approval. That the National Wetlands conservation and
Management Programme found that the development of the
project was harmful to the environment but NEMA went ahead
to give it approval despite the programs opinion as a Lead
Agency.
The Plaintiffs contended that the development of the project
would increase flooding in the city by blocking the water
channel along the course drainage system, which would be a
danger to human life and a threat to property. That the
construction of the Hotel would destroy the wetland and as a
result increase siltation and eutrophication of Lake
Victoria. It was further contended by the plaintiffs that151 Green Watch & Another Vs. Golf Course Holdings Ltd HCCS NO. 834/2000152 Cap. 153, Opcit.153 EIA Regulations, 1998
cxv
the construction of the Hotel would destroy the green
scenery of the city and deprive it of the environmental
services that naturally accrue for proper environmental
stewardship.
Meanwhile the construction of the Hotel was going on and the
plaintiffs applied for an injunction to restrain the
defendant from further construction until the main suit is
disposed off154. However this application for an injunction
was dismissed on the ground that the applicants would not
suffer irreparable damage because they do not have any
proprietary interest in the suit property. That the public
whom they seem to represent shall not suffer any irreparable
damage. That even if the damage is caused, this could be
put right under the provisions of S.68 of the National
Environment Statute 1995. S. 68 provides for restoration
orders.
With due respect to the learned judge, the ruling was a bad
one. It was based on the usual technicalities of civil
procedure, which would not readily conform with the case at
hand because of its peculiarities. Environmental damage
should be distinguished from any other type of damage. Once
environmental damage has occurred it cannot be readily
remedied. Reference to an irreparable loss, which is a
condition for granting an injunction means the kind of loss,
which cannot be atoned by an award of damages. Indeed the
154 High Court Miscellaneous Application No. 390/2001
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damages, which would be caused by the continued construction
of the Hotel project, would not be remedied by an award of
damages. This is because the cause of action in the main
suit was that the Environment Impact Study did not follow
the correct procedures and as a result certain vital
environmental aspects were not taken into account.
The consequence of this would then be increased flooding in
the city by blocking the water channel, destruction of the
wetland leading to increased siltation and eutrophication of
the lake and the destruction of the green scenery of the
city. An award of damages would not remedy this kind of
environmental damage. The restoration under S. 68 of the
statute proposed by the judge has nothing to do with
environment Impact Assessment. Once the construction of the
Hotel proceeds to completion there can be nothing to
restore. The damaged environment would not be restored to
its original position. Restoration orders under S. 68 of
the Statute have got a different objective altogether from
the aims of conducting an EIA.
Consequently the application for an injunction was not
granted and the construction of the Hotel proceeded to its
completion on an inadequate Environment Impact Study. The
main suit has therefore not been decided, and even if it is
to be decided now or later, the outcome would be nugatory.
This kind of attitude of the judges cannot easily develop a
jurisprudence that is instrumental in challenging defective
cxvii
decisions in the EIA process or generally enforce
environmental management laws with modern legal principles
that are quite unique.
The judicial officers have to confront this by refashioning
legal, sometimes age old tools, to meet the demands of the
times. In the USA, such jurisprudence has been developed.
This is evidenced by for example in the Sierra Club Vs.
Coleman155 where court enjoined further work on the project
(Fedro High Way Project) until such a time as compliance
with NEPA had been effected. The projects Environment
Impact Study had not complied with the requirements of NEPA.
Another suit ever brought in Uganda in regard to Environment
Impact Assessment was National Association of Professional
Environmentalists (NAPE) Vs. AES Nile Power Ltd 156 where the
applicant sought a temporary injunction to stop the
respondent from concluding the power project agreement with
the Government of Uganda until NEMA has approved an EIA on
the project. The motion further sought declarations that
such approval of the EIA is a legal prerequisite and that
any endorsement of the project by Parliament without this
EIA approval would contravene the law.
Court held that the applicant had reason to seek the
intervention of this court in so far as no approval of the
environmental aspects of the study has been brought in
evidence to satisfy the requirements of S. 20 (b) of the
155 Already discussed above.156 Miscellaneous Cause No. 268 of 1999.
cxviii
National Environment Statute. Court went on to stay
however, that the challenge was made quickly and prematurely
because no agreement has been signed and if it is signed and
it is in contravention of the law then it can be challenged.
It is however, not for this court to stop the signing of the
agreements by injunctions or other wise since signing
agreement per se does not cause environmental disasters.
The injunction was therefore refused but court made a
declaration that the approval of the Environmental Impact
Statement is required under S. 20 of the Statute157
5.5 ATTORNEYS FEES
Public interest advocates lack the investigative and
financial resources of industry and government to enable
them pursue legal actions against decision makers in
environmental matters who are either government or public
environmental management bodies that have all the resources
at their disposal.
Secondly, public interest individuals who would wish to
challenge decisions adversely affecting environment
management and natural resource uses lack the motivation.
This is because in most cases the party seeking to challenge
the unlawful conduct seeks injunctive relief other than
damages. Such party therefore, stands to gain nothing in
whole process of litigation, which is even costly.
157 (Cap.153) Opcit
cxix
It is therefore, important that some mechanism in form of a
law or regulation to ensure that a public interest advocate
is awarded costs that would be awardable in an ordinary suit
where the party has vested interest. This will provide the
motivation to public-spirited individuals or groups to
initiate legal proceedings in a bid to protect the
government.
CONCLUSIONEnvironmental litigation is important tool that can be used
to check the excess abuse of power by the decision-making
organs in EIA process. In Uganda , However, this is
hampered by constraints in the litigation process as seen
above. Nevertheless, following the promulgation of the
Constitution 1995 with its emphasis on public rights and
their enforcement, the judiciary is slowly being sensitized
to do away with the aged and outdated principles of civil
litigation so as to meet the demands of the times. Thebest
examples of this development are, the suit on behalf of non-
smokers158 and the Butamira case159 already discussed above.
CHAPTER SIX
CONCLUSION AND RECOMMENDATIONS
6.1. EIA PRACTITIONERS158 The Environmental Action Network Ltd Vs. the Attorney General & NEMA : Opcit159 Siraji Waiswa Vs. Kakira Sugar Works Ltd: Opcit
cxx
As earlier on pointed out, the responsibility of carrying
out an EIA lies with the developer. It is the developer who
bears the cost of the assessment and the assessment is
conducted by the technical experts approved by the Authority
(NEMA). These experts are still few and have not yet
developed the necessary competence.
However, in few years very many consultants, who claim to
conduct EIAs, have come up. Most of these have registered
with NEMA so that they are easily identified in case they
are needed. A number of firms both local and international
have registered with NEMA so that when an investor comes in
the country and needs some one to carry out an EIA, NEMA can
easily identify such consultant depending on the area of
specialization. For example some firms are good specialists
in the water sector, others in mining, some in industry and
so on. So, by registering, NEMA is able to identify an
appropriate firm of consultants for a sector specific type
of development.s
This is because most of the investors who come into the
country do not know which EIA consultants are specialists in
what area, and the consultant in most cases do not know that
there are some investors who need EIA consultancy services.
NEMA therefore acts as an intermediary between the
developers and the EIA practitioners.
That,EIA practitioners have decided to form an association
which is currently headed by Dr. Patrick Mwesigye of
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Chemistry Department of Makerere University who also owns a
consultation company by names of Enviro and Industrial
Consult (U) Ltd. This association is supposed to bring all
the EIA practitioners together and to ensure that they
conduct themselves in a professional manner.
EIA being a new area, there are efforts to build capacity
through long practice. The EIA practitioners are now quite
many and are competing. There is no code of conduct for EIA
practitioners yet, but NEMA is making effort to develop one.
NEMA has invoked the provisions of S. 108 of the National
Environment Statute, 1995 to up a code of conduct, which
shall be given the force of law as a statutory Instrument to
regulate practioners. NEMA has therefore come up with the
“Environmental Impact Assessment and Environmental Audit
(Practice and Practitioners Code of conduct) Regulations
which is still in a draft form. The draft is now with the
first parliamentary Counsel.
The objectives if these regulations shall be to provide a
system of professional conduct and ethics in the carrying
out of the environmental impact studies and audits. The
regulations shall also ensure that the practice of
conducting environmental impact assessments or audits are
carried out in an independent and impartial manner. The
Regulations are also made to provide for the control of the
professional conduct of practitioners and for maintenance of
consistence integrity, registrations, certification and
cxxii
standardisation of the practice of the conducting
environmental impact assessment and environmental audits.
It is hoped that when these regulations come into force
most of the shortfalls on the EIA process shall be
eliminated and the EIA law shall be able to achieve its
designed objective of promoting environmental
sustainability.
6.2 DEVELOPERS ATTITUDE ON EIA
The EIA concept in Uganda was received with mixed feelings
especially on the part of the developers or investors. Most
developers look at the EIA process as an additional
exercise, which is a time wasting and additional cost to the
project. Most of them make efforts to dodge and where that
is not possible they conduct it merely for purposes of the
approval of their projects. That is why most of them select
cheap consultants who do a poor work that would be used only
to seek NEMA’s approval of the project.
However, there are some serious investors who, over time,
have come to appreciate the importance of conducting an EIA.
These ones are able to appreciate the beneficial effects of
an EIA to the feasibility of the project. They are able to
appreciate the fact that environmental impacts have got
costs, which shall form an integral part of the total
project.
Therefore, if EIA does not form part of the feasibility
study of the project the other studies undertaken on
cxxiii
financial, economical and technical matters will not be
sufficient to determine the viability of the project. Hence
the developers are likely to lose in case adverse
environmental impacts turn out to be costly.
The trend however, shows that there is growing
environmental awareness of this fact and most of the
developers are beginning to take the EIA exercise
seriously.
6. 3 ENVIRONMENTAL AUDITS
All developers whose projects have been subjected to the EIA
studies are supposed to ensure that mitigation measures and
actions as approved through the EIA to protect the
environment are adopted and implemented. The developer does
this through self-monitoring, self-record keeping and self
reporting and making available all the information for
inspection by the Lead Agency or the Authority. The work of
the inspection is done by Environmental Inspectors160. NEMA
has, by Legal Notice No. 1 of 2002 appointed Environmental
Inspectors for a period of 2 years161. These Legal Notices
have appointed 108 environmental inspectors divided up in
sectors, for example health and product safety, industry and
occupational health, water resources, chemical safety and
transboundary issues, Forestry and Agriculture, Mining and
Urban environment. These inspectors are supposed at all
160 Cap. 153, Opcit, S. 80.161 The National Environment (Designation of Environmental Inspectors) Notice 2002.
cxxiv
reasonable times, to enter on any land, premises or other
facilities related to a project for which EIA has been done
to determine how far the predictions made are complied with.
However, it is still difficult for these inspectors to go
around all the projects in the country to carry out
inspections. There are no sufficient facilities to do this.
There is limited funding. There are therefore, a lot of
hardships on the inspectors to monitor all the projects.
The situation becomes even more serious with projects which
had been implemented before EIA was a legal requirement and
which are supposed to conduct self-auditing & monitoring.
It is therefore recommended that funding for these
activities be increased.
6.4 OTHER CHALLENGES
There is a lot of bureaucracy in the process and this causes
a lot of delays in the timings up to when the approval of
the project is made. As a result, developers are delayed
which causes them to lose time and money. For example in
the Regulations162, the Executive Director is supposed to
transmit a copy of the project brief to the lead agency for
comment within seven working days of receiving the project
brief163. Then the lead agency is supposed to make comments
and transmit them to the Executive Director within fourteen
working days of receiving the project brief164. Due to the
162 EIA Regulations, 1998163 Ibid, Regulation 6 164 Ibid, Regulation 7.
cxxv
bureaucracy in the Authority or the lead agencies, most of
which are government departments, these timings are not
likely to be met.
Another problem is lack of sufficient funding which hinders
the proper functioning of most of these organs. NEMA and
the lead agencies are not well facilitated to effectively
perform their duties in the EIA process and most especially
the monitoring aspect of it as already seen above.
Otherwise the general performance of the EIA process is good
and it will grossly improve with time. There is however,
need for the lead agencies to be vigilant.
6.5 EIA ON POLICIES AND PROGRAMMES
EIA is more often associated with development projects
rather than policies and programmes such as tourism
development, water resources development, urbanization,
agriculture, forestry and industrial development, to mention
but a few.
Policy EIAs present an opportunity to examine the
environmental implications of national and regional
development policies and proposals before decisions are made
to implement specific projects conceived under the broad
policies. EIAs conducted on policies contribute
significantly to harmonization of different sectoral
policies and remove unwanted policy aspects.
There is therefore, a need of extending EIA beyond physical
development projects to include policies (including draft
cxxvi
legislation), plans and programmes. In the United States
for example, the mandate to carry out EIA goes beyond
development projects, to policies and even proposals for
legislation or even international or regional agreements,
treaties and conventions that are thought to have an impact
on the environment of the State165.
For example there have been a debate in Uganda as to whether
genetically modified products or organisms should be
imported into the country. The proponents of this
debate maintains that genetic engineering brings enormous
benefits, in that it produces high quality and quantity
yields. On the other hand the opponents of the policy
contend that the consumption of these products cause health
hazards.
It is therefore important that the Ministry of Agriculture,
Animal Industry and Fisheries carries out an EIA on the
policy of bringing genetically modified products and
organisms into the country.
It is hence recommended that the law on the requirement of
EIA be extended to include policies, plans and programs and
once this is done the task of carrying out EIAs for projects
within the broad policies for which policy EIA has been
conducted, shall be lessened. For example if an EIA had
been conducted on the energy policy in the country most of
the controversies on whether hydro power is the most viable
165 See: Public citizen Vs. Office of the USTR: 970 f.2d 916.
cxxvii
alternative as opposed to geothermal energy would not have
arisen.
6.6. TOWN AND COUNTRY PLANNING
Though the construction of residential houses does not
require EIA according to the Ugandan law on EIA166, something
needs to be done to deal with the rampant random
construction work within the urban centers, which has become
a threat to life and property. Most areas in the urban
centers lack access roads, drainage systems and generally a
less impressive sight despite the beautiful houses that lie
behind the parameter walls. Developers appear not to take
care of the infrastructure around them.
This is largely responsible for the sprawling slums that co-
exist with posh houses. For most of these areas there are
no access roads and whenever the sewerage system has been
broken down it is difficult to fix because someone has built
on top of the terminals
There are two major problems that have aggravated this
situation. The internal and external mechanisms, which
include poor implementation of the existing town and urban
development plans by the planning agencies, relevant
institutions and the developers, is one reason for this poor
state. Secondly, the obsolete unharmonised laws that are
still applied today.
166 3rd schedule to National Environmental Act, Opcit.
cxxviii
The Town and Country Planning Act (Cap. 246) has been
overtaken by events. The law in its current form does not
match the present rate of development and needs review to
suit current planning requirements. The department of
physical planning has in corroboration with the Ministry of
Local Government started work on reviewing the Town and
Country Planning Act, so that it is in harmony with other
laws and policies that have already been harmonized. Some
of these are the Land Act (Cap.227), Local Government Act
(Cap.243), National Environment Act (Cap.153), Condominium
Law, Wetland Policy 1997 and others which need planning and
Speed up development.
The problem is that the development is so rapid that it
precedes the plans that some structures have to be broken
down to create room for infrastructures like roads and
sewerage systems.
Some areas in Kampala are in the valleys some of which were
wetlands before houses were constructed there. Some of
these areas are like Nateete, Bwaise, Mengo Kisenyi, Katwe,
Lower Ntinda , Nalukolongo. Developments in these areas
were carried out long before there was a wetland policy in
place. When Kampala receives heavy rains all these areas
get flood and residential houses are submerged in water
leading to loss of life and property.
For example there was a heavy downpour on the night of 27th
April 2003 and all flood prone spots in and around Kampala
cxxix
drenched. More than seven houses at the Ntinda Stretcher
area were filled with water up to the window level from the
wetland that drains Ntinda and Kyambogo areas. Police fire
brigade reportedly made responses to a number of areas that
were affected by the rampaging waters in different parts of
the city. It was reported that a man whose identities could
not be got was swept away by the water.167 The area around
the clock tower near fire Brigade headquarters was not
spared despite the nearly completed works on the Nakivubo
channel around the place.168
There is therefore, a need to redesign the city and to have
the national urbanization policy, which could address issues
like urban renewal, redevelopment, and inner city
development urban design principles to ensure smooth
development. All these policies and principles should be
reflected in the reviewed Town and Country Planning Law with
an emphasis to Environmental Impact Assessment. The result
will then be that although ordinary residential houses would
not require an EIA, if a residential building is to be put
up in a low land like some of the areas mentioned above, the
developer should be required to conduct an EIA that will
disclose sufficient mitigation measures to avert the threat
of floods and other disasters.
167 New Vision, Monday, April 28, 2003 Page 1168 Ibid, P. 2
cxxx
6.7. AWARENESS AND SENSITISATION
During this research it was evident that most people
especially the potential developers take EIA as a time
wasting exercise, which does not have any benefits. Others
and most especially the so-called Environmental activists
believe that any project which has some negative impact on
the environment, should no be allowed to proceed. They do
not know that costs of environmental degradation are
supposed to be weighed against economic benefit to be
derived from the project in order to determine the viability
of that project. Most activists, who have criticized the
approval of projects where EIA has been undertaken, suffer
from the very problem of failing to appreciate the essence
of EIA.
It is therefore, recommended that an awareness and
sensitization campaign on EIA be launched to educate the
public and decision makers about EIA and its necessity. The
sensitization and awareness campaign should mostly target
district officials who play a major role in licensing most
development projects in their areas of administration. The
second category to be targeted by this EIA awareness
campaign would be lead agencies because they have a big role
to pay in the EIA process.
Specialized education should go to financial institutions
such as banks because they finance most, development
projects by providing loans. It should be brought to the
cxxxi
knowledge of these financial institutions that a development
project, which has got significant impacts on the
environment, is also not economically viable and the end
result will be failure to repay the loan that will have been
secured to finance the project. The loser shall be the
financial institution. After financial institutions have
been sensitized about the importance of EIA, they will
always make EIA a pre-condition for granting development
loans. This is already being done by multi-lateral agencies
like the world Bank and IMF, and a number of bilateral
donors have visited on EIA as a precondition to aid, either
in form of grants or loans. These include the Danish
International Development Agency (DANIDA), United States
Agency for International Development ((DANIDA), the German
Technical Corporation (GTZ) and so on. Normally these
lenders are required by either their own domestic law to
ensure that EIA is done.
Finally the sensitization on environmental matters in
general and on EIA in particular should be conducted among
lawyers and judges. Enforcement of environmental rights
being a recent development in the country’s judicial system
there is a lot of need for lawyers and judges to adjust in
their enforcement mechanisms of these rights.
6.8. CONCLUSION
Environmental Impact Assessment in Uganda is a recent
development, which is yet to bear fruitful results as far
cxxxii
sustainable environmental management is concerned. The
institutions to handle the process and the necessary legal
framework are in place. What remains is to build the
capacity so that the assessments are efficient.
Capacity building has been taking shape over time and what
is in place now is far much better than what was being done
when EIA was first introduced. The EIAs that are being
conducted tend to comply with the legal requirements and
guidelines, which are in place.
What remains mostly is to sensitize the public about the EIA
concept, and what it is intended to achieve. During this
research it was evident that most people especially the
potential developers take it as a time wasting exercise,
which does not have any benefits. Others and most
especially the so-called Environmental activists believe
that any project, which has some negative impacts on the
environment, should not be allowed to proceed. They do not
know that costs of environmental degradation are supposed to
be weighed against the economic benefits to be derived from
the project in order to determine the viability of that
project. Most activists who have criticized the approval of
projects are Bujagali Hydro Power, Golf Course Hotel,
Namanve and so many others’ suffer from that very problem of
failing to appreciate the essence of EIA.
s
cxxxiii
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