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

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

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available at

4 

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see

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5 

reprinted inJOurnal OF envirOnmental law 

 available at 

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6 

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see

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

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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inpOlitiCs anD aDministratiOn in east aFriCa

see alsoKiBua, 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 

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25 See

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26 COnstitutiOnavailableat

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27 COnstitutiOnavailable at

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