Courts as Champions of Sustainable Development: Lessons from East Africa

Author:Patricia Kameri-Mbote - Collins Odote
Position:Professor of Law at Strathmore University - Director of the Institute for Law and Environmental Governance, Nairobi
Pages:31-38
 
CONTENT
31 SUSTAINABLE DEVELOPMENT LAW & POLICY
INTRODUCTION
Courts funct ion as an arm of government that is criti cal
in the separation of po wers doctrine, and t hey play a
crucial role in giving effect to legislative and executive
intentions and pronouncements. Judicial power enables sover-
eign states to decide controversie s between itself and its sub-
jects and between the su bjects inter se (between themselves).1
Judiciaries the world over balance the interests of society with
economic development, environmental sustainability, and the
competing in terests of persons and entities. Sus tainable devel-
opment is defined as development “tha t meets the needs of the
present without compromising the ability of future generations
to meet their own need s.”2 Sustainable development requires
mediation between the interests of current generations and those
of future gene rations as well as between competing interests
of current generations. Not surprisingly, the judiciary has been
called upon in the quest for enfor cing sustainable development
policies owing to its traditional role in dispute reso lution and
interpretation of laws. As D. Kaniaru , L. Kurukulas uriya, and
C. Okidi state:
The judiciar y plays a cri tical role in the enhancement
and interpretation of environmental law and the vin -
dication o f the public interest in a healthy and secure
environment. Judiciaries have, and will most c ertainly
continue to play a pivotal role both in the development
and implem entation of legisla tive and institution al
regimes for sustainable development. A judiciary, well
informed on the contemporary developme nts in the
field of international and national imperatives of envi-
ronmentally friendly development will be a major force
in strengthening national efforts to real ise the goals
of enviro nmentally friendly development and, in par-
ticular, in vindicating the rights of individuals substan-
tively and in accessing the judicial process.3
The role of the judiciary is particularly important in devel-
oping countries, such as those in Africa, where the bulk of the
population is poor and relies on natural resources for livelihood
and sustenance, and where the countries’ economies have those
same r esources as the bedrock of the gr oss domestic product.
At the World Summit on Sustainable Development4 in Johan-
nesburg i n 2002, chief justices and senior judges from around
the world presented the Johannesburg Principles on the Role of
Law and Sustainable Development.5 The Princi ples had been
adopted at the Global Judges Symposium on the Role of Law
and Sustainable Development.6 The Principles undersc ored the
critical role tha t judiciaries around the world can a nd should
play in efforts to promote sustainable development.7 The judges
underscored the fact that:
an inde pendent Judiciary and judicial process is vital
for the impl ementation, dev elopment and enfo rce-
ment of environmental law, and that members of the
Judiciary, as well as those contributing to the judicial
process at the national, regional and global levels, are
crucial partners for promoti ng compliance with, and
the impl ementation and enforcement of, international
and national environmental law . . . .8
The assem bled judges then made a c ommitmen t to
“contribut[ e] towards the realization of the goals of sustain-
able d evelopment through the judicial mandate to implement,
develop and enforce the law, and to uphold the Rule of Law and
the democratic process.”9
It is against this background that this paper assesses the role
that judiciaries in East Africa have played in the quest for sus-
tainable development. It focuses on Kenya, Uganda, and Tanza-
nia, the original members of the East African Community. These
three countries also have legal systems drawing on the common
law tradition. The paper first summarizes the key environmen-
tal issues in the region as a prelude to the discussion o n the
legal frame work for environment al management and the court
structure in the three countries in the following section. It then
analyzes several trends in judgments and the emerging juris-
prudence on environmental law matters from the courts in East
Africa.10 Finally, it proposes ways of improving the role of the
judiciaries in fostering sustainable development in East Africa.
MAJOR ENVIRONMENTAL ISSUES AND CHALLENGES
FOR SUSTAINABLE DEVELOPMENT IN EAST AFRICA
As a region, East Africa is largely poo r: two of the three
countries reviewed in this paper are cl assified as Least Devel-
oped11 and only Kenya as Developing. The region is, however,
endowed with numerous natural resources including forests,
wildlife, fisheries, minerals, land, rivers, and Lake Victoria, the
second largest freshwater lake in the world. The major environ-
mental resources in East Africa may be categorized broadly into
either transboundary or national ecosystems.12
The key challen ges to the enviro nment in the reg ion are
driven and controlled by three factors: (i) high populations and
the attendant pressure from the interaction between the popula-
tion and t heir surroundings; (ii) the ineffectiveness of the leg al
COURTS AS CHAMPIONS OF SUSTAINABLE
DEVELOPMENT: LESSONS FROM EAST AFRICA
by Patricia Kameri-Mbote and Collins Odote*
* Patricia Kameri-Mbote is a Professor of Law at Strathmore University.
Collins Od ote is Direc tor of the Institute for Law and Environmental G over-
nance, Nai robi, and Do ctoral candidate in Law at the Uni versity of N airobi,
Kenya.
32FALL 2009
framework put in place to regulate these pressures; and (iii) the
weak institutional arrangements in place for monitoring compli-
ance leading to widespread non-compliance with the law by all
concerned.1 3 The resul ting envir onmental challenges include
land degradation, poor land use an d land management, over-
exploitation of fishe ries, water pollution, poor waste disposal
management, water scarcity, biodiversity loss, wetlands destruc-
tion, deforestation, and climate change.14
A synoptic review of the region al environment shows tha t
natural resources ar e not b eing managed in a sustainable and
rational manner.15 The ra te of degradati on and exploitat ion of
resources t hreatens the region’s quest for su stainable develop-
ment and thus brings great challenges for the judiciaries in East
Africa. With the region’s high levels of poverty, food insecurity,
underdevelopment, low levels of awareness, barriers to access to
information, and institutional challenges, the judiciaries have an
increasingly critical role to play.
THE LEGAL FRAMEWORK FOR ENVIRONMENTAL
MANAGEMENT
REGIONAL
Within East Africa, the totality of law is derived from both
regional legal instruments and national legislation.16 In addition,
however, recourse must b e had to con tinental env ironmental
laws17 and internatio nal environmenta l laws, since East Afri-
can countries are members of the international community. The
principal legal instrument at the regional level is the Treaty for
the Establishment of the East African Community (“Treaty”).18
The Treaty was signed on November 30, 1999 and entered into
force on July 7, 2000, heralding the rebirth of the East Africa
Community (“Communit y”) as a regional integration bloc.19
The broad objective of the Community is stipulated in the Treaty
to be “the de velopment of policies and programmes aimed at
widening and deepening co-operation among the partner states
in po litical, economic, social and cultural fi elds, research and
technology, defence, security and legal an d judicial affair s.”20
Broadly speaking, the refore, the Treaty envisages development
of programs and policies in a diverse range of areas, including
the environmental field. Article 5(3) stipulates that:
For purposes set out in paragraph 1 of this Article and
as subsequently provided in parti cular provi sions of
this Treaty, the community shall ensure:
(a) The attainment of sustainable growth and develop-
ment of the Partner States by the promotion of a
more balanced and harmonious development of
the Partner states.
. . .
(c) Th e promotion of sustainable utilization of natu-
ral r esources of the partner states and the tak ing
of measures that would in turn, raise the standard
of li ving and improve the quality of life of their
populations.21
Further, Chapters 19 and 20 of the Treaty22 contain substan-
tive provisions addressing environmen t and natural resource
management and tourism and wildlife management. In addition
to these expansive provisions , the East African Communit y
has also developed two protocols relevant to environmental
management: th e Protocol for th e Sustainable Development of
Lake Victoria23 and th e Protocol on Environment and N atu-
ral Resourc es.24 Taken together with international instruments
to whi ch the East Africa Part ner States are parties, these pro-
vide the legal framework for environmental management at the
regional level.
NATIONAL
Environmental management in the three East African coun-
tries derives from the states’ constit utions, parliamentary laws,
and regul ations made pursua nt to such laws. Additionally, the
customs and traditional practices of local communities continue
to provide important rules and provisions for the management
of the envir onment in all three countries. The framework envi-
ronmental laws recognize the im portance o f such customary
laws, providing that in determining environmental matters and
upholding sustainable development, courts should be guided by,
amongst other things, the cultural and social principles tradition-
ally applied by communities for the management of the environ-
ment. The only caveat to this provi sion is that such principles
and practices should not be repugnant to justice and morality.25
The principal source of all laws in each of t he three coun-
tries is each country’s respective constitution. The constitutions
of Uganda,26 Tanzania,27 and Kenya28 treat the issue of environ-
ment differentl y.29 Of the three, Uganda has the most compre-
hensive provisions on the environment.
In Ug anda, the National Objective s and Dir ective Princi-
ples of State Policy of the Constitution contain s a directive on
protection of natural resources, which provi des that “The State
shall protect important natural resources, including land, water,
wetlands, minerals, oil, fauna and flora on behalf of the people
of Uganda.”30 There is also a directive on environmental man-
agement, requiring the State to prom ote sustainabl e develop-
ment and public awareness of the need to manage land, air, and
water resources in a balanced and sustainable manner for present
and future generations;31 promot e and implement energy poli-
cies that will ensure that people’s basic needs and those of the
environment are met;32 create and develop parks, reserves, and
recreation ar eas; ensure conservatio n of natural re sources; and
promote rational use of natural resources so as to safeguard and
protect biodiversity of Uganda.33 Although these provisions are
only hortatory, they demonstrate the premium that the Constitu-
tion place s on environment and natural resource management.
Additionally, the substant ive part of the Constitution on funda-
mental rights and freedoms guarantees every Ugandan the right
to a clean and healthy environment,34 and gives every Ugandan
the right to apply to a court for redress if that right is violated.35
The Tanzani an a nd K enyan constitution s, on t he o ther
hand, do not contain an enumerated right to a clean and healthy
environment. Instead, both guarant ee the right to life, which,
followin g the expan sive jurisprudence and interpre tation of
other courts such as tho se in Asia,36 has been he ld by courts
in both co untries to include the right t o a clean and health y
33 SUSTAINABLE DEVELOPMENT LAW & POLICY
environm ent.37 Addition ally, the T anzanian Constitution , in
the part on Fundamental Objectives and Directive Pr inciples
of Stat e Policy,38 ur ges the Tanzan ian Government and all its
agencies to direct their policies and programs towards ensuring
“that public affairs are c onducted in such a way as to ensure
that the national resources and heritage are harnessed, preserved
and applied toward the common good and the prevention of the
exploitation of one man by another.”39
The Kenyan Constitution40 has no par t dealing with direc-
tive policies. Since 2001, with the establishment of the Constitu-
tion of Kenya Review Commission, the country has been going
through a structured process to review and rewrite its consti tu-
tion.41 As part of that process and following the National Con-
stitutional Conference in 2004, it produced a draft constitution,
which included provisions guaranteeing the right to a clean and
healthy environment as a constitutional right.42 The review pro-
cess has not ended and has been dogged with controversy, the
result of which is that the environmental provisions remain aspi-
rations awaiting the adoption of a new constitutional orde r in
Kenya.43
In addition to constitutional provisions, the East African
countries also have statutes dealing with the environment. The
principal laws are those referred to as framework env ironmen-
tal stat utes, a concept that emerged in the 19 90s to describe a
statute dedicated to environmenta l management and “en com-
passing regimes of planning, management, fiscal incentives and
penal sanctions.”44 Uganda was the first c ountry to adopt its
National Environmental Act45 in 1995, followed by Kenya, with
its Environmental Management and Coordination Act in 1999.46
Tanzania closed the circuit when it adopted the Environmental
Management Act in 2004.47 The Acts provide the framework for
sustainable environmental ma nagement and create the institu-
tional mechanisms for environmental management.48 They con-
tain legal provis ions reiterating the right to a clean and healthy
environment,49 establish a central environmental authority,50 and
have detailed provisions requiring environmental impact assess-
ments.51 To complement the framework laws, each of the coun-
tries has additional legislation governing specific sectors of the
environment including fisheries, forestry, wildlife, and water.52
DISPUTE RESOLUTION MECHANISMS FOR ENVIRONMENTAL
MATTERS
Within the traditional structure of government, the arm of
government responsible for disp ute resolution is the judiciary.
In all the three coun tries under study, the judiciary serves this
dispute res olution function. The cons titutions of Uganda,53
Kenya,54 and Tanzania55 describe the structure of the judiciary.
In Uganda, in addition to the Constitution, the Judicature Act56
and the Magistrates’ Courts Act57 provide for the structure and
functions of th e Ugandan judiciary. At the apex of the court
structure in Uganda is the Supreme Court,58 which is the court of
last resort with appellate powers for decisions emanatin g from
the Court of Appeal.59 Below the Supreme Court are the Court
of Appeal,60 which also serves as the first instance constitutional
court in Uganda,61 then the High Court,62 which h as unlimited
original jurisdiction in all matters and such appel late jurisdic-
tion as conferred on it by the Constitution.63 The Constitution
stipulates that the country, through parliament, s hall establish
such subordinate courts as it shall desire.64 Pursuant to this con-
stitutional stipulation, Parliament has provided for magistrates’
courts to hear limited crimina l and civ il cases as “reasonably
practicable.”65 It has also established local county courts to hear
simple civil cases falling within their jurisdiction,66 as well as a
military court system.67
Tanzania’s court system comprises of a Court of Appeal as
the fi nal court with appellate jurisdiction over decisions from
the High Court.68 The High Court has juris diction as specified
by the Constitution or any other law.69 Below these courts are
the Resident’s Magistrate’s Courts, District Courts, and Primary
Courts.70
The Kenyan Constitution provides for the court structure at
Chapter IV.71 This is augmented by the provisions of the Judi-
cature A ct,72 the Magistrates’ Courts Act,73 and the Appellate
Jurisdiction Act.74 The Constitution stipulates that the highest
court shall be the Court of Appeal,75 with powers to hear appeals
from the High Court. The High Court has origina l unlimited
jurisdiction to hear and determine all civil and criminal cases.76
It also has powers to hear appeals from subordinate courts.77 In
2007, the Chief Justice of the Republic of Kenya administra-
tively cre ated a Division of the Hig h Court charged with han-
dling land and en vironmental cases.78 The C onstitution also
empowers Parliament to establish subordinate courts.79 Under
this provision, Parliament has created the resident magistrate’s
courts, which have jurisdiction over civil and criminal matters.80
Unlike the High Court, which has unlimited jurisdiction, the res-
ident magistrates’ courts’ jurisdiction is limited both geographi-
cally and monetarily.81
At the regional level, the Treaty for the East African Com-
munity creates the East African Court of Justice,82 consisting
of the First Instance Division and the Appellate Division.83 The
Court’s jurisdiction is limited to interpretation and application of
the Treaty,84 until such time as the Partner States, on recommen-
dation of the Council of Ministers shall, by protocol, extend the
jurisdiction to other areas and issues.85 So far, no environmental
matters have been brought before this court.
In addition to the national- and regional-level courts, there
are two other mechanisms for resolving environmental disputes.
The first utilizes informa l traditional com munity-level mecha-
nisms, principally the institution of the elders. Although s uch
traditional institutions may vary from place to place, most com-
munities in Kenya, Uganda, and Tanzania hav e some me cha-
nism to resolve disput es a t a local leve l.86 Secondly, there
exist quasi-judicial m echanisms and institutions for resolving
environmental disputes in Kenya and Tanzani a. In Kenya, the
Environmental Mana gement and Coordination Act creates two
bodies with limited powers. The first is the Public Complaints
Committee87 with powers to inve stigate, eithe r on its motion
or on the bas is of a report by any per son,88 any action of the
National Environment al Management Authority or any case of
environmental d egradation in Kenya and subsequently prepare
34FALL 2009
a report. The Committee is essentially Kenya’s environmental
ombudsman.89 The second is the National Environment Tribu-
nal,90 established to “offer specialized, expeditious and cheaper
justice than or dinary court s of law.”91 Its mandate is to hear
appeals arising fr om administrati ve decisions of the National
Environmental Management Authority.92
Similarly, the Tanzanian Enviro nmental Management A ct
establishes an Environmental Appeals Tribunal93 to hear appeals
arising from the decision o r omission of the minister res pon-
sible for environment matters, “r estriction or failure to impose
any condition, limitation or restriction issued under the Act and
approval or disapproval of an environmental impact statement
by the Minister.”94 The Tribunal, however, has yet to be actually
established.95 Uganda has not made any provisions for such an
institution.
ANALYSIS OF SIGNIFICANT ENVIRONMENTAL
JUDGMENTS
This se ction reviews the performance of the Ea st African
courts as a dis pute res olution mechanism for e nvironmental
matters. The enactment of the constitutional provisions on envi-
ronment in Uganda in 1995 followed by the adoption of frame-
work environmental sta tutes in the three countries hera lded a
new er a in envi ronmental management. With mor e expansive
provisions, recognition of the rights and obligations of citizens
to en sure a c lean and healthy environm ent, and more relaxed
rules on access to environmental justice in conformity with the
requirements of Principle 10 of the Rio Declaration,96 one would
expect more robust action from the judiciary in East Africa than
has been seen.
Except for the East African Court of Justice, which has not
had occasion to determine a case of an environmental nature
since its establishment,97 the national courts of East Africa have
demonstra ted thei r contr ibution and ap proach t o susta inable
development generally and sound environment al management
in particul ar. This section reviews the landm ark decisions that
have com e out of the courts in East Africa so as to determine
the emerging trend from such cases. It does not, however, ana-
lyze decisions of the subordinate courts in any of the three coun-
tries owing principally to the absence of law reporting at these
levels.98
RIGHT TO LIFE AND A HEALTHY ENVIRONMENT
As discussed earlier, of the three countries, only Uganda has
constitutional provisions on the right to a clean and healthy envi-
ronment. The other two enumerate those rights in environmental
statutes. However, courts in the countries have been supportive
of protecting the right to a clean and healthy environment.
The High Court of Uganda had occasion to address environ-
mental harm as a breach of the right to privacy and the home in
Dr. Bwo gi Richard Kanyerezi v. The Management Committee
Rubaga Girls School.99 The plaintiff complained that the defen-
dants’ toilets emitted odiferous gases that reached the plaintiff’s
home thus unreasona bly interfering with a nd diminishing the
plaintiff’s o rdinary use and enjoyment of his home.100 In spite
of the fac t that the defendant’s school benefited s ociety, th e
court held that the defendants should cease using the toilets.101
Although this case was argued from the traditional common law
principle of nuisance, it illustrates the use of privacy and home
rights to protect the environment.102
Kenya and Tanzanian courts have had to grapple with what
the right to life really means in the context of the environment.
The question has been whether the scope should be extended to
include a right to t he means necessary for supporting life. For
example, because air and water are necessary to sustain life ,
does the right to life necessarily imply a right to clean air and
water?103 The courts of Kenya and Tanzania, which only have a
“right to life” standard with which to anchor environmental pro-
tection via their constitutions, have both returned a “yes” verdict
to the above question.104
Tanzania appears to be the first African nation whose courts
have addressed the scope o f the constitutional r ight to life in
provision s in the context of environmen tal pr otection.105 In
the case of Joseph D. Kessy v. Dar es Salaam City Council,106
the resi dents of Tabata, a suburb of Dar es Salaam, sought an
injunction to stop the Dar es Salaam City Council from continu-
ing to dump and burn waste in the area. The City Council in
turn sought an extension to continue with the said activities. The
Court o f Appeals of Tanzania,107 in denying the City Council
its req uested extension, held that their actions endangered the
health and lives of the applicants and thus violated the constitu-
tional right to life. In the words of Justice Lugakingira:
I have never heard i t anywh ere bef ore for a public
authority, or even an individual to go to court and con-
fidently seek for permission to pollute the environment
and endanger people’s lives, regardless of their number.
Such wonders appear to be peculiarly Tanzanian, but I
regret t o say that it is n ot given to any court to grant
such a prayer. Article 14 of our constitution provides
that every person has a right to live and to protection
of his life by the society. It is therefore, a contradiction
in terms and a denial of this basic right deliberately to
expose anybody’s life to danger or, what is eminently
monstrous, to enlist the assistance of the court in th is
infringement.108
Nearly te n years later the High Cou rt of Kenya reached a
similar v erdict regarding the constitutional right to life. In the
case of Waweru v. Republic,109 the applicants, property own-
ers in the small Kenyan town of Kiserian, had been charged
with the offence of discharging raw sewage into a public water
source cont rary to provisions of the Publ ic Health Act.110 The
applicants filed a constitutional reference against the charge,111
arguing that they h ad been dis criminated against since not all
land owners had been charged, although the actions complained
against were carr ied o ut by all land owne rs in Kise rian.112
Although the Court agreed with the applicants it went on sua
sponte (wi thout any of the parties rais ing the issue) to discuss
the implications of the applicants’ action for sustainable devel-
opment and environmental management.113 The Court held that
the constitutiona l right to life as enshrined in section 71 of the
35 SUSTAINABLE DEVELOPMENT LAW & POLICY
Kenyan Constitution includes the right to a clean and healthy
environment. In the Court’s words:
Under section 7 1 of the Consti tution all persons are
entitled to the right to life – In our view the right to life
is not just a matter of keeping body and soul together
because in this modern age that right cou ld be threat-
ened by many things including the environment.114
Then it went on to hold that:
It is quite evident from perusing the most importa nt
international instruments on the environment that the
word life and the environment are inse parable and the
word life me ans much more than keep ing body and
soul together.115
LOCUS STANDI AND PUBLIC INTEREST LITIGATION
The effec tiveness of s ubstantiv e lega l provi sions to
protect the environmen t hinges upon accompanying procedural
provisions to facilitate e nforcement. One k ey aspect relates to
provisions guaranteeing access to justice. Traditionally, under
common law, in environmental matters , acces s was granted
to individuals who had lo cus standi (standing t o sue).116 The
normal rule fo r locus standi is that one sh ould have a dir ect
personal and proprietary relationship with the subject matter
of litigat ion.117 This followed from the fact that litigati on was
about pr ivate rights a nd interests, and the “commo n law legal
systems . . . always . . . ready to come to the aid of individuals
suffering dama ge, whether of a personal or pr oprietary nature,
where the activi ties of others may have caused damage or
loss.”118
This private nature of rights, remedies, and litigation tends
to restrict ag ainst protec ting environ mental right s, which are
essentially pu blic rights.119 To remedy this situation, there has
arisen public interest environm ental l itigation, where public
spirited individuals and groups seek remedies in court on behalf
of th e larger public to enforce protecti on of the environment.
The success of Public Interest Litigation requires courts to have
a relaxed view on the rule of locus standi.120
Traditionally, courts in East Afr ica took a restrict ive view
on locus standi, following the traditional view at common law,
espoused in the famous Engli sh case of Gouriet vs. Union of
Post Office Workers,121 where it was h eld that unless a litigant
could demonstrate personal injury and loss, the matter was one
within the realm of public law, where only the Attorney General
had locus standi to institute the action. The only exceptions to
this rul e were represe ntative suits o r a relator action.122 How-
ever, es pecially with the enactment of broad provisions in the
framework environmental laws, courts have started interpreting
the rules of locus standi liberally, generally holding that in envi-
ronmental cases, individuals have standing notwithstanding the
lack of a personal and proprietary interest in the matter. The most
celebrated case on this point is a case from the Tanzanian High
Court, Rev. Christopher Mtikila v. The Attorney General,123 in
which Justice Lugakingira departed from the traditional view on
locus standi, arguing that in the circumstances of Tanzania, if a
public spirited individual seeks the Courts’ intervention against
legislation or actions that p ervert the Constitution, the Court,
as a guardian and trustee of the Constitution, must grant him
standing.124
In Festo Balegele and 74 9 others v. Dar es Salaam City
Council,125 a Tanzanian case, th e plaintiffs were residents of
Kunduchi Mtongani. The defendant City Council used this site
to dump the city’s waste in execution of their statutory duty of
waste disposal.126 The dumped refuse endangered the residents’
lives.127 They went to the Court of Appeal of Tanzania seeking
restraining orders.128 On the issue of locus standi, the plaintiffs
were held to have standing to apply for the orders based on sev-
eral factors.129 First, they were residents of the site at issue. Sec-
ond, the site fell within the area of jurisdiction of the defendant
City Council. Third, this site was zoned as a residential area, as
opposed to a dumping site. Fourth, the dumped refuse and waste
turned the area into a health hazard and a nuisance to the plain-
tiffs. T herefore, the plaintiffs were aggrieved by the action o f
the defendant.130 The Court echoed the sentiments of its earlier
decision in Abdi Athumani and 9 others v. The Dis trict Com-
missioner of Tunduru District and others.131 In that case, Judge
Rubana, writing for the Court, said that every citizen has a right
to seek redress in cour ts of law wh en the citizen feels that the
Government has not functioned within the orbit or limits dic-
tated by justice that the Government had set for itself.132
The courts in Uganda have been the most liberal in granting
standing to plaintiffs in environmental cases.133 Great reliance
has been placed of the provisions of Article 50 of the Ugandan
Constitution, which provides that “[a]ny person or organization
may bring an action against the violation of another person’s or
group’s human rights.”134 Courts have i nterpreted this to give
every person locus standi.135
In Environmental Action Network Ltd. v. The Attorney Gen-
eral and National Environment al Mana gement Authority,136
a public interest litig ation group brou ght an applicat ion, com-
plaining about the dangers of second-hand smoke on its behal f
and on behalf of the non-smoking members of the public under
Article 50(2) of the Constitution, to protect their right to a clean
and healthy environment and their right to life, and for the gen-
eral good of public health in Ugand a.137 The applicants stated
that n on-smoking Ugandans have a constitutional righ t to life
under Article 22 and a constitutional right to a clean and healthy
environment under Article 39 of the Ugandan Constitution,138
and that these rights were being threatened by the unrestricted
practice of persons smoking in public places. The respondents
raised several preliminary objections to the application, one of
them being that the applicants could not claim to represent the
public, in essence challenging their locus sta ndi.139 The Hi gh
Court o f Uganda, in dismissing t he preliminary objection and
holding that the applicants had standing, relied on “cases which
decided t hat an organizati on can bring a public int erest action
on behal f of groups or individual members of th e public even
though the applying organization has no direct individual inter-
est in the infringing acts it seeks to have redressed.”140
Kenyan courts, though initially taking a restrictive view on
locus standi,141 have in the last few years caught up with their
36FALL 2009
counterparts in Uganda and Tanzania, l iberally granting locus
standi and promoting public interest litigation. T he new view
is captured by the words of the High Court in the case of Albert
Ruturi & Another v. Minister for Finance and Others,142 subse-
quently quoted with approval in the case of El Busaidy v. Com-
missioner of Lands & 2 Others:143
We state with firm conviction that as part of the reason-
able, fair and just procedure to uphol d constitutional
guarantees, the right of access to jus tice entails a lib-
eral approach to the question of locus standi. Accord-
ingly, in constitutional questions, human rights case s,
and public interest litigation and class actions, the ordi-
nary rule of Anglo-Saxon jurisprudence, that action can
be br ought only by a person to whom legal injury is
caused, must be departed from. In these types of cases,
any person or social gr oups, acting in good faith, can
approach the Court seeking judicial redress for a legal
injury caused or th reatened to b e caused to a defined
class of persons represented 144
REGULATION OF PROPERTY RIGHTS
A critical issue in environmental management that is nor-
mally subject to litig ation regar ds the regulation of p roperty
rights. Developments in law have led to the evoluti on of the
concept of public rights in private property145 so as to ensure
that u se of proper ty does not affect the rights and interests of
the larger public. Two p articularly crit ical tools available for
the state in regulating property rights are eminent domain and
the police power.146 How both powers are used in practice an d
courts’ attitudes towards these powers demonstrate an emerging
approach to sustainable development and environmental protec-
tion. In East Africa, courts have started to recognize the state’s
regulatory po wers and the ex istence of public rights in private
property.
In the Kenyan case of Park Vi ew Shopping Arcade Li m-
ited v. Charles M. Kangethe and 2 Others,147 the Court had to
resolve an issue regarding th e use of a wetl and. The plaintiff
corporation, the registered owner a piece of land in Na irobi,
applied for an injunction seeking to evict the respondents, who
were occupying his land.148 He argued that their occupation was
infringing on his constitutional rights to private property.149 The
respondents on the other hand argued that the land at issue was a
sensitive wetlands area along one of the tributaries of the Nairobi
River and that, contrary to the applicant’s asserti on, they were
not trespassers, but rather persons enhancing the environmental
quality of the land with a permit from the relevant authorities.150
While the appl icant wanted to undertake c onstruction on the
land, the respondents were operat ing a flower busines s.151 The
respondents argued that the proposed construction was contrary
to t he general right to a clean and healthy environment guar-
anteed in law.152 The Court held that, alt hough the law allows
for regulation of property rights in the interest of the p ublic,
such regulation must be undertaken in a lawful manner. Justice
Ojwang wrote:
If, therefore the defendants/respondents had genuinely
wished to pursue the cause of env ironmental protec -
tion . . . the logical and correct cause of action for them
would have been to approach the Ministry of environ-
ment and plead for compulsory acquisition of the suit
land . . . . [I]t is not acceptable that they should forcibly
occupy th e suit land and then pl ead public intere st in
environmental conservation, to keep out the registered
owner.153
The Court further ordered the Minister for Environment to
assess the status of the land and take appropriate action thereaf-
ter, in essence recognizing the fact that property rig hts can be
regulated for environmental protection.154
The High C ourt of Uganda has also confir med the gov-
ernment’s right to regulate property rights f or environmen tal
protection in the case of S heer Propert y Limited v. N ational
Environmen tal Manag ement Aut hority.155 The case i nvolved
an application by Sheer Property Limited seeking to quash the
refusal of the National Environmental Management Author-
ity (“NEMA”) to grant an Environmental Impact Assessment
license for the respondent’s proposed development on its land, a
wetlands area near the shores of Lake Victoria.156 In the May 29,
2009 jud gment, Justice Mugamba reached the conclusion that
NEMA had the right to regulate land use, the private property
owner’s rights notwithstanding.157
ENVIRONMENTAL IMPACT ASSESSMENTS
Environmen tal Impac t Assessm ents (“EI As”) enab le the
examinati on, anal ysis, a nd asses sment o f propos ed proje cts,
policies, or programs for their environmental impact, thus inte-
grating environmenta l issues into development planning and
increasing the potential for environmentally sound and sustain-
able dev elopment. The EIA process, a s argued by Hunter and
others, “should ensure that before granting approval (1) the
appropriat e govern ment auth orities have full y identi fied and
consider ed t he en vironmental effect s of prop osed activities
under their jurisdiction and control and (2) affected citizens have
an opportunity to understand the proposed project or policy and
to express their views to decision-makers.”158 The EIA is also a
means for the democratization of decision-making on environ -
mental issues and the allocation of natural resources—however,
this hinges upon the nature and the extent of public participation
in the process.
East African countries provide for EIAs in their framework
environmental statutes. In Kenya, a change in philosophy came
about before the framework law was enacted due to the clamor
by civil soci ety to enact the Physica l Planning Act, 1996.159
This Act sought, inter alia, to use planning as a specific method
of preventin g environmental degrad ation, and provides for the
use of environmental impact assessments.160 For EIA purposes,
the Physical Planning Act obligate s devel opers to see k and
obtain plan information from the relevant loc al authorities.161
Local authoritie s are further empower ed to demolish buildin gs
built without th eir permission. In the Kenyan case of Momanyi
v. Bosire,162 these pla nning requireme nts received judi cial
37 SUSTAINABLE DEVELOPMENT LAW & POLICY
recogniti on. In this case, Momanyi was a re sident of Imara
Daima Estate in Nairobi. Bosire obtained pla n information to
put up a kiosk at the entrance of the Estate. Rather than a kiosk,
however, he c onstructed a resort for sel ling liquor and other
related products. The plaintiff and others instituted a suit against
Bosire and the Nairobi City Council. The court held that Bosire
was in breach of the Physical Planning Act requirements relating
to plan information. Similarly, the City Council was in breach
of its statutory obligation for failing to demolish the building as
it was built without plan information.163 Accordingly, the resort
was pulled down.164
Similarly, the High Court of Uganda in National Association
of Professiona l Environmentalists (NAPE) v. Nile Power Lim-
ited165 held that activities of economic benefit to the community
must be lawfully authorized. In this case, the applicants sought
an injunction to restrain the respondent company from conclud-
ing a power project agreement with the government of Uganda
until th e EIA on the project had been approv ed. Although th e
Court declined to grant the injunction sought, it declar ed that
the Lead Agency and the National Environment Authority must
approve the EIA study on the project.166 I t observed that the
signing of the protested agreements was subject to the law and
any contravention of the law would be challenged.167
HARNESSING THE ROLE OF COURTS AS CHAMPIONS
FOR SUSTAINABLE DEVELOPMENT
The e nvironmental chal lenges facing East Africa and the
rest of Africa are man y and growing. Increasing poverty, land
degradati on, and the huge threats posed by climate change,
against a ba ckground of corruption and other governance chal-
lenges,168 require the con certed efforts of all actors. The judi-
ciary, more than any other institu tion, is uniquely placed to
help society implem ent appropriate strategies for confron ting
these challenges and to thus deliver on sustainable development
because the judiciaries, by their n ature, are ex pected to medi -
ate between different interests in society and they are remo ved
from the daily poli tical pre ssures and interest s that confront
the executive and legislature in most African countries. In any
case, the laws on environmental management require an arbiter
who will ensjure that they are adhered to and transgression dealt
with. Courts in East Africa are slowly waking up to the reality
that t hey have t his critical role. They are starting to be asser-
tive, innovative, and inspirational in their judgments. However,
they are st ill faced with numerous obstacles requiring atten-
tion if they are to be fully effective as champions of sustainable
development. Moving into the future requires increased capacity
building, t he development of robust jurisprudence, and a judi-
ciary that realizes that its task is not just to react and adjudicate,
but also to inform and provide leadership. Above all, judiciaries
must help society to adhere to the rule of law and inculcate envi-
ronmental ethos and values.
Klaus Toepfer, form er United Nations En vironment Pro-
gramme (“U NEP”) Executive Dir ector wrote in the preface to
the book Making Law Work, (Volumes I and II) - Environmental
Compliance & Sustainable Development169 the following:
The future of the Earth may well turn on how quickly we
can i mprove the legal fra mework for sustainab le
development . . . . Sustainable develop ment cannot be
achieve d u nless laws governin g s ociety, the econ-
omy, and o ur relationsh ip with the Earth c onnect
with our deepest values and are put into practice inter-
nationa lly and domestica ly Law must be enforced
and complied with by all of soc iety, and all of soci-
ety must share this obligation.170
The judiciary should be at the forefront in ensuring that East
Africa realizes the goal of sustainable development. For, as Jus-
tice Ojwang’ has written:
In the case of the environment . . . the state of the law
may well be relatively obscure; yet a decision must be
pronounced. From my understanding of the law, and
from my own experience of ju dicial decision-making,
where the question before the Court relates to the envi-
ronment, and the legislature’s guidance is by no means
comprehensive, the Court, once it ascertains the facts,
must appreciate the relevant principles which ought to
be reflected in the law . . . . So, whenever the Court has
an opportunity to declare the law on an environmental
question, the shape of that law should be conservatory
of the enviro nment and the natural res ources; and the
Court should apply this princi ple to determine, where
possible, such rights or duties as may appear to be more
immediatel y linked to economic, social, cultural, or
political situations.171
The cases reviewed above demonstrate the g reat str ides
that courts in East Africa are making in promoting sustainable
development in East Africa. The initial seeds have been sown,
but more work still lies ahead to ensure that courts become true
bastions of justice and champions for sustainable development.
Among the steps that need to be taken are enhanced train-
ing and capacity building for the judiciary. Environmental law
is a fairly recent branch of law . It was only introduced in law
schools after a good number of the judges currently working in
East Afr ica had already graduated. Even after the subject was
introduced, it was an elective rather than a required subject.
Consequently, not many judges have aca demic knowledge and
experience in environmental law. It is therefore critical that, as
called for by the Global Judges’ Symposium on the Rule of Law
and Sustainable Development,172 capacity building programs on
environmental law be mounted for members of the judiciary. In
Uganda and Kenya, commendable efforts have been made both
by UNEP under the Partnership fo r Development of Environ-
mental Law in Africa program and by local civil society orga-
nizations173 to organize colloquia for judges on environmental
law. The efforts in Tanzania on this front are still minimal.174
With the establishment of judicial training institutes in East
Africa,175 training on environmenta l law should be entering
the mainstream and made continuous so as to ensure that judi-
cial officers keep abreast of the latest developments in the field
of e nvironmental law and th us are better able to make sound
decisions.
38FALL 2009
The three East African countries follow the doctrine of
stare decisis and judicial precedent, where decisions of previous
superior courts are binding on inferior tribu nals. To b e effec-
tive, this p rocess requires a functioning legal reporting system.
The status of law reporting in Ea st Africa is, however, very
weak. Ke nya leads with commendable effor ts by the National
Council for Law Reporting.176 It has produced a volume of land
and environmental reports, containing landmark environmental
judgments in Kenya from 1909 to 2006.177 This program should
be emulated in all three countries to provide easy reference and
a dedicated law reporting process on environmental cases, and
to help develop a sound body of environmental jurisprudence in
East Africa.
There is also need to modernize courts generally to increase
their effectiveness. The info rmation superh ighway has yet to
reach the courts in E ast Africa. They a re still traditional and
largely archaic institutions. To reap the benefit s of informa-
tion technology, modernization of judiciaries by i ntroduction
of c omputers, stenogra phers to record court proceedings, and
internet co nnection would great ly enhance the performance of
these courts. The effectiveness of the judiciary will also depend
to a large degree on its independence and freedom from political
interference, especially by the executive branch, and its fidelity
to the rule of the law.
Endnotes: COURTS AS CHAMPIONS OF SUSTAINABLE DEVELOPMENT:
LESSONS FROM EAST AFRICA
Endnotes: Courts as Champions of Sustainable Development:
Lessons from East Africa continued on page 83
1 J. B. OJwang, COnstitutiOnal DevelOpment in Kenya: institutiOnal aDap-
tatiOn anD sOCial Change
2 wOrlD COmmissiOn On envirOnment anD DevelOpment, Our COmmOn
Future 
3 UNEP Judicial Symposium on
the Role of the Judiciary in Promoting Sustainable Development, in COnFer-
enCe prOCeeDings

available at
4 


see

5 
reprinted inJOurnal OF envirOnmental law 
 available at 

6 

see



7 supra 
8 Id. 
9 Id. 
10 





11 


See




12 Environmental Law of East Africain envirOnmental
gOvernanCe in Kenya: implementing the FramewOrK law
; see alsoLeading Envi-
ronmental Problems of East Africa


13 supra
14 See generallysuprasupra
15 supra
16 Id



17 


vailable at 


18 
avail-
able at 

19 

see
The Politics of Integration in East Africa Since
IndependenceinpOlitiCs anD aDministratiOn in east aFriCa
see alsoKiBua, t. & tOstensen, a., Fast-traCKing east
aFriCan integratiOn: assessing the FeasiBility OF a pOlitiCal FeDeratiOn By
2010
20 supra
21 Id.
22 Id
23 
available at 

24 
available at
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25 See
available at
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26 COnstitutiOnavailableat

27 COnstitutiOnavailable at
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