A while back, a Ugandan newspaper published the harrowing findings of a research project commissioned by Nation Media Journalists from Kenya and Uganda accompanied by scientists from the University of Nairobi. The research exposed the level of pollution in Lake Victoria.
The findings revealed high levels of coliforms and Escherichia coli contamination (indicative of faecal matter), presence of heavy pesticides; some of which have been banned like DDT, heavy metals and other microbial organisms that have adverse effects on human and aquatic life. Causes were linked to poor sanitation, wetland degradation and deposit of contaminated water from River Kagera and Nakivubo Channel. It was further reported that pollution had increased water treatment expenses and poisoned aquatic life.
The research caused considerable stir and raised questions within the nation. The Ministry of Water and Environment rejected the findings and stated that they were inaccurate. The people on the other hand had mixed reactions towards the problem because of our explicit complicity in the pollution of the Lake. The question that remained unanswered was, “Why must we care ?”.
Lake Victoria is the largest freshwater body in Africa and contributes about thirty percent (30%) to the water volume of River Nile which connects over five African countries. We need to be constantly reminded that the lake is an economic hub for Uganda and it has the potential of producing an export value of USD 800 million annually on a sustainable basis. It is also a reservoir for hydroelectric power generation along River Nile, a biodiversity reservoir and modulates our climate. The importance of Lake Victoria cannot be stressed enough which is why legal mechanisms exist to protect it.
Along the way, we have lost sight of what the law expects of all stakeholders in protecting not just Lake Victoria but the environment as a whole. Article 39 of the Ugandan Constitution states that every Ugandan has a right to a clean and healthy environment. This right has a corresponding civic duty of protection by every citizen though the Government is charged as the primary duty bearer. This is because the government is a trustee of the resources of the environment and is held accountable through the public trust doctrine.
The National Objectives and Directive Principles of the state policy of Uganda’s Constitution state that, the state shall protect important natural resources including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda.
Article 237(2)(b) of the Constitution further provides that the Government or a Local Government as determined by Parliament by law, shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, national parks and any land to be reserved for ecological and tourist purposes for the common good of all citizens.
The preservation of Lake Victoria as a natural lake and water has thus been vested in the state and because it holds this trustee position, it also “knows better”. Accordingly, the state has built governance structures and constituted bodies with experts in environmental management and these have been empowered to ensure sustainable development of Lake Victoria; that is ensuring that the current development needs do not compromise the needs of the present and future generations.
The 1982 World Charter for Nature states that activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh the potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed.
The above precautionary principle is the spirit behind environmental impact assessments mandated by law before any major activity can take place on Lake Victoria. Needless to say, the consequent issuance of permits to industries that release toxic and untreated waste into the waters of Lake Victoria and their continued operation always raises eyebrows - someone in the chain is always betraying the government and the citizens and this is why we must care. The rippling effects of these actions are profound.
Whenever such incidences occur, we rely on our justice system to bring these people to book by challenging the operation of such industries on the lake. However, some of the judicial decisions have had the unintended effect of stiffling this fight because of the emphasis on development and narrow exposition on sustainable exploitation.
Case in point is the ACODE v A.G Misc. Cause No.01000 of 2004 case, where Justice Ruby Aweri Opio stated that,
“There is no doubt that environmental law must be seen within the entire political, social, cultural and economic setting of the country and must be geared towards development rather than a hindrance. The law must be in harmony with the prevailing government efforts and need to attract more foreign and local investment and channel national energies into more productive endeavours in industry and sustainable exploitation of natural resources.”
Such seemingly pro-development pronouncements serve as a catalyst to political adventurers (who have no care for the environment) pursuing their selfish interests over the Lake.
To aggravate the situation, the system of enforcement of rights, though recently amended through the Human Rights Enforcement Act 2019 is still too formal to allow the few spirited individuals to get an audience with the court. As a result, people have taken to social media that has served as a pressure platform to demand accountability from the government. The savemurchisonwaterfalls#hashtag is a prime example of such activism.
In India, an audience with the courts is not as cumbersome as it is with Uganda as there have been instances when letters and telegrams addressed to the court have been taken up and heard. In the case of Citizens for Democracy through its President v State of Assam and others 1995 KHC 486, The court entertained a letter from a journalist to a judge of the court alleging human rights violation of the Terrorist and Disruptive Activities (Prevention) Act,( TADA) and it was treated as a petition under Article 32 of the Constitution of India.
In addition to this, we do not have a specialized Environmental Tribunal with quasi judicial powers created by law that may expeditiously entertain environmental related matters.
Of equal concern is that much of Uganda’s disease burden is environment-related. Unsustainable development policies related to the use of water and land resources, transportation and energy have increased the health problems in Uganda. The Vienna Declaration of 1939 states that all rights are interrelated, interdependent and indivisible and an infringement on any right is most likely to affect any auxiliary right. The right to health and right to life are the most affected rights when the environment is not protected.
For that reason, we need to actively protect Lake Victoria and the environment to protect other rights like the right to health which are auxiliary to rights of food and life. In essence, a clean and healthy environment guarantees proper health, adequate food and sustainable living. In the case of Malawi Savings Bank V Bonny Brighton kalombola High Court Malawi [Civil Cause No.1394 of 1997], the court held that life must not be limited to breath alone but must extend to all other activities which give breathing human dignity.
In times like this where the world is heating up at an alarming state due to industrialization, we have witnessed erratic rainfall, the scourge of desert locusts and the Corona Virus and the last thing Uganda needs is a polluted lake. We need to take action. The Government as a Trustee should consider expediating the process of establishing an Environmental Tribunal that will entertain less formal petitions, commissioning a second research in collaboration with all stakeholders and levying heavy taxes on industries that are not abiding with pollution marks. Most importantly, the Government shoud invest in mass sensitization of the population as we the people need to change our mindset and view Lake Victoria as a gift of nature and not as an open sewer as has been the case.
This article provides general information only. It is not intended to provide advice concerning any specific set of facts, nor is it intended to be relied on as legal advice.
The author is an Advocate and Associate with M/s Tibugwisa & Co. Advocates with a passion for the environment. For comments and inquiries contact her at patience@tadvocates.com
tel: +256787021216.