Role of DPP in Enviromental Law

By David B. Bakibinga
State Prosecutor - Luwero

In the last decade, Uganda did modernize her environmental laws with a view of promoting awareness and protecting the environment. The term environment is difficult to define. In its more restricted sense, environment may represent simply the milieu of the individual, that is, his habitat and neighbourhood. The National Environment Act Cap 153 Laws of Uganda defines environment to mean physical factors surrounding human beings including land, water, atmosphere, climate, sound, plants and the social factor or atheistic includes both the natural and the built environment.

The National Environment Management Authority (NEMA) is mandated to monitor, supervise and coordinate environmental matters in Uganda. NEMA works together with local governments, civil society, communities and development partners. Environmental issues in Uganda are addressed within a sustainable development framework that promotes social, economic and environmental well being through the decentralized and participatory environmental mode of management.

Under S.6 (1) (c) of National Environment Act, NEMA is required to liaise with the private sector, intergovernmental organisations, non-governmental agencies and governmental agencies of other states on issues relating to the environment.

Under Article 120 (3) of the Constitution of Uganda, the DPP is mandated to interalia institute, take over prosecutions against any person or authority. (5) of Article 120 provides that the DPP is required to have regard to public interest in the exercise of his or her functions. Environmental matters are of public interest as they have global effects. Therefore the DPP as one of the lead agencies is enjoined in ensuring the enforcement of environmental law in order to achieve improvement in environmental quality.

It should be noted that despite the fact that most principles of environmental law are a modification of the tort law and principles hence the perception that redress must be sought under public interest litigation. It follows that this misconception has down played the role of environmental Criminal

Law, which is needless to mention within the purview of the DPP. Although the DPP grants licences to public prosecutors including the NEMA prosecutor, there is a tendency to leave all the prosecutions to NEMA, which have apparently overwhelmed it.

NEMA has occasionally distributed some materials on environmental matters to prosecutors under DPP although there has not been formal training. It follows that there are factors that limit access to environmental justice that require DPP's intervention.

Cost of litigation involved in a case of public interest litigation renders the majority of people incapable of accessing environmental justice. Being a matter of constitutional importance, NEMA, DPP and other Stakeholders should enforce environmental Criminal Law in order to ensure that the offenders are deterred.

Security for costs - In Greenwatch & ACODE Vs GolfCourse Holding HCCS 834/2000 the High Court sitting at Nakawa slammed security for costs in the tune of fifty million (50m/=) against Greenwatch and ACODE. This stalled the matter pending payment. Demanding security for costs would tantamount to shutting people from access to justice as a Constitutional right. It should be observed that the access to justice is about sustainable development, which demands that one should use his or her property in a manner, which will not affect others. It is not a question of sustainable use of property. Under environmental criminal law, security for costs would not arise hence ensuring justice.

Adjudicating capacity - Lack of technical training in environmental law is a limitation to the application of basic principles of environmental law such as sustainable development and other environmental considerations.

For instance in Uganda vs Rogers Ddungu Bug Rd CR 735/2001, although environmental offences by nature appear to be of strict or vicarious liability the court did not expressly state so, this is likely to cause controversy. The court did not find personal liability of the accused having reclaimed or having ordered he reclaiming of a wetland since Coin Ltd had more than one director. However after the acquittal the Court went ahead to make a restoration order against the management of Coin Ltd on the basis that the accused was part of the Management. It would follow that the case creates uncertainty.

Corruption in public offices - especially those concerned with enforcement and protection of the environment. Those involved in such practices must be prosecuted and punished. From the above there have to be necessary reforms in order to strengthen enforcement, compliance and development of environmental justice:

There is need for constant training for the bench and the bar in the evolving principles and practice especially in environmental litigation. All the environment enforcement agencies and partners should be effectively supported and strengthened.

• There must be a political will in support of environmental protection. Government must be transparent and accountable in all matters concerning sustainable development.
• Access to environmental justice should be incorporated in the Chain linked Initiative (where all Stake holders, in environmental justice system, coordinate, cooperate and communicate to create public awareness and accountability).

Be that as it may, there is evidence of change in the world climate that requires action to be taken now otherwise what happened in New Orleans, US (Hurricane Katrina) may be a tip of an iceberg as mother nature may strike with a rage greater than she did during the Tsunami disaster that hit the coastline of the Indian Ocean. The Locus classica on the concept of sustainable development after Rio 1992 is the Phillipines case of OPOSA V FACTORAN GR No: 101083, 30 July 1993. This is a landmark case for the recognition of the principle of inter-generational equity. The petitioners, minors represented by their parents, and the Phillippine Ecological Network, Inc, sought to have the defendant, the Secretary of the Department of Environment and Natural Resources, rescind all existing Timber License Agreements (TLAs) and to desist from receiving, renewing or approving new agreements. The court found that the fundamental right to a balanced and healthful ecology is assumed to exist from the inception of mankind. Court held that without the forests, which were threatened, such ecology could not be achieved.

Hence, the decision to grant the TLAs infringed upon the rights of the people. The Court also recognized the representation by the petitioners on behalf of unborn generations under Article 3 (Article 39 (Ugandan Constitution) of the Constitution, which deals with the right to a healthy environment.

From the above case, needless to mention that other jurisdictions are taking action, why not Uganda. In conclusion, the reforms if adopted will enhance the role of the DPP in the protection and promotion of environmental justice.