Recent Developments in Environmental Jurisprudence Affecting Water in Africa
| Date | 01 March 2018 |
| Author |
48 ELR 10230 ENVIRONMENTAL LAW REPORTER 3-2018
This Comment is a compendium of select recent
cases pertaining to water in Africa, and details how
these cases have contributed to the interpretation
of the legal framework within which water is utilized a nd
protected a s a “common good.” e most notable issues
dealt with in these cases include the use and protection
of water as a common good; how other rights, such as the
right to property, interface with the use and protection of
water; and important jurisdictional questions on the most
appropriate forum for adjudicating water disputes when
faced with two competing jurisdictions.
I. Environmental Protection of Water
Vis-à-Vis Property Ownership Rights
For a period of time, it was accepted that certain things
such as running water were res communes, which meant that
“no one could own them, but the use of them belonged to
or could be appropriated by certain individuals.”1 is doc-
trine was acceptable as long as unpolluted freshwater was
abundant. However, in present times, there is an unprec-
edented demand for earth’s natural resources, including
freshwater. is has led to pollution, deforestation that has
ultimately led to desertication, food insecurity, famine,
and the growing need for freshwater.
Clearly, one of the most pressing issues relates to the
utilization of freshwater. A number of authors have rightly
held that unlike other natural resources such as oil, there is
no substitute for water.2 Humans utilize water for purposes
that include drinking, washing, and industrial applica-
tions such as production of hydroelectric power, irrigation,
animal husbandry, and waste disposal. Despite the basic
1. e doctrine emanated from Roman law. See 2 R P, J-
449 (1959).
2. R P, T W M: A W
W C 55 (2001); Hubert Savenije & Pietervan der Zaag, Water
as an Economic Good and Demand Management: Paradigms With Pitfalls, 27
W I’ 98-104 (2002).
necessity for water, t wo-thirds of the world’s population
experience water scarcity for at least one month per year,
and about 500 million people live in areas “where water
consumption exceeds the locally renewable water resources
by a factor of 2.”3 e high demand for water as a result of
population growth and increase in consumption per capita
has led to overexploitation of the resource or even deple-
tion in extreme cases, as well as signicant diminishing of
water quality.
As a result of competing interests in utilization of water,
the tendency nowadays, as will be illustrated in the selected
case law, is to nd that water is a community asset that
is protected and conserved as a natural resource in the
broader interests of society. Two cases discussed below will
illuminate how courts have dealt with cases involving the
right to ownership of property and how this right is treated
where it conicts with the conservation of water.
A. Nyakaana v. National Environment
Management Authority (NEMA) of Uganda
e case of Nyakaana v. National Environment Manage-
ment Authority (NEMA) of Uganda4 presented an impor-
tant issue pertaining to protection of the environment
where it conicts with individual property rights in the
area of conservation of wetlands, among other issues. ere
was no dispute as to the facts of the case: the appellant was
registered as the proprietor of land categorized as leasehold.
He had obtained a lease from the Kampala City Council
with the objective of constructing a house. However, in
the midst of this, environmental inspectors of NEMA (the
authority), carried out an inspection of Nakivubo wetland
3. U N W W A P, T U
N W W D R 2017—W: T
U R 2 (2017).
4. Nyakaana v. National Env’t Mgmt. Auth. (Constitutional Appeal No. 5 of
2011), [2015] U.G.S.C. 14, available at https://ulii.org/node/25385 (last
visited Jan. 12, 2018) (e copy of the judgment is neither paginated nor
paragraphed for ease of reference in the subsequent discussion.).
Recent Developments in
Environmental Jurisprudence
Affecting Water in Africa
by Emmanuel Ugirashebuja
Dr. Emmanuel Ugirashebuja is the President of the East African Court of Justice and a
member of the Interim Global Judicial Institute on the Environment.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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