Supreme Court
Amooti Godfrey Nyakaana
National Environment Management Authority (NEMA); Attorney General; Advocates Coalition for Development & Environment; Environment Alert
Amooti Nyakaana was the owner of land in a suburb of Kampala. In 2004, he obtained a title to construct a residential house on the premises, and after obtaining the necessary approvals started construction. During a field inspection, NEMA inspectors discovered that the building site was located on a wetland and ordered that Nyakaana halt construction. When Nyakaana failed to heed those orders, NEMA issued a restoration order requiring that the house be demolished within 21 days. Nyakaana failed or refused to do so and the unfinished building was demolished by the authorities, following which Nyakaana filed a petition.
As petitioner, Nyakaana challenged the constitutionality of Arts. 67, 68 and 70 of the National Environmental Management Act (NEMA), which had served as the basis for the restoration order and the demolition of his building. In particular, the petitioner argued that the aforementioned provisions violated his rights, inter alia, to property (Art. 26 of the Constitution) and to a fair hearing (Art. 28). Emphasizing the latter, he argued there should have been an impartial and independent body examining the findings of the investigation before the issuance of a restoration order. Additionally, the petitioner contended that the relevant provisions were inconsistent with various international human rights instruments internalized in domestic law through Arts. 20 and 45 of the Constitution. He sought orders for redress and a declaration that the law was unconstitutional. The Constitutional Court resolved the claim in favor of the respondents, and Nyakaana appealed.
In August 2015, the Supreme Court upheld the appeal in part and remanded in part. The Court acknowledged that the appellant’s certificate of title, physical land and building were all protected as property under the national Constitution. It likewise confirmed that the facts and proceedings demonstrated that the appellant’s property was indeed a wetland subject to regulation under NEMA. However, the Court found the lower court’s rationale – namely, that the need to protect the environment without delay justified unilateral action by NEMA – unconvincing. Although the Court agreed that NEMA’s mandate was of fundamental importance, it maintained that the quashing of the challenged provisions would not defeat the Act’s purpose nor its ability to protect wetlands and other forms of the environment, and clarified that NEMA would still possess the statutory authority to restrain, with proper procedural safeguards, impending or actual environmental degradation.
Turning to the constitutionality of the procedure under NEMA, the Court highlighted that the purpose of the impugned environmental provisions originated in the Constitution. Several constitutionally embedded Objectives and Directive Principles of State Policy (Objectives No. XIII, XXI, XXVII) commanded the state to protect the environment and the natural resources of Uganda in addition to the right to a healthy environment (recognized under Art. 39 of the Constitution). In that vein, NEMA had been tasked with the obligation to protect the environment on behalf of living and future generations of Ugandas. The Court reasoned, however, that domestic law could not mandate that NEMA protect the constitutionally protected right to the environment on the one hand while simultaneously requiring that the agency infringe upon various constitutionally protected rights on the other. That several of the Act’s provisions – Sections 67, 68 & 70 – resulted in this effect and in practice made NEMA ‘the investigator, prosecutor, judge and executioner of its orders’ made those provisions inconsistent with Arts. 21 and 28 of the Constitution.